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Questions and Answers
What is the primary element that determines the existence of a duty of care in Scots delict?
What is the primary element that determines the existence of a duty of care in Scots delict?
What is the standard used to determine whether a breach of duty has occurred?
What is the standard used to determine whether a breach of duty has occurred?
What is the test used to establish causation in Scots delict?
What is the test used to establish causation in Scots delict?
What is a valid defence to a claim of negligence in Scots delict?
What is a valid defence to a claim of negligence in Scots delict?
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What is required to establish negligence in Scots delict?
What is required to establish negligence in Scots delict?
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What is the purpose of the but for test in establishing causation?
What is the purpose of the but for test in establishing causation?
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Study Notes
Definition of Negligence in Scots Delict
Negligence in Scots delict refers to a breach of a duty of care, resulting in harm or loss to another person.
Requirements for Negligence
To establish negligence in Scots delict, the following elements must be present:
- Duty of care: The defendant owed a duty of care to the pursuer (claimant).
- Breach of duty: The defendant breached their duty of care.
- Causation: The breach of duty caused the harm or loss.
- Damage: The pursuer suffered harm or loss as a result of the breach.
Duty of Care
- A duty of care arises when there is a foreseeable risk of harm or loss to another person.
- The duty of care is not limited to contractual relationships; it can also arise from neighbourhood or proximity.
Breach of Duty
- A breach of duty occurs when the defendant's actions or omissions fall below the standard of care expected of a reasonable person in similar circumstances.
- The standard of care is objective, based on what a reasonable person would do in the same situation.
Causation
- Causation requires proof that the breach of duty caused the harm or loss.
- The but for test is used to establish causation: but for the breach of duty, would the harm or loss have occurred?
Defences to Negligence
- Contributory negligence: The pursuer's own negligence contributed to their harm or loss.
- Exclusion clauses: The defendant has a valid exemption clause that limits or excludes liability.
- Volenti non fit injuria: The pursuer voluntarily assumed the risk of harm or loss.
Remedies for Negligence
- Damages: Monetary compensation for harm or loss suffered.
- Interdict: A court order to prevent future harm or loss.
Notable Cases
- Donoghue v Stevenson (1932): Established the neighbour principle, which extends the duty of care to those who could reasonably be expected to be affected by one's actions.
- McFarlane v Tayside Health Board (1999): Confirmed that the duty of care extends to psychiatric harm caused by a defendant's negligence.
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Description
Test your knowledge on negligence in Scots delict, including the requirements, duty of care, breach of duty, causation, defences, and remedies. Learn about notable cases and key principles.
