Special Delicts

Front 1

Employers Liability - general duty

Back 1

General duty of an employer is to take reasonable care to provide a safe system of work for his or her employee with regards to the physical and mental health of the employee (McGregor v AAH Pharmaceuticals)

Front 2

Delegation in employment

Back 2

The employer cannot delegate a duty to another party or claim it was the duty of another employee to avoid injury to the employee's health (Wilsons & Clyde Co Ltd v English)

Front 3

General test for employers liability

Back 3

Overall test is the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers where there is a recognised general practice. Where there is developing knowledge he must keep reasonably abrest of it and not be too slow to apply it. Where he has greater than average knowledge of risks he may be thereby obliged to take more than the standard precautions. He must weigh up the risk in terms of likelihood of injury and the potential consequences if it does occur. If he's found to fall below the standards expected of a reasonable employer, he is negligent.

Stokes v Guest, Keen and Nettlefold

Front 4

Barber v Somerset County Council

Back 4

An employer is usually entitled to assume that the employer can withstand the normal pressures of the job unless he knows of a particular problem

The employer is generally entitled to take what he is told by the employee at face value unless he has a good reason to think otherwise

The claimant must show that the breach of duty has caused or materially contributed to the harm suffered

It is not enough to show that the occupational stress caused the harm, need to establish that the employer is aware of this

Front 5

Vicarious liability (general test, course of employment test

Back 5

To shift liability from one person to another we must establish:

an employment type of relationship

if the action undertaken fell within the course of their employment (Catholic Child Welfare Society)

Kirkby v National Coal Board tried to define the course of employment test:

- if the master authorised the act he is liable

- if the workman does work he is appointed to do but in a way he is not authorised, the master is still responsible

- if the servant is responsible for a particular type/class of work and he does something outside that scope then the master is not responsible for the mischief

- if the servant uses his masters time/tools/place for his own purposes then the master is not liable

Then the Lister test was introduced as Kirby is not specific enough. You need to ask if it is closely connected, just and reasonable to introduce liability to the employer

Front 6

Professional Liability - legal definition of a professional

Back 6

"any man who performs a service of art for another is responsible up to the limit of his own profession - that is what he professes or announces to the employer. In the case of a registered practitioner (holder of a diploma licence) it needs no announcement of its own; for in such cases the law assumes that he holds himself out as possessed of the ordinary skill and care of his profession" (Lord Dundas, Dickson v Hygienic Institute)

Front 7

Negligence of a medical professional

Back 7

To show there is a standard of care and it has been breached the pursuer needs to establish:

- that there is a usual and normal practice

- that the defender did not adopt that practice; and

- that the course the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care

Hunter v Hanley

Front 8

Advice v Diagnosis

Back 8

Advice is different from diagnosis/treatment. Doctors must give reasonable care that the patient is aware of reasonable risks involved in the procedure (Montgomery v Lanarkshire Health Board)

Front 9

Negligence of a legal professional - authorities

Back 9

Dickson v Hygienic Institute and Hunter v Hanley

Front 10

Delictual liability arising from ownership or occupation of property

Back 10

Negligence in common law or nuisance

Front 11

Negligence

Back 11

Foreseeability
Duty of care

Breach of duty

Causal link

Damage

Front 12

Determining nuisance

Back 12

Watt v Jamieson

1) Invasion should be considered from POV of victim/pursuer

2) If the invasion causes serious disturbance of his neighbour or material damage to his property it is irrelevant if it is normal use of the property

3) Court must balance the freedom of the proprietor to use property as they wish with the duty to not inflict harm on neighbour

4) Court must also consider if it is tolerable considering the nature of the invasion

An owner cannot be responsible for the actions of a third party - Maloco Respondents v Littlewoods Organisation

Front 13

Remedies

Back 13

Interdict or damages

If you want to claim damages you must establish culpa (showing malice/intent/recklessness)

Front 14

Product liability (common law + legislation)

Back 14

Donoghue v Stevenson - manufacturer owes a duty of care when the product is manufactured for the ultimate consumer

Consumer Protection Act 1987 - an attempt to approximate and regularise product standards. All the consumer had to do was show there was a defect and that it caused injury, can go directly to manufacturer, no need to show negligence

Front 15

Disadvantages of the 1987 Act

Back 15

Damage to product itself is not covered

Claim for damages must be over £275

Cannot sue for damages to business property

Front 16

Defences for product liability

Back 16

Compliance with a legal requirement

Uncirculated product - can argue that they never put the product into the supply chain

Subsequent defects - defects not present when put into circulation

Non-profit activities - outwith the course of the business, must prove they did not make a profit

Components - component manufacturer can argue that its not a defect in the component, but the defect in the subsequent product

Development risk - a defender may avoid liability if they can show the state of scientific/technical knowledge is not at this level. Cannot use the development risk test if there is a development somewhere else in the world

Front 17

Damages (personal injury and property - how are they calculated)

Back 17

Money is used as a substitute for the loss that someone has suffered. It tries to put the pursuer into the position they would have been had they not suffered the loss or injury

Personal injury

Non-patrimonial losses (solatium) is compensation for the feeling of pain which can be claimed before or after court date

Patrimonial losses are the economic loss which arises from a harm - generally loss of wages from the date of injury to the court date and after. Could include a family member having to take time off work. (Administration of Justice Act 1982)

You're allowed to use a jury to calculate damages however if you can prove it is too complicated/inappropriate for a jury to decide then the judge will do it(Court of Session Act 1988, s.9 and 11)

Damage to property - Pomphrey v James A Cutherbertson - damages should be the market value of the property. If there is not a relevant market value (e.g. modified car) then they can claim for high damages

Front 18

Prescription and limitation (and when does clock start?)

Back 18

Limitation - court says you do have an obligation but a period of time has passed and your claim will no longer be heard. Ensures good use of the courts resources. Clock starts at death, date of injury or when it would have been reasonable for the pursuer to be aware of the serious injury.

Short prescription - says that once you become aware of the obligation you should do something about it. When it expires it no longer exists. This penalises carelessness

Long prescription - obligation will only be a certain length, once you have reached that the obligation is gone. Ensures certainty and peace

Clock starts on the date of the loss, injury or damage or when the continuing act ceases or when they become aware of it.