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Law of Delict
The law of delict is that branch of the private law of Scotland which is concerned with the compensation of persons who suffer loss, injury or damage as a result of the behaviour of others, behaviour which is held to amount to unjustifiable wrongdoing.
The law of delictual liability
I. The idea of delictual liability

Delictual liability establishes a branch of private law that needs to be distinguished (primarily) from other branches that revolve around alternative sources of liability: contracts and unjustified enrichment). The distinction can be based on two factors: the legal grounds of the obligations (that give rise to liability) and the requirement of a wrongful act.
- The law of delictual liability is similar to the law of conduct: they both (normally) require a breach of obligation as the basis for liability. But they are dissimilar in terms of the source of the respective obligation (ex lege obligation ↔ obligation from agreement of the parties).
- The law of delictual liability is similar to unjustified enrichment in terms of the character of the underlying obligaton (ex lege obligation). But they are dissimilar because delict, unlike unjustified enrichment, (normally) requires a wrongful act to which the liability is attached.

Possible functions of the law of delict
- Deterrence
- Compensation
- Risk allocation
- Enforcement
- Welfare
We should not suppose that the law of delictual liability has only one function.

The impact of the law of delictual liability on social relations has two clearly distinguishable aspects:
- Backward-looking aspect (it concerns the actual victim and the wrongdoer)
- Forward-looking aspect (the decisions send out messages on how the courts perceive the liability for certain activities – providing incentives and disincentives)
Strict liability
What complicates this picture is strict liability. Strict liability is where a person can be liable in delict for breach of duties without the need for the person who suffers the injury or damage to establish fault.
It is tempting to think of strict liability as an alien element that was imposed upon the law by the legislators. But there is actually a moral case for strict liability: there are dangerous activities (storing explosives, running nuclear power stations, keeping wild animals, marketing drugs, etc.) that we allow only on the condition that their risks will not be spread in the community. Without the possibility of strict liability, we would be hampered in our ability to regulate social life reasonably
Strict liability also reminds us that there are two aspects to the conduct that constitutes delictual liability.
- The actual instance of conduct that can be associated with the specific harm
- The initial choice to engage in the activity that led to the harm (driving a car, practicing a profession, running a factory)
In situations where strict liability obtains, the latter aspect in itself proves enough to establish delictual liability.
Joint Liability
Liability where there is more than one wrongdoer. There are two possibilities:
- Joint and several liability
Two or more persons have contributed to the commission of one delict. Each person has made a material contribution to the delict
Anderson v. St Andrews Ambulance Association (1943) S.C. 248
- Several liability
The wrongful acts of two or more persons are not connected; there is no common harmful result.
Hook v. McCallum (1905) 7 F. 528

Joint and Several Liability
If A is injured by the joint fault of B and C, he can sue both or either one of them.
‘Where two or more persons have been culpable, either as principals, or some of them only as accessories, each of them may be sued for the whole damage; because both of them concurred in committing the wrong; but as soon as the damage is repaired or made up to the party hurt by any one of them, the obligation is extinguished as to the rest; for an obligation founded solely upon damage cannot possibly continue after the damage ceaseth to exist.’ (Erskine, Inst, III, I, 15.)

Modern authority: * Steven v. Broady Norman & Co. 1928 S.C. 351.
Joint Liability
Steven v. Broady Norman & Co. 1928 S.C. 351.
In Steven v. Broady Norman & Co. 1928 S.C. 351 a worthless decree which had been obtained against one wrongdoer was held to be no bar to an action against another who was alleged to be liable jointly and severally with the other.
And in Arrow Chemicals Ltd. v. Guild 1978 S.L.T. 206 it was recognised that recovery from one of two persons alleged to be jointly and severally liable to the pursuer was only precluded where full reparation had been made and the case was continued in order to explore the alleged inability of one of the two to honour a decree which had been pronounced against him for payment.
Vicarious Liability
Vicarious liability means that one person is held to be liable for the wrongful acts or omissions of another person.
There are old legal principles at play:
- Qui facit per alium facit per se (he who acts through another is deemed responsible)
- Respondeat superior (let the master be responsible)

Two characteristic relations to which the concept is applied
Principal – agent
Employer – employee
(We concentrate on the employer-employee relationship.)

Vicarious liability for the employee applies under three conditions:
- There must be an employer-employee relationship
- The employee must be at fault
- The employee was acting within the scope of employment.

