Unintentional Delicts

Front 1

Culpa

Back 1

Harm that can be careless and unintentional

Front 2

The Neighbourhood Principle

Back 2

Donoghue v Stevenson

Front 3

Duty of Care

Back 3

1. Must pre-exist the careless conduct (Donoghue v Stevenson)

2. Where the defender is under a duty to protect the pursuer, he will be liable if he fails to do so (Caparo v Dickman)

3. Where a person has assumed responsibility to protect the pursuer, the duty may be non-delegable. (Lord Sumpton in Woodland v Essex County Council)

Front 4

Loss must be wrongfully caused

Back 4

Damnum injuria datum

Front 5

Loss without wrongful conduct

Back 5

Damnum absque injuria

- No Obligation

Front 6

Wrongful conduct but no loss

Back 6

Injuria since damno

- No Obligation

Front 7

Donoghue v Stevenson

Back 7

1. No contractual nexus between D and S

2. D could sue S as he owed her a duty of care

3. S broke that duty by careless conduct

4. D therefore suffered harm

5. Relationship between manufacturer and ultimate customer was sufficiently proximate

Front 8

Limitations in Donoghue and Stevenson

Back 8

1. the duty only extends to latent defects: cannot sue if there is an obvious defect and the customer still chooses to use it

2. they duty is to prevent harm to the ultimate customer's person or property: can sue for i) pain and suffering ii) economic loss from injuries iii) damage to his property, but canNOT sue for the damage to the product, itself

Front 9

Lord MacMillan in Donoghue v Stevenson

Back 9

"the law can only refer to the standards of a reasonable man."

Front 10

Rothwell v Chemical and Insulating Co Ltd

Back 10

There is no liability unless our carelessness has caused harm to the pursuer

Front 11

Lord Atkin in Donoghue v Stevenson

Back 11

Who is my neighbour?

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation when I am directing my mind to the acts or omissions which are called into question"

Front 12

Caparo Industries plc v Dickman

Back 12

In novel circumstances, where the relationship of the parties is not well established as giving rise to a duty of care in respect of the kind of loss sustained, the current approach is to apply the tripartite test

False audits

1. loss to the pursuer must be foreseeable

2. there must have been a close degree of proximity between the parties

3. it must be 'fair, just and reasonable' to impose a duty of care

Front 13

The Tripartite Test in Scots Law

Back 13

Coleridge v Miller Construction: defender cut power to the pursuer's factory- not sufficient proximity

Front 14

Mitchell v Glasgow City Council

Back 14

Tenant assaulted by neighbour resulting in death- local authority aware of history, whether they owed a duty of care.

Tripartite Test for Personal Injuries:

Lord Hope "the law does not usually impose a positive duty on a person to protect others."

Will only arise where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk.

Front 15

Types of Economic Loss

Back 15

1. Derivative economic loss

- derives from the physical injury to the pursuer's person or property

2. Secondary economic loss

- NOT recoverable in delict

- economic loss from physical injury to another person's property or person

3. Pure economic loss

- loss which does not derive from physical injury

Front 16

Hedley Byrne v Heller & Partners

Back 16

Where a man holds himself out as exercising a special skill or where he exercises a particular profession, he is under duty to exercise skill and care.

Special duty of care:

1. Must be contractual

2. Must be fiduciary

3. Must arise from a relationship of proximity

Front 17

Hines v Kind Sturge

Back 17

Tripartite Test: relationship of proximity with tenants and property agents

Front 18

Macdonald v Federation Internationale des Football Associations

Back 18

Tripartite Test: spectator at a sports game does not fulfil the proximate relationship test

Front 19

Gibson v Orr

Back 19

Tripartite Test: police owe the public a duty of care

Up until this point, the Tripartite test had only been used in novelcases.

Front 20

Nervous Shock

Back 20

1. The defender may owe a duty of care to the pursuer to prevent the pursuer from suffering mental harm as a result of the defender's intentional, but careless conduct (Alcock v Chief Constable of South Yorkshire Police)

2. In order to succeed, the mental harm must be a recognised psychiatric disorder

3. Must be induced by a sudden assault on the senses rather than a long drawn out process

Front 21

Page v Smith

Back 21

1. House of Lords held that as the plaintiff was within the area of physical harm, he was a primary victim.

2. Therefore, the defendant owed him a duty of care to prevent physical or mental harm, and was irrelevant if psychiatric harm was not foreseeable

Front 22

Primary Victim

Back 22

1. A person within the zone of potential physical harm as a result of the defender's negligent conduct (White v Chief Constable of the Yorkshire Police)

