Delict Flashcards
What is a Delict?
- A civil wrong
- In England it is known as a tort
- Branch of the law of obligations relating to civil wrong.
A delict is a civil wrong. The area of law concerned civil wrongs is known as the law of Delict. In England this area of law is known as Tort. A delict occurs when one party infringes another’s interests. Not all such infringements amount to a delict but examples of delicts include situations where one party causes the other personal injury – for example A assaults B or A drives his car into B’s car and causes B injury or damage to property. Delict can be either intentional or non intentional negligent. Often delicts are also criminal offences but that matter will be dealt with by the state by a criminal prosecution in the criminal courts where a finding of guilt will result in punishment. The civil wrong can be litigated by the person who has suffered infringement of his/her rights in the civil courts. The party who has suffered loss will have to instruct a solicitor or advocate and will bear the cost of pursuing such an action and will be seeking a remedy to prevent further infringement of his/her rights and to compensate for his/her loss. If successful then some of the cost of pursuing the case will usually be recoverable from the wrongdoer.
Something happens which creates a loss for someone. It may also be the case that that wrong has caused a loss. If any part of that is missing then you cant sue someone for Delict. There must be a loss, injury, or damage to property.
What are the essential elements of Delict?
- Damnum (loss)
- Injuria (wrongous act)
- Datum (caused)
If one part is missing there can be no successful claim under the law of delict.
In order to establish that he/she has suffered a delict the pursuer must establish that there has been a loss caused by a wrong. The latin phrase for this is Damnum Injuria Datum. All three elements must be proved by the pursuer in order to establish a successful case. The standard of proof in a civil case is “on the balance of probabilities” This is an easier standard to meet than the criminal standard so it is possible for the wronged party to successfully pursue a civil case against the wrongdoer even where a criminal prosecution has failed. The civil test means that it is more likely than not that the defender had committed a breach of duty which has caused loss injury or damage to the pursuer. Let us look at the three elements of a delict in more detail.
What is the definition of loss in Delict?
- There must be loss, injury or damage
- Solatium (feelings)
- Patrimonial Loss (material)
In order for a claim to be successful the pursuer must prove the extent of loss injury or damage which he/she has suffered. The loss may be personal injury including hurt feelings and psychiatric damage. This type of loss will usually be proved by medical evidence from a doctor who has examined the pursuer and can confirm the extent of the injury. Whilst the case is still at the negotiation stage the pursuer will produce medical reports from such a person.
Patrimonial loss is loss or damage to property and can be proved by a number of means including producing the damaged article or photos of it and leading expert evidence to confirm how much it will cost to repair e.g. a repair estimate from a garage in the case of damage to s car or a statement from an employer or accountant regarding earnings lost as a result of any injury sustained. If the case goes to court then evidence may have to be led from the person who can confirm the extent of the damage unless the parties agree that documentary evidence is sufficient.
That loss can be feelings
What is the definition of injury in Delict?
- There must have been a breach of a legal duty owed to the pursuer
- Intentional e.g. assault
- Negligent e.g. carelessness in driving
- Strict liability – no proof of fault necessary
- The breach can be by act or omission
It is not sufficient that the pursuer shows that he has suffered loss injury or damage. He must demonstrate that the defender has breached a legal duty owed to him. Breaches of duty are usually intentional or negligent. In exceptional situations known as situations of strict liability it is not necessary to show intention or negligence or indeed fault of any kind by the defender. One example of strict liability is liability under the Animals Act 1987.
The motive of the defender in breaching the duty is not usually relevant.
The duty which the defender has breached may be either a common law duty or a statutory duty.
Criminal assualt is beyond reasonable doubt.
You could suceed in a civil case and not in a criminal case.
Struct Liability, you don’t have to prove that the person liable is actually involved. It doesn’t need to be a positive act, it can be something you shouldn’t have done.
What is the definition of Datum - the causative link in Delict?
The breach of duty owed to the pursuer must have caused the loss, injury or damage.
Once it has been established that the defender has breached a legal duty owed to the pursuer and that the pursuer has suffered loss injury or damage the final thing which must be established is the causative link between the two. In other words it must be shown that the breach of duty caused the loss injury and damage. Unless this can be established the pursuers case will fail.
What is the role of Duty of Care within Delict?
- Must pre-exist the careless conduct
- Existence is a question of law
- Extent sets limits on liability for careless behaviour
In order to establish breach of duty owed to the pursuer it is necessary to show whether such a duty existed in the first place and then secondly whether there was a breach of duty by the defender.
Your duty of care must exist before you take the wrong act. It is a question of law as to if you owe someone a duty of care.
