Delict
Introduction:
Delinquo, supine delictum means to be lacking or fail. It was already used in classical
Latin to mena fail in one’s duty, offend.” If one commits a delict then one must make
reparation.
What does delict do?
Deterrence- as well as punishing, the possibility of delictual liability deters people
by creating a fear of punishment, encouraging people to organise their behaviour
accordingly. Deterrence was a part of public policy. Prevention was better than cure and
potential defendants should face up to their safety responsibilities before rather than
after an accident. This also works in benefit of the pursuer, who should deter his careless
behaviour e.g. due to the doctrines of volenti non fit injuria.
Compensation- instead of penalising the wrongdoer, we compensate the victim.
Risk allocation- delict redistributes the cost of certain accidents within a
community.
General principles:
Justice- delict is about corrective justice- fixing things between person and
persons.
Causation- in the sense of attribution of responsibility.
Cupla- fault- in the sense of blameworthiness. Cupla is to be translated as fault
and not negligence. Do facts constitute fault? To say someone is at fault implies that he
behaved in some way that he should not have behaved but leaves open the nature of the
behaviour. To say someone is negligent implies that he has acted in a careless fashion
and that he ought to have foreseen that what he did would cause damage. Carelessness
was a way in which fault could be established. There is fault when what could have been
foreseen by a diligent man was not foreseen. In Scots law the concept of culpa also
covers conduct which is merely careless, ie where the defender causes harm to the
pursuer unintentionally
Lecture 2
Delict is based on a compensatory model.
Negligence
Modern Scots law has accepted as a general principle that A will be liable for careless
conduct only if he owed a duty of care to the person harmed by his actions. This duty of
care must pre-exist the careless conduct. There is no liability for failure to take care
unless there was a duty of care. A person is only liable for being careless if they were
legally obliged to take care in the first place. Donoghue v Stevenson laid down the
foundation for cases to be taken on the basis of negligence in new situations. The case
involved a decomposed snail at the bottom of a ginger beer. C did not have a contract
with the seller nor with the manufacturer. It was held that the manufacturer owed a duty
to take care because of the relationship between himself and the ultimate customer- a
relationship of proximity or neighbourhood. In other words, the relationship between the
,pursuer and defender was sufficiently proximate that the majority was prepared to hold
that Stevenson owed Mrs Donoghue a duty of care for the purpose of liability in delict.
The tripartite test to establishing whether there is in fact negligence is that:
There must be a duty of care owed by the defendant to the pursuer.
There must be breach of that duty
As a result of the breach, the defendant ought to have suffered loss.
Grant v Australian Knitting Mills Ltd [1936] AC 85, PC. The plaintiff suffered dermatitis
because free sulphites used in the manufacturing process had not been washed out of
the garments before they were marketed. The fact that, unlike Mrs Donoghue, the
plaintiff could have sued the retailer for breach of contract did not prevent recovery
against the manufacturer in delict.
Even at this more general level, there are two important limitations on the extent of the
duty of care laid down in Donoghue:
The duty only extends to latent defects; the bottle of ginger beer was opaque and the
snail could not be seen before the contents were used. [12] If the defect is patent, ie
obvious, and the consumer chooses to use it, the manufacturer may escape liability
because the chain of causation is broken[13] or the damages will be reduced by the
ultimate consumer's contributory negligence.[14]
The duty is to prevent harm to the ultimate consumer's person or property. If A is
physically injured by a defective product, carelessly manufactured by B, A can sue B for
damages for pain and suffering (solatium). A can also sue B for economic loss which
derives from his injuries (derivative or parasitic economic loss), for example loss of
wages when in hospital, loss of wages in the future if A is permanently incapacitated and
so forth.[15] If A's property is damaged by a defective product carelessly manufactured by
B, then A can recover damages from B in respect of the damage to his property: for
example if A's dog dies as a result of contaminated dog food or a defective vacuum
cleaner damages A's carpet. But A is not able to sue B in delict if the only property
damaged is the defective product itself. A cannot sue B in delict for the cost of repairing
a defective car or for replacing a defective vacuum cleaner which blew up without
harming A's person or damaging any property other than the vacuum cleaner itself. In
these situations, A has suffered pure, as opposed to derivative or parasitic, economic
loss, ie the cost of repair or replacement or the difference in value between the property
with and without the defect. As we shall see, the courts are reluctant to allow a person to
recover damages for pure economic loss in delict; A's remedy lies in contract against the
person who sold him the goods, not the manufacturer. [16] Similarly, if the defect is
discovered before there has been any harm done to A's person or property, the cost of
repairing the defect is pure economic loss and cannot be recovered in delict. [17]
It cannot be emphasised enough that in Scots law there is no delictual liability unless a
breach of a duty of care has caused harm: damnum injuria datum. Harm is a constituent
of negligence as well as a consequence of negligence. We can owe a duty of care and be
,careless, but there is no liability unless our carelessness has caused harm to the pursuer.
the law can refer only to the standards of the reasonable man in order to determine
whether any particular relationship gives rise to a duty to take care as between those
who stand in relation to each other.
