1: Intro to Delict & Negligence

Question 1

What did Stair classify obligations as being

Answer 1

• conventional
• obediential

Question 2

Describe conventional obligations

Answer 2

Those obligations that arise due to the will of the parties

Question 3

Describe obediential obligations

Answer 3

Those obligations that are imposed by the law

Question 4

Describe legal obligations in the law of delict

Answer 4

• ex lege (on law)
• take reasonable care
• Culpa: obligation to make good of a loss

Question 5

Describe legal obligations in law of contract

Answer 5

• *ex contractu *(by way of consent)
• ex voluntante
• consent

Question 6

Where are there overlaps between legal obligations in law of delict and law of contract

Answer 6

• fraudulent misrepresentation
• exclusion of delictual liability by use of contract terms

Question 7

Aim of reparartion in delict

Answer 7

To make good of a particular loss

Question 8

Describe law of delict - Scotland

Answer 8

• Based on the systematics of the law of obligations laid down by Stair within the general framework of theius commune
• Developed from Roman Law

Question 9

Describe Law of tort - England & Wales

Answer 9

• Not a single complete body of law but a set of individual torts

Question 10

Areas that are the same, similar, different regarding law of delict and law of tort

Answer 10

• Same= negligance, vicarious liability, privacy, generally applicable defences
• Difference= defamation, nuisance, trespass, and remedies
• Similariaties but with some differences= occupier’s liability, liability for animals, assault

Question 11

What is a delict

Answer 11

“The province of the law of delict, stated most generally, is therefore the legal duties of forbearance from inflicting harm on others and the consequential duty of making reparation…when harm has been done.” (Walker, The Law of Delict in Scotland)
* Thus, conduct which is actionable in a civil court by a pursuer who has suffered a legally recognised loss.
* Delict is concerned with compensating harm
* Note, not all losses can be compensated

Question 12

What is the basis for a Delictual Claim

Answer 12

• General rule - no liability without fault: Culpa - fault or blame, required unless strict liability applies
• General principles - Damnum injuria datum (loss caused by legal wrong):
  1. damnum - loss
  2. injuria - wrongful conduct
  3. datum - causal link between 1 & 2

Question 13

Explain reparation

Answer 13

• Reparation - making good the loss/damage caused
• The obligation to make reparation arises from wrong doing and is imposed by law
• Includes: physical, mental or ‘nervous’ injury, damage to property, financial loss (derivative). damage to reputation.
• Will not include ‘pure economic loss’ (exceptions).

Question 14

What qualifies as a loss?

Answer 14

Any unjustified and non-trivial invasion of a protected (reparable) interest is a loss

• physical integrity and personal wellbeing
• ownership and possession
• liberty
• reputation
• privacy
• rights incidental to ownership of heritage porperty e.g. right to exclusive possession; right to comfortable enjoyment

Question 15

To be reparable, loss must be caused (injuria). How can the loss be caused?

Answer 15

Culpably, either:
a) Intentionally
i. Intending harm to the victim or
ii. Deliberately, in knowledge of the harmful consequences or indifference to them or,
b) Negligently (unintentional)

Question 16

Explain the grounds of liability

Answer 16

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

Question 17

What is the ground of action for personal injury and property harm caused negligently

Answer 17

general action

Question 18

What is the ground of action for personal injury caused intentionally

Answer 18

assault or harrassment

Question 19

What is the ground of action for deprivation of liberty

Answer 19

wrongful detention

Question 20

What is the ground of action for interference with comfortabler enjoyment of heritable property

Answer 20

nuisance

Question 21

What is the ground of action for interference with right to exclusive possession of heritable property

Answer 21

trespass

Question 22

What is the ground of action for economic losses caused negligently and intentionally

Answer 22

• general action
• fraud, passing off, inducing breach of contract, causing loss by unlawful means, conspiracy

Question 23

What circumstances invoke a statutory regime which may operate along with or instead of the common law?

Answer 23

Personal injury, death or damage/ destruction of property…

• Caused by a danger due to the state of premises or to things done on premises: Occupiers’ Liability (Scotland) Act 1960
• Caused by ananimal: Animals (Scotland) Act 1987
• Caused by a defective product: Consumer Protection Act 1987

Question 24

When is unintentional harm actionable

Answer 24

if there is a breach of the legal duty owed by the wrongdoer

Question 25

What are the 4 tests for establishing a claim in negligence

Answer 25

1. Duty of Care: is there duty of care owed aand to whom is it owed i.e. Scope
2. Breach of Duty: has there been a breach of duty? i.e. duty not implemented
3. Causal Link: did the breach cause the harm i.e. causal link between loss/harm and breach
4. Remoteness: is the loss proximate or not too remote

Question 26

Give example of ‘normally recoverable losses’

Answer 26

Personal injury and property damage arising from positive conduct by the defender

Question 27

(9)

Give examples of ‘possibly recoverable losses’

Answer 27

• personal injury and property damage arising from omissions
• personal injury and property damage caused by a third party
• harm to reputation
• deprivation of liberty
• economic loss
• psychiatric harm suffered as a secondary victim
• losses incurred in breach of statutory duty or in the exercise of statutory powers
• and novel circumstances

Question 28

What is the duty of care

Answer 28

The essential pre-requisite for liability for negligently caused harm
* Operates to limit the scope of liability
* Used as a threshold device to open up or restrict liability ingiven circumstances
* The duty of care is not an obligation

Question 29

Explain how duty of care is established

Answer 29

• D does something which carries a risk of harm to others if sufficient care is not exercised
• If P suffers loss then P must establish that D owed P a duty to avoid causing P loss of the type P has suffered

Question 30

What does Brodie identify as 3 main principles, guides or tests as to the exiatence of a duty

Answer 30

1. the neighbour principle
2. the Hedley Byrne reliance/ assumption of responsibility principle
3. the incremental or pragmatic approach to the imposition of a duty where none has been recognised before, where there is no governing precedent

Question 31

What is the thin skull rule?

Answer 31

• No duty per se arises from a pursuer’s unknown susceptibility
• But, if there is a breach of duty the wrongdoer must “take the victim as he finds him/her”