Negligence in Scots Delict

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.