2. The test is whether he has been exposed to physical danger

3. No duty of care is owed to prevent rescuers from suffering mental harm, unless they are also in physical danger

Front 23

Exceptional cases where a pursuer will be treated as a primary victim even if there was no risk of physical harm

Back 23

1. Dooley v Cammell Laird: thinking he had killed a fellow employee

2. W v Essex: parents believing they were responsible for sexual abuse by a babysitter

3. Stevens v Yorkhill NHS Trust: parents whose dead child's organs were removed without consent

Front 24

Secondary Victim

Back 24

Where a person sustains mental harm as a consequence of witnessing or learning of an accident to a third party who is the primary victim

Front 25

Bourhill v Young

Back 25

1. Not within the area of risk of potential harm

2. House of Lords stated that she was not owed a duty of care, as a driver only owes a duty of care to other road users and people in premises

3. the act or omission must have as its reasonable and probable consequence injury to the pursuer

Front 26

Lord Macmillan in Bourhill v Young

Back 26

"the duty is owed to those who injury may reasonably and probably be anticipated if the duty is not obtained."

Front 27

McLoughlin v Brian

Back 27

1. House of Lords were persuaded to widen the scope of potential liability for psychiatric disorder

2. The House of Lords held that a duty of care existed in spite of the fact that the plaintiff had not been directly involved in the accident

i) The plaintiff has witnessed the aftermath of the accident.

ii) Personally seen the effects of the accident on her family.

Front 28

Alcock v Chief Constable of the South Yorkshire Police, 'The Alcock Criteria'.

Back 28

1. Close tie of love and affection between the primary and secondary victim: parents/child/spouse - other relationships not automatic, need to prove love and affection

2. proximity to the accident: - witnessing the event - immediate aftermath - must be proximate in time and space

3. The psychiatric disorder was caused by direct perception of the event or its aftermath: - cannot be a gradual process

Front 29

Breach of a Duty of Care

Back 29

1. Delictual Liability only occurs when harm is sustained by the pursuer

2. damnum injuria datum: harm sustained from a breach of duty of care arising in delictual liability

Front 30

Waugh v James K Allan Ltd

Back 30

Voluntary act or omission of the defender

- The House of Lords held that he acted reasonably as his death was involuntary, and so there could be no breach.

Front 31

Muir v Glasgow Corpn

Back 31

The defender's act or omission must have as its reasonable and probable consequence constitute harm to the pursuer

1. Manager owed customers a duty of care

2. The reasonable foresight of the hypothetical reasonable person in the position of the defender

Front 32

Lord Thankerton in Muir v Glasgow Corpn

Back 32

"reasonable and probable consequences of the failure to take care... judged by the standards of the reasonable man."

Front 33

Lord Wright in Muir v Glasgow Corpn

Back 33

"what the hypothetical reasonable person could have foreseen."

Front 34

Hughes v Lord Advocate

Back 34

This was a foreseeable consequence, despite the severity of it not being foreseeable.

Front 35

Breach of Duty of Care

Back 35

1. Duty of Care (Donoghue v Stevenson)

2. Breach of that Duty (Caparo)

3. Breach of that Duty amounted to harm (culpa)

Front 36

Negligence

Back 36

*Establish a breach of duty of care* : 1. Duty of Care (Donoghue v Stevenson) 2. Breach of that Duty (Caparo) 3. Breach of that Duty amounted to harm (culpa)

*Negligence*: 1. defender must have acted voluntarily 2. the injury must have been a reasonable and foreseeable consequence of the defender's conduct (Muir v Glasgow Corpn) 3. the defender's conduct must amount to negligence. *must be below the reasonable person test*

Front 37

Applying The Calculus of Risk Test To DetermineThe Reasonable Person

Back 37

*must take into account age and special qualifications*

1. probability of injury to the pursuer (Kennedy v Cordia)

2. gravity of injury (Paris v Stepney Borough Council)

3. the utility of the defender's conduct (Gilfillan v Barbour)

4. the practicality of precautions (Collins v First Quench Retailing)

5. Cost of taking precautions (Collins)

6. Practice of others in the same business, trade or profession (Brown v Rolls Royce Ltd)

Front 38

Causation

Back 38

The pursuer must show the casual connection between:

1. the defender's breach of duty

2. the harm suffered by the pursuer

To establish this we must establish 1. Factual causation and 2. Legal Causation.