One should not forget that, although the employer may be held vicariously liable, the employer and the employee remain joint wrongdoers.
Vicarious Liability
What qualifies as employer-employee relationship for this purpose?
Of key importance is the distinction between contract of employment (of services) and contract for services. Consequently, the typical challenge is to distinguish between employees and independent contractors.
‘It is often easy to recognise a contract of service when you see it, but difficult to say where the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship’s pilot, a taxi-man, and a newspaper contributor are employed under a contract for services.’ Stevenson Jordan & Harrison Ltd v. McDonald & Evans [1952] l T.L.R.101, at 111.
employer-employee relationship: judicial test
additional tests: integration/ multiple/ labels
Traditionally, the ‘control test’ is used to ascertain the employment relationship.
‘A servant is a person subject to the command of his master as to the manner in which he shall do his work.’ Yewens v. Noakes (1880-81) LR 6 QBD 530, at 532-533.
In contemporary circumstances, the control test in itself can easily prove inadequate – mainly because of the existence of highly technical employments where the employer does not understand what the employee is doing. In response to this problem, the relevant case law has developed further tests that, in conjunction with the ‘control test’, help ascertain the employment relationship.
Vicarious Liability
Scope of Employment
The employee must have committed the wrongful act or omission while he was acting within the scope of his employment (the course of employment).
Two phases in recent development in case law:
- *Kirby v. NCB (1958) S.C. 514 was the leading authority from 1958.
- *Lister v Hesley Hall Ltd [2001] 1 AC 215 seems to have replaced it in 2001
(1) The Kirby Case
The Kirby test accounts for four scenarios:
’But, in the decisions, four different types of situation have been envisaged as guides to the solution of this problem. In the first place, if the master actually authorised the particular act, he is clearly liable for it. Secondly, where the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant's act is still within the scope of his employment. On the other hand, in the third place, if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party. Lastly, if the servant uses his master's time or his master's place or his master's tools for his own purposes, the master is not responsible”. * Kirby v. NCB 1958 S.C. 514 at 532-533 per Lord President (Clyde):

1. The employee is doing what he was expressly or impliedly authorised to do – the employer is liable
Neville v. C & A Modes Ltd (1945) S.C. 175
2. If the employee is doing his job in an unauthorised manner – the employer is liable
Taylor v. Glasgow District Council (1997) S.C. 183
3. The employee does something outside the scope of the task he was employed to do – the employer is not liable
Rose v. Plenty [1975] ICR 430
Williams v. A. & W. Hemphill Ltd. (1966) S.C. (H.L.) 31.
4. The employee uses his master’s time or his master’s tools for his own purposes – the employer is not liable
Kirby v. NCB 1958 S.C. 514
Century Insurance Co. v. Northern Ireland Road Transport Board [1942] A.C. 509
Harrison v. Michelin Tyre Co. Ltd [1985] ICR 696
(2) The Lister Test
Lister v Hesley Hall Ltd has reconfigured the test for the ‘scope of employment.’ The decision is a reaction to Trotman v. North Yorkshire County Council [1999] LGR 584. The case has liberalised the law, significantly widening the scope of vicarious liability. It is inspired by the decision of the Canadian Supreme Court in Bazley v Curr [1999] 2 SCR 534.
The new test: ‘close connection’
‘The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.’ Lister v Hesley Hall Ltd [2001] 1 AC 215, at 230.
(3) Related issues
(3) Related issues

(a) The scope of employment in time
‘By the law of Scotland I regard it as settled, that the scope of the employment, and the consequent duties and responsibilities of the employers, do not necessarily cease when the actual work for the day comes to an end.’ Bell v Blackwood Morton & Sons Ltd. (1960) S.C. 11, at 23.
The test is whether the employer retained control of the situation.

(b) Hiring out of employees
Mersey Docks & Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] A.C. 1
Liability for Unintentional Wrongdoing
Negligence: Duty of Care
‘Negligence’ (as a legal term) refers to the existence of a legal duty to take a particular degree of care in particular circumstances. There is liability for the harm to a legally protected interest when it results from the failure to take the required degree of care.
Negligence is ‘legally actionable carelessness’ (Stewart, 109)

The ‘algorithm’ for negligence action:
‘The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.’ Donoghue v Stevenson 1932 SC (HL) 31, at 70, per Lord MacMillan
The principle laid down here can be broken down to three elements:
- There must be a duty of care owed to the pursuer
- There must be a breach of duty
- The breach must cause a loss
Duty of Care
Donoghue v Stevenson
In order for liability to be imposed, a duty of care is required to exist between the wrongdoer and the person harmed. Ultimately, whether duty of care is owed to a particular person is determined by the courts: there is no closed list of duties.

