2. Liability For Negligence - Delict

Front 1

How may negligence be defined?

Back 1

A failure to take care in circumstances where care is required

Front 2

Whats is afailure to take care in circumstances where care is required

Back 2

negligence

Front 3

When does liability for negligence arise?

Back 3

When the law recognises a duty to care and foreseeable harm results from the breach of that duty

Front 4

When is an obligation to make reparation imposed?

Back 4

When liability in negligence is established

Front 5

What are the questions to be asked when determining liability for negligence?

Back 5

1. Did the defender owe the pursuer a duty of care

2. Did the defender owe the pursuer a duty or care in respect of the harm which has arisen

3. Did the defender breach the duty owed to the pursuer

4. Was the defender's breach the cause of the harm to the pursuer

5. Should the defender compensate the pursuer for all losses

Front 6

Which persons do not have delictual capacity?

Back 6

Incapable adults, children, unincorporated associations

Front 7

What do incapable adults, children and unincorporated associations not have in terms of delict?

Back 7

Capacity

Front 8

What is the general neighbourhood principle?

Back 8

You must take reasonable care to avoid acts or omissions which you can reasonably see to be likely to injure your neighbour

Front 9

Who is 'your neighbour' in the neighbourhood principle?

Back 9

Persons who are so closely and directly affected by my act that i ought to reasonable to have them in contemplation when i am directing my mind to the acts or omissions in question.

Front 10

In which case was the neighbourhood principle first stated?

Back 10

Donoghue v Stevenson 1932

Front 11

Whom stated the neighbourhood principle?

Back 11

Lord atkin

Front 12

What concept have the courts developed to limit to whom duties are owed

Back 12

Proximity

Front 13

What is proximity

Back 13

A concept used to limit to whom duties are owed.

Front 14

What fact gave proximity to the relationship between manufacturer and consumer in Donoghue v Stevenson 1932

Back 14

The fact that the bottle was opaque, and could not be inspected until drank.

Front 15

What are the facts, and what was held in in Bourhill v Young 1943?

Back 15

While a negligent motorcyclist owed a duty of care to other road users and pedestrians within the vicinity, Bourhill was too far away for Young to have foreseen harm to Bourhill would result from his actions.

Front 16

What case shows the principle of geographical, or spacial proximity limiting liability?

Back 16

Bourhill v Young 1943

Front 17

What three questions must be asked when inquiring about delictual proximity?

Back 17

1. Does the defender know of the pursuer's existence?

2. Had the defender assumed responsibility for the pursuer's welfare?

3. Is the pursuer within a specifically well defined class to be owed a duty?

Front 18

What are the facts, and what was held in in Gibson v Chief Constable of Strathclyde 1999?

Back 18

As officers had taken control of a dangerous situation, there was sufficiently close a proximity to other road users for a duty of care to arise. This duty was breached and the defenders were liable.

Front 19

What case shows that a duty of care will arise when a defender has taken control of a situation so as to show sufficient proximity?

Back 19

Gibson v Chief Constable of Strathclyde 1999

Front 20

What was held in Burnett v Grampian Fire and Rescue Services 2007?

Back 20

A duty of care was owed by the fire service when they negligently failed to extinguish a fire. This was due to them assuming responsibility.

Front 21

What are the facts, and what was held in Hill v Chief Constable of West Yorkshire 1989?

Back 21

While it was reasonable foreseeable that women in the leeds area were in danger while a serial killer remained at large, the pursuer's daughter was not in a sufficiently well defined class to have a duty owed to her. There was no proximity to link the victim with the police so that they should have thought of her, and such no liability.

Front 22

What case shows a person must be in a sufficiently defined group to be owed a duty of care for unintentional delicts?

Back 22

Hill v Chief Constable of West Yorkshire 1989

Front 23

What was held in Caparo Industries ltd v Dickman 1990?

Back 23

In order for a duty to be recognised:

1. Harm to the pursuer must be reasonable foreseeable

2. There must be a close degree of proximity between the parties

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

Front 24

What was held in Muir v Glasgow corporation 1943?

