(一) LAW OF Delict
A delict is defined as: a civil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise.
The law of Delict, like the law of Contract, is a part of the law of Obligations.
Delictual obligations do not arise voluntarily, such as is the case with contractual obligations.
Both the Scottish common law and statutory law apply to delictual obligations which are imposed by law.
Delict known as the law of “civil wrongs” and applies to much of the same area of
law as the English law of “tort.”(Wrong full act).
There have to be three elements present for a delict- damnum injuria datum –or loss
caused by a wrong.
Loss can include damage to a person, damage to property, financial loss or interference with the peaceful enjoyment of property.
An act may constitute both a crime and a civil wrong. The criminal offence is prosecuted by the state, and damage may be payable, after separate civil action by the injured party.
General principles of Delictual Liability
There must to be three elements present:
; A loss or injury, such as physical or personal injury, the loss of earnings,
nervous shock, distress damage to a reputation
; Cased by a legal wrong (wrongful conduct )
; Caused by culpa (fault, intentionally or negligently done) on the part of the
wrongdoer.
Two exceptions will be discussed
; Vicarious liability？Where the defender is liable for the actions of another.
; Strict liability: where liability can arise without fault through statutory
provision
If there is no loss, for example when someone drive a car recklessly but does not actually injure anyone or anything, there could be a criminal offence. As no-one is injured then there is no delictual liability.
If there is no “legal wrong‟ or wrongful conduct then there could be loss but no
liability.
Joint & several Liability
If two or more persons have contributed to the delict, then they are jointly& severally liable.--In the case of Drew V Western SMT(1947)
Vicarious liability
In certain circumstances, someone can be liable for another‟s delictual act. This can arise through agency, partnership and employment.
Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer.
Vicarious liability of the employer for his employee’s actions.
Vicarious liability is an example of joint and several liability as the injured party can sue both the employee and the employer.
To bring an action against the employer the pursuer must prove:
1) That the wrongdoer was an employee of the defender; and
2) That the delict (wrongful act) was committed within the scope or course of this
employment.
If the employer is sued and found liable, then s/he (or the insurance company) can sue the employee for the amount that has been paid in damages.--In the case of Lister V
Romford Ice and Cold Storage Co (1957)
John Ross, as it is descried in the case, is liable for the man‟s suffering of heart attract.
Although the man might still have had a heart attack without John‟s action, he did got
personal injured directly after John pushed him down and followed with a heart attack. The man could sue both John and his employer, for the incident happened in the scope of office hour when John was doing delivery. John‟s employer has vicarious liability
by John‟s action.
It is the same situation when John drove the van faster than a regular speed, he hit the inside lane vehicle. John has committed delict and is liable for the compensation claimed by the car owner. John‟s employer is still jointly liable for this claim because John was still in office hour while he hit the car.
(二) Negligence
Negligence and the “Duty of care”
Negligence is the most common delict and an action in delict arises where harm is caused carelessly or inadvertently.
As we have been a delict, or wrongful act, can be intentional or unintentional. Negligence occurs when an unintentional act is done without due care by the defender.
The law of negligence has developed to protect individuals from physical harm to the person ;including psychiatric harm；, and to property. Financial interests (with some
exceptions) are only protected where the financial loss is consequential to the harm of the person or property.
For a claim to arise in negligence, the follow points must be considered:
1) Was a duty of care owed by the defender to the pursuer? And if so, was there a
breach of the duty of care (look at the standard of care required)?
2) Was the harm or loss caused by the defender‟s breach of this duty of care? i.e.
the establishment of causation.
3) Whether the loss arising from the breach of duty was too remote (only direct and
immediate losses arising from a breach are usually compensated).
The duty of care
There is no liability for a failure to take due care unless there was a duty to take care in the first place. A duty of care is imposed by both the common law and by statutory law, for example, the provisions of the Health & safety at work Act 1974--In the
case of Donoghue V Stevenson (1932)
The duty of care must be owed by the defender to the pursuer
The duty of care is therefore someone whom the defender ought to have contemplated as within sufficient proximity to the defender to be owed a duty of care.--In the case
of Bourhill V Young (1943)
Was there a breach of the duty of care?
As above, again this is judged on what the reasonable man would or would not have
which in the exercise done had he been in the defender‟s position to eliminate the risk;
of his reasonable foresee ability；he had identified.
The degree of care will vary depending on the circumstances of each case, for example the probability of injury, how serious the injury could be, how easy it
was to avoid the injury etc.
The burden of proof
There are three conditions necessary for res ipea loquitur to apply:
1) The offending „thing‟ must have been under the control or management of the
defender or his employees.
2) Such accidents do not normally happen where due care is taken
3) There is an absence of explanation for the accident
In the case of Scott V London and St Katherine Dock Co (1861)
Devuine V Colvilles(1969)
Causation
Remoteness of Damage
If the defender is found guilty of negligence then the next step is to quantify the extent of the damages. Some of the injuries or loss may be regarded as too “remote” from
the original negligent act. The law will not compensate damage that is too remote.
The “egg-shell” or “Thin skull” rule
Once a defender has been found guilty of negligence, in personal injury cases there is a rule that he must take his victim as he finds him. Therefore if a victim has an
especially thin skull and suffers a greater injury than an ordinary man, the wrongdoer is liable for that greater injury.
In the case of Smith V Leech Brain and Co Ltd (1961)
(三) Defences in Delict & Remedies
; Contributory negligence
; Consent & volenti non fit injuria
; Damnum fatale
; Immunity & prescription
Defences
There are many defences available to be argued by a defender to an action.
Contributory negligence
The defender has been negligent BUT the pursuer‟s own actions, in failing to take care for his own safety, have partly contributed to his injuries. In the case of Sayers V Hariow Urban Council(1958)
There are two rules known as:
1) The agony rule
2) The dilemma rule
； Consent
A person has no right of action if they have expressly or by implication consented to something being done to them. However, such consent must be freely given.
； Volenti Non Fit Injuria
This broadly translates as “to one consenting no wrong is done”.
It must be shown that the pursuer freely and voluntarily with full knowledge of the risk involved agreed to take that risk. The defender must establish that the pursuer had free choice and this would not apply if he/she acted out of duty of fear of losing
his/she acted out of duty or out of fear of losing his/her job.
The defence of volenti does not apply to passengers in roal vehicles and drivers must, by law, have third party insurance cover.
In the case of Morris V Murray (1991)
； Damnum Fatale
A damnun fatale or act of God would offer a complete defence. This would be some extraordinary event outside the control of man such as an earthquake. Mere heavy rainfall would not constitute a damnun fatale, even if it were exceptional.
； Immunity
； Prescription and limitation of actions
； Remedies
； Interdict
It is legal wrongdoing to drink brandy when drinking is expressly prohibited in all company depots. John committed a breach of duty of care. It is obviously negligence
to disobey company rule. John is guilty for his misconduct and his employer could fire him or punish him. There is no defense arise for john‟s wrongful act. However, if John did hurt someone or destroy company property after being drunk, John‟s
employer will commit Contributory negligence for not taking care for his own safety.
