Lecture 1

 reference only cases [open book symbol] – don’t need to read, just for reference only
 starred cases – read them
 no star/reference only symbol – read if u can
 delict is about interactions between people arising outside of contractual relationships – where
someone causes harm/loss to another person by acting in a way that law considers
wrongful/unjustifiable, e.g. damage to property, physical/mental injury to one’s person, financial
loss, harm to reputation
 law of delict can offer reparations/compensation [claim of damages] or interdict [to stop person
from harming u in present/in future] to victims
o “The rights of individuals, either to property, or to personal liberty, safety, or
reputation…furnish, when invaded, ground of action for reparation.” (Bell, Principles §
543)
o If a duty is broken…the law automatically imposes a bond of obligation joining them,
conferring on the wronged person a claim to reparation and imposing on the wrongdoer
a duty to make reparation for the loss caused.” (D M Walker, The Law of Delict in Scotland,
2nd edn (1981) p 31)
 law of delict mediates between parties who in most cases have no prior agreement, e.g. road
traffic accident; law of delict recognises your right to physical safety and takes the view that if
someone is driving so badly they bump into someone else it may be breach of legal duty which
has caused invasion of ur right to physical safety + property + damaging ur earnings then law of
delict steps in to offer remedy
 invasion of rights corresponds with breach of duty for law of delict to step in to provide remedy
 delict is not contract, criminal law or unjustified enrichment; it’s not punitive – it’s about granting
or refusing one party a remedy against another – it is abt finding an appropriate remedy between
2 parties so law of delict has to build in certain amount of flexibility + balancing interests criminal
law doesn’t
 where law of delict can be found
o primarily common law: case and custom
o statutes, e.g. occupiers’ liability (Scotland) act 1960; consumer protection act 1987;
animals (Scotland) act 1987 – some statutes will provide that breach of their provisions
will give rise to right to sue in delict; occupiers are obliged to keep their premises safe for
people who may come across them
 delict: unjustifiable harm caused by pursuer to defender
 key concept: causation – the defender’s conduct must have caused harm to pursuer which may
be issue that requires more thought than initially presumed
o if delict is unjustifiable harm caused by pursuer to defender, if u live in community people
are harming u/ur property all the time law of delict must have filtering mechanisms to sort
out which claims can be brought to court and which can’t
o we must persuade court that we have suffered sort of harm that law recognises has worth
protection/compensation, e.g. personal security and liberty
o unsuccessful medical treatment - doctor didn’t do their job properly and failed to make u
as healthy as u should have been though they didn’t necessarily make u sick
o emotional injury – if someone tells lies abt u, primary harm that u suffer is that u r upset
or distressed – law doesn’t try to protect ur emotional interests; but if ur reputation suffers
and u suffer financial losses law will step in
o breach of privacy – should law step in even if it is true and offer remedy?
 o psychiatric damage – someone very close to accident witnesses it firsthand and is
traumatised though not physically injured – in what circumstances should law step in and
say that driver should compensate that person?
o if no physical harm was caused but financial loss – in what circumstances should law step
in? e.g. small business is financially harmed by contractor damaging main electricity cable
that supplies ur shop – u can’t do business for many hours so there is major dent in ur
profits
 must the defender have behaved badly to bring successful claim?
o sometimes no – sometimes all that needs to be shown is that damage was caused by
defender’s conduct [fact of harm + fact of causation] – strict liability – which in practice
occurs quite infrequently and when it is found it usually occurs in statute which has strong
policy reasons for why defender should bear the risk, e.g. nuclear installations causing
damage – statute says they are strictly liable
o fault-based liability is more common – intentional or negligent conduct by defender must
be shown, e.g. physical assault, defamation;
 pursuer will only succeed in negligence if they can establish that defender was
careless in circumstances to degree that law deems to be culpable; law of delict
must weigh up those cases and determine exactly when defender is culpable and
when he is not
 Cameron v Hamilton Auction Marts 1955 SLT (Sh Ct) 74
o Sally was a cow at an auction and escaped down a shopping street; managed to climb
external staircase to shop on first floor which gave way and fell onto dairy shop; managed
to turn on tap with her horns so contents of buttercup dairy were completely trashed
o dairy owner’s interests had been invaded – no contract with auctioneers
o law of delict did not step in bc they said it was too remote – was not foreseeable, was too
remote a consequence
o link between actionable harm and wrongful conduct was too tenuous + remote
 auctioneers had behaved badly but it was a freak occurrence
o what’s required for law of delict to step in
 actionable harm suffered by pursue
 wrongful conduct by defender
 causation
 link between actionable harm and wrongful conduct must not be too remote
 law of tort stepped in – raised another question: who should she sue? what if mr rogers has no
money/assets? can belfat city council who organised the event and employed mr rogers be held
liable? yes – Belfast city council was sued and was settled before going to court but she
successfully obtained damages
o bbc.co.uk/news/uk-northern-ireland-11548982
o in some cirucmstances there is someone standing behind immediate person responsible
who is better resourced

