Intro to Delict

• Basis for Delict - General Claim


  No liability without fault (there must be culpa)
• Culpa


  fault or blame
• Basis for delict - General Principle


  Damnum injuria datum (loss caused by a legal wrong)
• Damnum


  loss
• Injuria


  wrongful conduct
• Datum


  causal link
• Kay's Tutor v Ayrshire and Arran Health Board


  Suspected meningitisLoss - Child became deafInjuria - Gave her the wrong doseDatum - Did the dose make her deaf OR did the meningitis make her deaf?
• Reparation


  Making good the loss/damage caused
• obligation of reparation


  The obligation to make reparation arises from wrongdoing and is imposed by lawIncludes: physical, mental or 'nervous' injury, damage to property, financial loss (derivative). damage to reputation.Will not include 'pure economic loss' (exceptions)
• McFarlane v Tayside Health Board [2000]


  Failed vasectomy. Husband advised his sperm count was null but wife fell pregnant. Should the wife be compensated?the plaintiff wife was entitled to recover for the pain, discomfort and inconvenience of the pregnancy and for any expenses that arose directly as a result of the pregnancy.
• What counts as a loss?


  interest is a loss.Physical integrity and personal wellbeingOwnership and possessionLibertyReputationPrivacyRights incidental to ownership of heritable property e.g. right to exclusive possession; right to comfortable enjoyment
• Types of injuria

  1. Intentionally i. Intending harm to the victim orii. Deliberately, in knowledge of the harmful consequences or indifference to themOr ,b) Negligently (unintentional)
• Grounds of liability


  The ground (basis)on which an action will proceed depends on: the form taken by the loss complained of and, the way in which it has been occasioned.
• General Action


  There is a general action (raised in claims arising from negligence and claims based generally on wrongfulness rather than on any specific delict
• Statutory regimes


  Some circumstances invoke a statutory regime which may operate along with or instead of the common lawE.g. Personal injury, death or damage/ destruction of property...Caused by a danger due to the state of premises or to things done on premises: Occupiers' Liability (Scotland) Act 1960Caused by an animal: Animals (Scotland) Act 1987Caused by a defective product: Consumer Protection Act 198