LOB 2: Negligence in Scots Law PDF

LOB 2 -- M7202 Only Tuesday lectures Tuesday 5^th^ November assignment submission -- 1000 words Exam is problem solving Introduction - Contract -- Obligations Voluntarily Undertaken - Compare and contrast ex lege obligations, obligations imposed by law -- involuntary obligations and Unjust enrichment - Force on the Scots law of Delict, Damnum injuria datum -- loss wrongfully caused - Central area in the modern law of delict is negligence- careless behaviour, the concept of a duty of care - But delict encapsulates losses caused across the spectrum- Intention\>negligence\> strict liability Negligence is about accidents - Bourhill v Young 1942 SC HL 78: the fishwife and the negligent suicide. Duty of care in negligemce. - Motorcyclist negligently kills himself passing tram car -- - Mrs Bourhill getting off with her creel - Mrs Bourhill hears what happened - Damage to Mrs Bourhill -- "nervous shock" - Mrs Bourhill loses - No duty of care - Old case example only of RF Employer's negligence now an eyeless man - Paris v Stepney Borough Council \[1951\] AC 367 - Mr Paris a vehicle fitter -- employed at defendants' depot - Previous war injury \> one eye lost - Known to Defendants to be one eyed - Hit rusty bolt with hammer - Chip flies into remaining eye - Defendant's negligent - Precautions required for known one-eyed, perhaps not for known two-eyed - Mr Paris wins Rouse v Squires - Articulated lorry 1 negligently jacknifes Blocks nearside and centre lanes - Car crashes into it -- stops in centre lane -- lights on - Lorry 2 stops in nearside line. Puts on lights - Mr Rouse at the scene - Lorry 3 negligently crashes into lorry 2 forcing it against Mr Rouse - Mr Rouse killed, outcome, jointly liable Development over time of the rules of delict Continuous for hundreds of years through - Dicta of judges in major cases - Views of ''jurists'' (usually professors etc) in published writing\\ Some (not much) legislation (e.g. Occupiers' Liability (Soctland Act 1960) Latin words are used sometimes to refer to Scottish rules, central element of culpa (fault), damnum injura datum The function of the Law of Delict - To punish wrongdoing - To allocate risks - To compensate loss - To raise standards of care The 3 Requirements for a Negligence case\ damnum injuria datum = damage caused in a situation capable of giving rise to a Duty of care - 1\. a duty of care legally recognised and was incumbent upon the defender, and the duty was owed to the pursuer ; (DUTY) - 2\. the duty was not implemented but was broken; (BREACH) - 3\. the breach of duty caused the harm;(and losses sustained were proximately connected with the breach of duty (Remoteness of damage) CAUSATION. **Week 1 recording -- Liability for negligence** About people suing when someone has caused you harm or loss Damnum injura datum - sueing someone for compensation or damages The 3 Requirements for a Negligence case\ damnum injuria datum = damage caused in a situation capable of giving rise to a Duty of care - 1\. a duty of care legally recognised and was incumbent upon the defender, and the duty was owed to the pursuer ; (DUTY) - 2\. the duty was not implemented but was broken; (BREACH) - 3\. the breach of duty caused the harm;(and losses sustained were proximately connected with the breach of duty (Remoteness of damage) CAUSATION. **Duty of care and reasonable foreseeability** - Donoghue v Stevenson 1932 SC HL 31 (1932 before the house of lords) - Mrs Donoghue goes to Wellmeadow café with a friend - Friend buys her a bottle of ''ginger beer'' if she got snail could've sued for breach of contract. - When poured out a decomposing slug comes out as a result she became mentally ill as a result of her shock. - Who does she sue? Not the friend. She hasn't bought it from the café so not suing the café. Suing the manufacturer as they were negligent to having a safe system they owed her a duty of care. - Jey question that went all the way to the house of lords. - Case never went to a Proof (civil case trial) because there was a debate on the law - Held that if she could prove that Stevenson -- manufacturer could be liable -- had a duty of care to her for that sort of damage -- as ''A consumer'' Neighbourhood principle - Anyone who it is foreseeable could suffer loss or harm through my acts or omissions. **The reasoning in Donoghue** - The ATKIN DICTIM - ''The rule that you love your neighbour becomes in law, you must not injure your neighbour, and the lawyers question who is my neighbour?\... you must take reasonable care to avoid acts or omissions which you can reasonably foresee...'' **Foreseeability** - E.g. Bourhill v Young 1942 SC HL 78 (The fishwife and the negligence suicide) - A guy driving a motorbike negligently and crashed into the back end of a tram and died. Woman was getting on the bus and suffered shock. Goes beyond the parameters. Said she was too far away for him to owe her a duty of care. - Hughes v Lord Advocate 1963 SC HL 31 - Guys working in a manhole, left a Gaslamp down there and half heartedly closed it off so people could get in. - Boys went down to go down with the lamp there was vapour and so the lamp exploded. Huges was badly injured - Satisified foresability test, Foreseeable that some sort of burning injury would occur from burning lamps - Irrelevant that explodable vapour would be there. - A general burning injury of the type foreseeable. **Duty of care and third parties** - Home Office v Dorset yacht Co 1970 All ER 29 - Young boys taken to an island to go camping ran away from the camp and crashed a yacht. - People that owned yacht are suing the people looking after them. Court said if you take young boys to an island and don't supervise them adequately damage will probably happen. - Court agreed they owed a duty of care. **More difficult cases** - Physical injury/ property damage, straightforward apply neighbourhood principle/RF test. - Novel types of damage claim, courts concered about ever widening scope of potential liability - Litigious culture, fear of floodgates of liability! - In what circumstances should society consider that a duty of care should be owed (even if there is negligence which causes harm) - Incremental test -- based on similar categories and a tripartite tes including the fair, just and reasonable test (based on public policy) - Would it be F, J and R to impose a duty of care? - Would economic loss/ nervous shock/liability of certain defendants in certain contexts (eg police/ social workers). **Narrowing the scope of the duty of care -- Caparo v Dickman, Facts** - A firm of accountants produced an audit report required by statue, Caparo has bought shares in the company of which the report was about as a part of a takeover. However, it was later found that the results of the report had misrepresented the profits of the firm (accountants were negligent), in turn causing a loss for Caparo. **Caparo v Dickman outcome** - The house of Lords reversed the decision of the CS and held that no duty of care had arisen in relation to exisiting or potential shareholders. - Landmark case which has created the tripartite test in establishing a duty of care - Test departs from Donoghue - Caparo starts from the assumption no duty is owed unless the three stage test is satisfied: Foreseeability, Proximity and whether it is fair, just and reasonable to impose such a duty. - Development of incremental categorisation of case law... - Established the tripartite test **F, J and R, Public policy and when society thinks a duty of care should be owed? MacFarlane** - MacFarlane v Tayside Health Board 2000 SLT 154 (HL) liability of negligence doctors and health board for solatium to mother for experience of birth, but not cost of upbringing of child. - Going through childbirth is personal injury cost of upbringing unwanted child is ''pure economic loss'' - Distributive justice ''Legal policy'' entails no duty of care for ''pure in economic loss in this type of situation'' = ''not fair just and reasonable''. - Categorisation and the Tripartite test -- some applications - Watson v British Boxing Board of Control Ltd - Michael Watson - Clamant, a professional boxer, sustained head injuries during fight in London regulated by the board, body controlling professional UK boxing. - He received medical attention from doctors present at the fight as required by the board and was then taken to hospital where some half an hour after the end of the fight, he was given resuscitation treatment. Later transferred to a neurosurgical unit where he underwent surgery. By that time hed suffered permaent brain damage. - Negligence action claiming damages on the basis that the board had a duty to see that all reasonable steps were taken to ensure that he received immediate/ effective medical treatment should he sustain injury breached by failing to require immediate resurcution ringside to prevent him from subtanining permanent brain damage. - The court held that it was just and reasonable to impose a duty of care on BBC as it had assumed responsibility for the requirements of immediate medical care to restrict the foreseeable injuries to boxers by imposing rules to safeguard boxers and thus had produced a relationship of close proximity between itself and the professional boxers. Furthermore, it had been within the reasonable contemplation of BBC that W would rely on it's skill and expertise as W belonged to a defined class of persons - There ere no policy reasons why a duty shoukd not be imposed on B since such a duty would not necessarily extend to other supporting organistions and the fact that B was a non profit making body should not provide an immunity in negligence. **Glasgow City Council v First Glasgow (no1) limited** - 1 of the Glasgow bin lorry disaster cases - Arising from tragic events of 22 Dec 2014 - Number of damages actions by injured and families of thise killed, and Council considered unlikely to defend successfully. - One claim here, family of late Stephanie Tait, settled for sum of £860k - Sought contribution (among wrongdoers) under s3 of Law Reform (Misc Prov) - Key question -- dis defenders owe a duty of care to the injured person? - Held that there was no duty of care. Tripartite test applied - Reasonably foreseeable? If you give a negligent reference, someone might be injured (failed to include history of blackouts) - Proximity? No, because they didn't know who any of the potential people who were getting injured. Stephanie Tate included would be. - Just, fair and fair? If you impose liability on the provider of a reference no one would give them out. **Ruling by Lord Ericht see paras 24-45** - Q whether giver of employment reference owes duty to a 3^rd^ party (not employer/ employee) for omitting in reference to warn the employer of a risk of physical injury to the 3^rd^ party is a novel. - See para 31 -- re application of tripartite test, and para 34 re categories of previous cases and 39-40 If not analogous see tripartite test. - RF -met, ut neither proximity (41) nor would it be J F or R to impose liability, disincentive to provide references which are important. **Robinson v Chief Constable West Yorkshire Police** - Pedestrian appealed against decision that police owed her no duty of care re injuries sustained when suspect tried to escape arrest in busy town centre. - During struggle, suspect and 2 police officers knocked 76 year old