Lecture 2

 u r knocked over on ur bike by a tesco delivery van – do u sue tesco or individual employee?
 doctor botches ur medical treatment – should doctor pay or should u sue hospital trust that
employs that doctor?
 vicarious liability – even tho they themselves were not directly involved/at fault for incident, can
they be made to pay up by virtue of relationship they stand in w actual wrongdoer?
 action is more usually raised against employer than employee as vicariously liable for employee
– both actual wrongdoer and employer can potentially be held responsible for harm; both parties
are joined and liable; employer will usually pay up and not seek to recover from employee unless
in exceptional circumstances e.g. fraud
 vicarious liability – substantially the same between scots and English law
 if vicarious liability is to attach to another person (not actual wrongdoer), 2 questions are posed
+ have to be answered in affirmative
o Was the relationship between the wrongdoer and the defender one to which the principles
of vicarious liability might attach?
o Were the acts of the wrongdoer within the scope of the relationship? – was there contract
of employment or contract to merely provide services?
o this test can run into difficulties for employee shifting between employers – so we need to
look at which employer remains in control of employee and what employee was doing at
relevant time
o Mersey Docks v Coggins
 first defendant were harbour authority; second firm of stevedores
 harbour authority hired mobile crane to stevedores so they could unload shop and
loaned out one of their drivers; there was accident and plantiff was injured down to
negligence of that driver – so who was employer who should be held vicariously
liable?
 court applied control test to circumstances of that case, saying that stevedores may
have actually been telling him which packages to put but they had no real control
over how he worked controls of that crane; they had no real control over quality of
his driving; harbour authority retained control over that aspect of his work – how he
drove crane, what safeguards he had to put in place – and it was this bad driving
that caused this accident – they were also the ones paying him for driving – so
court held that harbour authority were still effectively in control of that driver, not
stevedores who he’d been temporarily loaned out to – so generally speaking, rule
of thumb is that control is regarded as resting w original employer/than employer
to whom control was temporarily transferred
o Hawley v Luminar Leisure
 delict was assault on member of public by doorman employed at night club – deal
w this doorman was that he had been temporarily hired out to night club by security
services company (original employer) – who was in control? – court said club was
directing this man; he was wearing their t-shirt; they were telling him what to do +
how to manage clientele so in that situation control had shifted and night club rather
than original employers were regarded as in control
o neurosurgeon – no one in control of what he does in operating theatre – so there is
recognition that that control test is fairly broad brush and in certain contexts employees
are applying level of skill/specialist expertise not really susceptible to control by employer;
so other indicators are used for this sort of situation for highly skilled, professional workers
 who is paying wages
 who is selecting employees
 employer’s right of suspension/dismissal
 nature of duty
o Viasystems v Thermal Transfer
 reference only case
  established principle that u can have 2 employers both being regarded as in control
+ vicariously liable
 Various Claimants v Catholic Child Welfare Society – alleged wrong was abuse of
children where children attending boarding school had allegedly been abused by
members of religious order that staffed the school – In that case court held that
religious order was substantially in control of staffing but also diocese society
managing school therefore they could have dual vicarious liability in that case
o liability for relationship that is akin to employment but not employment as such
 Various Claimants v Catholic Child Welfare Society – abusers were members of
religious order, not in conventional employment relationship – religious order could
be held vicariously liable due to substance of relationship [it had all the essential
elements of employer-employee relationship – subdivision into hierarchical
structure, conduct of activities as if it were corporate body, provincial directed
brothers to undertake teaching activity, teaching activity was in furtherance of
objective/mission of institute, brother teachers were obliged to conduct themselves
as teachers was dictated by institute’s rules] –
 Cox v Ministry of Justice – accident in prison canteen – some of prisoners were
working in prison kitchen and one of them accidentally dropped bag on civilian
supervisor – court held that ministry of justice as prison operator could be held
liable bc there was quasi-employment situation; prisoner is required to serve part
of sentence in prison + undertake work for nominal wages
 Armes v Nottinghamshire CC – foster care – claimant who was now adult said she
had been abused by her foster parents when placed in foster care by local authority
– could local authority be held vicariously liable for wrongdoing of foster parents
they had nominated to look after her? no contract of employment but again
vicarious liability should apply bc significant degree of control between local
authority and foster parents as to how they should care for children; foster parents
were doing it bc it was sth they had been asked to do by council which was very
much part of social responsibility of council so it is integral part of how care services
are delivered by local authority and therefore it is not employment as such but it is
relationship akin to employment so vicarious liability applies
 Grubb v Shannon - blush beauty salon in Glasgow was owned and operated by
defender; she rented out some of her chairs to other beauticians and hairdressers
who were part of blush beauty salon but self-employed as they paid her £20 a day
for use of chairs in salon – took care of their own tax arrangements, took all their
takings and didn’t give her a cut; one of beauticians messed up eyebrow treatment
and pursuer suffered major eyebrow damage; she sued salon proprietress, not
beautician bc this was relationship akin to employment which sheriff accepted; bc
beautician had access to blush fb page and advertised her services via it and was
v much part of marketing + image of blush beauty salon operated by defender;
therefore salon itself should take rap if things went on with services that she had
provided; she was hence integrated into organisational structure of defender’s
business even tho she was formally self-employed; relationship akin to
employment so proprietress was held vicariously liable
o so u need employment/quasi- relationship
o second test: employee was acting within scope of that employment
  employer may be in control of general sense but can’t be expected to anticipate
absolutely everything – employer will be liable no matter how unpredictable
provided it is within scope of that employment
 traditional salmond test: if it was “either (a) a wrongful act authorised by the master,
or (b) a wrongful and unauthorised mode of doing some act authorised by the
master”.
 problem: how to distinguish: unauthorised mode but authorised act; from
unauthorised act?
 could u hold employer liable if employees intentionally harmed ppl?
 LIster v Hesley Hall – case involving child abuse + warden of school boarding
house abusing children in his care – if u apply traditional salmond test, this is not
wrongful act authorised by master – in previous cases of this nature courts had
said it was so awful u couldn’t say it was unauthorised mode of doing some act
authorised by master; Salmon had gone on to qualify this test and said that
sometimes there are unauthorised acts so connected with acts that were
authorised they should be regarded as improper mode of doing employer’s
business; so sometimes u can have some things that employee does that are so
closely connected w what they were supplosed to be doing u can regard it as
improper mode – this thinking was developed in LIster case and Lord Steyn said
“The question is whether the warden's torts were so closely connected with his
employment that it would be fair and just to hold the employers vicariously liable.
On the facts of the case the answer is yes. After all, the sexual abuse was
inextricably interwoven with the carrying out by the warden of his duties [to
look after children] in Axeholme House. Matters of degree arise. But the present
cases clearly fall on the side of vicarious liability.”
 thus employer was creating risk that this situation might arise as warden was
placed in close domestic contact w children – therefore employer should be held
liable – court said they need to break away from mechanical application of Salmond
test
 Lord Clyde: 1) It is necessary to look at the context and the circumstances in which
the employee’s wrongdoing occurred.
 2) The time and the place at which the actings occurred are always relevant,
although not conclusive.
 3) The mere fact that the employment had furnished the employee with the
opportunity to commit the wrong is not in itself sufficient to bring it within the scope
of the employment.
 And note, per Lord Millett at para 65; “‘The fact that his employment gave the
employee the opportunity to commit the wrong is not enough to make the employer
liable. He is liable only if the risk is one which experience shows is inherent in the
nature of the business.”
 this test has been endorsed by Scottish courts – endorsed in case of Sharp v
Highland and Islands Fire Board so ENglish authorities can be used in this regard
o travelling to work
 employer is not liable for employees’ actions in their spare time; if travelling to
work, employer is not liable for employee bc employee not yet at work – but if
employee is travelling from one place of work to another place of work on
employer’s business and causes accident, this would be in course of employment
so employer would be vicariously liable
  Smith v Stages
 pre-dates LIster though in line with it anyway
 2 staff were based in Strafford but sent off to work in Wales; were paid
travelling expenses and paid for travelling time but left to sort it out
themselves how to travel there – employee 1 took employee 2 in his car as
his passenger – they finished job on monday though they’d been paid til
wednesday – they decided to go home as soon as they’d finished and set
off on return journey immediately but employee 1 was so tired he crashed
car – employee 2 is significantly injured – court took view that employer
should be liable bc employee was acting in course of his employment – they
were going about employer’s business at time as they were paid for their
journey + back
 created 6 rules of thumb
o 1. An employee travelling from his ordinary residence to his regular
place of work is not acting in the course of his employment unless he
is obliged by his contract of service to use the employer's transport.
o 2. Travelling in the employer's time between workplaces will be
in the course of the employment.
o 3. Receipt of wages for travelling time indicates that the
employee is acting in the course of his employment, even if the
employee has discretion as to the mode and time of travelling.
o 4. An employee travelling in the employer's time from home to a
workplace other than his regular workplace or in the course of a
peripatetic occupation or to the scene of an emergency is acting in
the course of his employment.
o 5. A deviation from or interruption of a journey undertaken in the
course of employment (unless merely incidental to the journey) will
for the time being take the employee out of the course of his
employment.
o 6. Return journeys are to be treated on the same footing as outward
journeys.
 Hemphill v Williams
 lorrydriver was detailed to take boys from summer camp in Benderloch to
Glasgow – instead of going straight home they asked lorrydriver to take
them to sterling so their friends could go on train – lorrydriver didn’t
knowroute and crashed lorry and some of boys were killed and injured – he
was on deviation 2 miles longer than og journey – court held employer
vicariously liable as he was still going abt employer’s business + not
significant deviation – still carrying passengers who his employers had
guaranteed to take home –