(1) Donoghue v Stevenson (1932) SC (HL) 31
The principle of the duty of care was laid down in *Donoghue v Stevenson (1932) SC (HL) 31.
The principle was formulated by Lord Atkin – in terms of the ‘neighbourhood principle’
‘[R]ules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ (At 44)

The decision followed the lead of Benjamin N. Cardozo’s speech in the US case of MacPherson v. Buick Motor Co., 217 N.Y. 382, (1916) (‘The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.’)

Donoghue entrenched the view that the law of negligence is the same in England and Scotland.
(2) What is the standard of care implied in the ‘duty of care’?
The duty of care revolves around contemplating the reasonable and probable consequences of not taking care. The standard of care is what is ‘foreseeable for a reasonable man.’
[I]t has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man.’ * Muir v Glasgow Corporation (1943) S.C. (H.L.) 3, at 8, per Lord Thankerton
(3) The development after Donoghue v Stevenson
* Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004. (Confirming that the law of negligence depends on principle, and that it is Lord Atkin’s neighbourhood principle)

* Anns v. Merton London Borough Council [1978] A.C. 728. The case operationalized the question of the duty of care by a two-stage test:
‘[T]he question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.’ (At 751-752)
(4) The tripartite test
In the case of * Caparo Industries Plc v. Dickman [1990] 2 A.C. 605, the House of Lords reconsidered the issues of duty of care, and organised them around a ‘tripartite test’.
‘What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are 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 in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.’ (At 617-618, per Lord Bridge)
The elements of the ‘tripartite test’
- Loss or injury must be reasonably foreseeable
- Close degree of proximity between the parties
Coleridge v Miller Construction Ltd 1997 SLT 485
Gibson v Orr 1999 SC 42​
* Mitchell v Glasgow City Council 2009 SLT 247
- It is ‘fair, just and reasonable’ to impose duty of care
Negligence: Breach of Duty
The elements of breach of duty
There are three Criteria to establish breach of duty of care:

(1) Voluntary act or omission by the defender
Waugh v. James K Allen Ltd (1964) S.C. (HL) 102

(2) The harm to the pursuer must be the reasonable and probable consequence of the defender’s act or omission
* Muir v. Glasgow Corporation (1943) S.C. (H.L.) 3
Malcolm v. Dickson (1951) S.C. 542
- The defender is expected to have the general state of human knowledge at that time: Roe v. Minister of Health [1954] 2 Q.B. 66
- The exact extent of the injuries does not need to be reasonably foreseeable in case the kind or type of injury is reasonably foreseeable. Also, every aspect of the accident does not have to be reasonably foreseeable:
*Hughes v. Lord Advocate (1963) S.C. (H.L.) 31
Jolley v. Sutton London Borough Council [2000] 3 All ER 409

(3) The act or omission must constitute negligence
What constitutes negligence?
II. What constitutes negligence?

The third criterion of breach of duty is that the act or omission of the defender (which caused the harm to the pursuer) must amount to negligence: it must have been conduct that fell below the standard of care of the reasonable person in the position of the defender.
The courts would likely take the following into account:
(i) Probability of the injury to the pursuer
(ii) Seriousness of the injury to the pursuer
(iii) Value of the activity
(iv) Practicability of taking precautions
(v) cost of precautions
(vi) usual practice
Breach of duty and harm
‘Even though there has been a breach of the duty of care, it is important to appreciate that the delict is only completed and delictual liability is only incurred when harm is sustained by the pursuer. There must be a concurrence of damnum (harm sustained) and injuria (breach of the duty of care) before delictual lability arises (damnum injuria datum).’ (Thomson, 137)

What counts as ‘actionable damage’?
‘But a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability.’ * Rothwell v Chemical and Insulating Co Ltd [2008] 1 AC 281, at 289, per Lord Hoffmann

This aspect of negligence action was brought into focus by the ‘pleural plaque’ claims
‘One is not concerned with whether the plaque is in some sense “injury” or (as she went on to decide) a “disease”. The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques?’ (Rothwell v Chemical and Insulating Co Ltd [2008] 1 AC 281, at 292-293, per Lord Hoffmann)

Legislative response: Damages (Asbestos-related Conditions) (Scotland) Act 2009 Section 1 (Pleural plaques)
Factual causation
Before there is liability in delict, the pursuer must prove that the defender’s acts or omissions are a factual cause of the pursuer’s injury or loss (factual causation).