For Lord Atkin a duty of care arises when it is reasonably foreseeable by the defender
that a person in the position of the pursuer would be affected by the defender's acts or
omissions. It will be noticed that in these examples the duty of care is to
prevent physical harm to the pursuer or physical damage to his property and will enable
the pursuer only to recover economic loss which is derivative from the injuries or damage
sustained. But in situations where the pursuer does not suffer physical harm or damage
to property, for example pure economic loss, the courts tend to be reluctant to impose a
duty of care even though the loss to the pursuer would have been reasonably
foreseeable by a person in the position of the defender.
Another important development came about by the Caparo v Dickman case. This case
established the 3 test rule. L. Bridge said, ‘in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a DOC are there that there should
exist between the party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of proximity or neighbourhood and that the situation
should be one on which the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the party for the benefit of the other.
This tripartite test, the Caparo criteria, was applied to a case of physical damage to
property by the House of Lords in Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The
Nicholas H.[23] A surveyor (the defendant) advised the owner of a damaged vessel to
continue on her voyage. The vessel sank and the cargo was lost. It was held that the
surveyor did not owe a duty of care to the owner of the cargo (the plaintiff) to avoid
damage to his property. Although it was reasonably foreseeable that the surveyor's
careless advice could result in physical harm to the plaintiff's property, nevertheless no
duty of care arose since the relationship between the parties was not sufficiently
proximate and it would have been unfair, unjust and unreasonable to hold otherwise. To
have imposed a duty of care in this case would have disturbed 'the intricate blend' of
internationally accepted rules of shipping law under which the owner of the cargo has a
remedy against the owner of the ship in contract but the amount of compensation is
limited.
Duty of care
Generally there is no liability for an omission. What is or is not reasonably foreseeable
depends upon the foreseeability of the reasonable man. The reasonable man is more
rigorous in the conduct of his affairs. The reasonable foreseeability is an objective test-
partly. We ask whether a reasonable man in the position of the defender would have
contemplated harm.
, Bourhill v Young- a motorcyclist was sued by a woman who suffered nervous shock as a
result of seeing the aftermath of an accident. She could not succeed. While the
motorcyclist was careless in his actions and owed a duty not to be careless, he did not
precisely owe a duty this particular pursuer. She was outwith the ambit of the duty. The
motorcyclist could have contemplated harm to people he would have hit with the bike or
even people hit by debris after a collision, but not people who alter came to see the
scene.
What is to be foreseen is the injury to the pursuer. Injury relates to loss. In Hughes v lord
Advocate, the case involving the boy falling into a manhole and as a result burning
himself due to an explosion. The house of lords held that while the explosion might have
been unforeseeable, the danger of the harm and the harm it might cause was not
different in kind to the harm that actually occurred. Similarly in Home Office v Dorset
Yacht- seven borstal boys escaped from custody as the borstal officers fell asleep instead
of supervising them. As a result they get into a yacht and damages another one. The
reasonable man forsees that the escape of the boys due to them being unsupervised will
result in damage.
5 requirements:
1. Existence of Duty of Care owed by D to C.
2. D must have breached that Duty of Care.
3. There must be loss and causation as a result of the breach of Duty.
4. Remoteness- the loss must not be too remote.
5. Defences- there must be no defences available to the D.
C must be able to prove that D had a duty not to perform or to perform certain actions.
Establishing a Duty of Care is of massive importance.
When is a Duty of Care owed? No clear and simple answer. In practice most difficulties
revolve around different cases eg nervous shock, vicarious liability etc.
Establishing Duty of Care
Incremental Approach- courts make decisions on particular relationship between
the C and D.
The general approach- the more civilian way- one general overarching test which
allows you to come up with an answer for any given case.
Donoghue v Stevenson 1932 SC (HL) 31
Ginger beer has a snail in it. Could Mrs Donoghue sue the manufacturer? Did the
manufacturer owe her or their final customer a duty of care?( Negligence already existed
prior to this case) It was established that they did owe her a duty of care. L. Atkins came
up with a general answer as to when a duty of care is owed. He said, ‘the law concerns
itself with carelessness only where there is a duty to take care and where failure in that
duty has caused damage… (check page 6 of handbook for quote)’
This case gave rise to the neighbour principle- Lord Atkins said,’ the rule that you are to
love your neighbour becomes, in law, you must not injure your neighbour… you must
take care to avoid acts or omissions, which you can reasonably foresee, would be likely
Introduction:
Delinquo, supine delictum means to be lacking or fail. It was already used in classical
Latin to mena fail in one’s duty, offend.” If one commits a delict then one must make
reparation.