Lecture 3

 unauthorised/prohibited behaviour
o Century Insurance v Northern Ireland TRB – oil tanker driver was delivered load of petrol
to garage; while watching petrol being unloaded in tank, he lit cigarette and chucked
match on ground; massive fire; was his employer liable for injuries that damage caused?
court decided he was still on course of his employment but they also said it was also part
of his job to stand and wait so employer was still liable
 o Rose v Plenty – milkman was employed to deliver milk round door steps using milk float
(electric vehicle) and specifically prohibited from using extra help – nonetheless enlisted
services of 13y/o youth to help him – milkman’s bad driving injured youth – were
employers to be held liable? court said yes bc primarily he was going about job that was
authorised by employer – he was using wrongful, unauthorised mode of doing that job but
still going about employer’s work
 intentional wrongdoing
o activities employer would never authorise had he known abt them
o Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 per Lord Millett at para 121:
application of the close connection test means that it is “no answer to a claim against the
employer to say that the employee was guilty of intentional wrongdoing, or that his act
was not merely tortious but criminal, or that he was acting exclusively for his own benefit,
or that he was acting contrary to express instructions, or that his conduct was the very
negation of his employer's duty… vicarious liability is not necessarily defeated if the
employee acted for his own benefit.”
o Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 per Lord Phillips at para
46:
 Vicarious liability is imposed where a defendant, whose relationship with the
abuser put it in a position to use the abuser to carry on its business or to further its
own interests, has done so in a manner which has created or significantly
enhanced the risk that the victim or victims would suffer the relevant abuse.
The essential closeness of connection between the relationship between the
defendant and the tortfeasor and the acts of abuse thus involves a strong causative
link.”
o Mattis v Pollock – night club doorman had argument w clubber and went home, got large
knife and returned to club and assaulted clubber – night club owner was nevertheless
held liable bc assaulting member of public was actually fairly closely connected w work
that he had detailed bouncer to do – he was working night club to eject troublemakers
o Brink’s Global Services v Igrox - sufficiently close connection between sending someone
to fumigate that container and helping themselves to inside of that container – so employer
should be held liable for theft by employee – riskw as reasonably incidental for purpose
tow hich he had been employed
o Mohamud v Wm Morrison Supermarkets Plc – customer went to kiosk at petral station
and took out usb and asked for attendant to print this – attendant got angry and launched
into tirade of foul, racist and threatening language saying they didn’t do this – mohamud
was of somali origin and retreated back to his car; petrol station attendant followed him
and beat him up on petrol station floor court – court held there was sufficiently close
connection here
 47 In the present case it was Mr Khan's job to attend to customers and to
respond to their inquiries. His conduct in answering the claimant's request in a
foul-mouthed way and ordering him to leave was inexcusable but within the “field
of activities” assigned to him. What happened thereafter was an unbroken
sequence of events. … I do not consider that it is right to regard him as having
metaphorically taken off his uniform the moment he stepped from behind the
counter. He was following up on what he had said to the claimant. It was a
seamless episode. …when Mr Khan followed the claimant back to his car and
opened the front passenger door, he again told the claimant in threatening words
that he was never to come back to petrol station.
  This was not something personal between them; it was an order to keep away
from his employer's premises, which he reinforced by violence. In giving such
an order he was purporting to act about his employer's business. It was a
gross abuse of his position, but it was in connection with the business in
which he was employed to serve customers. His employers entrusted him with
that position and it is just that as between them and the claimant, they should be
held responsible for their employee's abuse of it.
 48 Mr Khan's motive is irrelevant. It looks obvious that he was motivated by
personal racism rather than a desire to benefit his employer's business, but
that is neither here nor there.”
o Vaickuviene v J Sainsbury Plc – employee stacking shelves disliked fellow employee and
murdered him – court took view that risk of extreme violence was not really in business of
supermarket so wrongdoing (murder) was not sufficiently closely connected to work of
shelf-stacker – not within field of activities that had been assigned to shelf-stacker
o Majrowski v Guy’s & St Thomas’s NHS Trust – statutory tort of harassment – wrongdoing
employee was hospital manager who was said to have bullied one of clinical auditors in
her office who was gay using homophobic language – court said harassment could give
rise to vicarious liability bc it was part of her work to order him about so harassment was
sufficiently closely connected w her employment – court thought there wasn’t sufficient
connection
 VICARIOUS LIABILITY IN RELATIONSHIPS OTHER THAN EMPLOYMENT
 Chief Inspector for police officers: Police and Fire Reform (Scotland) Act 2012, s
24 – he is liable for wrongdoing of any police officers going abt their business
 Partnership for partners: Partnership Act 1890, s 10. – partnership is liable if
partner commits delict in scope of business
 non-delegable duties of care
o there are various relationships involving trust or some form of closeness in which u
undertake responsibility for safety/wellbeing of another person/their property in which they
are relying on u to take care of their interests – in these situations u can’t say I’m not going
to be liable bc I’ve contracted out my duty of care to somebody else – u can’t say ur not
liable/responsible – ur duty to that person is non-delegable
o duty between defender and victim – direct form of liability – so focus is nature of
relationship between defender and victim (not wrongdoer)
o most common example is employers’ non-delegable duties vis a vis their employees
o McDermid v Nash Dredging – plaintiff was deckhand hired to use tugboat; due to
negligence of captain of that tugboat, he was injured – court held that original employers
were nonetheless liable though it was someone else’s employee that committed
wrongdoing – this was one of their employees that was injured on job
o Stewart v Malik - neighbouring landowners – if u are someone’s neighbour u stand in
relationship w them – if one proprietor sets out to do major building works which will
inevitably cause damage next door; defenders carried out work on load-bearing wall which
caused damage to parties above them – couldn’t escape liability by saying contractor was
the one doing it – they had non-delegable duty of care not to damage their neighbors’
property
o Esso Petroleum – didn’t ensure that underground contamination had been properly
contained when project was underway – couldn’t say they were sorry neighbour’s land
had been contaminated but contractors had done the job
o S v Lothian Health Board – health care services were contracted out – pursuer was mother
of child who was born diagnosed with cystic fibrosis suing health board bc she’d had
prenatal mouthw ash test which should have disclosed whether baby would be prone to
this problem; mouth wash test had come back negative; it wasn’t health board itself which