appellant to the ground and fell on top of her. - Caparo considered not a novel case no immunity from negligence actions for police. **Darnley v Croydon Health Services NHS Trust** - Supreme court -- duty to advise re hospital waiting times not a novel duty of care of a widening of liability. - Went to the trust's A&E department after sustaining a head injury told by the receptionist that it would be four to five hours before he would be seen. However, that was inaccurate she should have hold him that he would be examined by a triage nurse within 30 minutes and that the triage nurse would decide how soon he needed to see a doctor. Has the appellant been told that he would have waited for the triage nurse. As it was he went home after 19 minutes without telling anyone and without being seen by a clinician. At home he collapsed and was returned to hospital by ambulance. Although he underwent neurosurgery he suffered permanent brain damage in the form of a left hemiplegia. DUTY of care -- the case fell within an established category of duty of care for NHS Trusts. A&E departments owed a duty to take reasonable care not to cause physical injury to those who presented themselves complaining of illness or injury and that duty existed before the patient was treated. - The scope of that duty clearly extended to a duty to take reasonable care not to provide misleading information which might foreseeably cause physical injury. **Review** - Negligence in law, main part of delict. - Prerequisite is duty of care owed by defender to pursuer. - Donoghue -- reasonable foreseeability/ neighbourhood test - But more recently widening scope of delict courts look to established categories where a duty of care has been held to exist and developed idea of just, fair and reasonableness to limit scope of liability in developing contexts. **Liability for negligence: the DUTY OF CARE** The 3 Requirements for a Negligence case\ damnum injuria datum = damage caused in a situation capable of giving rise to a Duty of care - 1\. a duty of care legally recognised and was incumbent upon the defender, and the duty was owed to the pursuer ; (DUTY) - 2\. the duty was not implemented but was broken; (BREACH) - 3\. the breach of duty caused the harm;(and losses sustained were proximately connected with the breach of duty (Remoteness of damage) CAUSATION. **Problem questions** 1. Yes owes Pauline a duty of care it was reasonably foreseeable as he was driving his car in the opposite direction 2. Rob falls onto lit barbeque -- Hughes v Lord Advocate, Bourhill, limit to how far proximity is forseeable 3. Ally owes other road users a duty of care since he caused the crash Rodger would not have missed the crash. Ally owes him a duty of care but Rodger also contributed by having sunglasses and earphones in. 4. Reasonable foreseeability isn't enough. **[lecture recording]** Breach and the standard of care + causation Important points from previous recording to remeeber Prerequisite duty of care **Requirements 2 and 3 for a successful negligence action** 2\. the duty was not implemented but was broken; (BREACH) 3\. the beach of duty caused the harm (and losses sustained were proximately connected with the breach of duty (remoteness of damage). (CAUSATION) Standard of care -- to behave reasonably in the circumstances - ''If a real risk is one which would occur to the mind of a reasonable man, and which he would not brush aside as far fetched... then surely he would not neglect such a risk if action to eliminate it presented no difficulty involved no disadvantage and required no expense.'' Morris v West Hartlepool Steam Navigation Co 1956 AC 552 **The approach you take** 1. Apply the Reasonable Person Test 2. Identify the factors the law of delict has laid down (through case law) as relevant to applying it. 3. Weigh up those factors on the facts of your case. Remember: it can therefore be that a reasonable person does take a reasonable risk. Does the reasonable Rugby Club pad the goal posts? Yes Does the reasonable scaffolding contractor pad the scaffolding on a pavement? Probably yes Does the reasonable football club pad the goalposts No **The Tea Urn case** Muir v Glasgow Corporation 1943 SC (HL) 3 110 cases pg 67 Tea shop in Kingspark the woman running it allowed people to carry out theshop tea urn with Boling water and a little girl was scolded. Action alleging negligently permitting tea urn carries persons coming in out of the rain. Lord Macmillan describes the ''reasonable man'' -- ''persumed to be free both from over-apprehension and from over-confidence'' does not ''imagine every path beset by lions'' Only reasonable care in circs not avoid all risks. A cricket case: Bolton v Stone Old woman walking home past a cricket club and she was hit by a ball in the head. She sued in negligence. Held she was owed a duty of care. - Not unreasonable to hit the ball clean out of the ground and hit Mirs Bolton - Not unreasonable for the club to have fences of a height that made that a possibility - Mrs Bolton lost. - Concerned the application of the reasonable care standard in determining a breach of duty. **Factors to weigh** - Likelihood of damage to the particular person -- see again Paris v Stepney the one-eyes man case -- employer negligence - Likelihood of harm -- Bolton v Stone - Competing reasonable demands - Expense and difficulty of avoiding the problem **Standard of care -- Objective standard** - Eg "Novices' -- Nettleship v Weston 1972 QB 691 Lord Denning at 699: 'it is no answer... to say 'I was a learner driver under instruction. I was doing my best and could not help it.' The civil law permits no such excuse. It requires of him the same standard of care as of any other driver... see Muir... the learner driver may be doing his best but his incompetent nest is not good enough...'' - But the issue can be more nuanced e.g. re children and note also professional negligence -- differential approach to standard of care re eg doctors. Contextualised standard of care -- eg sport - Sharp Highland and Islands Fire Board 2005 SLT 855 pwr Lord MacPhail at para 26:- - ''In the circumstances of a football match... any player when tackling an opponent may be guilty of an error of judgement. Where by such an error of judgement he has caused injury to his opponent, the test of liability is whether the error of judgement was one that a reasonable football player would not have made. A reasonable football player is not a paragon who never makes a mistake. A player is therefore liable only for damages caused by errors of judgement or lack of skill going beyond such as, in the stress of circumstances, may reasonably be regarded as excusable.'' **Proving Breach -- Res Ipsa Loquitor** - The thing speaks for itself... - Court draws an inference of negligence/ breach without requiring evidence of exact way accident occurred. - Inference drawn primarily where;- defender had sole control of the thing which caused the damage; see McDyer v Celtic Football Club M had averred that C had exclusive control of the stadium, RIL satisfied where at Special Olympics ceremony -- Claimant sustained hand injury after a piece of timber fell from a banner attached to a stadium canopy. Shows they'd been negligent. **Causation 1 -- Was it in fact a cause? Factual Causation** - Normal test: Would it have happened anyway? = ''But for'' test. Causa sine qua non Can the pursuer show that 'but for' the defendant's wrongful conduct, the harm to the pursuer would not have occurred... if the harm to the pursuer would have occurred in any event, even without the pursuer's wrongful conduct, the test is not satisfied. Eg Barnett v Chelsea Guy turns up at hospital, doctor was negligent in treating the patient and he died, his family sued. Discovered that at home he'd been poisoned by arsenic so he was going to die regardless so it was irrelevant that the doctor was in breach of his duty of care. **Difficult cases where multiple potential cases** - Multiple sources of same harmful agent -- material increase in risk test -- McGhee v NCB dermatitis after exposure to brick test, no duty re collection of bricks, but failed to provide appropriate facilities to wash, materially increased risk. - See Fairchild, Lord Bingham para 2, Hoffman, para 61 and Lord Rodger para 170, claimants contracted mesothelioma after being exposed to asbestos fibres in successive workspaces. Couldn't prove which, but any one of those employers could be liable under the material contribution to risk test. - Fairchild concerned the application of the material contribution to risk test **Causation -- legal causation** - Given it was a case, was it cause of sufficient importance: causa causans (= ''causing cause''!) - The basic rule is that where the conduct is in fact a cause it is a cause of sufficient importance for liability to attach to that person if on a ''commonsense'' view it is appropriate -- e.g. Hosie v Arbroath F.C. 1978 SLT 422. - Some guys who were going to Abroath football club instead of paying in turnstyles tries to climb over a fence, fence collapses and injures them. Question of if can they sue for their losses?. Did Abroath owe a duty of care in relation to maintaining their property? Had they breached it yeah because they knew? The court held the existence of this fence which wasn't in good condition sufficient cause to injury. **Novus actus interveniens, by a third party?** A new intervening act which breaks the chain of causation? Only where the conduct is unforeseeable, unusual, hazardous and/or unwarrantable - Courts reluctant to find NAI - See the Oropesa and Hosie **The Oropesa** - The Oropesa is going along the sea and another boat is negligent and smashes into the Oropesa, captain tells everyone to go onto lifeboats to save themselves. They all mainly died and the captain lived. Other boat breached duty of care and were negligent. No the captain was placed in an emergency situation by your negligence, significant cause of those injuries and losses. Court reluctant to find new intervening act. **New Intervening Act by the Pursuer** - McKew v Holland & Hannon & Cubitts, Employers' fault for injured leg but went to inspect a first floor flat and fell down the stairs and broke his ankle, breach of care caused broken ankle. - The appellant's act in attempting to acend steep stairs without a handrail and without adult assistance was in the circumstances unreasonable or, alternatively, the act of jumping was unreasonable; and (2) that the chain of causation was, therefore, broken so that the respondents were not liable for the later injury. **Darnley v Croydon Health Services NHS Trust** - Supreme Court -- leaving the triage waiting area when given incorrect information about waiting times (4-5) hours did not break the chain of causation. Even if not a NAI, may be defence of Contributory negligence - Since Law Reform (Contributory Negligence) Act 1945 contributory negligence \> % reduction of damages. Cyclist activity means losses should be cut. Bus driver employer has to pay damages but will be reduced. - E.g. not wearing a seat belt - See Sayers v Harlow -- the toilet seat case! Lady coming back home waiting for bus, she needed the toilet before the bus went to bus stop toilet but got locked in she tries to climb over the top and falls back and suffers injury. She sued. They owed a duty of care. Novus actus i. They were successful with partial defence as she shouldn't have tried to climb out ober the top. - Cameron v Nwankwo 2022 CSOH 7, 21 Jan 2022 - See also later under defences **Apportionment of liability** - See Rouse v Squires - Apportionment of liability -- s3(1) Law Reform (Miscellaneous provisions) (Scotland) Act 1940 -- contribution among joint wrongdoers, liable in such proportions as the court deems just - See for example, Phee v Gordon, Golf injury struck by ball 20% golfer/ 80% golf course liability. **Remoteness of Loss** - Complicated issue -- see also later under damages - Limit on the types of loss one can claim for e/g/ I couldn't buy a winning lottery ticket... too remote to beyond the scope - See origins in Allan v Barclay and the ''grand rule'' By Lord Kincloch, no damages can be claimed, 'except such as naturally and directly arise out pf the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer' - Imprecise scope and limits but see more recent statement of Scots law by Lord Rodger in Simmons v British Steel para 67 - Note also, defenders take their victims as they find them the so-called 'thin skull' rule in personal injury claims. **Basis of negligence review** - To succeed in negligence damages action. - **Does defender owe duty of care?