Delict: Attendance and Engagement

Attendance and Engagement

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Introduction to Delict

• The module organiser is Nicola Tully

Scots Law of Delict

• Delict pertains to legal duties to avoid harm.
• The law imposes a responsibility for making amends when harm occurs.
• Conduct is considered actionable in a civil court when a pursuer has encountered a legally recognised loss.
• Delict is concerned with compensating for losses.
• Not all losses are compensable.

Key General Principle of Delict - 'Blameworthiness'

• Primary concern is determining the creation of an ex lege obligation because of wrongful conduct.
• Delictual liability arises from actionable loss/harm due to wrongdoing.
• The pursuer is the party that has suffered the loss/harm.
• The defender is the party who has allegedly caused the loss/harm.
• Intentional harm involves the defender intending to harm the pursuer.
• Unintentional harm does not require the defender to have intended the harm.

Distinguishing Delict from Other Areas of Law

• Criminal Law: Focuses on righting wrongs, contrasting criminal wrongs with civil wrongs and involving punishment versus compensation, some concepts overlap but rules differ.
• Contract Law: Focuses on obligations, differentiating between voluntary and involuntary obligations.
• Tort Law: Tort law is a similar principle to delict in other jurisdictions, with some English cases and principles used in Scots law.

Basis for a Delictual Claim

• The general rule is no liability without fault (Culpa).
• Culpa (fault or blame) is required unless strict liability applies.
• A delictual claim basis' includes: damnum (loss), injuria (wrongful conduct), and causal link between damage and injuria.
• See: Kay's Tutor v Ayrshire & Arran Health Board 1987 SC(HL) 145

Reparation

• Concerns the response to a loss.
• Reparation involves making good the loss/damage caused.
• The obligation to make reparation stems from wrongdoing and is legally imposed.
• Includes physical, mental/nervous injury, property damage, derivative financial loss, and reputation damage.
• It typically excludes 'pure economic loss', with some exceptions.
• See: McFarlane v Tayside Health Board 2000 SC (HL) 1

Damnum

• Damnum concerns loss, harm, injury, etc. (the wrong suffered), which includes any unjustified and non-trivial invasion of a protected (reparable) interest.
• This invasion constitutes a loss, including: physical integrity and personal wellbeing, ownership and possession, liberty, reputation, privacy, and rights incidental to ownership of heritable property, i.e., the right to exclusive possession or comfortable enjoyment.

Injuria

• (The wrong done) To be reparable, loss must be caused.
• How the loss was caused is with:
  • Culpably, either intentionally (intending harm to the victim or deliberately, in knowledge of the harmful consequences or indifference to them), or
  • Negligently (unintentional).

Grounds of Liability

• The ground or basis on which an action will proceed depends on the form taken by the loss complained of and the way in which it has been occasioned.
• The rules of liability and available defenses differ according to the ground.
• Specific delicts examples include nuisance, assault, and defamation.
• There is a general action raised in claims arising from negligence and claims based generally on wrongfulness rather than on any specific delict.

Specific 'delicts' in Scots Law?

• There are many identified specific delicts.
• There is no exhaustive list of named delicts in the law of Scotland, where conduct appears wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of remedy being given in similar circumstances.
• Micosta S.A v Shetland Islands Council 1986 SLT 193, at 198.

Determining the Ground of Action

• Personal injury and property harm caused negligently =
• Personal injury caused intentionally =
• Harm to reputation =
• Affront to dignity =
• Stress, anxiety, annoyance =
• Deprivation of liberty =
• Interference with comfortable enjoyment of heritable property =
• Economic loss caused negligently =
• Economic loss caused intentionally =

Statutory Regimes

• Some circumstances invoke a statutory regime which may operate along with or instead of the common law.
• This may include personal injury, death or damage/destruction of property caused by:
  • A danger due to the state of premises or to things done on premises – Occupiers' Liability (Scotland) Act 1960
  • An animal – Animals (Scotland) Act 1987
  • A defective product – Consumer Protection Act 1987

Key Understandings

• Definition and context of delict law within Scots law.
• Key concepts and general principles of delictual liability.
• Significance of 'culpa' and 'liability'.
• Next: Negligence I (Duty of Care)

Negligence: Liability for Unintentional Harm

• Unintentional harm becomes actionable when there's a breach of legal duty the wrongdoer owes.
• Reparation applies to damnum injuria datum, which means a loss caused by a legal wrong.
• Harm occurring without a breach of legal duty is labeled damnum absque injuria, which means loss without wrong.
• Liability for duty breach usually involves fault as a general principle.
• Liability determination requires applying a series of tests to verify the defender was negligent.
• These tests are applied sequentially; negligence is absent if one answers negatively, thus, no liability.