had undertaken test; it had farmed it out to another lab carried out by scientists employed
by others; health board said they didn’t employ scientists so not liable; if patient was given
indication,m she might legitimately think hospital had undertaken responsibility for whole
package of her health care during her prenatal care; so duty was regarded as non-
delegable; lady Stacey said “I appreciate that the defenders did not have control over the
work carried out by that scientist but…[i]t does seem to me that the test rather is whether
or not the hospital assumed responsibility for the well being of the patient.”
o care of the vulnerable
 *Woodland v Swimming Teachers’ Association [2014] AC 537 per Lord Sumption
at para 23:
 claimant was child at time of accident and got severely disabled during
school hours during which she was sent for swimming lessons outside
school where swimming teacher was private contractor; teacher and
lifeguard didn’t notice that she was having trouble in water; was lifeless but
resuscitated and had severe brain problems; legal issue court was asked to
decide whether local education authority could be said to offer her non-
delegable duty of care
 “[Such] cases are characterised by the following defining features: (1) The
claimant is a patient or a child, or for some other reason is especially
vulnerable or dependent on the protection of the defendant against the
risk of injury. Other examples are likely to be prisoners and residents
in care homes. (2) There is an antecedent relationship between the
claimant and the defendant, independent of the negligent act or omission
itself, (i) which places the claimant in the actual custody, charge or care of
the defendant, and (ii) from which it is possible to impute to the defendant
the assumption of a positive duty to protect the claimant from harm,
and not just a duty to refrain from conduct which will foreseeably damage
the claimant. It is characteristic of such relationships that they involve an
element of control over the claimant, which varies in intensity from one
situation to another, but is clearly very substantial in the case of
schoolchildren. (3) The claimant has no control over how the defendant
chooses to perform those obligations, i.e. whether personally or through
employees or through third parties. (4) The defendant has delegated to a
third party some function which is an integral part of the positive duty which
he has assumed towards the claimant; and the third party is exercising, for
the purpose of the function thus delegated to him, the defendant's custody
or care of the claimant and the element of control that goes with it. (5) The
third party has been negligent not in some collateral respect but in the
performance of the very function assumed by the defendant and delegated
by the defendant to him.”
 defendants wouldn’t be liable if they were doing extracurricular activities not
to do with the school – that’s where boundary lay
  But contrast Armes v Nottinghamshire CC [2017] UKSC 60; [2018] AC 355 in which
a non-delegable duty of care was not recognised, but vicarious liability was
imposed.
 SC said there was relationship akin to employment between foster carers
and local council which employed them to look after foster children – also
argued in that case that there should be non-delegable duty of care – said
nature of relationship was akin to employment so vicarious liability imposed
not non-delegable duty of care bc relationship between council and child
was quite different – council had statutory obligation to place child in
appropriate domestic care and oversee correct placement of children but it
wasn’t role of council to take on day to day responsibility of looking after
child’s living arrangements, how family life should be lived in that family –
they were not obliged to do the looking after tho they were obligated to
ensure the child being looked after
 duty of care
o usually when someone acts carelessly which results in injury to pursuer – court has
evolved filtering mechanisms to determine when exactly u should be liable for careless
conduct
o for pursuer to succeed in negligence action following conditions must be satisfied
 duty of care must be owed to pursuer by defender
 defender must be in breach of that duty; this is standard of care question
 harm suffered by pursuer must have been caused by defender
 harm shouldn’t have been too remote as a result of defender’s conduct
 no relevant defences are applicable
o certain duties are imposed upon in certain contexts by operation of law; in certain
situations this is completely uncontentious
 e.g. drivers on road w regard to other road users, doctors w patients
 what abt situations where situations of duty are less clear cut + there’s no case law
to determine whether certain wrongdoer actually owed someone this duty?
 what principles apply?
 Donoghue v Stevenson sets out foundations for modern cases for duty of care –
 “The law takes no cognizance of carelessness in the abstract. It
concerns itself with carelessness only where there is a duty to take
care and where failure in that duty has caused damage… What then are
the circumstances which give rise to this duty to take care? In the daily
contacts of social and business life, human beings are thrown into, or place
themselves in, an infinite variety of relations with their fellows; and the
law can refer only to the standards of the reasonable man in order to
determine whether any particular relation gives rise to a duty to take care as
between those who stand in the relation to each other. The grounds of action
may be as various and manifold as human errancy; and the conception of
legal responsibility may develop in adaptation to altering social conditions
and standards. The criterion of judgment must adjust and adapt itself
to the changing circumstances of life. The categories of negligence
are never closed. The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take care,
and that the party complaining should be able to prove that he has
suffered damage in consequence of a breach of that duty.”
  ginger beer was sold by Stevenson to café proprietor; ginger beer bottle was
opaque so proprietor and donouhugue’s friend who bought it for Donoghue
were not liable; Stevenson should have done better; court said that actually
we can recognise in principle that there should be duty of care between
those praties – there was sufficient proximity and foreseeability between
manufacturer and consumer even tho no contract between them
 The starting point for determining whether the defender owed the pursuer a
duty of care remains the “Atkin dictum” in *Donoghue v Stevenson 1932 SC
(HL) 32 at 44:
 “The rule that you are to love your neighbour becomes, in law, you must not
injure your neighbour, and the lawyer’s question, who is my neighbour,
receives a restricted reply. You must take care to avoid acts or omissions,
which you can reasonably foresee, would be likely to injure your neighbour.
Who then in law is my neighbour? The answer seems to be - persons
who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions called in question.”
 KEY CONCEPTS: PROXIMITY AND FORESEEABILITY

Lecture 4

 The starting point for determining whether the defender owed the pursuer a duty of care remains
the “Atkin dictum” in *Donoghue v Stevenson 1932 SC (HL) 32 at 44:

 “The rule that you are to love your neighbour becomes, in law, you must not injure your
neighbour, and the lawyer’s question, who is my neighbour, receives a restricted reply. You
must take care to avoid acts or omissions, which you can reasonably foresee, would be likely to
injure your neighbour. Who then in law is my neighbour? The answer seems to be - persons
who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions called
in question.”