** See Donoghue and neighbourhood/reasonable foreseeability test (BUT note the Caparo Tripartite test, F, J and R test and see eg economic loss/ psychiatric illness areas to follow) - **Has defender breached duty?** Ie been negligent, reasonable care in circs. - **Has breach caused loss/injury?** Causation, a material factor or cause, note NAI and CN and remoteness of loss. Important points from previous recording to remember PREREQUISITE DUTY OF CARE Requirements 2 and 3 for a successful negligence action - 2\. the duty was not implemented but was broken; (BREACH) - 3\. the breach of duty caused the harm (and losses sustained were proximately connected with the breach of duty (Remoteness of damage). (CAUSATION) Reminder of week 2 recorded material: Breach - Breach:- when is someone negligent, ie what is the standard of care? - Generally an objective standard, reasonable care in the circu,stances -- The Tea-Urn Case, Muir v Glasgow - Factors eg likelihoos of harm/risk factor Bolton v Stone, see eg Falconer... Falconer case - Ladies night - Group of gentlemen Reminder of week 2 recorded material: Causation - Factual causation: the but for test! See Barnett v Chelsea. Difficult if multiple potential causes eg Fairchild -- asbestosis. - Legal causation material contribution, doesn't have to be the sole cause eg see Hosie v Arbroath. - See potential defence of Novus Actus Intervenies -- Oropesa - Joint wrongdoing -- apportioning liability - Defence of contributory negligence eg see Sayers v Harlow - Multiple choice questions - Problem solving examples re breach and causation Bolton v Stone - Concerned the application of the reasonable care standard in determining a breach of duty. Apportionment of liability between wrongdoers is determined by s1 Standard of care -- to behave reasonably in the circumstances - "If a **real risk** is one which would occur to the mind of a reasonable man, and which he would **not** brush aside as **far fetched**..... then surely he would **not neglect** such a risk **if** action to **eliminate it** presented **no difficulty involved** **no disadvantage** and **required no expense**." *Morris v West Hartlepool Steam Navigation Co* \[1956\] AC 552 Requirements: To succeed a negligent requirement - Establish the standard of reasonable care, Muir v Glasgow and Tea Urn - Causation, proving factual causation Barnett v Chelsea. Is his actions the causa cause? - Did he exercise reasonable care? Muir v Glasgow - Competing reasonable demands - The magnitude of risk - Are you allowed to take some risks in emergency circumstances? Week 3 recording -- Economic loss The reasons why even intentionally caused economic loss may not give rise to liability - The market economy to work requires that people and business cause economic loss to each other. - People/ busisnesses/ institutions are more generally expected to look after their own economic interests than the physical integrity of their bodies. - A single negligent act can result in economic losses that may be unpredictable in size to a vast and unpredictable number of people/businesses/ institutions. Need to distinguish 3 different sorts of economic loss 1. DERIVATIVE -- ie derives from negligently or intentionally caused damage to victim's body or property [owned] by him/her (see above) 2. The 2 sorts of ''[pure] economic loss'' a. SECONDARY -- ie a economic ''spin off'' of loss from damage caused another person's body or property owned by another person b. PRIMARY -- where no damage to person or property is involved. The fixed rules for Secondary Pure Economic loss 1. No duty of care where it is spin off of injury to another's body. (Relations claims on death are separately dealt with by staute -- Damages (Scotland) Act 1976. Never recoverable. E.g. Reavis and the older case Allan v Barclay Example of a situation where no duty of care capable of arising - Reavis v Clan Line Steamers 1925 SC 725 - Woman that had an ochsrta of people from Jamacia etc the boat she was on crashed twice boat then a boat, boat when down she lost money and suffered injury lost her profit yielding. Court said she could not recover her economic loss for injury to someone else. The fixed rules for Secondary Pure Economic loss cont 2. No duty of care where it is a spin-off of damage of property not owened by the pursuer. E.g. Dynamco \- Dynamco v Holland and Hannen and Cubitts (Scotland) Ltd 1971 SC 257 No liability to factory that lost profits, when defenders negligently damaged power cable belonging to power company supplying it. As a result factory had to stop the electricity and so were losing money. Sued the defenders for their pure economic loss. Secondary economic loss is Irrecoverable. Duty of care and primary pure economic loss - As with other situations where it is necessary to ask do we have ''A situation where a duty of care is capable of arising'' foreseeability + proximity + that ''it be fair just and reasonable'' to recognise it as a duty of care situation. Murphy v Brentwood DC -- pure economic loss not recoverable - A local authority is not liable in tort for negligent application of the building regulations, where the resulting defects are discovered before physical injury occurs. The loss suffered is purely economic. - 1970, M bought one of a pair of houses built on a defective concrete raft foundation on an in-fill site. M was unable to repair the defect, and sold the house, sustaining a loss of GBP 35,000. He sued the council for negligent approval of the plans. - Loss suffered was economic loss and the council were not liable in tort for negligent application of the building regulations where resulting defects had not caused physical injury. F, J and R, Public policy and when society thinks a duty of care should be owed? MacFarlane - MacFarlane v Tayside Health Board, 2000 SLT 154 (HL) liability of negligent doctors for solatium to mother for experience of birth, but not cost of upbringing of child. - Going through childbirth is personal injury; cost of upbringing unwanted child is ''pure economic loss'' - Distributive justice "Legal policy" entails no duty of care for ''pure in economic loss in this type of situation'' -- ''Not fair just and reasonable''. Negligence for Misstatements -- Hedley Byrne Liability - Hedley Bryne v Heller & Partners - Advertising agency concerned re client ability to pay. Asked bank which contacted client's bank -- positive response (though with disclaimer) - Fact to face relationship of proximate interdependency -- fair just and reasonable -- no danger of indeterminate liability. Hedley Byrne Liability continued - Compare Caparo Industries plc v Dickman (1990) 2 AC 605 -- No duty of care capable of arising on negligent accountants auditing company, to shareholder increasing his shareholding encouraged by the picture given in these accounts. - See - Martin v Bell Ingram -- house surveyor, acting on instructions of mortgage lender, duty of care capable of arising to buyer/borrower for negligently overvaluing the property. Goodwill v British Pregnancy Advisory Service English case - Earlier failed vasectomy case - G claimed for financial losses re 'negligent' advice given to her partner following vasectomy. - Appeal here and claim 'struck out' - Not in a relationship of sufficient proximity to give rise to a duty of care, as when the advice was given G was not the man's partner but **merely a member og an immeasurably large class of women who might in future have sexual relations with him! No duty of care owed to her as there was no proximity.** Solicitor's liability to disappointed beneficiaries - White v Jones 19995 2 AC 207 - Old woman wanting to leave money to people, lawyer negligent. Individuals sued for their 30,000 each. Court said there is proximity. A duty of care was owed on Hedley Byrne principles. - Solicitor negligently advising client that will valid when not, or e.g. negligently failing to get on with drafting will on client's instructions. - Hedley Byrne extended Junior Books liability - Erection of commercial building - Sub-contractor for laying floor -- ''nominated'' ie selection of him approved by owner's architect. - Held: duty of care capable of arising to owner for pure economic loss arising through negligently laying of defective floor. - Limited to this sort of situation -- would not apply where sub-contractor ''domestic'' -- (main contractor free to choose who to have) Review - Limitations because of the fear of opening the floodgates of liability (wider potential victims that in personal injury/ property damage case) - Secondary economic loss-arising from injury to person or property of another-never recoverable - Primary or pure economic loss -- apply the Hedley Byrne principle, RF plus proximity of relationships, otherwise unlikely to be F, J and R to impose liability. Part 2 Private hospital and NHS owes a duty of care to patients. Statue has given power of duties to a public body. Garinge sets out a general proposition. Says that if your basis for duty of care rises is simply the exercise of function under statue. If statue has damaged you not give rise to a common law duty. There are exceptions you can sue directly to the statue. Maybe exceptions if public body has assumed responsibility towards you. N v Pool, child protection, the claimant argued that the public body had failed to use their powers and their statue to protect them even though they knew the child was at risk. A duty of care did not arise as the claimant was claiming a common law duty arose because the existence of statue functions that should have been exercised for you. When the local authority fails to intervene that is seem as an omission. Far harder to show duty of care where someone has failed to act as opposed to damaging you by a positive act. Lord Reid if a public body is in the same position as a private individual or as a private company, then they owe the same duty, for example, the employer to employee duty. Secondly, he confirms that the mere exercise of saturated functions is unlikely to give rise to common law duty. But he also mentions there may be exceptions such as where the public body has created a fresh source, a