Tests for Establishing a Claim in Negligence

• Duty of Care:
  • Determine if there's a duty of care owed.
  • Identify to whom is the duty owed, including its scope.
• Breach of Duty:
  • Determine breach occurrence.
  • Consider whether the duty was implemented or not.
• Causal Link:
  • Establish whether the breach caused harm.
  • Show the causal connection via loss/harm and breach.
• Remoteness:
  • Confirm if the loss is proximate, not too remote.
  • Normally Recoverable Losses: Involve personal injury/property damage from positive conduct by the defender.
  • Possibly Recoverable Losses: Arise from omissions, caused by a 3rd party, harm to reputation, deprivation of liberty, economic loss, psychiatric harm (secondary victims), breaches of statutory duty/exercise of statutory powers, and novel circumstances.
  • Damages are the remedy.
  • Irrecoverable losses are too remote.

The Duty of Care

• It is a prerequisite for liability in negligently caused harm.
• It limits the scope of liability.
• Used as a threshold to open or restrict liability in certain situations.
• It stands as not an obligation.
• According to common law, it does not require compliance with a specific obligation or stipulation.
• A general duty arises to perform within reasonable care only when an act is undertaken.
• Cory J in Lewis v British Columbia [1997] SCR 1145 at para 17 details aspects of common law duty of care.

Establishing a Duty of Care

• The defender risks harming others if due care is not exercised.
• If the pursuer undergoes loss, they must establish the defender owed them a duty to prevent causing P loss.
• Is the pursuer someone to whom the defender owed a duty?
• Is the harm within the duty's scope?
• Donoghue v Stevenson 1932 SC (HL) 31 established the 'Neighbour principle' related to duty of care.

To Whom is the Duty Owed?

• Bourhill v Young 1942 SC (HL) 78 is relevant.
• It involves a fishwife, alighting from a tram being within the context of a motorcyclist driving negligently leading to a collision and resulting death. Her inability to witness the accident, only hearing, caused her suffering of 'nervous shock' and a miscarriage.
• To whom did Y owe a duty of care despite negligence?
• Lord Atkin in Donoghue v Stevenson 1932 SC (HL) 31 at 44 says to take reasonable care to avoid acts or omissions likely to injure one's neighbor. "Who, then in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions which are called into question.”
• Lord Macmillan in Bourhill v Young, 1942 SC (HL) 78 at 88 highlights the duty to take care is not owed to the world at large but to those whom injury is reasonably and probably anticipated if the duty is not observed.

In Respect of What Is the Duty Owed?

• Per Lord Thankerton in Muir v Glasgow Corporation 1943 SC (HL) 3 at 8, a person is bound to foresee the reasonable and probable consequences of failure to take care, judged by ordinary reasonable standards in Scotland.
• The question can also be framed as, “Is the harm that has been incurred within the scope of the duty?”

Tripartite Test

• Foreseeability of harm relates to proximity of parties to establish what is fair, just and reasonable.

Proximity & Foreseeability

• Both the "to whom" and "in respect of what" questions can be addressed using these concepts.
• A conclusion can be reached that a duty is not simply owed due to foreseeable loss, injury, or damage when analyzing commonplace situations such as injuries during employment or road accidents. A relationship of proximity must exist between employer and employees, or among road users.
• According to Lord Hope in Mitchell v Glasgow City Council [2009] UKHL 11 at 16, the duty is created by the relationship, and the duty's scope is determined by its context.

Case law

• Hill v Chief Constable of West Yorkshire [1989] AC 53 discusses duties toward identifiable persons within a class likely to be affected by misconduct.
• Bolton v Stone [1951] AC 850 examines the duties regarding harm within the defender's realm of contemplation.
• The Wagon Mound No2 [1967] 1 AC 617, Lord Reid discusses that failure to guard against foreseeable but improbable risks may require justification.
• Caparo Industries Plc v Dickman & Others 1990 concerns the courts consideration of what is fair and reasonable to impose.

Case law continued

• Consider workers leaving paraffin-fueled warning lamps around a manhole, children that remove tarpaulin, knocking over a lamp, paraffin unexpectedly vaporises, and igniting, and the actions of H who loses balance and falls, what is reasonably foreseeable?
• Lord Reid in Hughes v Lord Advocate 1963 SC (HL) 31, touches on having to prove the defenders fault caused an accident and there is an intrusion of a new and unexpected factor, like a lamp behaving unpredictably.

Reasonable Foreseeability

• The ‘thin skull’ rule applies.
• No duty arises per se from a pursuer's unknown susceptibility.
• If there is a breach of duty, the wrongdoer must take the victim as they find them.
• According to Lord Clyde in McKillen v Barclay-Curle & Co Ltd 1967 SLT 41 at 42, one must take his victim as they find him. Someone with a weak heart may sustain damages for his death, even although a normal man might only in the same circumstances have sustained a relatively trivial injury.

Key Understandings

• The general principles of liability for unintentional wrongs (negligence).
• What is a 'duty of care' in the law of delict.
• What circumstances give rise to a 'duty of care'.
• Principles and tests for determining whether a duty of care exists.
• Duty arising in difficult cases such as economic loss, psychiatric injury, and public authorities will be covered later in the module.
• Next Lecture: Breach of Duty