 In Home Office v Dorset Yacht Co Ltd [1970] AC 1004 and Anns v Merton LBC [1978] AC 728
the Atkin dictum was approached in a distinctly pro-pursuer fashion. In Anns Lord Wilberforce
said at 751-752:

 “…the position has now been reached that in order to establish that a duty of care arises in a
particular situation, it is not necessary to bring the facts of that situation within those of previous
situations in which a duty of care has been held to exist. Rather the question has to be
approached in two stages. First one has to ask whether, as between the alleged wrongdoer and
the person who has suffered damage, there is sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former, carelessness on his
part may be likely to cause damage to the latter-in which case a prima facie duty of care arises.
Secondly, if the first question is answered affirmatively, it is necessary to ask whether there are
any considerations which ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed.”
 endorsed idea u could use concepts of proximity + foreseeability to lay foundationfor more
general approach to determining duty of care – if court was persuaded by any pressing cogent
policy reason why duty shold not be recognised in new circumstances then u should say no
 Caparo v Dickman [1990] 2 AC 605, the indicators of duty were set out by Lord Bridge as follows,
at 617-8:

 “...in addition to the foreseeability of damage, necessary ingredients in any situation giving rise
to a duty of care are there 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.”
o reigned in expansionist approach to duty
o HoL said that going forward from there u couldn’t just use these concepts for blue skies
thinking which is what courts were doing in previous 2 cases – essentially u had to follow
precedent [what previous case law said abt duty of care]; if u had novel situation with no
case law precedent, then arguments could be made to extend duty into new context; but
if and only if court is persuaded that it is fair, just and reasonable;
 However, the following dictum of Brennan J in Sutherland Shire Council v Heyman [1985] 60
ALR 1 at 43-44 was also approved:
o “It is preferable in my view, that the law should develop novel categories of negligence
incrementally and by analogy with established categories rather than by a massive
extension of a prima facie duty of care restrained only by indefinable ‘considerations which
ought to negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed.”
 u have to argue incrementally by analogy using established categories rather than
just plucking new categories out of the air
 cautious, incremental approach to recognising duty
 *Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] 2 WLR 595 per
Lord Reed at para 27:
o “It is normally only in a novel type of case, where established principles do not provide an
answer, that the courts need to go beyond those principles in order to decide whether a
duty of care should be recognised. Following the Caparo case, the characteristic
approach of the common law in such situations is to develop incrementally and by analogy
with established authority. The drawing of an analogy depends on identifying the legally
significant features of the situations with which the earlier authorities were concerned. The
courts also have to exercise judgement when deciding whether a duty of care should be
recognised in a novel type of case. It is the exercise of judgement in those circumstances
that involves consideration of what is “fair, just and reasonable”.”
o post Caparo, as confirmed by robinson, duty entails foreseeability, proximity and
 as regards fair, just and reasonable criterion:
 a case arising in a context where duty has already been recognised doesn’t require
further consideration of fair, just and reasonable-ness tho sometimes proximity and
foreseeability considerations can still arise
 case arising in context where duty has already been denied would not normally
give rise to duty tho lord reed accepts that there may be exceptions where court
may be invited to depart from established line of authority
 case brought in context where precedent doesn’t provide clear answer on question
of duty calls for “incremental approach”, reasoning as far as possible by analogy
 with comparable case law but guided also by what is fair, just and reasonable

 foreseeability
o Bourhill v Young: fishwife had picked up huge basket of fish from Newhaven market and
gone to town to sell fish around doors at Craiglockhart; she was 8 months pregnant at
time she was carring basket on her back; Bourhill got on tram and got off at junction in
middle of road; motorcycle ridden by Mr Young tried to overtake tram and was going too
fast when he approached junction; as a result he crashed and suffered severe head
injuries and died; she said she suffered such severe shock that when her baby was born
a month later it was stillborn; so she sued Mr Young’s estate on basis to reclaim damages
for injury she suffered; court refused to recognise duty
 “The duty to take care is the duty to avoid doing or omitting to do anything the doing
or omitting to do which may have as its reasonable and probable consequence
injury to others, and the duty is owed to those to whom injury may reasonably
and probably be anticipated if the duty is not observed.
 There is no absolute standard of what is reasonable and probable. It must depend
on circumstances and must always be a question of degree. In the present instance
the late John Young was clearly negligent in a question with the occupants of the
motor car with which his cycle collided.... But can it be said that he ought further
to have foreseen that his excessive speed, involving the possibility of
collision with another vehicle, might cause injury by shock to the appellant?”
 court answered no – she was 50 feet away when she got off tram; she was
quite a distance away but also on other side of tram; people in near vicinity
might be injured but someone a long way away would not really suffer injury
foreseeably; it couldn’t have been foreseen that she would get injured in this
way
 Palsgraf v Long Island Railroad Company: railroad employees saw passenger
running for train just about to leave platform; they hauled them up onto train; in so
doing he dropped box he was carrying which contained fireworks causing
significant explosion; on other side of platform plaintiff was waiting for her train; set
of heavy weighing scales shuddered with explosion and injured her; can she sue
in negligence?
 court said she wasn’t foreseeable victim of negligence
 proof of negligence in the air will not do – negligence has to be tied down
by foreseeability and proximity to this specific person
 she was on other side of platform; not foreseeable that she would be
affected
 proximity (special, or pre-existing relationships)
o Hines v King Sturge LLP: pursuers were tenants of building that got on fire and suffered
huge loss to their property; defendders were managing agents of office building who had
responsibility for fire alarm working properly so they had to keep phone line working which
they failed to do; so fire wan’t dealt with as quickly bc fire alarm didn’t go off so damage
was more extensive than it should have been
 was there duty of care between tenants and managing agents?
 court thought there was – that obligations owed in terms of lease; there was
relationship of sufficient proximity between them and pursuers to give basis for duty
of care; managing agents had taken on responsibility for looking after interests of
people in that building
 o *Mitchell v Glasgow City Council: problem tenant in social housing; extremely anti-social
behaviour; threatened to evict him; he went back and murdered neighbour who
complained about him; did GLasgow City Council owe duty of care to family of neighbour
to warn them of this meeting/protect them better against acts of this murderous
neighbour?
 court said no
 in terms of what’s fair, just and reasonable, council is landlord for large + various
population of tenants; would impose intolerable burden on them if they had duty to
anticipate when their tenants might go rogue and commit crime; not fair, just and
reasonable to impose duty of care
o Marc Rich v Bishop Rock
 if arguing for duty of care in novel situation for property damage, u still have to go
through fair, just and reasonable criterion
 P’s cargo to be carried on ship
 ship belongs to x
 ship develops crack
 d inspects ship and certifies it as seaworthy
 ship is unseaworthy and sinks
 p’s cargo is lost
 did d (ship surveyor) owe duty of care to P (cargo owner)?
 court said there was no basis for recognition of duty – not fair, just and
reasonable bc there was already complex contractual structure in place
between ship owners and cargo owners which provided what would happen
in event of loss at sea so that contractual structure was agreed; insurance
arrangements had been set up and agreed on basis of that contractual
structure; cargo owners were trying to get around it
 Donoghue v Stevenson
o Lord Atkin said u have to take care to avoid acts or omissions
o alleged negligence on part of defender is not an act, but an omission; defender has failed
to be proactive to intervene to prevent harm coming to pursuer from another source;
generally speaking law takes harder line on people whose positive actions injure their
neighbours rather than those who failed to avert possible threat to their neighbour; u may
have positive duty not to bump into someone but if u see someone about to fall off a cliff
u have no duty to chase after them wandering in that direction
o law does not regard it as its business to force people to be altruistic
o it is unlikely that mr stevenson put a snail in it – it wasn’t positive action – his hygiene
practices were just not as good as they should’ve been and failed to stop snail from
entering bottle
o similarly, doctor is negligent when he fails to diagnose illness/prescribe right
drug/treatment – omission
 Stovin v Wise;
o “There are sound reasons why omissions require different treatment from positive
conduct. It is one thing for the law to say that a person who undertakes some activity
shall take reasonable care not to cause damage to others. It is another thing for the law
to require that a person who is doing nothing in particular shall take steps to prevent
another from suffering harm from the acts of third parties…or natural causes.”
 o if u r involved in activity that will foreseeably involve other people u r involved in all aspects
of that activity – u have duty with regards to things u did do + shouldn’t have done + things
u didn’t do when u should have
o no obligation to intervene unless prior interaction which provides basis for that; no
obligation to protect someone from hands of third party unless u’ve already undertaken
some activity
 Maloco v Littlewoods Organisation Ltd (reports as Smith v Littlewoods): cinema bought over as
LIttlewoods to be re-developed into supermarket; summertime/school holidays; local youths
discovered they could get into premises at night and make nuisance; smoke was seen coming
from building a couple months later; youths were spotted running away; fire was discovered
which destroyed church nextdoor and neighbouring billiard saloon owned by Maloco; Maloco
sued Littlewoods saying they had duty towards them
o court said no – generally no duty to prevent third parties who are unknown to u from
getting in and deliberately using ur property in way that could cause destruction to
immediate vicinity; no liability
 Mitchell v Glasgow: foreseeability of harm is not enough to impose duty of care; law doesn’t
impose positive duty on people to protect others; law doesn’t impose duty to prevent person from
being harmed by criminal act of third party based simply upon foreseeability
o “in some circumstances a defender who provides an opportunity for a third party to harm
the pursuer in a foreseeable way must take reasonable care to prevent the harm.” – lord
rodger
 duty in relation to wrongdoing of third parties is recognised only very exceptionally