new source of danger or where they have assumed responsibility towards the claimant. E.g. if local authority intervenes and takes child into care they have assumed responsibility they owe the same duty of care as their parents. Hill v Yorkshire Police 1989, serial killer killed a number of women. Suckliffe was arrested. A lot of suggestions that the police had not dealt with the situation as well as they should have and it was suggested they were incompetent. Mrs Hill brought action against police and said her daughter would still be alive if the police had done their job properly. She said they owed a duty of care. HL said no the police did not owe a duty of care to protect the public from actions of 3^rd^ parties. Reason why: - A fear of a culture of defensive policing would arise, and what they mean by that is if police were worried about being sued, if they hunt, investigates as well as they should've. They would focus on protective measures such as keeping records and focus on looking backwards rather than forwards. - Extensive litigation would divert police time and resources. - Gibson, a bridge collapsed and a police vehicle coming to the bridge, blue lights switched on to show oncoming traffic there was danger. But by having done that police vehicle left the scene and didn't put any barriers or anything, they had assumed responsibility, no protective measures and leaving the scene is a breach of duty. - Robinson, police are anxious to arrest suspected drug dealer, in a branch of Willam Hill, scared that if they go in and try arrest the other customers will be more sympathetic towards him. Wait till he comes out onto the street to arrest him, Mrs Robinson aged 76 ended up in the bottom of the pile and sustains injury. Tried to sue the police but found no duty of care was owed. If police directly inflict harm upon you different situation and duty of care does arrive. Problem solving Contributed to his own injuries. Partial defence reduces the damages. His actions are a new intervening act breaks the chain of causation. Ally breaches his duty of care. Is this a nouvus actus intervenenus/ intervening act. Does it break the chain of causation? Has to be something so out with normal sequence of events Might argue that if whether he has breached it or not? Back to teaurn case Might argue that the lorry drivers actions are a novus actus intervenius Esto argument -- alternative argument Refresher - Duty of care is the key pre-requisite for establishing negligence. - The foundational case is Donohghue v Stevenson, and in personal injury cases a duty of care is established based on the reasonable foreseeability test. - Novel claims and the fear of floodgates meant the courts have required more than Donoghue/RF in newer and wider types of claims. - Caparo v Dickman, tripartite test -- RF/ proximity and F, J and R test - Eg public authority liability/ economic loss/ psychiatric illness cases Intro to public authority liability - Protective stance towards public authorities - Statutory obligations may not equate to remedy in damages - A failure to act?intervene will be unlikely to be actionable in damages. - Liability of police restricted to direct liability for their own acts. - Impact of key policy reasons. The police owe a duty of care to - Drive with care when in pursuit of criminals The police owe a duty of care to - Those to whom they have assumed responsibility Reavis v Clan Line Steamers - Affirmed that secondary economic losses are not recoverable. Hedley Byrne v Heller - Demonstrates that proximity is required in addition to reasonable foreseeability in irder to establish a duty of care. Problem-solving Hotcakes ltd did not owe a duty of care as there was no proximity - Hedley Burn case, no proximity has been satisfied. Ally is suing for pure economic loss **Week 4 recording -- Liability for psychiatric injury (nervous shock)** Refresher - Duty of care is the key pre-requisite for establishing negligence. - The foundational case is Donohghue v Stevenson, and in personal injury cases a duty of care is established based on the reasonable foreseeability test. - Novel claims and the fear of floodgates meant the courts have required more than Donoghue/RF in newer and wider types of claims. - Caparo v Dickman, tripartite test -- RF/ proximity and F, J and R test - Eg public authority liability/ economic loss/ psychiatric illness cases What is the problem? - The type of damage - That some people are more susceptible to mental illnesses than most people are - Increases the potential number of victims of a single accident. What is psychiatric injury/ nervous shock? - No duty of care capable ever capable of arising for negligently causing a mental state less severe than ''psychiatric injury'' - Therefore no duty of care ever capable of arising for negligently causing: - Boredom - Tears - Frustration - Sadness The case -- no duty of care unless a medically recognised Psychiatric illness - Simpson v ICI 1983 SLT 601 - Range of psychiatric disorders recognised by medical sciene over the last 30-40 years - For example PTSD The forst distinction: Primary victims and Secondary victims of psychiatric injury Secondary victims -- very loosely people that witness event and suffer some form of psychiatric injury Primary -- doesn't happen to them but suffer Pi as a result of being involved in accident. Alcock (secondary victims) v Page (primary victims) - Psychiatrist injury to claimant who is a ''primary victum'' ie the psychiatric injury does not arise from seeing/hearing about another victim of the accident: - Test is ''reasonable foreseeability'' ie treated as the same as an ordinary personal injury case - Compare with secondary victims -- 'witness' and the considerable legal hurdles -- more difficult for claimants/pursuers. Primary victim cases -- Page v Smith HL \[1995\] - Passenger in car -- no physical injury - Chronic fatigue syndrome reactivated later - Primary victim -- if physical injury foreseeable, psychiatric injury foreseeable -- duty of care owed. - Range/zone of foreseeable physical injury, see eg Campbell below When is a duty of care capable of arising to a secondary nervous shock victim Witnesses!! - Ie to someone caused psychiatric injury arising from seeing/hearing/ hearing personal injury/ death caused to others by negligence. 3 factors have to taken converge 1. Appropriate relationship with that person 2. Physical and in time ''proximity'' to the accident 3. Method of shock inflicted -- ie shockingness of the event Parents -- Spouses -- Children - McLoughlin v O'Brian and others 1983 AC 41 Facts about three hours after road accident - Called to hospital see husband and children with very serious injuries. Held duty of care capable of arising to plaintiff who suffered psychiatric injury. The three factors converged for duty of care to be capable of Arising in McLoughlin 1. Relationship with victim -- as close as can be wife and mother 2. ''Proximity'' in time and place to accident -- a few hours later saw them at hospital ''immediate aftermath'' 3. Shockingness: rather high -- nasty state of husband and children Alcock -- The Hillsborough Disaster Case - FA Cup semi-final, Liverpool, 15 April 1989 - Number of people crushed to death, broadcast live on TV - Number of relatives and friends sued for psychiatric illnesses - Unsuccessful, close tie issues, and lack of proximity to the tragedy - 3 requirements, close tie of love and affection, proximity in time and manner (seeing the event) and shockingness - Parents came to see son 9 hours after, held there was no proximity so unsuccessful. Generally no duty of care capable of arising to ''Bystanders'' McFarlane -- Piper Alpha Case - Oil rig explodes -- several times - Support and sleeping accommodation ship. - , Tharos - Plaintiff -- painter -- reading in bed -- goes on deck, collects blankets to help - K, a road worker and team foreman, sought damages from his employers, T, after allegedly developing post traumatic stress disorder following his attendance at the scene of a road accident on September 15, 1998. K had been instructed by his supervisor, C, to assist the emergency services by setting up a road diversion at the scene, and became aware that there were four crushed and burned bodies in a car. K pled breach of common law duty against T on the grounds of unsafe system of work and vicarious liability for C - Held, dismissing action-(1) injury to mental health caused by \"the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind\" was categorised as nervous shock and a person who suffered psychiatric damage as a result of witnessing the physical suffering or death of others was to be classified as a secondary victim, *Alcock* - \(2) the concept of secondary victim focused on the way the injury to mental health occurred, not on the identity of the wrongdoer/ the reason why the witness was at the scene, regardless of who the victim sued, and this was applicable to K along with the appropriate control mechanisms; - \(3) undisputed that K had no close ties of love and affection with the victims, failed to satisfy one of the control mechanisms - Had been repairing electrical equipment in switch room - Shortly afterwards it explode - Went back in saw other workers severely injured - Held would depend on the specific facts, but could be a duty of care, depending on the precise evidence relating to the 3 factors - Claimed to be a primary victim, potentially.... - Proof before answer.. No special rescue category - White v Chief Constable of South Yorkshire Police \[1999\] -- overturning Court of Appeal - House of Lords hold no duty of their employers police at Hillsborough disaster for their post traumatic stress disorder: - ''\[ the Courts in this context''are now engaged not in the bold development of principle, but in a practical attempt, under adverse conditions to preserve the general perception of the law as a system of rule which is fair between one citizen and another'' SLC report 2001 -- i - See SLC, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), see also Rodger 'Recovery for "Nervous Shock"' 1998 Edin. Law Rev 100-107 - Draft Reparation for Mental Harm (Scotland) Bill with Explanatory Notes - Abolish primary secondary distinction, and Page v Smith - 3.44 Accordingly we recommend that: 6. A person should be liable for causing mental harm unintentionally only if the harm amounts to a medically recognised mental disorder and the person foresaw, or could reasonably have foreseen, at the time of the act causing the harm, that the act was likely to cause a person in the position of the victim to suffer such harm - Abolish secondary victims, though 'victim not directly involved in the accident' - 7\. (a) Where a victim suffers a mental disorder by witnessing or learning of an incident in which he or she was not directly involved, as a general rule there should be no liability on the wrongdoer to make reparation. - 8\. The restriction on suing for reparation where the victim has sustained a mental disorder by witnessing or learning of an incident should not apply if the victim was acting as a rescuer in relation to the incident. (Paragraph 3.53) - 9\. (a) The restriction on suing for reparation where the victim has sustained mental harm by witnessing or learning of an incident should not apply if, at the time of the incident, the victim had a close relationship with a person