Flashcards in Delict Deck (74)
Explain Damnum Injuria Datum
"A loss caused by a legal wrong" - you need to prove this in court
(Damnum =physical, property damage, economic loss)
(Injuria = Legal wrong, intentional or accidental)
(Datum connection between these)
Tell about What elements need to be present for a successful delict (5)
1) Duty of care
2) Breach of Duty of care
3) Loss sustained
4) Breach must have been the factual and the legal cause of the loss
5) The lost must not bee too remote
Explain duty of care - Lord Atkins neighbourhood principle
Love to your neighbour becomes lawful that you must not injure your neighbour. Who is my neighbour? Anyone who are closely and directed affected by my act that I ought reasonably have them in contemplation as being so affected, when I am directing my mind to the acts or omissions which are called into question.
Tell about duty of care case Donoghue v Stevenson
Was taken to even house of lords (all the way up, nowadays called supreme court), Product liability in this case (she is user of the Ginger beer product where the snail was found from, she is user so I privity of contract). You own care to those who are reasonably close to you (e.g. using your product or building)
Duty of care case Caparo Industries v Dickman
Caparo industries bought shares in Fidelity Plc in reliance of the accounts which stated that the company had made a pre-tax profit of 1.3m but the company had lied, so Caparo bought an action against the auditors claiming they were negligent in certifying the accounts. Held: no sufficient proximity between auditors and Caparo so no duty of care, and the auditors were not aware of the purpose for which the accounts were being used for.
Tell about The Caparo Test
Result of Caparo Industries v Dickman case, “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.”
Summarise relation to duty of care
1) Harm must be foreseeable
2) There must be proximity between two parties
3) It must be fair, just and reasonable to impose a duty of care in the particular instance
Side note on the intentional cause of damage
It is very different when one party may have suffered in consequence of the acts or omissions of another. It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss… To hold the maker of the statement to be under a duty of care in respect of the accuracy of the statement to all and sundry for any purpose for which they may choose to rely on it is not only to subject him,
Foreseeability of harm case - Bolton v Stone
Cricket ball – Cricket player hit the ball over the fence, hitting the man in his head, causing him harm and suffer while falling, and he ends up suing the company. This wasn’t reasonably foreseeable, such a rare case of ball flying over the fence and harming anyone so the court didn’t rule in his favour.
Foreseeability of harm case Lamond v Glasgow corporation
Golf ball- Golf ball was hit that flew over the fence hitting Mr. Lamond head causing him injury and harm. Court ruled, This was reasonably foreseeable, especially as balls regularly flew over the fence and no warning sign or other for the pedestrians, others had injured themselves as well with the gold balls. (5 elements were present)
Foreseeability of harm case Hughes v Lord Advocate
Two boys at a construction site – the site was left unattended, curious boys knocked over paraffin lamp that caused fire and harm to the kids, court ruled in their parents favour, very foreseeable, as they put up the tent as a warning, not all should have left for the break leaving dangerous items unattended.
Tell about proximity
A particular class or category must be in mind, you need to be inside the danger proximity of the area, duty of care moves with you.
Tell about proximity case Bourhill v Young
The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where
the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was still born. She brought a negligence claim against the defendant's estate. Held: No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.
Tell about Proximity case Hill v Chief Constable of West Yorkshire Police
Jacqueline Hill was the final victim of Peter Sutcliffe (the Yorkshire Ripper). He had committed 13 murders and 8 attempted murders over a five year period. Jacqueline' Mother made a claim against the Chief Constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime. Held: No duty of care was owed. p.28
Tell about Fair, Just and reasonable clause
Allow courts to take in broader economic or policy grounds when deciding to impose a duty of care. The fear of unmanageable litigation or the floodgates issues, in novel circumstances.
Tell about Fair, just and reasonable case Muir v Glasgow corporation
The standard of care is that of the reasonable person, the defenced must have carried out all reasonable precautions to avoid harm in order to establish that they did not breach any duty of care – Kids take shelter during storm and need to use bathrooms which are closely located near kitchen, some of the kids got accidentally boiling water on them, court ruled accidents happen, they tried their best to duty of care.