 the special features of the relationship between the defender and the third party who caused the
harm, e.g. *Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (Home Office was held liable for
Dorset officers for young offenders school sent to camp at Isle of White who decided they were
gna escape; in so doing they made off with yacht and damaged yacht owners‘ property; did HO
owe duty of care to yacht owners to protect them from harm from youths? court said they did bc
third parties who caused harm + HO had special relationship; bc they messed up in that
relationship it was foreseeable that they would use boats to try to escape island; with sufficient
foreseeability and proxmity); Carmarthenshire CC v Lewis [1955] AC 549; Kaizer v Scottish
Ministers [2018] CSIH 36; 2018 GWD 17-224; or

 the special features of the relationship between the defender and the pursuer, e.g. Barrett v
Ministry of Defence [1995] 3 All ER 87; or

 the defender having created the underlying source of danger, e.g. Haynes v Harwood [1935]
1 KB 146.
Lecture 5

 in Scotland and England teachers/carers aren’t held vicariously liable for young people including
young children they are looking after; however, they come under direct duty to supervise children
properly (to make sure they don’t get out of control so as not to cause harm to others)
o Carmarthenshire CC v Lewis – 4y/o boy escaped from nursery immediately adjacent to
road; plaintiff’s husband driving served to avoid child, crashed into lorry and was killed;
HoL held that there was duty on nursery school to supervise those children properly and
 have adequate measures in place to ensure that small children couldn’t get out and cause
damage to road users on adjacent busy road
o Kaizer v Scottish Ministers: pursuer was prisoner who was seriously injured in incident in
prison gym; racially aggravated assault by another prisoner; prisoner had track record of
attacking other polish inmates; pursuer was polish; prison authority was held to have duty
of supervision which they should have exercised better; they were thus directly liable to
prisoner for injuries sustained
 Where defender has in some way assumed responsibility to protect wellbeing of pursuer, e.g.
medical circumstances (doctor-patient relationship)
o Barrett v Ministry of Defence: plaintiff’s husband was naval officer who had drunk himself
into stupor so that other fellow officers had to pick him up and carry him back to his
quarters; they didn’t put him in recovery position; plaintiff’s husband asphyxiated on his
own vomit and died; court held that there was no duty to protect u against the
consequences of ur own stupidity; but once they had taken control of istuation (picked
him up, taken him back to his quarters), at that point officers assumed responsibility to
look after him so on that point they came under duty to have done that job better
 where defender has created underlying source of danger
o e.g. Mitchell, Molocco
o Haynes v Harwood: plaintiff was injured going to restrain bolting horses (from horse-drawn
carriages); immediate cause of horses running away was actions of third party probably;
but owner of horses had created underlying source of danger by leaving horses there and
going off and doing nothing further; it was foreseeable that something else might occur to
make horses bolt;
o occupiers of land come under very specific obligations with regards to neighbours/people
who come across their land
 duty to rescue
o commercial carriers, ferry operators – maintain safety of their vessels; under common law
duty to rescue passengers who get into difficulties/fall overboard/etc.
o Horsley v McLaren (The Ogopogo): Canadian authority recognised as
persuasive/relevant in English and Scottish courts – people in charge of vessels carrying
passengers for social purposes may come under duty to rescue them, e.g. boat owners
 boat owner had taken party out on pleasure ride on lake; one passenger fell
onboard; they turned boat around, couldn’t manage to find him, another passenger
went in to look for him, passenger 1 disappeared and fell in beneath the waves,
passenger 2 died of shock bc of severe shock from water; relatives of boat owners
sued boat owner saying they failed to rescue them; court thought boat owners
could in principle come under duty of care to look after wellbeing of passengers;
they owed duty of care to take reasonable steps to rescue passenger going over
board
 but this is not absolute duty to recognise them in all circumstances – not general
duty to rescule/obligation to undertake best rescue method available
 duty is narrowly construed in regard to omissions and liability to prevent harm -t
here must be further dimension to interaction of parties to provide basis for duty
 pure economic loss –– which courts are significantly more reluctant to recognise existence of
duty of care
o pure economic loss – economic loss to pursuer which doesn’t flow from physical damage
to pursuer’s property/injury to pursuer’s person
 o derivative economic loss – derives from injury to ur person – e.g. someone crashes into
ur bike, u r injured so u must take a month off work (loss of earnings), waste of expenditure
for hospital bills/statement on defender’s part
o Murphy v Brentwood: “The infliction of physical injury to the person or property of another
universally requires to be justified. The causing of economic loss does not. If it is to be
categorised as wrongful it is necessary to find some factor beyond the mere
occurrence of the loss and the fact that its occurrence could be foreseen.” (Lord
oliver)
o pure economic loss generally is not recognised – u don’t usually find remedy in negligence
 damage to property of another – even though what has happened is that someone
else’s property has been damaged, u end up suffering financial loss; general rule
is that if defender has damaged someone else’s property and u suffer financial loss
as a result, there’s duty of care to owner of property but not to u
 Spartan Steel v Martin: defendant’s employees were contractors working on
repairing road a quarter of mile from plaintiff’s factory; they negligently cut
electricity cable and interrupted pwoer supply to plaintiff’s steel works factory in
doing so; as a result there were various heads of loss – value of metal in furnace
at time of power cut bc it became unuseable, profit on sale of that metal, loss profits
on further work on more batches of steel that could have been done during time of
