Delict (Scots law)
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Delict in Scots Law is, amongst other things, the responsibility to make reparation caused by breach of a duty of care or, arguably, the duty to refrain from committing such breaches. The equivalent in English law and other common law jurisdictions is known as tort law.
Delict is borrowed from Latin delictum and, as a branch of Scots law, revolves around the fundamental concept damnum injuria datum - literally loss wrongfully caused. Where A has suffered wrongful loss at the hands of B (generally where B was negligent), B is under a legal obligation to make reparation. There are many various delicts which can be committed, ranging from assault to procurement or breach of contract.
Delict deals with the righting of legal wrongs in civil law on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault and defamation are used in both systems, their technical meanings differ.
The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the House of Lords appeal case, Donoghue v. Stevenson 1932 AC 562, 1932 SC (HL) 31, 1932 SLT 317.
The Duty of Care
Donoghue v Stevenson (1932), also known as "The Paisley Snail case", is considered to have defined the concept of duty of care. Mrs Donoghue was in a cafe in Paisley where she consumed a bottle of ginger beer which contained a decomposing snail in an opaque bottle. The snail was invisible to the naked eye until the contents of the bottle had been almost completely consumed. Consequently, she suffered serious gastric problems. To whom do we owe a duty of care? Donoghue says that we owe this duty to our neighbours:
“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.” per Lord Atkin at 44 of SC
Since Donoghue v Stevenson, duty of care has been expanded by various cases. One of the most noted cases would be Caparo Industries v Dickman  AC 605. It was held in this case that any extension of the circumstances in which a duty of care should be owed should be developed cautiously. This developed a further criterion: is it fair just and reasonable to impose a duty? This new tripartite test was introduced to personal injury cases in Scotland in the case of Gibson v Orr.
Breach of duty of care
The idea of delict is not to prevent a person's acts or omissions from ever causing harm occurring, but is to take reasonable precautions in the circumstances to prevent harm. This is seen in the ratio of Muir v Glasgow Corporation 1943 SC(HL) 3
To be sued successfully under delict it must be proven that a defender owed a duty of care to an individual, that they have breached this duty of care (i.e. taken insufficient precautions to prevent harm), it is fair, just and reasonable to impose a duty of care in the circumstances and that there is a causal link between your wrong and the loss suffered by the individual in question. In determining what constitutes sufficient precautions several factors apply:
1) Probability of Injury
Bolton v Stone   A cricket ball was hit out of the ground, over a fence 17 feet high, striking and injuring a passer-by. It was held that despite the fact that the precautions in place were not sufficient to prevent such harm occurring, the defender had not been in breach of his duty of care. This was because in the past 30 years a ball had only left the grounds over that fence 6 times, making the likelihood of such an injury merely a remote possibility rather than a reasonable probability.
2) Severity of Injury
Paris v Stepney Borough Council   It was decided that a welder was not owed a duty of care to be provided with safety goggles (today this duty would exist), but that due to Mr Paris' unique circumstances (he only had one eye) the severity of his potential (and resulting) injury was so great that he be owed a more comprehensive duty of care.
3) Availability of Precautions
Roe v Minister of Health   When the danger of an act is not known (e.g. working with Asbestos prior to knowing it was dangerous) or the precautions are not known and it is reasonable not to know about them, no duty can exist to provide such precaution.
4) Foreseeability of injury
Hughes v Lord Advocate   Two young boys were playing near an unattended manhole surrounded by paraffin lamps. One boy fell in and the lamp exploded causing burns. Held: even although it was unforeseeable that a child would be injured in such a way in such circumstances, considering that an unattended site such as this would be likely to constitute an allurement for young children it was foreseeable that there was a risk of injury by burning. Since that was what in fact occurred, the nature of the damage was reasonably foreseeable and the boy won his case. It was decided that the type of injury arising from the wrong must be of a foreseeable type.
Onus of Proof
Normally the onus of proof is upon the pursuer to show that the defender has not achieved the standard of care expected of him in the circumstances. However, this can be difficult if not impossible where the cause of an accident cannot be discovered. In these circumstances the doctrine of res ipsa loquitur (the facts speak for themselves) may be of use to the pursuer since it transfers the onus of proof to the defender. In other words, if the pursuer can successfully plead res ipsa loquitur the law presumes that the defender has been negligent and it is up to the defender to provide a plausible explanation for the accident which is inconsistent with his negligence.
To rely upon this doctrine the pursuer must establish two things:
- 1. The offending ‘thing’ must be under the exclusive control of the defender.
- 2. Such an accident would not happen in the ordinary course of events unless those in control were negligent.
Facts: S was injured when a bag of sugar fell onto him as he was walking past L’s warehouse. No one could say how the bag of sugar had come to fall on S.
Held: since L was in exclusive control of their warehouse and bags of sugar do not ordinarily fall out of warehouses without negligence, it was up to L to provide an alternative explanation. Since L could not, it was presumed that L had not achieved the standard of care expected.
Once the pursuer has established on the balance of probabilities that he was owed a duty of care by the defender, and that the defender’s failure to achieve the standard of care expected caused the loss or injury for which the pursuer is seeking a remedy, the pursuer may be said to have established a prima facie case. This means that ‘at first sight’ the pursuer will win and the onus of proof shifts to the defender. The defender can attempt to avoid liability or have the amount of damages which is sought by the pursuer reduced by putting forward appropriate defences are attempting to argue that the damage or injury for which the pursuer is seeking compensation is too remote a consequence of the defender’s negligence.
Volenti non fit injuria
This Latin maxim basically means ‘to one consenting, no wrong can be done’. Thus if a pursuer appreciates the risk associated with his activity, but nevertheless continues in such a way as to suggest that he is accepting the risk, this will provide the defender with a complete defence - i.e. one which will allow the defender to completely escape liability to the pursuer. It is up to the defender to show that the pursuer has accepted the risk and obviously this means that the defender must first show that the pursuer was appropriately informed of the risk. "Titchener v British Railways Board 1984" SC (HL) 34
Note that if the defender does provide a plausible alternative explanation the onus then passes back to the pursuer.
- AC 850
- AC 367
- 2 QB 66
- A.C. 837
- 3 H & C 596