7. Statutory Liability - Delict

Front 1

What must an act contain in order for it to be used to found a claim of negligence?

Back 1

Contemplation of civil liability in the event of a breach.

Front 2

What is needed in order to see if civil litigation is relevant under a statutory duty where an act is silent in the matter.

Back 2

The whole statute must be examined, along with the pre-existing law, the scope and purpose of the statute and for whose benefit the duty was intended.

Front 3

What was held in Cutler v Wandsworth Stadium Ltd (in liquidation) 1949

Back 3

A bookmaker could not use an act which was designed for the benefit of the public to found a private claim.

Front 4

What was held in Gorringe v Calderdale MBC 2004 in terms of the action proceeding.

Back 4

An action based on statutory negligence which fails cannot then fall back on to the common law.

Front 5

When will damages be awarded when a claim of statutory negligence is competent?

Back 5

When the loss incurred reflects the harm against which parliament meant to legislate.

Front 6

What was held in Gorris v Scott 1873

Back 6

A statutory duty which required shippers of live stock to keep the animals penned could not be used to form a claim of negligence when there were swept overboard as the purpose of the duty was to prevent contagion of disease.

Front 7

What will be the effect of statute imposing absolute liability?

Back 7

Evidence as to the degree of care actually taken will be irrelevant.

Front 8

What was held in Millar v Galashiels Gas Co ltd1949

Back 8

Even though a defender had taken every step to make sure an accident did not occur, it was unexplained and it was unforeseeable when the risk for which there was absolute statutory liability arose the defenders were liable.

Front 9

What is required for a person seeking reparation for the use of discretion by a public body which causes harm?

Back 9

The normal Caparo rules, however courts are reluctant to recognise a duty in most cases.

Front 10

What is the effect of broad policy issued which cause harm to a pursuer?

Back 10

There will be no liability unless it can be shown the authority acted in bad faith, following Hallett v Nicholson and Bonthrone v Secretary of State for Scotland.

Front 11

What is the effect if operational discretion causes harm to a pursuer?

Back 11

An action will only be able to proceed if it can be shown that no reasonable public body would have come to that conclusion.

Front 12

What was held in Stovin v Wise 1996

Back 12

A local authority had statutory powers to remove dangers from roads but were not under a duty to do so. No duty was owed when a motorcyclist suffered injury due to a car pulling across his path due to the driver's view being obscured by a bank which was known to the authority to make the junction dangerous.

Front 13

What was held in Gorringe v Calderdale 2004 in terms of duties.

Back 13

There was no common law duty to paint warning signs on a road even though a local authority had the power to do so.

Front 14

What was held in Osman v Ferguson 1993?

Back 14

The pursuer sued in respect of negligent failure to apprehend a schoolteacher who had become obsessed with a boy, had lost his job and conducted a campaign of harassment before injuring the boy and shooting his father dead. Even though the proximity question which had denied liability in Hill was present the court denied liability for policy reasons.

Front 15

What was held in Osman v UK 1999?

Back 15

It seemed to the court that blanket immunity was being given in the judgement of Osman v Ferguson 1994 so damages were awarded for a breach of article 6. right to a fair trial.

Front 16

What was the overall effect of Osman v UK 1999?

Back 16

The courts have become very clear that policy is an integral part of the caparo test to avoid accusation of blanket immunity.

Front 17

What was held in Z v UK 2001?

Back 17

Article 6 is not breached because a duty of care was denied on policy grounds provided the litigant had the opportunity to argue that in the ciurcumstances it was fiar, just and reasonable to impose a duty.

Front 18

What was held in Jain v Trent Strategic Health Authority 2009?

Back 18

A local authority had cancelled the claimant's registration for a nursing home believing it to be in an unacceptable condition due to building works, which turned out to not be the case. A duty was denied as this would create a conflict of interest where the authority exercised statutory powers to act in the protection of elderly residents in the claimant's premises.

Front 19

What does the Occupier's Liability (Scotland ) Act 1960 govern?

Back 19

Liability for negligence arising from defective premises or dangers on land.

Front 20

To what does the Occupier's Liability (Scotland ) Act 1960 apply according to S.1(3)(a)

Back 20

Heritable property and 'any fixed or moveable structure, including any vessel, vehicle or aircraft, and to persons entering therein.'

Front 21

On whom does the Occupier's Liability (Scotland ) Act 1960 impose a duty?

Back 21

Occupiers or those with control over property.