As a general rule, courts use the ‘but for’ test to ascertain the causal connection between the defenders actions and the pursuer’s harm. The defender’s breach of duty must be a causa sine qua non of the pursuer’s injury or loss – ‘but for’ the defender’s conduct, the pursuer would not have sustained the harm.
1) Causation as ‘material contribution’ to the harm
* Wardlaw v Bonnington Castings Ltd (1956) SC (HL) 26
* McGhee v. N.C.B. (1973) S.L.T. 14 (Conflating the ‘material contribution’ and ‘material increase of risk’)
‘From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increase the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.’ (At 22, per Lord Reid)

* Barker v Corus UK Ltd [2006] 2 A.C. 572,
Kay’s Tutor v. Ayrshire and Arran Health Board (1987) SC (HL) 145
Causation as ‘material contribution’ to the harm
Wardlaw v Bonnington Castings Ltd (1956) SC (HL) 26
A workman contracted pneumoconiosis from breathing dust in the atmosphere of his workplace. Some of the dust was caused by a hammer in relation to which there were no known or available precautions which could be taken to prevent the employee breathing contaminated air. Therefore the defender was not in breach of the duty of the care owed to the pursuer in respect of the dust caused by the hammer. However, there were other machines in the workshop which also produced dust for which adequate extraction plant was available and the employers were held responsible for not adequately maintaining the extracting plant. In this case, the dust from the machines did materially contribute to the pursuer's illness and the pursuer was successful. Therefore, where there are two or more sources of harm to the pursuer which operate concurrently, the source for which the defender is responsible will be regarded as a causa sine qua non (a necessary or inevitable cause) of the pursuer's injury if it materially contributed to the injury.
Causation as ‘material contribution’ to the harm
Barker v Corus
Like in Fairchild, the claimants had contracted mesothelioma after having worked for a number of different employers, all of whom had negligently exposed them to asbestos. Mesothelioma is a fatal illness which is caused by exposure to asbestos, but the risk of which increases depending on how often one is exposed. Because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it was impossible to know which employer actually caused the disease, although all of them admittedly increased the risk of the disease occurring. Unlike Fairchild, in which the House of Lords held that all the employers were jointly and severally liable for the damage, in this case some of the employers have become insolvent.
(2) Addressing the attribution problem in its own terms

* Fairchild v Glenhaven Funeral Services [2003] 1. A.C. 32
The position of the House of Lords in Fairchild reaffirms the ‘but for’ test as the general rule but accepts that the attribution problem calls for a principled exception.
The parameters of the ‘Fairchild exception’:
‘What are the significant features of the present case? First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting that disease. Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. Fifthly, the employee has contracted the disease against which he should have been protected.’ (Fairchild v Glenhaven Funeral Services [2003] 1. A.C. 32, at 74, per Lord Hoffmann)
Legal Causation
. Legal causation

‘For the purpose of liability in delict, it is not enough that the defender’s breach of duty is a factual cause or causa sine qua non of the pursuer’s harm. (...) In addition, the defender’s breach of duty must be the legal cause of the pursuer’s harm. To use Latin terminology, it must be the causa causans. (Thomson, 148)
Alternative terms: Direct, decisive, proximate, real, dominant, efficient, effective, substantial cause.

Novus actus interveniens
A novus actus interveniens breaks the causal link between the initial delict and the resultant injury, and replaces it with a causal link between the intervening conduct and a different type of injury.

What type of conduct can be a novus actus interveniens?
1. An external event
2. Conduct of a third party
3. The action of the victim himself
Remoteness of Damage
Remoteness of damage’ is essentially a doctrinal device that prevents a wrongdoer from having to pay for all the results of his wrongdoing. The law deems some losses as ‘too remote.’
The issue of remoteness of damage comes into play once the issue of liability has been established.
The rule of ‘remoteness’ are different in respect of intentional and unintentional delicts. We still concentrate on negligence here.

The classic statement of the rule on remoteness
‘The Grand Rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer.’ Allan v. Barclay (1864) 2 M. 873, at 874, per Lord Kinloch

Note that the ‘Grand Rule’ attempts to roll two principles into one:
- ‘Damages directly and naturally arising’
- ‘Reasonable foreseeability’
This creates a dilemma in cases where the direct consequences are not reasonably foreseeable, or where not only the direct consequences are reasonably foreseeable. Which criterion should have priority in those cases?
Settling of the issues after all?
* Simmons v. British Steel plc (2004) S.C. (HL) 94
‘The picture is confused, largely because of the obiter dicta in McKillen v Barclay Curle & Co Ltd. If those dicta are put on one side, however, there is a line of Scottish authority, stretching back to Allan v Barclay, that is consistent with Wagon Mound in that it limits a defender's liability to damage that was reasonably foreseeable.’ (At 114, per Lord Rodger)

So, what is the law then for ‘remoteness of damage’ in Scotland?
- The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable.
- While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: (…) the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer (…).
- [T]he defender is liable even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen
- The defender must take his victim as he finds him.
- [W]here personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric…
(Simmons v. British Steel plc (2004) S.C. (HL) 94, at 115, per Lord Rodger)
8.​Some Particular Problems in the Law of Negligence

(a)​Psychiatric Injury
​The pursuer has to have suffered a “recognised psychiatric injury” – “a scare” or “stress” not enough on its own.