power cut; court said they could recover value of damaged property as it was
foreseeable damage to their own property and loss of profits that derived from that
property; but they couldn’t recover loss of profit on further batches of steel bc that
didn’t derive from damage to their property – power cable was utility a quarter of a
mile from them, not their property
 Leigh & Sillavan v Aliakmon: plaintiffs buy steel to be shipped to them from korea
by sellers; sellers arrange for shipping and ownership of goods is to remain with
sellers until after goods arrive; BUT risk of damage to goods passes to plaintiffs
immediately; steel is damaged due to being stowed negligently by defendants; no
duty of care bc it was not enough that plaintiffs had contractual rights in regard to
damaged goods
 buyers couldn’t sue ship owners in negligence in contract bc contract had
been entered into by sellers, not purchasers
 by time goods were damaged, they still belonged to sellers; so court held
that they couldn’t recover in negligence – there was no duty – court
effectively said that if u want to recover losses due to damage to property u
must own that property
 they had no contractual rights – they should have negotiated contract or
made better insurance arrangements
 duty unlikely to be recognised where there is personal injury to another
o defendant injures employee – employer loses benefit of their services for a couple months
– no duty in regard to injury which has been inflicted by defender on third party no matter
how close relationship between pursuer and third party
o Reavis v Clan Line Steamers: steamer travelling from Glasgow to Ireland and it was sunk
as a result of negligence of another vessel; passengers on board steamer included
American southern syncopated orchestra; 8 players of orchestra were killed and others
were injured; bad news bc they’d had world tour ahead of them; case wasbrought by Mrs
REivus (one of main performers and described herself as proprietor of orchestra – person
who recruited members and arranged forward engagements) – Mrs Revius could not
 recover lost profits bc she didn’t own orchestra – she gave services of her musicians who
she hired her but she didn’t own orchestra in any legal sense – scots law genraly doesn’t
recognise duty on part of employer against person who had negligently caused
employee’s death or incapacity even tho it might have caused loss
 duty in regard to goods defective in quality but don’t cause u/ur property any injury
o ur left to sort that out by means of sale of goods – not form of loss u can recover under
law of negligence
o only if u/ur property is damaged due to safety
o duty of care only arises when there is safety defect
 defective buildings
o no duty of care
o Anns v Merton LBC
 local authorities have obligation to monitor construction of new buildingsin 1970s,
local authority defendants had approved plans for new block of flats without picking
up that there would be significant structural defects; when signs of structural
damage began to appear, owners subsequently claimed that Merton LBC had
failed to do their job properly – failed to inspect properly which was their statutory
duty and ensure building satisified building standards; HoL said no injury had yet
occurred to anyone but this was potentially defective building that needed to be
sorted out so authority did owe duty of care
 marked high point of, expansionist period for duty of care which disappeared in
1990s
o Murphy v Brentwood
 HoL said much narrower view on duty needed to be taken on in this context
 representative of scots law –
 plaintiff has bought new house which had turned out to be built on ditch; after house
was built it started developing class; became apparent that house was built on
dodgy foudations; there were errors in ways foundation has been designed;
brentwod council had sent its consulting engineers and signed off on plans
aboutfoundatoin – brent wood signed it off as in order; murphy eventually had to
move out; he didn’t have much money/resources to repair house; his insurer
wouldn’t accept liability; he sold it to another bueer at loss of around £35 000; he
then attemped to hold local council liable for signing off on plans despite dodgy
foundation; council hadn’t caused any physical damage to structure of house; court
said it didn’t and expressly disapproved of Anns v Merton LBC , saying reasoning
there no longer represented good law; this was pure economic loss – no property
had been damaged, no one injured – he only suffered pure economic loss
 “If a builder erects a structure containing a latent defect which renders it dangerous
to persons or property, he will be liable in tort for injury to persons or damage to
property resulting from that dangerous defect. But if the defect becomes apparent
before any injury or damage has been caused, the loss sustained by the building
owner is purely economic. If the defect can be repaired at economic cost, that is
the measure of the loss. If the building cannot be repaired, it may have to be
abandoned as unfit for occupation and therefore valueless. These economic losses
are recoverable if they flow from breach of a relevant contractual duty, but…in the
absence of a special relationship of proximity they are not recoverable in tort.”
  court regarded this as issue best resolved in contract between owner of house and
person who sold it to them; effectively no duty between builder and subsequent
purchasers of house; that had to be resolved within contract
 they thought it would be unfair to extend liability to local authority since this was
effectively matter for builder – unfair to jump from there and say duty lay on
shoulders of local authority
 “…since the function of a local authority in approving plans or inspecting
buildings in course of construction is directed to ensuring that the builder
complies with building byelaws or regulations, I cannot see how, in principle,
the scope of the liability of the authority for a negligent failure to ensure
compliance can exceed that of the liability of the builder for his negligent
failure to comply.”
 local authority themselves didn’t cause problem
 general practice for newly renovated houses – builders will subscribe to national
home builders’ council which provides 10-year guarantee against structural
defects which passes down line from original purchaser to purchasers within that
10-year period – though law of delict won’t intervene/impose liability on local
authority, builders themselves intervene