Front 22

When will a landlord be a person a duty is imposed on in light of Occupier's Liability (Scotland ) Act 1960?

Back 22

When they are responsible for maintenance of the property under a lease, according to S.3(1).

Front 23

Who will be liable under the Occupier's Liability (Scotland ) Act 1960 if the property is unoccupied?

Back 23

the owner

Front 24

What must be shown in order to found a claim under the Occupier's Liability (Scotland ) Act 1960

Back 24

culpa on the part of the defender

Front 25

What was held in Honeybourne v Burgess 2006

Back 25

A bouncer cannot be seen as a danger withing the meaning of Occupier's Liability (Scotland ) Act 1960.

Front 26

What is the standard of care in cases concerning the Occupier's Liability (Scotland ) Act 1960.?

Back 26

That of what is reasonable in the circumstances.

Front 27

What was held in Tomlinson v Congelton BC 2003?

Back 27

There is no duty to guard against natural hazards under the Occupier's Liability (Scotland ) Act 1960.

Front 28

Hoe may a duty be seen to have been discharged under the Occupier's Liability (Scotland ) Act 1960 in terms of tresspassers.

Back 28

If they have to overcome a high hurdle in order to gain access.

Front 29

What was held in Devlin v Strathclyde Regional Council 1993?

Back 29

A 4 year old boy was playing tig on a school roof when he decided to bounce off a skylight from some 5 feet, injuring himself. As he was deemed to be old enough to anticipate the risk and volunteered to it, there was no liability.

Front 30

What was held in McLeod v British Railway Board 2001?

Back 30

A 12 year old boy fell on a power cable while trespassing. The defender was found liable with a 20% reduction for contributory negligence.

Front 31

Which cases show that the court will take into account the age of a pursuer when deciding the standard of care owed under the Occupier's Liability (Scotland ) Act 1960?

Back 31

1.McGlone v British Railways Board 1966.

2.Titchener v British Railways Board 1983

3.Devlin v Strathclyde Regional Council 1993

4.McLeod v British Railway Board 2001

Front 32

What form of liability is imposed by the Animals (Scotland) Act 1987?

Back 32

strict liability.

Front 33

What was the stance of the pre-existing common law in terms of animal's liability?

Back 33

The keepers of animals ferae naturae (of a wild disposition) were presumed to know of an animal's dangerous propensities and were strictly liable for harm resulting from a failure to confine or control the animal. The keepers of animals nasuetae naturae (of a gentle disposition) were only liable if it could be proved they were aware of that particular animal's dangerous propensity or were negligent.

Front 34

How does theAnimals (Scotland) Act 1987 interact with the common law?

Back 34

Common law actions of nigligence may still be raised where harm is caused by animals, normal rules of negligence apply.

Front 35

To whom does liability attach under the Animals (Scotland) Act 1987 2.5

Back 35

The keeper of an animal.

Front 36

Who is a keeper of an animal?

Back 36

The owner, or those in possession of an animal. If the animal is owned by a child below the age of 16, the keeper is the person with actual care and control of the child.

Front 37

under the Animals (Scotland) Act 1987 S.1 when is strict liability imposed?

Back 37

When a fierce animal causes injury by an attack, or a foraging animal causes property damage through foraging.

Front 38

What was held in Fairlie v Curruthers 1996?

Back 38

A purpuer alleged she had been knocked down by a frisky dog. Since the animal had not harried or attacked her there was no liability under the Animals (Scotland) Act 1987.

Front 39

What type of injury does not give rise to strict liability under S.1(4) and (5) of the Animals (Scotland) Act 1987

Back 39

Where the injury consists of disease transmitted by means which are unlikely to cause severe injury other than the disease or when damage is caused by 'the mere fact than an animal is present on a road or other place.

Front 40

What was held in Bennet v Lamont & Sons 2000

Back 40

A cow escaping from a field, causing a road accident did not impose strict liability under the Animals (Scotland) Act 1987.

Front 41

What defences are given by the Animals (Scotland) Act 1987 s.2?

Back 41

No liability will arise under the act of the harm sustained was wholly due to the fault of the victim or the keeper of another animal where that animal is the victim. Volenti non fit injuria is available in both cases.

Front 42

what is the effect of an animal whose purpose is for the protection of guarding property or persons causing injury?

Back 42

Liability will be strict unless the use of a guard animal was reasonable and if the animal is a dog it complies with the Guard dogs act 1975. They cannot roam freely, and there must be warning signs.