What does delict do?
Deterrence- as well as punishing, the possibility of delictual liability deters people
by creating a fear of punishment, encouraging people to organise their behaviour
accordingly. Deterrence was a part of public policy. Prevention was better than cure and
potential defendants should face up to their safety responsibilities before rather than
after an accident. This also works in benefit of the pursuer, who should deter his careless
behaviour e.g. due to the doctrines of volenti non fit injuria.
Compensation- instead of penalising the wrongdoer, we compensate the victim.
Risk allocation- delict redistributes the cost of certain accidents within a
community.
General principles:
Justice- delict is about corrective justice- fixing things between person and
persons.
Causation- in the sense of attribution of responsibility.
Cupla- fault- in the sense of blameworthiness. Cupla is to be translated as fault
and not negligence. Do facts constitute fault? To say someone is at fault implies that he
behaved in some way that he should not have behaved but leaves open the nature of the
behaviour. To say someone is negligent implies that he has acted in a careless fashion
and that he ought to have foreseen that what he did would cause damage. Carelessness
was a way in which fault could be established. There is fault when what could have been
foreseen by a diligent man was not foreseen. In Scots law the concept of culpa also
covers conduct which is merely careless, ie where the defender causes harm to the
pursuer unintentionally
Lecture 2
Delict is based on a compensatory model.
Negligence
Modern Scots law has accepted as a general principle that A will be liable for careless
conduct only if he owed a duty of care to the person harmed by his actions. This duty of
care must pre-exist the careless conduct. There is no liability for failure to take care
unless there was a duty of care. A person is only liable for being careless if they were
legally obliged to take care in the first place. Donoghue v Stevenson laid down the
foundation for cases to be taken on the basis of negligence in new situations. The case
involved a decomposed snail at the bottom of a ginger beer. C did not have a contract
with the seller nor with the manufacturer. It was held that the manufacturer owed a duty
to take care because of the relationship between himself and the ultimate customer- a
relationship of proximity or neighbourhood. In other words, the relationship between the
,pursuer and defender was sufficiently proximate that the majority was prepared to hold
that Stevenson owed Mrs Donoghue a duty of care for the purpose of liability in delict.
The tripartite test to establishing whether there is in fact negligence is that:
There must be a duty of care owed by the defendant to the pursuer.
There must be breach of that duty
As a result of the breach, the defendant ought to have suffered loss.
Grant v Australian Knitting Mills Ltd [1936] AC 85, PC. The plaintiff suffered dermatitis
because free sulphites used in the manufacturing process had not been washed out of
the garments before they were marketed. The fact that, unlike Mrs Donoghue, the
plaintiff could have sued the retailer for breach of contract did not prevent recovery
against the manufacturer in delict.
Even at this more general level, there are two important limitations on the extent of the
duty of care laid down in Donoghue:
The duty only extends to latent defects; the bottle of ginger beer was opaque and the
snail could not be seen before the contents were used. [12] If the defect is patent, ie
obvious, and the consumer chooses to use it, the manufacturer may escape liability
because the chain of causation is broken[13] or the damages will be reduced by the
ultimate consumer's contributory negligence.[14]
The duty is to prevent harm to the ultimate consumer's person or property. If A is
physically injured by a defective product, carelessly manufactured by B, A can sue B for
damages for pain and suffering (solatium). A can also sue B for economic loss which
derives from his injuries (derivative or parasitic economic loss), for example loss of
wages when in hospital, loss of wages in the future if A is permanently incapacitated and
so forth.[15] If A's property is damaged by a defective product carelessly manufactured by
B, then A can recover damages from B in respect of the damage to his property: for
example if A's dog dies as a result of contaminated dog food or a defective vacuum
cleaner damages A's carpet. But A is not able to sue B in delict if the only property
damaged is the defective product itself. A cannot sue B in delict for the cost of repairing
a defective car or for replacing a defective vacuum cleaner which blew up without
harming A's person or damaging any property other than the vacuum cleaner itself. In
these situations, A has suffered pure, as opposed to derivative or parasitic, economic
loss, ie the cost of repair or replacement or the difference in value between the property
with and without the defect. As we shall see, the courts are reluctant to allow a person to
recover damages for pure economic loss in delict; A's remedy lies in contract against the
person who sold him the goods, not the manufacturer. [16] Similarly, if the defect is
discovered before there has been any harm done to A's person or property, the cost of
repairing the defect is pure economic loss and cannot be recovered in delict. [17]
It cannot be emphasised enough that in Scots law there is no delictual liability unless a
breach of a duty of care has caused harm: damnum injuria datum. Harm is a constituent
of negligence as well as a consequence of negligence. We can owe a duty of care and be
,careless, but there is no liability unless our carelessness has caused harm to the pursuer.
the law can refer only to the standards of the reasonable man in order to determine
whether any particular relationship gives rise to a duty to take care as between those
who stand in relation to each other.