Back 24

As the defender had acted reasonably in respect of foreseeable risks there was no liability. (Another interpetation is that there was no duty)

Front 25

What are the facts, and what was held in in Bolton v Stone 1951?

Back 25

While the event of a cricket ball being hit out of grounds was foreseeablee, the risk of injury was so remote that a reasonable person would not have anticipated it. There was no duty.

Front 26

What was held in Lamond v Glasgow Corporation 1968?

Back 26

As the event of a golf ball being hit off a course to the injury or someone was not only possible and foreseeable, but (as shown by evidence) probable a duty of care was owed. This duty was broken and liability established.

Front 27

What cases show that if a risk is foreseeable but unlikely it may be ignores, but if likely it will incur a duty of care?

Back 27

Bolton v Stone 1951; Lamond v Glasgow Corporation 1968; Muir v Glasgow Corporation 1943

Front 28

What was held in The Wagon Mound (No. 2)?

Back 28

There must be a valid reason to ignore a risk such as disproportionate expense or inconvenience in order to not incur liability for a breach.

Front 29

What was held in Hughes v Lord Advocate 1963?

Back 29

The precise was an accident occurs does not need to be foreseeable if the harm resulting is of the same general nature of that which there was a duty to guard against.

Front 30

What cases show that the exact way harm materialises does not need to be foreseeable if the harm is of a general type that is foreseeable enough to impose a duty of care.

Back 30

Hughes v Lord Advocate 1963; Wilson v Chief Constable of Lothian and Borders Police 1989

Front 31

What are the facts, and what was held in Wilson v Chief Constable of Lothian and Borders Police 1989?

Back 31

The police were under a duty of care to have regard to reasonably foreseeable consequences of releasing a man in the cold. The chain of events leading to his death by hypothermia was not different from events that were foreseeable.

Front 32

What was held in McKillen v Barclay Curle 1967?

Back 32

The rule that one is liable only for foreseeable consequences is relaxed in personal injury cases: Thin skull rule.

Front 33

What is the standard of care imposed by the law?

Back 33

That of a reasonable person.

Front 34

Which case shows questions of foreseeability may be relaxed in personal injury cases?

Back 34

McKillen v Barclay Curle 1967

Front 35

What was held in Nettleship v Weston 1971?

Back 35

People are entitled to expect a certain degree of care regardless of the experience of those in breach (in this context learner drivers)

Front 36

What case shows learner drivers owe the same duty of care as experiences ones?

Back 36

Nettleship v Weston 1971

Front 37

What was held in Mackintosh v Mackintosh 1864?

Back 37

The standard of care varies with the risk

Front 38

Whom stated: 'no prudent man in carrying a lighted candle through a powder magazine would fail to take more care than if he was going through a damp cellar' and in which case.

Back 38

Lord Neaves in Mackintosh v Mackintosh 1864

Front 39

Whom stated 'there is no absolute standard but it may be generally said that the degree of care required varies greatly directly with the risk involved', and in which case?

Back 39

Lord Macmillan in Muir v Glasgow Corporation 1943

Front 40

What cases show that the standard of care varies with the risk involved?

Back 40

Muir v Glasgow Corporation 1943; Mackintosh v Mackintosh 1864

Front 41

What are the most relevant considerations the court will take into account when deciding the standard of care which should be imposed?

Back 41

The likelihood of the risk materialising and the magnitude of harm if the risk does materialise.

Front 42

What was held in Brisco v Secretary of State for Scotland 1997

Back 42

The disadvantage in guarding against a risk was sufficient enough to outwight the small risk involved, thus no duty was owed.

Front 43

What cases show that if a disadvantage in guarding against a risk is sufficient enough to outwight the small risk involved then no duty will be owed?

Back 43

Brisco v Secretary of State for Scotland 1997; Latimer v AEC Ltd1953

Front 44

What was held in Brown v Rolls Royce1960?