injured or killed, or at risk of being killed or injured, in the incident. (b) For this purpose, a close relationship means the type of relationship which exists between persons bound to each other by strong ties of affection, loyalty or personal responsibility. (Paragraph 3.54) 45 - 10\. (a) The following persons should be presumed to have a close relationship for this purpose: spouses, cohabitants of the same or different sexes, parents and children, persons who have been accepted by other persons as children of their family, grandparents and grandchildren, siblings and persons who have the characteristics of siblings as they have been brought up together in the same household. (b) This presumption may be rebutted by evidence that the persons in question did not in fact have a close relationship with each other at the relevant time. - Scotstoun sports centre - Horrific incident, son died - Mother passed by, saw badly damaged car against tree, and was later informed by police - Succeeded first instance, failed on appeal, did not witness the immediate aftermath - Sympathy but applied the rigid categories of the law as set out in earlier authorities - Weddle v Glasgow District Council, Sheriff Court, 30 April 2019 - In George Square 22 December 2014 - Suffered PTSD - Didn't witness the accident (and no close relatives either) so not an Alcock case - Primary victim? Campbell applied - No risk or dear of physical injury at the time of the accident, unsuccessful. Weddle outline of key aspects of the ruling for the case review - Read parars 1-60 Weddle on appeal - \[2021\] SAC (Civ), Sheriff Appeal court, 7 June 2021 - Paras q-14 re background - Appeal rejected, paras 78-84 - \[84\] We have no doubt that the appellant has suffered significant psychological and psychiatric injury in consequence of the terrible things she saw that day, but we cannot conclude that the sheriff was in error in finding that such injury was not in any way referable to a fear of personal injury to her reasonably held by her at the time of the accident. - W v Essex CC - Claimants in 3 cases claim compensation for experience of witnessing the death of a close family member in distressing circumstances - Alleged negligence by failure to treat a life threatening medical condition - 2 daughters present when father died suddenly from the condition in a public street; parents who witnessed tragic death of young daughter, one where mother came across daughter in shocking circs a few minutes after death - Paul- failure in coronary treatment, no angiography which would have revealed significant coronary artery disease which could have been successfully treated... - Sued for psychiatric illness for witnessing - Intro paras 1-18 - Background case law paras 31-50 - 51- 53- discussion re that context and relevance to non-accident cases - 71-82 re sudden shock and need for horrifying event - 107-110 why witnessing an accident is crucial - 111-115- why this is different - 140-143 conclusion - 6-1, doctors owe a duty of care to patients but not to close family to protect them against the risk of illness from witnessing death/medical crisis of a relative from a condition that has been negligently diagnosed or treated - Lord Burrows dissenting see para 144-145 re policy - And again at 245-250 concluding remarks - Note also brief judgment by Lord Carloway (Scottish judge) - Paras 252-256 1. It must be psychiatric injury that results 2. The employer must have failed to act reasonably in the light of known vulnerability of the employee See Walker v Northumberland CC 3. The stressful workplace must be proved to be a cause of the psychiatric injury - Must be a psychiatric injury - *Rorrison --* failed to give notice in her written case of any known psychiatric condition - *Cross v Highlands and islands Enterprise* - Employee manager committed suicide - History of severe depressive illness for some years - Employer could not reasonably have known - Held not liable- need to have known the vulnerability or likelihood - see *Barber v Somerset county Council* \[2004\] - Senior school teacher aged 52 -- restructuring many meetings with head struggling to cope with his classes -- working over 60 hrs per week -- general level of stress in school high. - Judge-employers failed to behave reasonably - Generally -- whether a duty of care owed depends on employer being made aware of susceptibility/past experience of depression/stress - The pursuer had averred *inter alia *that she suffered from a number of psychiatric symptoms attributable to learning that she would no longer be involved in covert operations, a decision made by the head of the intelligence department, and that a move to witness protection would be permanent. - The duty on employer restricted to taking reasonable care to avoid unnecessary risk of psychiatric harm, a claim could only succeed if the employer, or in a vicarious case the acting employee, knew/ought to have known that the action would be likely to cause psychiatric harm to the affected employee, bearing in mind that psychiatric harm was not usually a foreseeable consequence of a decision, even of a disciplinary nature, - Primary victim (danger, or zone of RF of physical injury) simple RF test, see Weddle - Secondary victim, a witness, considerably more difficult to succeed based on the Alcock Hillsborough disaster case, as applied recently by the Inner House in Young and in the Weddle case - Stress at work cases, employer must have known of the specific susceptibility for there to be RF **Lecture** Campbell 3 requiremnts: shockingness, nature of relationship to victim; seeing/hearing the actual disaster (or immediate aftermath) Excludes bystanders eg Piper alpha case Close tie to love and affection? See eg Robertson v Forth Difficulties: people try to claim as primary victims -- see eg Young and Weddle Pure secuers exxluded -- White Multiple choice questions The following involved a successful claim by a primary victim -- Page v Smith White case -- established there is no separate category for rescuers who suffer psychiatric injury. The close tie of love and affection test was -- Applied in Robertson v Forth Road Bridge Joint Board to deny the existence of a duty of care. The Inner House rejected the existence of a duty of care on the belief that the victim had not actually witnesses the shocking incident in -- Young v MacVean Simpson test **[Week 5 recording - Vicarious liability]** [Two different sources of employer's liability in delict] 1 Liability of employer as an organisation for negligently causing damage [to] one of its [employees] 2 Vicarious liability of employer [for] damage caused by negligence, or other delict, of its employee at work (note can be either [to] a fellow employee or someone else altogether). About making an employer liable for the negligence of an employee. - Employees historically are misogynistic [When are the parties in an employer/employee relationship] - Distinguish from relationship with a self-employed person ("an independent contractor") - Employment law class [3 tests to determine whether someone is an employee:] 1. Who has the power to **control** what the person does? 2. To what extent is the person and "**integra**l" part of another's business/organisation\] Eg -- hospital doctors and the Health Board 3. What is the **economic reality of the relationship** with that other person's business/organisation? -- e.g. look at the reality behind what any contract between them says: e.g. So-called self-employed building labourers Estate workers at the uni employed by uni but electrican that uni gets in to do work is not employee of uni [Transfer of Employment -- who's liable] - Worker tranfered employment with crange to do work somehere else. - *Mersey Docks v Coggins*, crane driver and temporary employer- 'no control over how he worked it.... General employers must be liable for this negligence and not the hirers of the apparatus' - 'what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence' - Installing air condition, negligent fitter's mate, caused a flood, complicated scenario involving subcontractors, working formally for A but under supervision of someone from B - 'concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it: who was entitled and obliged to give orders as to how the work should or should not be done. Entire and absolute control was not a necessary precondition of vicarious liability, - \[2013\] 2 AC 1 per Lord Phillips at para 46: "Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link." - VL of the Institute of the Brothers of the Christian Schools, a religious order, in respect of sexual abuse perpetrated or allegedly perpetrated by brother teachers at a residential school for boys, even though the Institute had not managed the school - Weren't employees in the traditional sense [Barclays Bank v Various claimants] - 1 of 2 key supreme court rulings in 2020 - Employee/non-employee or independent contractor - Akin to employment test developed, where relationship analogous to employment - Here a GP who had provided medical reports (negligently) - CA- VL but Baroness Hale, overturned the CA ruling, important dicta on policy rationale for VL, stressed traditional dichotomy between employee/independent contractor though accepted widened traditional boundaries and akin to employment test but not here - Barclays bank commissioned a GP who provided medicial reports - This was a gp an independent contractor wasn't part of Barclays, concept of vicarious liability couldn't apply. [Vicarious Liability of Emplyers for delicts of emplyees] - 2 Requirements 1 The negligence or other delict must be **by an employee** 2 At the moment of the delict that employee must be **"within the course of employment"/ "within the scope of employment"** [Travelling to and from work? Smith v Stages \[1989\] AC 928 per Lord Lowry at 955-956] - 1\. An employee travelling from his ordinary residence to his regular place of work is not acting in the course of his employment unless he is obliged by his contract of service to use the employer\'s transport. - 2\. *Travelling in the employer\'s time* between workplaces will be in the course of the employment. - 3\. *Receipt of wages* for travelling time indicates that the employee is acting in the course of his employment, even if the employee has discretion as to the mode and time of travelling. - 4\. An employee travelling *in the employer\'s time* from home to a workplace other than his regular workplace or in the course of a peripatetic occupation or to the scene of an emergency is acting in the course of his employment. - 5\. A deviation from or interruption of a journey undertaken in the course of employment (*unless merely incidental to the journey*) will for the time being take the employee out of the course of his employment. [Incidental deviation?] *Williams v Hemphill* 1966 SC HL 31 (see 100 Cases p 105)-- "It's a long way to Bellahouston" - Employee driver still "within the scope of employment" when driving boys from Oban to Glasgow, but on detour to Stirling and Dollar to see girls. - Bous persuaded the driver via dollar to see the girls and the bus driver crashed whilst driving the boys but goes on a deviation. Reasoning - Court said Driver was still in scope of employment. - Employee is still within scope of employment if what he/she is doing has "sufficiently close connection" with employer's