Front 39

1. Factual causation

Back 39

1. causa sine qua non- the 'But For' test (Kay's Tutor v Ayrshire and Arran Health Board)

2. if the pursuer would have suffered harm notwithstanding the defender's breach of duty, then it is not the causa sine qua non

3. the onus for satisfying the 'But For' test is on the pursuer

Front 40

Causation: concurrent contributing cause

Back 40

McGhee v National Coal Board: Where two or more sources of danger for only one of which the defender is delictually liable, factual causation will only be established if the pursuer can prove on the balance of probabilities that either:

1. the defender's breach of duty materially contributed to his injury

2. the defender's breach of duty materially increased the risk of the pursuer sustaining injury

Front 41

2. Legal Causation

Back 41

1. causa causans: the defender's breach of duty much be the legal cause of the pursuer's harm (McKew v Holland and Hannan)

2. Must be the effective and substantial cause of the pursuer's loss or harm

3. this chain of causation can be broken (novus actus interveniens)

Front 42

Victim's contribution to injuries

Back 42

Law Reform (Contributory Negligence) Act 1945

- the court has the power to reduce damages

1. Foreseeability: the act of a third party of the victim will not generally break the chain of causation if it was reasonably foreseeable that the subsequent act would take place (Sayers v Harlow Urban District Council)

2. The order of events (Grant v Sun Shipping Co Ltd)

Front 43

Defences: volenti non fit injuria

Back 43

1. A voluntary assumption of risk (Titchener v British Railway Board)

2. the defender must prove that before or at the same time as the negligent conduct, the pursuer knowingly and willingly undertook the risk of danger that was created by the defender's breach of duty

•P’sconsent may be express or implied.

• Pmust be … –‘sciens’:P knows of, and fully appreciates, the risk of harm; –‘volens’:P voluntarily accepts the risk of harm.

3. does not apply in the case of a rescuer, nor is it likely to succeed in an action between employee and employer

- complete defence

Front 44

Defences: Contributory Negligence

Back 44

1. the pursuer must have suffered damage partly as a result of his own fault: can be deliberate or negligent actions

2. S1(1) of the Law Reform (Contributory Negligence) Act 1945: 'where any person suffers damage as the result partly of his own fault and partly due to the fault of any other person... the damages recoverable in respect thereof shall be reduced.'

Cork v Kirby Maclean

Front 45

Defences: Joint Fault

Back 45

Anderson v St Andrews' Ambulance Association

Front 46

Derivative economic loss

Back 46

Economic loss to P which derives from physical injury to P’s person orproperty (i.e. consequential loss to P). Recoverable as a head of damage in delict.

Front 47

Secondary economic loss

Back 47

Economic loss to P resulting from physical injury to another’s person or property (i.e. D injures X’s person or property, resultingin economic loss to P). Not recoverable in delict.

Front 48

Pure (or primary) economic loss

Back 48

Economic loss to P which does not derive from physical injury to P’s person or property (i.e. loss whichis unrelated to damage to P’s person or property)

Traditionally, the law does not generally allow recovery in delict for PEL, even where the loss isreasonably foreseeable,i.e. reasonable foreseeability alone does not give rise to a duty of care to preventPEL.

Tripartite test: a D of C exists to prevent PEL

Front 49

PURE economic loss : establishing proximity

Back 49

(a) Dknows P’s identity;

(b) Dknows his information/advice/expertise will be communicated to P;

(c) Dknows P will use, or rely upon, D’sinfo/advice/expertise;

(d) Dvoluntarily assumes responsibility for P’s economic interests; and

(e)There exists a special relationship between P and D (‘akin to contract’).

Caparo v Dickman

Front 50

Andersonv Lyotier & Portejoie

Back 50

Ski accident: Mr.Anderson was held to be 1/3 Contributory negligent.

Front 51

Cork v Kirby Maclean

Back 51

“Thedamages fall to be apportioned [between P and D] according to the causativepotency and blameworthiness of the respective faults”

Front 52

Careless Misrepresentation

Back 52

Criteria in Hedley Byrne v Heller:

House of Lords: the plaintiffs had to show that the defendants owed the plaintiffs 'a special duty' to take care

Front 53

Duty of care: Foreseeability

Back 53

1. The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed (Bourhill v Young)

2. The proximity demands that the pursuer is a person or within a reasonably well defined class of persons who ought to have been within the contemplation of the defender before a duty of care will be recognised (Hill v Chief Constable of West Yorkshire )

Front 54

Lord Macmillan in Muir v Glasgow Corpn

Back 54

“Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation.”

Front 55

Kay's Tutor v Ayrshire and Arran Health Board

Back 55

Generally, the pursuer’s claim will fail if it can be demonstrated as a matter of fact that the event would have occurred even if the breach of duty had not taken place