Accidents will happen, standard of the duty of care is that which is a reasonable person would undertake in the situation at hand.
Tell about establishing a breach
The likelyhood of injury and the seriousness of injury will be considered when the court assesses when the duty was met or beached. Especially depending on HOW great losses are that you suffer
Delict case Paris v Stepney Borough Council
Failure to issue eye goggles to already partially blind worker – This was before health and safety became an actual thing, man was working while spark of metal flied to his good seeing eye, leaving him fully blind. Sued the company for not providing sufficient safety gear especially as he was already partially blind, court ruled their breaching duty of care, as reasonably foreseeable as he will suffer greater losses if something happens to his good eye, would have been very cheap to prevent by buying safety goggles.
Tell about Delict case Latimer v AEC Ltd
Flooded factory case – Loads of water flooded so factory needed to be evacuated, they tried to clean it up but they needed to open up the factory even though everything was still wet in order to meet all the other contracts made by the factory, one man fell, sued for breach of duty of care, court ruled that they breached the care but they would have made such a massive financial losses with the breach of the other contracts so it would have been unreasonable to not open the factory.
Delict case Watt v Hertfordshire Council
Possible injury to a fireman versus saving a woman’s life – Used a car lifting jack to help to save a woman from under a car, when while transporting the jack it fell on MR. Watt’s feet breaking his ankle, court rules that balance duty of care between dying woman or broken ankle, as was under special circumstances, not allowed to recover.
Tell about what needs to present in a Psychiatric Injury (3)
1) Close tie of love and affection between primary victim and secondary victim
2)Secondary victim must be present at the accident or its immediate aftermaths
3) The secondary victim must have been direct perception of the accident with unaided senses
Tell about psychiatric loss case Alcock v Chief Constable of South Yorkshire police
The Hillsborough Disaster – Horrible football accident where too many people were let in the stadium, led people getting heated during the match, ending up people being crushed and trembled to death as the crowd pushed people against fences etc.
Tell about pure economic loss
Economic loss which is consequent on a physical injury or property damage can usually be recovered through an action in Delict. But a loss that is purely financial is not recovered
Tell about Hedley Byrne v Heller Partners case (economic loss)
Made a statement even though wasn’t credit worthy – statements made on which other parties will rely upon and base their financial decisions – a special duty of care (the offering of advice in a professional capacity with the knowledge that others will rely on that advice) Statement of disclaimer (PRINTING; DO NOT RELY WHAT WE HAVE JUST STATED) NOT AVAILABLE TO HAVE A CLAIM DUE TO THE STATEMENT
Tell about economic loss case Junior Books Ltd v Veitchi Co. Ltd
Damages to floor after faulty installation, Subcontractors coming to do things, main contractor and architect contains the privity of the contracts, Because of expertise and knowledge they had straight contact with the junior books so court ruled in favour. p.30
Tell about clause in economic loss
Generally there must be nexus or relationship between parties, normally a sub-contractor only liable to the contractor not the person who engaged the contractor. (expertise / knowledge of identity)
Tell about loss caused by defender's breach
This is the crucial link between the pursuer and the defender - the pursuer must have suffered because of the defender's breach of care. In law this is called 'but for' test. But for the defender's breach the pursuer would not have suffered a loss.
Tell about defender's breach case McWilliams v Sir William Arrol
Safety harness case – Widow sued as no safety gear was not provided, it was, but the guy pretend to be so macho and did not using it
Tell about defender's breach case Barnett v Chelsea & Kensington Hospital
Emergency treatment refused – Weird stomach pains and still patient sent home, dies after two hours, they breached the duty of care by sending the patient home, court was annoyed to the doctor, but the patient was poisoned, so penalty for the doctor for negligence but no recovery as sending the patient home wasn’t the reason why he died.