Back 44

Failure to adhere to normal practice will infer that a duty has been breached but will not be sufficient to prove it; if the reasons for not adhering to the standard are reasonable there will be no breach.

Front 45

What case shows that a failure to adhere to normal practice will not necessarily mean a duty has been breached?

Back 45

Brown v Rolls Royce 1960

Front 46

What was held in Paris v Stepney Borough Council 1951?

Back 46

When special attributes are present in an individual which cause a greater potential magnitude of harm for breaches of a duty, a higher standard of care is justified.

Front 47

What case shows a higher standard of care may be required for individuals with special attributes?

Back 47

Paris v Stepney Borough Council 1951

Front 48

What is the standard test for causation?

Back 48

The 'but for' test

Front 49

What was held in Mcwilliams v Sir William Arrol & Co. 1962?

Back 49

While the defenders were in breach for not providing a safety belt to an employee, evidence was lead to show that he would not have worn it. The 'but for' test failed therefore there was no liability.

Front 50

Who stated 'To break the chain of causation it must be shown that there is.....a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extranious or extrinsic' and in which case?

Back 50

Lord Wright in The Oropesa

Front 51

What was held in Mckinley v British Steel Corporation1988?

Back 51

An employee failed to show he would have worn safety goggles in accordance with a duty on the defender. The but for test failed so no liability.

Front 52

What was held in Barnett v Chelsea and Kensington Hospital Management Committee 1968?

Back 52

While a casualty officer breached a duty of care by negligently failing to see a man with arsenic poisoning it was shown he would have died anyway: the 'but for' test failed therefore there was no liability.

Front 53

What cases give examples of a duty being breached but no liability arising due to a failure of the 'but for' test?

Back 53

1.Mckinley v British Steel Corporation1988

2.Mcwilliams v Sir William Arrol & Co. 1962

3.Barnett v Chelsea and Kensington Hospital Management Committee 1968

Front 54

What is the term for the factual cause of a loss?

Back 54

causa sine qua non

Front 55

What is the causa sine qua non?

Back 55

The factual cause of a loss.

Front 56

What is the term for the legal cause of a loss?

Back 56

Causa causans

Front 57

What is a causa causans

Back 57

the legal cause of a loss

Front 58

How does a causa causans and causa sin qua non interact?

Back 58

While a loss may not have occurred if not for a causa sine qua non, if there is a novus actus interveniens then the loss will be attributed to that act, which will be seen as the causa causans.

Front 59

What is a novus actus interveniens?

Back 59

A new intervening act, which breaks the chain of causation.

Front 60

What is the term for an act which stops a causa sine qua non from being seen as a causa causans?

Back 60

A novus actus interveniens.

Front 61

What must an action be in order to qualify as a novus actus interveniens, and break the chain of causation?

Back 61

Un predictable and not flowing from the causa sine qua non.

Front 62

What was stated by Lord Wright in The oropesa?

Back 62

'To break the chain of causation it must be showing that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.'

Front 63

In which case was this stated, and by whom?

''To break the chain of causation it must be showing that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.''

Back 63

Lord Wright in the Oropesa

Front 64

What was held in Fraser v Bell 1961?

Back 64

A dog jumping on a coal man caused him to drop his sack on the foot of another. The owner of the dog was responsible as the drop was a natural consequence of his negligence, not a novus actus interveniens.

Front 65

What was held in Scott v Shepard 1773?

Back 65

A person who threw a lit firework into a crowd was liable for injuries caused after it was thrown again: the second throw from the crowd at whom it had first been thrown was a natural consequence of his negligence, and not a novus actus interveneiens.

Front 66

What cases show that defenders will be liable for any natural consequences of their acts?

Back 66

1.Fraser v Bell 1961

2.Scott v Shepard 1773

Front 67

What was held in McKew v Holland & Hannon & Cubitts (Scotland) Ltd 1970?

