Flashcards in Section 3 Deck (31):
CASE: capacity of children in delict, Mullen v Richards (1998)
in this case 2, 15 year old girls were play fighting with rulers, during which the defendants ruler snapped, causing a splinter to go into the eye of the pursuer, blinding her.
What is contributory negligence and how it works?
-the pursuer contributed to his/her loss through their own negligence. Considered blameworthiness.
-where established damages will be reduced by a proportion to reflect the defenders contribution.
What quote by Lord Nimmo- Smith, effectively describes capacity of children for contributory negligence?
"The question of a child's contributory negligence must depend on the nature of the particular nature of the child's capacity to appreciate it"
What is the meaning of "velenti non fit injuria"
the pursuer knowingly consented to run the risk of injury
-when established this is a complete defence.
Velenti non fit injuria CASE; Morris v Murray (1991)
-Spend the day drinking together
-at the end of it one accepts a lift from the other
-Pilot crashes and dies, the injured party sued his estate.
-The action failed because the passenger was aware of the state of the pilot and the consequences
Define Damnum fatale?
This is an attempt to blame a harmful event on god, or nature. If successful it determines that the defender was not at fault.
give an example of a failed attempt of Damnum fatale?
Define Ex turpi causa non oritur actio?
A complete defence when established, where the pursuer was involved in some relatively serious criminal or immoral activity at the time the harm occurred.
Ex turpi causa non oritur actio CASE. Pitts v Hunt (1991)
2, 16 year old boys with stolen motorbike. Rider was not licensed or insured, usually the driver comes out worse . However, they were both taking part in criminal activity and were hence both guilty.
Prescription and limitation (scotland) act 1973?
-actions may become time barred if not raised within times specified by law
-Actions in respect of personal injuries not resulting in death are limited after 3 years from the date of injury, s.17.
-The court may however exercise discretion to override this time limit under s.19A.
Define vicarious liability?
-where one party is vicariously liable for the delict of another.
- the parties must be linked by a relationship of employment or a relationship 'a kin' to employment
Do independent contractors have vicarious liability for delict?
Another form of vicarious liability?
Who is liable in vicarious liability?
liability is joint and several.
VL: Various Claimants v Catholic Child Welfare Society  2 AC 1
-court of appeal case with catholic welfare society, running a school to provide children with a religious education
-monks sexually abused children
-they had no contracts (had vows), but a relationship a kin to employment, hence vicarious liability could occur.
VL: Cox v Ministry of Justice (2016)
-Prisoner assists in kitchen as part of duty, moving food
-drops bag of flower on prison supervisor.
-he sues MOJ, saying they are vicariously for him
- its a relationship a kin to employment- so MOJ paid damages.
VL: various claimants v Barclays bank (2017)
-as part of recruitment, applicants must have medical check by doctor
-doctor took this as opportunity to unnecessarily examin;
-clearly sexual abuse
-bank held vicariously liable for acts of doctor.
Can vicarious liability occur when the wrongdoer is acting contrary to instruction?
VL: contrary to instruction: Rose v Plenty (1976)
-Milk delivered by electric carts.
-Children would be at the back of the cart delivering the milk
-on this day, children were not allowed to do it, however, the milkman on this day employed a 13 year old boy who fell off and was injured.
Dairy company would pay damages as it said it was the milk mans fault, however, they were still vicariously liable.
VL: contrary to instruction: Angus v Glasgow corporation (1977)?
-Lorry driver added an extra 5 miles to his journey to go home to collect another pair of spectacles as his had broken and he believed he couldn't safely drive without them.
-shortly after leaving his home as a result of his negligence he was involved in an accident. The lorry driver was liable
VL sufficient connection test: Lister v Hesley Hall Ltd 
Contrary to instruction: Mohammad v Wm Morrison Supermarkets plc (2016)
-Mr M goes to petrol station to print pictures of a USB ,Mr K refuses throwing abuse and telling him to leave
-Mr M returned to his car and was followed by Mr K. Mr
K opens the door and threatens him to never come back.
-When asked to shut the door he punches Mr M.
-Mr M gets out to shut the door, however, Mr K Punches him to the ground and severely assaults him despite being told not to by his supervisor.
-HELD: “It was a gross abuse of his position, but it was in connection with the business in which he was employed to serve customers. His employers entrusted him with that position and it is just that as between them and the claimant, they should be held responsible for their employee’s abuse of it.” per Lord Toulson para 47
(Common employment, same employer) VL, are intentional acts within the workplace more or less likely to give rise to vicarious liability?
Common employment VL CASE: Ward v Scotrail Railways Ltd 1999
-Ticket inspector receives letter of a sexual nature from another employee, she told him never to do it again, her persisted. He would stare at her and change his shift to be around her.
- He also stalked her train movement.
- She went to the employer and they did nothing. Court said that it was personal behaviour as it wasn't in the scope of his employment, so employer not VL.
- You need more than that fact that it happened within the workplace.
Common employment case: Wilson v Excel Ltd 2010
-Female Clark had her pony tail pulled as a joke by her supervisor.
- She did not find it funny and sued.
- Employer was not vicariously liable as it was not connected to his work of supervising, other than the fact it was in the workplace, during working hours.