Private law cases

• Ward v Tesco Stores [1976] 1 W.L.R. 810- Slipping on yoghurt

  1. The defender had sole control of the offending thing
  2. That the incident would not have occurred had due care been taken
  3. The defenders did not explain as to how the incident happened
• Dawson v Page 2003 SC 482


  Legal control over a property
• Maloco v Littlewoods Organisation Ltd [1987] A.C. 241


  No liability for the intentional actions of trespassers
• Titchener v British Railways Board 1984 SC (HL) 34


  Duty of Care - The burden of proof is on the pursuer
• Taylor v Glasgow Cooperation 1922 1 AC 44


  Dangers - Such reasonable care’ means taking into account the circumstances of the incident:
• Tomlinson v Congleton [2004] 1 A.C. 46 – Swimming in a lake


  There is no duty to take any extra steps about obvious dangers arising from natural features of the landscape:
• Michael Leonard v The Loch Lomond & The Trossachs   National Park Authority [2014] CSOH 38- Falling down a hill

  There is no duty to take any extra steps about obvious dangers arising from natural features of the landscape:
• Titchener v British Railways Board Defence


  Volenti non-fit injuria
• Taylor Neilson Barratt v Spice Lounge (Scotland) Ltd 2017 Defence 


  Contributory Negligence
• defences under section 4 of the Consumer Protection Act 1987 :

  • he defect arose from compliance with the regulation
  • The defender did not supply the product
  • The defect did not exist at the time of supply
• McKillen v Barclay Curle & Co 


  thin skin rule
• Various Claimants v The Institute of the Brothers of Christian Schools [2012] UKSC 56

  1. There must be a relationship between the defender and the wrongdoer
  2. The relationship between the defender and the wrongdoer must be connected to their act/ omission- ‘in the course of employment’
• Cox v Ministry of Justice [2016] UKSC 10 - Control Test

  1. The wrongdoer was acting on behalf of the defender
  2. The wrongdoer’s activity is connected to the defender’s business
  3. By employing the wrongdoer for the activity, the defender has created the risk of the delict being committed
• Kerby v National Coal Board 1958 SC 514

  1. Did the employer authorise the act?
  2. Was the employee authorised to do work but did it in a way in which the employer would not have authorised? - The employer is still vicariously liable here as the employee acted within the scope of their employment.
  3. Has the employee acted outside the scope of their employment?
• Century Insurance Co. v Northern Ireland Road Transport Board [1942] AC 509


  The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank in C’s garage, struck a match to light a cigarette and threw it on the floor causing an explosion -

  • A negligent method of conducting employment work is within the scope of employment
• Mohamud v Morrisons (supermarkets) plc [2016] UKSC 11

  • C went to a petrol station kiosk owned by D
  • When C asked a question, the kiosk attendant (K) berated C and used foul, racist and threatening language to order C to leave
  • As C walked out of the kiosk and to his car, he was followed by K, who then assaulted C when he was getting into his car - This case stretched the boundaries of the ‘close connection’ test to cases where the employee commits an intentional tort as part of a seamless episode where he purports to act for the employer’s business
• Lister v Hensley Hall [2002] 1 AC 215

  wrongful behaviour that is closely connected to employment can be counted as within the scope of employment - therefore the employer can be vicariously liable
• Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12


  acting on a personal vendetta makes it difficult to establish vicarious liability
• Bernard v Attorney General of Jamaica [2004] UKPC 47


  a close connection between the employment and the activity can be made through purporting to be acting in the course of employment
• Kennedy v Cordia (Services) [2016] 1 W.L.R. 597

  Employers have a duty to take reasonable steps to ensure safe working conditions
• Wilsons & Clyde Coal Co Ltd v English [1938] A.C. 57


  Employers cannot delegate their way out of their duty of care.
• Unfair Contract Terms Act 1977


  S16- an employers cannot remove their common law duty of care in a contract
• Davie v New Merton Board Mills Ltd. and Another Respondents [1959] 2 W.L.R. 331


  No liability for a defective tool that was sourced from reputable manufacturers and suppliers
• Employer’s Liability (Defective Equipment) Act 1969:


  S1- If an employee is injured by defective equipment in the course of employment and the defect is either wholly or partially attributable to a third party, then the employer will also be liable
• McGregor v AAH Pharmaceuticals Ltd (1996)


  Employers have a duty to provide and implement a safe system of working.
• Health and Safety at Work etc Act 1974

  minimum health and safety standards
• Wilson v Merry & Cunningham (1866-69) L.R. 1 Sc. 326


  Duty to employ competent individuals
• Hatton v Sutherland [2004] 1 W.L.R. 1089


  Employers have a duty of care to take reasonable steps to avoid injuring employees’ mental health
• Keen v Tayside Contracts 2003 S.L.T. 500


  PTSD/ ‘nervous shock’
• Hedley Byrne & Co Ltd v Heller & Partners Ltd 


  that a party may be liable for negligent advice, even without a contractual relationship
• Montgomery v Lanarkshire Health Board


  a party may be liable for negligent advice, even without a contractual relationship
• Donoghue v Stevenson


  the neighbour principle
• kays tutor v Aryshire


  causa causans - Causation
• Kay’s Tutor v Ayrshire & Arran Health Board 1987 SC(HL) 145

  child becomes deaf - was it caused by overdoes or illness? is there a link between loss and wrongful conduct

  Held = not negligent
• Bolton v Stone [1951] AC 850

  the pursuer was hit on the head by a cricket ball hit by a player on the pitch

  Held = the claim failed as the defender had not fallen below the standard of care
• McFarlane v Tayside Health Board 2000 SC (HL) 1

  husband advised his sperm was negative - wife gets pregnant ( loss?)

  there was an attempt to sue for the cost of the child

  held = only sued for solatium
• Nettleship v Weston [1971] 2 Q.B. 691

  was giving a friend's wife driving lessons in her husband's car

  Held = the driver was liable for negligence as they fell below the standard of care of a reasonable driver
• Hill v Chief Constable of West Yorkshire [1989] AC


  not negligent
• Waughv James K Allan Ltd 1964 SC(HL) 102

  lorry driver is sick and got behind the wheel of his lorry

  there was no liability as driver was without good health and a reasonable man would no think that he was in a poor health therefore conduct was not voluntary
• St George v Home Office [2008] EWCA Civ 1068

  C suffered withdrawal seizures as a result of drug abuse from late teens

  Held = C was not guilty of contributory negligence and there was insufficient proximity and connection of his drug past for it a mount to a cause