For Lord Atkin a duty of care arises when it is reasonably foreseeable by the defender
that a person in the position of the pursuer would be affected by the defender's acts or
omissions. It will be noticed that in these examples the duty of care is to
prevent physical harm to the pursuer or physical damage to his property and will enable
the pursuer only to recover economic loss which is derivative from the injuries or damage
sustained. But in situations where the pursuer does not suffer physical harm or damage
to property, for example pure economic loss, the courts tend to be reluctant to impose a
duty of care even though the loss to the pursuer would have been reasonably
foreseeable by a person in the position of the defender.
Another important development came about by the Caparo v Dickman case. This case
established the 3 test rule. L. Bridge said, ‘in addition to the foreseeability of damage,
necessary ingredients in any situation giving rise to a DOC are there that there should
exist between the party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of proximity or neighbourhood and that the situation
should be one on which the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the party for the benefit of the other.
This tripartite test, the Caparo criteria, was applied to a case of physical damage to
property by the House of Lords in Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The
Nicholas H.[23] A surveyor (the defendant) advised the owner of a damaged vessel to
continue on her voyage. The vessel sank and the cargo was lost. It was held that the
surveyor did not owe a duty of care to the owner of the cargo (the plaintiff) to avoid
damage to his property. Although it was reasonably foreseeable that the surveyor's
careless advice could result in physical harm to the plaintiff's property, nevertheless no
duty of care arose since the relationship between the parties was not sufficiently
proximate and it would have been unfair, unjust and unreasonable to hold otherwise. To
have imposed a duty of care in this case would have disturbed 'the intricate blend' of
internationally accepted rules of shipping law under which the owner of the cargo has a
remedy against the owner of the ship in contract but the amount of compensation is
limited.
Duty of care
Generally there is no liability for an omission. What is or is not reasonably foreseeable
depends upon the foreseeability of the reasonable man. The reasonable man is more
rigorous in the conduct of his affairs. The reasonable foreseeability is an objective test-
partly. We ask whether a reasonable man in the position of the defender would have
contemplated harm.
, Bourhill v Young- a motorcyclist was sued by a woman who suffered nervous shock as a
result of seeing the aftermath of an accident. She could not succeed. While the
motorcyclist was careless in his actions and owed a duty not to be careless, he did not
precisely owe a duty this particular pursuer. She was outwith the ambit of the duty. The
motorcyclist could have contemplated harm to people he would have hit with the bike or
even people hit by debris after a collision, but not people who alter came to see the
scene.
What is to be foreseen is the injury to the pursuer. Injury relates to loss. In Hughes v lord
Advocate, the case involving the boy falling into a manhole and as a result burning
himself due to an explosion. The house of lords held that while the explosion might have
been unforeseeable, the danger of the harm and the harm it might cause was not
different in kind to the harm that actually occurred. Similarly in Home Office v Dorset
Yacht- seven borstal boys escaped from custody as the borstal officers fell asleep instead
of supervising them. As a result they get into a yacht and damages another one. The
reasonable man forsees that the escape of the boys due to them being unsupervised will
result in damage.
5 requirements:
1. Existence of Duty of Care owed by D to C.
2. D must have breached that Duty of Care.
3. There must be loss and causation as a result of the breach of Duty.
4. Remoteness- the loss must not be too remote.
5. Defences- there must be no defences available to the D.
C must be able to prove that D had a duty not to perform or to perform certain actions.
Establishing a Duty of Care is of massive importance.
When is a Duty of Care owed? No clear and simple answer. In practice most difficulties
revolve around different cases eg nervous shock, vicarious liability etc.
Establishing Duty of Care
Incremental Approach- courts make decisions on particular relationship between
the C and D.
The general approach- the more civilian way- one general overarching test which
allows you to come up with an answer for any given case.
Donoghue v Stevenson 1932 SC (HL) 31
Ginger beer has a snail in it. Could Mrs Donoghue sue the manufacturer? Did the
manufacturer owe her or their final customer a duty of care?( Negligence already existed
prior to this case) It was established that they did owe her a duty of care. L. Atkins came
up with a general answer as to when a duty of care is owed. He said, ‘the law concerns
itself with carelessness only where there is a duty to take care and where failure in that
duty has caused damage… (check page 6 of handbook for quote)’
This case gave rise to the neighbour principle- Lord Atkins said,’ the rule that you are to
love your neighbour becomes, in law, you must not injure your neighbour… you must
take care to avoid acts or omissions, which you can reasonably foresee, would be likely