​Categorisation: the law differentiates between primary and secondary victims.
Primary Victims
Alcock v Chief Constable of South Yorkshire Police
The plaintiffs in this case were mostly secondary victims, i.e. they were not "directly affected" as opposed to the primary victims who were either injured or were in danger of immediate injury. The Judicial Committee of the House of Lords, consisting of Lord Keith of Kinkel, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle, and Lord Lowry has established a number of "control mechanisms" or conditions that had to be fulfilled in order for a duty of care to be found in such cases.
The claimant who is a "secondary victim" must perceive a "shocking event" with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its "immediate aftermath". This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party, as was the case with some of the plaintiffs in Alcock.
The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages.
If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a "sufficiently proximate" relationship to that person, usually described as a "close tie of love and affection". Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.
It must be reasonably foreseeable that a person of "normal fortitude" in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness - the defendant must "take his victim as he finds him" and pay for all the consequences of nervous shock (see "Eggshell skull" rule).
Primary Victims 1995
The leading judgment was given by Lord Lloyd of Berwick who, following from the factual distinction made by Lord Oliver in Alcock v Chief Constable of South Yorkshire, held that Mr Page was a primary victim. Mr Page had been directly involved in the accident, and therefore his case was of a different nature than those that had come previously before the House of Lords. His Lordship held that this factual distinction also had legal consequences, those being that the restrictions that were put in place in order to limit the extent of the defendant's duty to secondary victims, did not apply to Mr Page's case. Therefore, it did not have to be shown that nervous shock or psychiatric injury needed to be a foreseeable consequence of what happened - Mr Page only had to show that a personal injury (describing a broader type of damage) was a foreseeable consequence.
Primary victim: Salter v UB Frozen & Chilled Foods Ltd
Salter v UB Frozen & Chilled Foods Limited (Court of Session, 25 July), the claimant, a forklift truck operator, sought damages from his employers for psychiatric injuries sustained following an accident at work on 8 June 1990 that had resulted in the death of a work colleague. The crucial ingredient in Salter was the fact that the claimant had actively participated in the accident, even although he did not actually witness his colleague sustaining the fatal injury.
Secondary victim
Secondary victims can recover only if they meet the so-called Alcock criteria:
o There must be a close tie of love and affection between the secondary victim
and the person killed or injured;
o The secondary victim must have been present at the accident or at its immediate aftermath; and
o The secondary victim’s psychiatric injury must have been caused by direct perception (ie through his or her own unaided senses) of the accident or its immediate aftermath.
• Secondary victims can recover only if their psychiatric injuries were foreseeable in a person of “ordinary fortitude”– a legal construct that is difficult to evaluate.
• Rescuers do not have to meet the Alcock criteria. However, they may well have to have feared for their own safety.
Economic Loss
​Introduction:– ​What is economic loss?
​What (if anything) is so special about pure economic loss?

​Pure economic loss

​(i) Liability for negligent misstatement and liability for the negligent
​ provision of services

Early Scots sources show limited awareness of any particular difficulty arising through pure economic loss. See, e.g, Erskine, III.i.13.

From the 19th Century onwards the cases show movement towards a situation where pure economic loss (although recoverable in certain other areas of the law) was not recoverable under the law of delict. This is sometimes described as “the exclusionary rule”
​This was changed (initially in the context of “negligent misstatement”) by the principle formulated in:-
​ *Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] A.C. 465
​This principle has been accepted as part of Scots law:-
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on pure economic loss, resulting from a negligent misrepresentation. Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected,[1] with the only remedy for such losses being in contract law.[2] The House of Lords overruled the previous position, in recognising liability for pure economic loss not arising from a contractual relationship, introducing the idea of "assumption of responsibility
​Further evolution of the Hedley Byrne principle:

​*Caparo Industries Plc v. Dickman [1990] 1 All E.R. 568
​*Spring v Guardian Assurance [1994] 2 All ER 129.
​*Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145
​*White v. Jones [1995] 1 All ER 691.
Caparo Industries plc v Dickman [1990] UKHL 2 is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care to arise in negligence,
harm must be reasonably foreseeable established in Donoghue v Stevenson as a result of the defendant's conduct
the parties must be in a relationship of proximity
it must be fair, just and reasonable to impose liability
The decision arose in the context of a negligent preparation of accounts for a company. Previous cases on negligent misstatements had fallen under the principle of Hedley Byrne v Heller.[1] This stated that when a person makes a statement, he voluntary assumes responsibility to the person he makes it to (or those who were in his contemplation). If the statement was made negligently, then he will be liable for any loss which results. The question in Caparo was the scope of the assumption of responsibility, and what the limits of liability ought to be.
Spring v Guardian Assurance
Spring v Guardian Assurance In Spring v Guardian Assurance plc, ((1994) 2 All ER 129), the plaintiff had been given a reference by his former employer, which, it was alleged, was negligent in that it suggested that he was not honest and had little integrity. This more or less ensured that he was unemployable in the insurance business. He brought an action in negligence and contract against the former employer. With only Lord Keith, sticking to his guns steadfastly, dissenting, the remainder of the House found for the plaintiff. Lord Goff stated:
The central issue in this appeal is whether a person who provides a reference in respect of another who was formerly engaged by him as a member of his staff...may be liable in damages to that other in respect of economic loss suffered by him by reason of negligence in the preparation of the reference. That issue can, for the sake of convenience, be subdivided into two questions.
1. Whether the person who provided the reference prima facie owes a duty of care, in contract or tort, to the other in relation to the preparation of the reference.
2. If so, whether the existence of such a duty of care will nevertheless be negatived because it would, if recognised, pro tanto undermine the policy underlying the defence of qualified privilege in the law of defamation.
White v Jones [1995]
[1995] 2 AC 207 (HL). A solicitor carelessly failed to amend the will of his client, with the effect that the client died before the intended beneficiaries were indicated on it. The beneficiaries brought an action in negligence against the solicitor to recover the money they would have received under the will. The House of lords decided, by a bare majority, that they could recover, despite the fact that a solicitor generally owes no duty of care to anyone except his client. In this case, he was held to have owed a duty of care to people he had never met and with whom he had never dealt.
Lord Goff held with a majority of three to two in the House of Lords that the daughters would be able to claim. Influenced by the idea that solicitors may escape the consequences of not doing their job properly, he said that a special relationship existed between the daughters and the solicitor and that Mr Jones had assumed responsibility towards them. This was so even though there was no contract or fiduciary relationship between them.
But note!
​But note (a) the unwillingness to recognise claims in certain situations (e.g. in the context of construction cases) and (b) unusually in negligence - the apparent tension between Scots authority and English in this area.
10.​Defences to Liability
This section of the course will consider some of the principal defences to delictual liability for negligence and breach of statutory duty.
The basis of this position was that, where the pursuer’s negligence had contributed to his loss, the defender’s conduct could no longer be viewed as the cause of that loss. In other words, the pursuer’s conduct broke the chain of causation:

“The view of contributory negligence on which the law proceeds is another example of the maxim causa proxima non remota spectatur [“the near, and not the remote, cause is regarded]. The particular application is that the party directly causing an injury must bear the loss. If the defender directly caused the injury complained of he is liable in damages, and if the pursuer directly caused the injury he must suffer the loss, and cannot throw it on the defender. Contributory negligence in a pursuer means that he himself has contributed to the accident in such a sense as to render the defender’s breach of duty no longer its proximate cause. Though the defender has in fact been negligent, yet the pursuer has by his own carelessness severed the causal connection between the defender’s negligence and the accident which has occurred, and the defender’s negligence accordingly is not the true proximate cause of the injury.” (AT Glegg, A Practical Treatise on the Law of Reparation (3rd ed. 1939, by JL Duncan), 42.)

This rule gradually came to be accepted as unsatisfactory, and the law was changed by the Law Reform (Contributory Negligence) Act 1945, section 1 of which provides as follows:

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault…
Contributory Negligence Act 1945
​The following issues arise in the application of this section:

• The meaning of “fault” in s1(1). Section 5 of the 1945 Act defines “fault” as meaning “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence”. However in Reeves v Commissioner of Police for the Metropolis [2001] 1 AC 360 this was given an extended meaning so as to include the injured party’s own deliberate acts.

• The need for a causal link between the pursuer’s fault and the damage. See e.g. Mitchell v Hutchison 1983 SLT 392.