Back 67

A pursuer sustained an injury to his ankle due to the negligence of the defender. His leg was likely to give was afterwards. At a flat he descended a set of stairs without care, panicked, and jumped down 10 stairs injuring himself. The defenders were liable for the first injury, but not the second. His jumping was a novus actus interveniens.

Front 68

What was held in Wardlaw v Bonnington Castings 1956?

Back 68

A pursuer developed a condition due to breathing dust at work. It may have been due to a hammer, for which there was no protection, or from grinder for which there was. It could not be proved which. As only one source had broken a duty, he could succeed if he could show that one source materially contributed to his injury. The 'but for' test was relaxed.

Front 69

What was held in McGhee v National Coal Board 1973?

Back 69

The pursuer had suffered harm from two sources at different times, only one of which could be protected against. He could succeed in his claim if he could show that the source which broke the duty owed materially contributed to the risk of harm. The 'but for' test was abandoned'.

Front 70

Why was the but for test relaxed in Wardlaw v Bonnington Castings 1956 but abandoned in McGhee v National Coal Board 1973?

Back 70

In the first case the causes occurred simultaneously, whereas the causes happened at different time in the second.

Front 71

What was held in Fairchild v Glenhaven Funeral Services 2002?

Back 71

The pursuer suffered from mesothelioma due to asbestos dust from 3 sources. 2 were from different employers who were in breach, one was from the pursuer's self employment. The 'but for' test was suspended. Since each breach materially contributed to the risk they were joint and severably liable.

Front 72

Which cases show that the but for test may be relaxed or suspended if it cannot be shown which of a number of breaches caused a loss, but each materially contributed to the risk of harm?

Back 72

1.McGhee v National Coal Board 1973

2.Wardlaw v Bonnington Castings 1956

3.Fairchild v Glenhaven Funeral Services 2002

Front 73

Which case overturned Fairchild in stating that liability was divisible rather than joint and several in cases of risk creation, and was then further overturned by the Compensation Act 2006 s.3?

Back 73

Barker v Corvus 2006

Front 74

What was held in Barker v Corvus 2006?

Back 74

Liability in risk creation cases should be divisible rather than joint and several as in Fairchild.

Front 75

Which Act and section overturned Barker v Corvus?

Back 75

Compensation Act 2006 S.3

Front 76

What form of harm is governed by the Compensation Act 2006?

Back 76

mesothelioma

Front 77

Which Act governs harm from mesothelioma?

Back 77

Compensation Act 2006

Front 78

What is the current rule on risk creation cases?

Back 78

Barker should be followed (giving divisible liability), unless the risk is mesothelioma in which case follow the CA 2006 (joint and several)

Front 79

What is the term for whether the defender should compensate the pursuer for all losses?

Back 79

Remoteness of damages.

Front 80

Which English cases contrasted as to how remoteness should be dealt with.

Back 80

Polemis v Furness Withy & Co Ltd 1921 stating that foreseeability should not be a criteria for recovery, and The Wagon Mound 1967 where the privy council rejected polemis stating losses must be foreseeable.

Front 81

Which Scottish case resolved the dispute between judgements in Polemis and The Wagon Mound?

Back 81

Simmons v British Steel plc 2004

Front 82

What was held in Simmons v British Steel plc?

Back 82

1. Once liability is established in terms of a breach the starting point is that the defender will only be liable for consequences which were reasonably foreseeable.

2. The defender is not liable for all losses which are reasonably foreseeable: there may be no liabilty resulting from harm due to a novus actus interveniens or unreasonable conduct by the pursuer.

3.Subject to point 2, there will be liabilty for harm greater than is foreseeable if it is of the same general type (as per Hughes v Lord Advocate)

4.Subject to point 2, the thin skull rule operates (as per McKillen v Barclay Curle).

5.Subject to point 2 where personal injury is foreseeable, the defender is liable for both physical and psychiatric injury arising (as per Page v Smith)

Front 83

What was held in Kyle v P&J Stormonth-Darling WS 1992

Back 83

Solicitors may be liable for not lodging appeal papers. Even though the pursuer may not have one, this was not loss of a chance but loss of a legal right.