business - "The more dominant the current obligations of the employer's business in connection with the journey the less weight is to be attached to the navigational extravagances of the employee" (Lord Pearce) - Held employer vicariously liable *Rose v Plenty* - Boy taken on by milkman of defendants - Leg crushed when hanging over side -- milkman negligent - Expressly no permitted -- and agreed by trade union that not permitted - Held as delivering milk the role of the employee milkman still within the course of employment; "an unauthorised mode of doing the job" = vicarious liability - Authorised in an unauthorised way.... - Court held, employer will be liable even where the employee is doing something authorised in an unauthorised way. [Various claimants v Catholic Child Welfare Society 2^nd^ aspect re close connection] - \[2013\] 2 AC 1 per Lord Phillips at para 46: "Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link." - VL of the Institute of the Brothers of the Christian Schools, a religious order, in respect of sexual abuse perpetrated or allegedly perpetrated by brother teachers at a residential school for boys, even though the Institute had not managed the school. - Employers were vicariously liable, sufficiently close connection between hat you do and what you're meant to be doing. Close connection to the claim [Bellman v Northampton Recruitment] - Christmas night out, fight, Managing director battered colleague after work discussion, Held VL, sufficient connection between field of activities and assault after a heated work related argument, exceptional given his position of authority - Heated work related argument [Morrison supermarket v various claimants] - 2^nd^ major SC ruing 2020, on the 2^nd^ key issue in VL - internal auditor employee published payroll data relating to almost 100,000 of the company's employees on the Internet, as revenge after being disciplined - Was employer liable to claimants re breach of confidentiality? Court of Appeal- yes - Supreme Court- NO- not so closely connected with authorised acts- not been furthering the employer's interests but had been pursuing a personal vendetta. - 'frolic of \[his\] own' as used by the Scottish courts - perhaps SC concerned about expansion of VL liability but may be difficult to reconcile with child abuse case-law and simple focus on close connection.... [Applying the law on vicarious liability] - Employment relationship, or relationship akin.. - Driving cases- incidental deviation or frolic of their own? - Authorised in unauthorised way- VL - Within scope of employment- dominant purpose test - More difficult with intentional delicts- close connection test essentially dominant now - Limited scope but can apply even in extreme circumstances- Bellman Incidental deviation Problem solving 1. Vicarious liability can arise in relation to a relationship akin to employment 2. Williams v Hemphill concerned an incidental deviation by a driver. 3. The Lister case applied the close connection test for determining vicarious liability. 4. Vicarious liability for an auditor was excluded in Morrison's supermarket v various claimants Problem solving 1 -- To show VL has to show there is an employer employment relationship, there isn't as he is not an employee. There is a relationship akin to employment relationship. Possibly still vicariously liable. Discussed in Morrision's supermarket case 2^nd^ issue. Still VL as hes doing something authorised to do in an unauthorised way (milk float case) Problem solving 2 -- Is he an employee in an employment relationship? Might be independent contractor. Scope of employment -- driving back home. Smith and stages, if you are going to work and crash employer not liable unless travelling is part of your job. Problem solving 3 -- Employee in employment relationshipHe has finished his last delivery doesn't automatically mean it falls outwith scope Smith and Stages. Willams v Hemphill authorised in an unauthorised way, maybe more incidental deviation. Given courts seem to take wide view on vicarious liability. Problem 4 -- Northhampton recruitment case, employment relationship here, arguing about work related things. Bellman so exceptional of a case. Courts may go the other way. Make sure to discuss law when answering scenario questions and do not just discuss the facts in it. Employment relationship? Authority Does authority apply? Show the person acting within scope of employment Stay on law apply it to facts, not facts then eventually getting to law. Law at forefront of answer. Week 6 -- lecture recordings Law on breach of statutory statue. Claims for damages Arises if there is a statue relevant to pursuer's case. What happens if an obligation imposed by statue is breached and a s a result pursuer is injured? - Does existence of obligation under statue make a difference to the case claimant might bring. Might open up a new avenue. Possibly in addition to law of duty of care. When can you sue directly on statue? - Possible that statue itself when an obligation to pay damages arises. Might set out when duty was owed. Not likely to happen though - Is possible to sue on statue, determining what was the intention of Parliament. Easiest way for someone to know would be for it to say so explicitly. - Implicit intention If parliament has provided no remedy for breach of obligation more likely that an intention to sue of the statue can be inferred. Although not always true, existence of that remedy doesn't necessarily stop the claimant suing on basis of intention. EG health and safety legislation. If no remedy, then more likely you are able to sue If remedy provided less likely to be able to sue but position is not decisive. Important test -- Whether the statutory provision that's been breached if it was for the benefit of one particular class or the public on whole. Likely if class an action directly on statue will arise less likely if benefiting public. Impossible to sue directly on statue that provides for welfare, child protection, educational matters etc. Benefit of public at large. Nature of the harm that has arisen/ suffered -- considering a duty of care and. Much easier to sue if suffered personal injury, more difficult if suffered pure economic loss. Pure economic loss -- much more unlikely that you will be able to recover directly on statue. If a remedy exists goes against a duty arising. If employee and injured by breach of health and safety legislation then probably will be able to sue on statue, unless parliament forbids it which it sometimes does. Week 6 -- lecture Key points and scenarios Action on the statue - Express and implied legislative intention - Nature of the legislation and presumptions - Health and safety - Statue often imposes wide range of duties and obligations on defenders - Parliament rarely says that breach will give rise to action for damages if you are injured by the breach of duty. - Statue does not itself provide any penalty given a breach. Nothing said by way of sanction. Nature of loss - Values behind law of reparation - Bodily security and health most important thing - Property next most important - Lastly, money is viewed as least valuable. - Where nature of loss is purely economic duty owed in limited situations - In terms of statue -- only sue for economic loss in rare situations. Products liability - Role of fault at common law - Difficulties of proof - Statute and strict liability - Role of defect - Consumer expectations - Donohgue wasn't just about establishing duty of care was also about product liability. - Modern start of common law on products liability. - Fault based liability, if you can't show fault then you're not going to be able to recover. Will be difficult to show that fault actually exists. - Only as safe on basis that consujmer is expected to expect. Public Authority -- 1 - liability - Position of the police -- acts and omissions - Direct and indirect infliction of harm - Role of policy - Similar rules for fire service - Ambulance service and response to calls - Courts go out of their way to offer protection - The police and local authority have all these powers and duty, offers obvious nexus for appropriate relationship with public body. - Police fail to capture Peter Sutcliffe, the mother of Jackline Hill sue the police saying that if they had done their job properly she would still be alive. Strong policy focus. - In more recent times, SC been anxious to explain the outcome in Hill in terms of legal principle as oppose to policy. - No liability on part of police because damaged on what the police failed to do not what they did. Robinson - Makes clear that if - Police attempting to arrest subject suspected of dealing drugs. - Didn't want to arrest on premiss as assumed other people in the shop placing bets. - Knocked down Mrs Robinsion in an attempt to arrest subject - Duty of care breached - Police attempted arrest carelessly. Fire service - Do not owe a duty of care - Exception -- where fire service make matters worse. As they're not liable for failing to act, if by their behaviour they worsen or create any risk all together different. Capital case - Fire service responds to emergency call - Fire officer takes decision to turn off sprinkler system triggered by fire inside. - Made matters worse. - Fire service liable. Public Authorities -- 2 - Statutory framework and duty of care - Established common law duties - Relationship to law on action on the statute - Assumption of responsibility - Creation of new danger - Courts are willing to offer protection for public authorities. - Eg hxa - Courts have brought together law on duty of care and law on breach of duty. - If public body is conducting itself in the sort of activity a private individual might do e.g. duties owed by hospital - If you go to private hospital owes you reasonable care for health and safety while in care. - Would be unacceptable if you went to NHS hospital and were owed a lesser duty. Duty is the same. - If employed by private sector, employer expected to take reasonable carw, if public sector owes the same duty. - Unless you can sue on statue no common law duty arises. Very unlikely would be able to establish duty of care. Tindal v Police - Black ice and driver skids on black ice, carried down the road - Police called, they arrive deal with immediate situation - Because police are there driver feels he can leave the scene. - Police when they leave don't put up any warning signs. - Further accident happens. Mr Tindal dies. Mrs Tindal raises an action against the police. - Goes to Supreme court, normally need permission to appeal to supreme court - Police win - Mrs Tindal argued that police made matters worse. As driver left scene once they arrived. - MUST READ. - Not c=about criminal behaviour of anyone. - In this kind of aituation police liable if assumed responsibility. - Can be liable if make matters worse - May be liable if taken control of dangerous situation and when relinquished this control do so carelessly. - Eg case of Gibson. - Did not do anything to warn anybody else of danger. Local authority assumed responsibility. - If only explanation of responsibility is the local authority using powers under statue -- not enough - Barnett, assumed responsibility by taking child into care. Crookshanks - Child was put out to kingship care where foster parents are family. - 10 month child was placed with grandparent with drinking