• How is the court to assess the extent of reduction? What is “just and equitable”? See Stapley v Gypsum Mines Ltd [1953] AC 663, and particularly per Lord Reid at 682.

o Other illustrative examples:-
​Blackhall v McInnes 1997 SLT 649
Defences to liability
(b) Volenti non fit iniuria
(b) Volenti non fit iniuria

Reading: Thomson, Delictual Liability, pp153-156
​Stewart, Delict, para 25.7

The maxim volenti non fit inuria may be translated as “a legal wrong is not done to one who is willing”. It operates as a complete defence to delictual liability. It operates on a simple principle: where a person voluntarily assumes a risk of damage, he or she is not entitled to seek legal redress should such damage actually occur.

• The defence only applies where the pursuer has knowingly and willingly assumed the risk. Knowledge alone is not sufficient. See Smith v Charles Baker & Sons [1891] AC 325, and compare Dann v Hamilton [1939] 1 KB 509 with Morris v Murray [1991] 2 QB 6.

• The defence does not apply in the following cases:
o Where the person injured is taking reasonable steps to effect a rescue: *Baker v TE Hopkins & Son [1959] 1 WLR 966; Tolley v Carr [2010] EWHC 2191 (QB); [2011] R.T.R. 7
o In road traffic cases where s149 of the Road Traffic Act 1988 applies: Winnick v Dick 1984 SC 48.
o Where the pursuer’s behaviour is the very thing which there is a duty to prevent: Reeves v Commissioner of Police for the Metropolis [2001] 1 AC 360.
*Ex turpi causa non oritur actio
(c) Ex turpi causa non oritur actio

Reading: Thomson, Delictual Liability, p158-159 (the issue is discussed as a matter of public policy without using the maxim by name)
​Stewart, Delict, para 25.8

The maxim ex turpi causa non oritur actio may be translated as “no right of action arises from a shameful cause”. This suggests that a pursuer may not succeed in a delictual claim where he was engaged in an unlawful act at the relevant time. The extent to which this defence operates in Scots law is, however, somewhat unclear.

Weir v Wyper 1992 SLT 579;
*Taylor v Leslie 1998 SLT 1248;
Joyce v O'Brien [2012] EWHC 1324 (QB)
Ex turpi causa non oritur actio
Taylor v Leslie 1998
(defender drove car while inlicensed, uninsured and underage. Passenger killed. Conduct not regarded as reprehensible by the community of Shapinsay, a remote island (one of the Orkney islands off the northcoast of Scotland). The deceased had encouraged the defencder to speed. Damages reduced by 50 percent).
Ex turpi causa non oritur actio
Taylor v Leslie 1998
(defender drove car while inlicensed, uninsured and underage. Passenger killed. Conduct not regarded as reprehensible by the community of Shapinsay, a remote island (one of the Orkney islands off the northcoast of Scotland). The deceased had encouraged the defencder to speed. Damages reduced by 50 percent).
Defences to liability:

​(d) Prescription and Limitation of Personal Injury Actions
​The principal Act is the Prescription and Limitation (Scotland) Act 1973, as amended.

The basic rule (limitation) is that actions for personal injury must be commenced within a period of three years after either:

(i) three years of the injury (s17(2)(a)), or
(ii) three years of the date on which the pursuer became aware or it would have been “reasonably practicable” for him to become aware that:
(a) the injuries were sufficiently serious to justify bringing an action; and
(b) the injuries were attributable in whole or in part to an act or omission; and
(c) that the injuries were attributable to the defender’s (or his employee’s) act or omission (s17(2)(b)).
​A similar rule applies to actions following the death of a person: s18(2). Three year limitation periods also apply to actions for defamation (s18A) or harassment (s18B), and to damages for death, personal injury or property damage caused by a defective product (ss22B-22C).

​Note the effect of non-age or incapacity on these limitation periods.

The “equitable discretion” of the court: s19A of the 1973 Act: “(1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”

When will the court exercise this discretion?
Bates v George [2012] CSOH 102;
*Comber v Greater Glasgow Health Board 1989 SLT 639.

Note that limitation is a rule which prevents the action being brought, but does not actually extinguish the legal obligation. Legal obligations may be extinguished by prescription. In this respect, see the 1973 Act, ss6-7. Once an obligation has prescribed, a waiver of limitation periods obviously cannot assist the pursuer. Note, however, that liability for personal injuries and death does not prescribe (s6(2), 7(2) and Sch. 1, para 2(g)).
Prescription and Limitation of Personal Injury Actions
Comber v Greater Glasgow Health Board
Held, where an action of damages for personal injuries had been raised 14 years after the event and six years after the expiry of the triennium, that the action should be allowed to proceed inter alia because the pursuer had been ignorant of the possibility of taking legal action.
Defamation, Verbal Injury, Convicium and Breach of Confidence
In the modern law, defamation involves the intentional communication of a false statement against the character of another person.