Front 84

What was held in Gregg v Scott 2005?

Back 84

The defender was not liable for reduced chance of recovery from cancer due to a misdiagnosis. The delay reduced the chance from 42-25%, but even without misdiagnosis the chance was always below 50.

Front 85

What was held in Dorset Yacht Co v Home Office 1970?

Back 85

Prison officer who had control of borstal boys were liable for damages the boys cause to a yacht while trying to escape. The officers should have foreseen that as this was the only means of escape the boys may have tried to use it. They exercised their supervisory duty negligently.

Front 86

What case shows prison officers who had control over borstal boys were liable for their conduct due to negligence through damage the boys causes?

Back 86

Dorset Yacht Co v Home Office 1970

Front 87

What was held in Maloco v Littlewoods 1987?

Back 87

The defender owned a cinema which was broken into by children who started fires causing damage to the pursuer's property. Since the defender did not know of previous acts of vandalism concerning fire they were not under a duty to foresee the possibility of fire caused by vandals and not liable for the damage.

Front 88

What was held in Perl Exporters v Camden LBC? [English authority giving good explanation of maloco]

Back 88

An omission to secure their property on the part of the defender was not a breach of duty even though they had been made aware of the accessibility of the property by vagrants. There is a reluctance to recognize a duty for pure omissions in England.

Front 89

What was held in Mitchell v Glasgow City Council 2009?

Back 89

The pursuer was a tenant who had problems with a nuisance neighbour about whom he complained. The neighbour was threatened with eviction and then killed the pursuer. The court applied Caparo and stated there was no duty to warn the pursuer as they had no reason to see any threat to his life.

Front 90

What was held in McFarlane v Tayside Health Board 2000?

Back 90

The pursuer underwent a vasectomy and then conceived a child. Unplanned conception amounted to a loss; solatium and damages for financial costs of upbringing were awarded.

Front 91

What cases shows that damages may be awarded for unplanned pregnancy?

Back 91

McFarlane v Tayside Health Board 2000

Front 92

What is the effect of a successful defence of contributory negligence?

Back 92

Reduced damages in proportion to the pursuer's contribution to the harm.

Front 93

Which Act governs contributory negligence?

Back 93

Law Reform (Contributory Negligence) Act 1945

Front 94

What must the court do before reducing damages for contributory negligence?

Back 94

Find the amount which would have been awarded without the pursuers contribution and reduce from there.

Front 95

What is meant by volenti non fit injuria?

Back 95

No wrong is done to one who consents

Front 96

What is the effect of volenti non fit injuria?

Back 96

a complete defence as the pursuer knowingly assented to the risk which materialised

Front 97

What does volenti not apply to, and due to which act and section?

Back 97

passangers in road vehicles due to Road Traffic Act 1988 s.149

Front 98

What is the effect of the Road Traffic Act s.149

Back 98

Volenti does not apply to passengers in road vehicles

Front 99

What was held in Morris v Murray

Back 99

Two friends drank heavily then took off in a light aircrafts which crashed. There was no liability due to volenti.

Front 100

What is the meaning of ex turpi causa non oritur action?

Back 100

no liability arises between parties jointly engaging in a criminal activity.

Front 101

What is the maxim stating liability does not arise from joint criminal ventures?

Back 101

ex turpi causa non oritur action

Front 102

What is meant by damnum fatale

Back 102

act of god

Front 103

Which maxim means act of god

Back 103

damnum fatale

Front 104

What was held in Kerr v Earl of Orkney

Back 104

The defender sought to attribute the collapse of his damn which casued the pursuer's loss to a damnum fatale of heavy rainfall. The court states rainfall in that area, which was common, was no a damnum fatale; it was far more likely due to negligence.

Front 105

What type of events may the courts see as damnum fatale?

Back 105

Unpredictable and overpowering events completely beyond human control.