pronlem - Baby placed in bath and drowned. - Argument of them creating another danger. Scenarios - 1\. Does the ambulance service owe a duty of care should they refuse to respond to an emergency call? - 2\. Does a social work dept owe a duty of care to investigate a complaint of child abuse carefully? - 3\. Do the police owe a duty of care should a police dog bite an escaping suspect? - 4\. Does a social work dept owe a duty of care where they take a child into care? Week 7 -- Interactive class Employer's liability - Common law duty: safe system of work etc - Prioritisation of personal injury - Position of psychiatric harm - Denial of pure economic loss claims (subject to exception such as references) - Employer has to have safe system of work - Other end of spectrum where you suffer financial loss - Kiss of death reference. - Difference between typical misrepresentation case and Spring. Made to another lawyer, subject of misrepresentation. No general duty. - Psychiatric harm, common law takes cautious view of psychiatric loss suffered, Paul v Wolverhampton, - If harm suffered is psychiatric, the courts are quite restrictive when elaborating rules for recovery. - Quite a controversial area - Reasonable person for duty of care approach modified. Psychiatric harm: special rules - Hatton and the practical propositions - Allocation of risk for stress at work - When is stress/harm foreseeable - What can the employer assume? - What would be appropriate preventative measures? - Hattan, Hale takes the view that it would be appropriate to set out guidelines for when duty of care has been breached in this area. - Hale takes the view that working life is inherently stressful. That is simply inevitable. Not appropriate to allocate the risk to the employer in a normal situation. - Therefore, unless there is a more predictable reason you don't need to allocate the blame to the employer. - Eg not enough to show that occupation was foreseeably stressful Occupier's Liability (1) - Relationship between common law and statute - Who is an occupier? Significance of control - What must be guarded against? State of premises/activities - Obligation of reasonable care - Effectively codified - More than one person can be occupier - Accident in carpark owed by local authorty next to waitrose, waitrose put up signage took some control of carpark. - If you're occupier legislation tells you you must protect people coming from property from damages in premises eg slippery floor in supermarket Occupier's Liability (2) - Position of children - Tomlinson and risky activities - Relevance of danger being obvious - Volenti - Older cases have harsh views on what children may anticipate, don't read too many older ones. - If danger was less obvious, position might be different. Scenarios - 1\. Can a claimant bring an occupier's liability action if they are injured as a result of diving into a public swimming pool? Tomlinson but transferred indoors to public swimming pool, depends what happens. If properly signed like Tomlinson, but if you use the pool like you're meant to and get injured may be some liability. - 2\. Can an employee bring a negligence action against the employer if they suffer financial loss as a result of pensions advice from the employer's HR department? Duty of care if misrepresented, Hedley Burn type scenario. - 3\. Can someone crossing a railway line bring an against the train operator if they are injured by a train which is exceeding the speed limit for that stretch of line? Contributory negligence, taken to consent to train running normally, not consented to train running too fast. Still acted negligently by crossing railway. - 4\. Can a paramedic bring an occupational stress claim where they have a witnessed a particularly horrific road accident? Paton takes the view that there is no such thing as a particularly stressful job. **Affronts to dignitary interests and personality rights (part one) - Week 9** **What we are going to cover this week** A. What are 'Dignitary Interests and Personality Rights'? B. Body (Corpus) C. Reputation (Fama) **Today's class** a. Overview and questions b. Test your knowledge c. Defamation case study A. Overview What are 'dinity interests and personality rights'? Intentional wrongs Relate to non-patrimonial interests 'who a person is' rather than what they have (Whitty and Zimmerman, Personality, para 1.2.1) Not based on loss but "affront" Stevens v Yorkhill NHS Trust 2006 SLT 889 Apply to natural legal persons only - The body - Bodily integrity/ restriction of liberty - Reputation (Fama) - Defamation - Honour (Dignitas) - Privacy/ everything else i. Body (Corpus) Non-consensual interference with the person 'Thin skull rule' applies: MacGregor v Shepherd 1946 SLT (Sh Ct) 42 Have to take your victim as you find them. Sport participants Medical procedures ii\. Restriction of Liberty ii\. Restriction of Liberty Police detention: Henderson v Chief Constable, Fife Police 1988 SLT 361 Freedom of movement: Austin v Commissioner of Police of the Metropolis \[2009\] UKHL 5 Wrongful imprisonment / malicious prosecution: **Reputation (fama)** Protected by law of defamation Defamation at common law: "complex and contentious": Thomson's Delictual Liability, para 15.1 An area of law with a "difficult" history: Blackie, Defamation, p633 Developments have had "disastrous effects on the coherence of the law": Norrie, Scots Law of Defamation, para 9.2.4 Scottish Law Commission, Report on Defamation, (Scot Law Com No. 248\) (2017) "Where A makes a false statement about B with the intention of harming B's honour or reputation then B has a delictual action against A" Thomson's Delictual Liability, para 15.1 (emphasis added) Calling someone a "hypocrite": Lord Robertson of Port Ellen v Newsquest (Sunday Herald) Ltd 2006 SCLR 792 Calling into question professional conduct: Munro v Brown \[2011\] CSOH 117 Calling someone a "liar"? Carroll v BBC 1997 SLT (Sh Ct) 23 vs Gilbert v Yorston 1996 SCLR 1122 Can reflect changing social attitudes: AB v XY 1917 SC 15 vs Quilty v Windsor 1999 SLT 346 The Defamation and Malicious Publication (Scotland) Act 2021 1(4): "a statement about a person is defamatory if it causes harm to the person\'s reputation (that is, if it tends to lower the person\'s reputation in the estimation of ordinary persons)" Wildcat Haven CIC v Wightman \[2020\] CSOH 30 s1(2): "A right to bring defamation proceedings in respect of the statement accrues only if--- a\) A has published the statement to a person other than B, and b\) the publication of the statement has caused (or is likely to cause) serious harm to the reputation of B." Proof of actual or prospective harm: Lachaux v Independent Print Ltd \[2019\] UKSC 27 Proceedings can be brought against an author, editor or publisher ss3(1)(2) To publish is "to communicat\[e\] the statement by any means to a person in a manner that the person can access and understand" s1(4)(b) The statement "is published when the recipient has seen or heard it" s1(4)(c) Forum Shopping: Ewing v Times Newspapers Ltd 2010 SLT 1093 and now Absolute Privilege: a statement cannot incur liability under the law of defamation Qualified Privilege: an action for defamation can only be brought if the pursuer can show malice Malice: Frazer v Mirza 1993 SC (HL) 27 Questions 1. What are ''non-patrimonial interests?'' Answer: The interests someone has in relation to their own body or mind. 2. Patrimonal interest A: the assets that someone owns or the liberties they have 3. To be successful in a claim for an affront to your non-patrimonial interest, you must demonstrate that you have suffered loss Answer: False (all you have to prove is that you have been assaulted). 4. Steven stumbles into John when drunk on a night out. John falls over and breaks his arm. Would John be successful in a claim for assault? Answer: No -- Hall v Watson tells us a claim cant be successful for accidental conduct. 5. To be successful in a delictual claim for assault, there needs to be a successful prosecution under the criminal law first? Answer: False, don' 6. Jenny is arrested by the police during a protest. She feels this is unfair. What would she need to show to be successful in a claim? Answer: The detention was neither reasonable or necessary Henderson v Chief Constable. 7. Which of these best described a defamatory statement: Answer: A statement made by A about B to C which is untrue and causes damage to B's reputation 8. Raul called Pablo ''homophobic'' in a whatsapp message to him. Would Pablo have a claim of defamation against Raul? Answer: No, the statement has only been made to Pablo and not to a third party: s1(2)(a), is there was a third person in the whatsapp group it would be called as defamatory. Defamation case study 1. Advise Colin as to whether he has a claim in delict - It meets the test - Issue: Percy and Colin - Is ''an incompetent idiot who had a series of failed business ventures'' - Was recently arrested - Is ''unfit to hold public office'' - Does colin have a claim in Defamation against Percy? - Principles: Defamation and Malicious Publication (Scotland) Act 2021 ss1(2); (4); Wightman; Lachaux - Application: Has the s1(2) test been met? Can Colin show proof of actual or prospective serious harm? - Conclusion: Colin can/cant raise a claim for defamation. 2. Advise if Percy has a claim in defamation - Issue: Connie has said that Percy has: - Told lies\\a dubious criminal past - Exaggerated a story to get publicity for his podcast - Principles: Defamation and Malicious Publication (Scotland) Act 2021 What defences could be available to: - Percy - Truth: 2021 Act ss5, 8 - Honest opinion: 2021 Act, ss7(2)-(5); Campbell v Dugdale - Colin - No defamation proceedings so no need for a defence **Week 9 -- Affronts to dignity interests and personality rights part 2** - Honour (dignitas) - Privacy/ everything else What we are going to cover - Do we have a Scots law of privacy? - Breach of confidence - Misuse of private information C v Chief Constable of the police service of Scotland 2019 key case A. Scots law of privacy? Article 10: \"Everyone has the right to freedom of expression.\" Can also be interfered with C v Chief Constable Police Service of Scotland 2019 SLT 875 (Outer House) and 2021 SC 265 (Inner House), group of police officers who exchanged offensive messages in closed whatsapp gc. At first instance Lord ordinary was persuaded of the existance of a right of privacy was inflection of rights protected in article 8. Said there is a right of privacy in common law in Scotland. Lord Ordinary (Bannatyne) (Outer House): **"there is a right of privacy in the common law of Scotland.