Unlike negligence, defamation therefore is (or at least, traditionally was) a delict of intention. It is now sometimes characterised as a delict of strict liability.

​For an action for defamation to succeed, the following elements are required:
(1) The statement must be about the pursuer;
(2) The statement must be defamatory;
(3) The statement must be false;
(4) The communication of the statement must have been malicious.

If (1) and (2) are established, (3) and (4) will be presumed. It is open to the defender to rebut (3) (falsity) by proving that the statement is true (the defence of veritas).

The presumption of malice cannot ordinarily be rebutted (Hulton v Jones [1910] AC 20). (It is for this reason that it is now sometimes characterised as a delict of strict liability.) However, if the defender succeeds in establishing the defences of qualified privilege, fair comment/honest opinion or the emerging defence of responsible journalism, the pursuer’s action will fail unless the pursuer can prove malice on the part of the defender.
Qualified Privilege
​Qualified privilege

Where qualified privilege applies, malice will not be presumed. The pursuer can still succeed in the action for defamation, but will have to prove malice on the part of the defender in order to do so.

​Qualified privilege attaches in the following circumstances:

• Statements where there is a duty to speak. The duty may be legal or moral. See James v Baird 1916 SC (HL) 158. Statements made in the protection of an interest. See Chapman v Barber 1989 SLT 830.
• Reports of judicial, legislative and international organisation proceedings. See Defamation Act 1996, s15 and Schedule 1, Part I.
• Reports concerning official parliamentary or judicial notices to the public, meetings of public or quasi-public bodies in this country and general meetings of UK public companies. See Defamation Act 1996, s15 and Schedule. 1, Part II.

​The privilege attaches to the circumstances (the occasion), not to the statement:

“The distinction must always be drawn between the communication and its occasion. It is the occasion which is privileged, not the communication; or only the communication through the occasion.” (James v Baird 1916 SC 510, per Lord Johnston at 520).
​(2) “Responsible Journalism in the public interest”
​Stems from *Reynolds v Times Newspapers [2001] 2 AC 127.
​Initially seen as a species of qualified privilege. Now, however, it is recognised as “[a] different jurisprudential creature from the traditional form of privilege from which it sprang”: Loutchansky v Times Newspapers [2001] EWCA Civ 1805 at para 35

​*Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44
​Flood v Times Newspapers [2012] UKSC 11
Responsible Journalism in the public interest
Albert Reynolds had been the Taoiseach (Prime Minister) of Ireland, until a political crisis in 1994. The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament; this article was then published in the United Kingdom. However, the UK version omitted an explanation that Reynolds had given for the events, which had been printed in the original article. Reynolds brought an action for defamation. The defences of justification and fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd appealed that the defence of qualified privilege be considered; the Court of Appeal denied this. The appeal to the House of Lords was therefore on the matter of whether the defence of qualified privilege be extended to cover the mass media.
Responsible journalism in the public interest
Reynolds v Times Newspaper
had been the Taoiseach (Prime Minister) of Ireland, until a political crisis in 1994. The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament; this article was then published in the United Kingdom. However, the UK version omitted an explanation that Reynolds had given for the events, which had been printed in the original article. Reynolds brought an action for defamation. The defences of justification and fair comment were unavailable, given the factual nature of the article. Times Newspapers Ltd appealed that the defence of qualified privilege be considered; the Court of Appeal denied this. The appeal to the House of Lords was therefore on the matter of whether the defence of qualified privilege be extended to cover the mass media.
Responsible journalism in the public interest
Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44
Jameel v Wall Street Journal Europe was a House of Lords judgment on English defamation law. The judgment was an affirmation of Reynolds v Times Newspapers Ltd and effectively upholds a public interest defence in libel cases.[1]
Fair Comment
(5) Fair comment

If the defender establishes that the statement complained of is merely a comment, then this will be a defence unless the pursuer can establish malice on the part of the defender.

• The statement must be one of comment, not fact: Merivale v Carson (1887) 20 QBD 275; BCA v Singh [2010] EWCA Civ 350
• The comment must be fair and not motivated by malice. See Turner v MGM [1950] 1 All ER 449.
• The matter must be one of public interest. “This qualification is, however, of minimal force for it is to be remembered that the matter must be one of public interest, rather than one in the public interest.” (Norrie, Defamation, 145).

See also s6 of the Defamation Act 1952:

"In an action for defamation in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”
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