part 6

• Contributory negligence


  Not a complete defence - partial defence - reduction in damages
• Contributory negligence cases


  • Sayers v Harlow UDC
  • Pidgwon v Doncaster Health Authority
• Law Reform (Contributory Negligence) Act 1945 s1(1)


  Damages suffered is partly their own fault and the fault of the defendant, claim won't be defeated by that reason but damages reduces to extent as the court thinks fit
• Volenti Non Fit Injuria


  Hinges on 'consent' - Knowingly/voluntarily accepts risk/possibility of injury
• Volenti Non Fit Injuria cases


  • Nettleship v Weston
  • Morris v Murray
  • Titchener v British Railways Broad
• Occupiers Liability (Scotland) Act 1960 s2(3)

  Relates to volenti non fit injuria
• Ex turpi causa non oritur actio


  No action arise from an illegal act - Public policy to prevent legal action
• Ex turpi causa non oritur actio cases


  • Pitts v Hunt
  • Sloan v Triplett
• Animals (Scotland) Act 1987 s4(2)


  No defence to person killing or causing injury to an animal where the killing or injury occurred at/near a place where person was present for the purpose of engaging in criminal activity/ and was in furtherance of that activity
• Damnum Fatale


  Acts of God - Circumstances giving rise to action must arise from natural causes without human intervention and must go beyond anything which is reasonably foreseeable or preventable
• Damnum Fatale cases


  • Burns v Royal Hotel (St Andrews) Ltd
  • Caledonian Railway Co v Greenock Corporation
• Necessity


  Defence available in cases of emergency - Most common within medical cases
• Necessity cases


  • Cope v Sharpe (No 2)
  • Southport Corporation v Esso Petroleum Ltd
• Res Judicata


  Issue has already been litigated between the same parties and has been determined by a competent court - Parties; subject matter; media concludendi
• Res Judicata cases


  • Matuszczk v National Coal Broad
• Prescription and Limitation (Scotland) Act 1973 and 2018 s6(1)


  If after the appropriate date an obligation to which the section applies has subsisted for a continuous period of five years - without relevant claim having been made in relation to obligation/without the subsistence of the obligation having been relevantly acknowledged. Then as from the expiration of that period the obligation shall be extinguished
• Prescription and Limitation (Scotland) Act 1973 and 2018 s17


  In actions of personal injury (not death) an action must be brought within three years UNLESS Courts grants an extension s19A - still subjected to the prescriptive period OR Action relates to historic abuse, s17A - not limited by time
• Declarator


  Asking the court to make a statement as to their legal position - Not used for general statements on the law, must settle a live practical question between the parties
• Interdict


  Order that the defender must refrain from doing something or stop doing something - Cannot be obtained retrospectively - Must be narrowly drawn clear and precise
• Interdict cases


  • Webster v Lord Advocate
  • McMurdo v Ferguson
• Damages


  Key principle - damages are awarded with the objective of putting the pursuer back into the position they were in before the harm was suffered
• Solatium


  Damages of pain and suffering - Including past and future suffering - Impairment - loss of faculties or amenities - Reduction in enjoyment of life - Diminished life expectancy
• Provisional damages


  Administration of Justice Act 1982 s12
• Patrimonial loss


  Financial or pecuniary loss - Loss of earnings as a result of reduced life expectancy - Past loss of earnings - Future loss of lifetime earnings (calculated using Ogden Tables) - Cost of services to a victim by relatives - Cost of services formerly rendered by victim to relatives
• Damages (Scotland) Act 2011 s2


  If accident has not resulted in instant death, executor can claim in the deceased's place
• Damages (Scotland) Act 2011 s3


  If accident resulted in instant death the relatives can claim - Loss of service - Loss of support - Loss of society/emotional harm - Distress and anxiety - Grief and sorrow - Loss of non-patrimonial benefits
• Damages are not related to degree of fault and punishment
• Damages are fairly simple to figure out in property cases
• Various defences are available for defenders - contributory negligence is not a complete defence
• Various remedies available to pursuer to suit the circumstances of the negligence, wide catalogue of damages that attempts to put back the place they were before the negligence occurred