** The nature and scope of that right would I believe be the same as that protected in terms of Art 8 except that it would apply Lady Dorrian (Inner House): Lady Dorrian (Inner House): "The existence in Scotland of an obligation of confidence has long been recognised, and here too the need for a confidential relationship has given way to a focus on the knowledge of those possessing the information that it had been imparted in confidence.... I see no reason to think that the effect of Arts 8 and 10 ECHR in respect of this area of the law in Scotland is any different to that in England, but it does not mean that there has thereby been created a widely applicable right of privacy.'' Were abiter dicta however points clealy carry weight and cast a lot of doubt on whether the view formed by Lord ordinary on the basis of the point argued before him was the correct one. If not a 'law of privacy' then what? Common law Remedies B. Breach of confidence - Area most likely to be engaged when the info is not yet already in public domain and in which case it is likely that an interdict will be sought. Most likely use is where information is not already in the public domain Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122, the info was a plan to publish information held by a former member of the secret services. In order for there to be a breach of confidence a duty of confidence has to exist in the first place. supermodel Naiomi Campbell who was photographed leaving a drug rehabilitation facility which was then used to confirm that she had previously lied about having a drug addiction. The court said "A duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected." Campbell v MGN Ltd \[2004\] UKHL 22 at para 85 \`Court held that Naomi Campbell had a reasonable expectation of privacy in relation to her medical treatment and so it was a breach of confidence for the newspaper to seek to publish details about that. Douglas v Hello \[2006\] QB 125: the way the information is obtained gives rise to a duty of confidence, demomstrates the way info was obtained can give rise to duty of confidence. Photographs of wedding of actors Michael Douglas and Catherine Zeta Jones. They had sold their photos to one celbrity magazine on an exclusive basis. Freelance photographer msanged to infiltrate the wedding and take photos then sold to rival magazine. Court reffered to test set out in Campbell. Rival magazine tried to argue that the contract for photographs with another magazine meant that there can be no expectation of confidence. Court disagreed. Court said that might be relevant to the amount of damages that might be paid. So about the loss suffered. Didn't negate the reasonable expectation that the Douglass's should have privacy at their wedding. The duty of confidence is potentially very wide. Three limiting principles: 1\. The principle of confidentiality only applies to information to the extent that it is confidential C. Misuse of private info Most likely use where personal information has been disseminated Pursuer must have a **reasonable expectation** of privacy in the circumstances There is no reasonable expectation of privacy where, for example: Once it\'s established that the pursuer should have a reasonable expectation of privacy. The court then needs to balance up this expectation of privacy with wider concerns of freedom of expression. Privacy v freedom of expression: A balancing act between Articles 8 and 10 Week 10 -- lecture A. Overview - privacy Breach of confidence - Most likely use is where info is not already in public domain, Lord Advocate v Scotsman Oublications Ltd 1989 SC (HL) 122 - ''A duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected.'' Campbell v MGN Ltd \[2004\] UKHL 22 at para 85 - Douglas v Hello \[2006\] QB 125: The way the info is obtained can give rise to duty of confidence. - Three limiting principles: 1. The principle of confidentiality only applies to info to the extent of which it is confidential 2. That the duty of confidence does not apply to useless information or trivia 3. That the law's protection of confidence may by outweighed by the public interest in disclosure AG v Guardian Newspapers \[1990\] 1 AC 109 per Lord Goff at 208 Misue of Private Information - Most likely use where personal info has been disseminated - Pursuer must have a reasonable expectation of privacy in the circumstances - An objective test in all the facts and circumstances of the case, for example; There is no reasonable expectation of privacy where, for example: Privacy v freedom of expression: A balancing act between Articles 8 and 10 Questions 1. For a duty of confidence to exist there needs to be a reasonable expectation of privacy by the pursuer: Campbell v MGN 2. A reasonable expectation of privacy is judged on an objective standard -- would a reasonable person have an expectation of privacy\> 3. The three limiting principles to the duty of confidence are that the info is confidential; not useless or trivial; AND The duty of confidence can be outweighed by the public interest in disclosure: AG v Guardian Newspaper 4. To balance publication in the public interest with expectation of privacy the court will consider: the public status of the pursuer and their prior conduct, how the info was obtained and its veracity and the consequences of publication. **Week 10 -- Defences and Remedies** A. Defences i. Consent (volenti) ii. Contributory Negligence iii. Illegality iv. Necessity B. Remedies i. Declarator ii. Interdict iii. Damages a. Quantum b. Remoteness a. Defences These are specific legal arguments that can be made by defender about their actions or inactions. Onus shifts to defender. i. Consent (Volenti) - If someone consents to the risk of injury, then they cannot claim if that injury occurs - Morris v Murray \[1991\] 2 WLR 195, claimant and defendent spent after drinking together, defendant had 17 whiskeys 2 then went for a flight in defendents light aircraft, defendant was piolot claimant sued in delict and argued volenti, claimant got in aircraft knowing piolot was very drunka dn by boarding aircraft he assumed the risk. - A complete defence - Courts must consider knowledge about the risk AND voluntary agreement to it: Smith v Baker & Sons \[1891\] AC 325 - Defence cnat be used to wave harm caused by an act of negligence. - Consent is narrowly constructed: Lewis v Buckpool Golf Club 1993 SLT (Sc CT) player on a green was hit by shot on near golf tea, consent could not be argued as not consent to assuming risk caused by defenders poor skill43; Smolden v Whitworth \[1997\] PIQR P133 rugby scrum went wrong player suffered neck injury, poor standard of referring player couldn't have consented to poor scrum. - Cant consent to someone being negligent towards you. ii. Contributory negligence "Where any person suffers damage as the result **partly of his own** **fault** and partly due to the fault of any other person or persons... the **damages recoverable... shall be reduced** to such an extent as the **court thinks just and equitable** having regard to the claimant's share in the responsibility for the damage." Law Reform )Contributory Negligence) Act 1945 s1(1) iii. Contributory Negligence "Fault": deliberate and negligent actions A partial defence: effect is to reduce damages awarded The size of the reduction at the discretion of the court iii\. Illegality Can be argued where the pursuer was involved in illegality at the time A complete defence Needs to be significant criminality, contrast: iv\. Necessity b. Remedies iv. Damages 1\. Declarator A position statement on a live practical question Webster v Lord Advocate 1985 SC 173, declarator and interdict were sought, an interdict is an order by the court to prevent the commission of a threatened wrong, or to stop someone doing something that is already happening. Can be sought in conjunction with other remedies or alone. 2\. Interdict Prevention of a threatened or continuing wrong Must be reasonable grounds: Hays Trs v Young (1877) 4 R 398, Must be clear evidence of it happening or going to happen. Can be granted on a permanent or interim basis 3\. Damages Restore the pursuer (as far as possible) to the position they were in before the Delict "I agree that money is an inadequate remedy for the injury which the child claims to have suffered. So it is for the loss of a leg, or an eye, or a life. But it is usually the best the law can do. If plaintiffs do not want financial recompense they need not claim. It may be assumed that those representing the child regard it as better than nothing." X (Minors) v Bedfordshire County Council \[1994\] 2 WLR 554, per Sir Thomas Bingham MR 3. Damages a\. Quantum (how we calculate damages) Patrimonial Loss (money and property) much more straight forward to quantify as about damage to property or income or expenses much more tangible to prove Question on whether the damages awarded should be for the cost of reconstruction of the property or the value of the property immediately before it was damaged minus its value now. Answer: depends on the facts and circumstances of individual cases Damages can also be calculated for future loss although harder to calculate. Solatium (pain and suffering) Pain and suffering; loss of faculties and amenities; loss of expectation of life: Dalgleish v Glasgow Corporation 1976 SC 32, said solatium is about 3 things: - a persons pain and suffering -- their loss of faculties and amenities so essentially about their quality of life -- and the loss of expectation of life. Really difficult to quantify. How does court go about it? Compares one case to another taking into account the severity and nature of the injury sustained by the pursuer. No 2 cases the same so only offers a guide. In either case pursuer needs to bring forward evidence of their loss or harm suffered in order to enable the court to quantify the damages owed. Damages will be assessed at the date of proof and will be joined together in a single claim covering past and future loss as well as past and future solation. b\. Remoteness Some losses caused by negligence will be too 'remote' to be Compensated - A knocks down B - B able to recover solatium for the pain and suffering damages for associated economic loss such as loss of wages or medical expenses - However, if as a result of accident B was unable to give instruction to hos stockbroker to purchase shares which hed intented to buy or if B was unable to post his football bet the profits that B would have made on the shares of winnings from the bet are not recoverable even though they arise from the fact that B was incapacitated as a result of the accident. These losses are simply too remote. What do courts use to determine when a loss is too remote? "The grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the contemplation of the wrongdoer." Allan v Barclay (1864) 2 M 873 b\. Remoteness Reasonable foreseeability: Simmons v British Steel 2004 SC (HL) 94 per Lord Rodger at 115 Thomson's summary: Defences & Remedies Case Studies 1a) defence: Consent (Volenti) - Rachel has consented to taking part in the game - Tackle was within the rules of the game. 1b) Defence: None- not consent - Claire has consented to being on the gold course - She has NOT consented to being impacted by Malcolm's poor shot. 1c) Defence: Contributory Negligence? - Has Mo's conduct fallen short of the reasonable person? - Is his age relevant? 1d) Illegality (Maureen) - Betty knew the car was stolen -- Suncan v Ross Harper and Murphy - Betty knew that Maureen had drunk - Had fred not pulled betty from the back of the car she would've died Michael's case: How will damaged be quantified? Patrimonial loss and solatium Loss for past present and future. Assesed ar dtate of proof: Single claim for past, present and future loss \`onus of proof on Michael as the pursuer Patriomnal loss - Adaptations to his home - Loss of earnings - Loss of professional rugby contract - Change in University? - Solatium - ''Pain and suffering'' loss of quality of life - Comapre similar cases and consult guidelines

LOB 2: Negligence in Scots Law PDF

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