Lecture 6

 pure economic loss from negligent misrepresentation by defender

 pursuer had sought out specific advice from defender and relied on that advice in ordering their
affairs – that info was inaccurate/misleading; liability for words causes obvious problems if ur
always going to be liable for words u speak/print – speaker/writer may not have anticipated
certain things when writing/speaking
 Hedley Byrne v Heller: they were going to be acting for that company in placing large advertising
orders so they wanted to make sure company was good to do business with; bank said that
company is considered good for its ordinary business engagements; plaintiffs went ahead,
placed orders on company’s behalf, company went bust and plaintiffs were left having to foot the
bill; plaintiff then sued bank, sayig they had duty to provide more care in providing that reference
and that duty had been breached by misleading assurance; court agreed that misrepresentation
could give rise to duty provided that person making representation had assumed some kind of
responsibility for liability of that misrepresentation and in turn plaintiff had relied on that
assumption of responsibility; no liability in the end bc this was separate commercial transaction
and bank had inserted fairly effective disclaimer in providing reference for their customer, saying
it was given without responsibility
o put down marker that duty could arise if circumstances were right where u had negligent
misrepresentation; it didn’t have to be fraudulent to trigger liability
 Caparo
o case abt pure economic loss – plaintiffs had recently taken over company called Fidelity;
Caparo had bought shares of FIdelity in reliance of financial statements of FIdelity in
annual accounts; but it turned out that those accounts were misleading and in particular
they had significantly overvalued company’s assets so there was apparent pre-tax profit
– company was in significantly worse situation than accounts disclosed – so Caparo
brought action against auditors of accounts, saying that auditors had been negligent in
signing off accounts and in reliance upon those accounts Caparo had entered into
significantly disadvantageous transaction – so argument here was that auditors in making
that representation had owed duty of care to people like Caparo (potential investors) in
certifying + signing off accounts; and given actual financial understanding of FIdelity they
had failed in that duty of care and should have known that there were potential investors
out there considering investing in company
 but argument was unsuccessful – duty was not recognised – court thought there
was no general duty to foresee and prevent financial loss in this open-ended way
– when auditors were making statement in signing off their accountsm they owed
due to company shareholders and other praties for whom accounts had been
commissioned/prepared but it was’nt fair, just and reasonable to extend duty of
care in such a way that it would apply to any party that was coming along and might
get hold of accounts to look at company – in order to set up duty there must be
special, close relationship between person making representation and person it is
made to – prominent idea in Byrne
 Lord Oliver: “What can be deduced from the Hedley Byrne case…is that the
necessary relationship between the maker of a statement or giver of advice ('the
adviser') and the recipient who acts in reliance upon it ('the advisee') may typically
be held to exist where (1) the advice is required for a purpose, whether
particularly specified or generally described, which is made known, either
actually or inferentially, to the adviser at the time when the advice is given;
(2) the adviser knows, either actually or inferentially, that his advice will be
communicated to the advisee, either specifically or as a member of an
ascertainable class, in order that it should be used by the advisee for that
purpose; (3) it is known either actually or inferentially, that the advice so
communicated is likely to be acted upon by the advisee for that purpose
without independent inquiry, and (4) it is so acted upon by the advisee to his
detriment. That is not, of course, to suggest that these conditions are either
conclusive or exclusive, but merely that the actual decision in the case does not
warrant any broader propositions.”
 duty is narrowly drawn in relation to pure economic loss where it is caused
by negligent misrepresentation – only recognised sometimes, see Playboy
Club London Ltd v Banca Nazionale del Lavoro SpA which cited Lord O’s
Caparo passage [Playboy Club (casino) was approached by new customer
and asked his bank for reference which had been negligently prepared; he
ran up huge bill from casino he was unable to pay; supreme court said
representation that was made by bank was made to berlington street
services (casino’s agent) so bank had no reason to suppose that berlington
was acting for someone else and knew nothing of playboy club – they did
not voluntarily assume any responsibility to club – so u need v specific
interaction between parties themselves to give rise to duty – this indicates
just how narrowly duty is drawn; these cases indicate that where u r looking
at situation between commercial parties there is heavy onus on them to seek
independent advice rather than advice provided for someone else for
another person]
 marker put down by Grant Estates Ltd v Royal Bank of Scotland plc which
had property investment company just before big financial downturn
negotiating interest swap agreement with bank; interest rates went down
massively; so pursuers found themselves paying a lot more for their credit
than they should have done; so they complained that bank said it was good
deal when It wasn’t; court refused to impose duty bc
 o “(1) It is not sufficient to set up a duty of care to assert the existence
of an “advisory relationship”. There is a clear distinction between
giving advice and assuming legal responsibility for that advice. A
salesperson of a financial product may give investment advice or
express opinions without becoming an investment adviser and
undertaking duties of care as such. Whether the giving of advice
gives rise to legal obligations in tort or delict to exercise reasonable
care or to advise on certain matters depends on the terms of the legal
relationship between the parties…
o (2) The absence of any written advisory agreement is a significant
pointer against the existence of an advisory obligation…
o (3) Parties can enter into a contract which defines the basis of their
trading or banking relationship and allocates risk in a way which
negates any possibility of a general or specific advisory duty coming
into existence… The outcome can be expressed in different ways but
with the same meaning. The contractual terms can define the parties'
relationship in a way that no assumption of responsibility can be
inferred. The relationship so defined is not equivalent to that of
professional adviser and advisee which would make it just and
reasonable to impose a duty of care…
o (4) The contractual delineation of responsibility and allocation of risk
may preclude a party from founding on the actual reality which
eventuates if he has contracted to accept a particular state of affairs
as true …”
 they said they were not relying on bank for financial advice –
they were entering into credit agreement w bank but they said
in loan agreement that they were not relying on bank – so if us
aid this in contract and u signed off on this and it turns out
company was quite young and inexperienced
 NRAM v Steel
 “NO authority has been cited to the court, nor discovered by me in preparing
this judgment, in which it has been held that there was assumption of
responsibility for a careless misrepresentation about a fact wholly within the
knowledge of the representee. THe explanation is, no doubt, that in such
circumstances it is not reasonable for the representee to rely on the
representation without checking its accuracy and that it is, by contract,
reasonable for the representor not to foresee that he would do so.”
 defender was solicitor acting for commercial developer Headway which
bought big commercial development and as time went by they decided
theyw were going to sell off one of units; at time they bought development
they’d taken out mortgage from NRAM to buy development; as time went by
they decided to sell a bit of it; in order to process that transaction they then
had to look at mortgage and take that property out of mortgage
documentation; they had to restrict mortgage so it didn’t apply to property
they were selling; convention in those circumstances is that borrower’s
solicitor attends to documentation; Steel the solicitor purported to do this –
attending to restricting mortgage and sale of development but she sent off
to NRAM deed to sign which discharged entire loan which meant that NRAM
 was left with massive loan to Headway but no mortgage to secure it; so
inevitable happened, Headway went into liquidation and NRAM was left
severely out of pocket as unsecured creditors for this large commercial
development; SC decided no duty in this situation bc solicitor was
borrower’s solicitor – borrowers had wherewithal to look at deed and check
it and realise it was inappropriate for nature of transaction; solicitor did have
duty to her client but didn’t owe duty of care to NRAM though she did
certainly make misrepresentation
 Cramaso LLP v Viscount Reidhaven's Trs
 negotiations for lease of grousemoor – defenders had provided
overoptimistic figures about actual population; as a result lease was entered
into; at time negotiations started, landlord was in negotiation with private
individual who was looking at taking on lease; but at time they actually
entered into lease that private individual had entered into limited partnership
as vehicle for lease – so partnership suffered loss
 question was of whether it could be regarded as continuing until lease was
taken up by limited company
 court held that it could – accepted that representation could in these
circumstances have continuing effect even tho identity of representee
changed over course of negotiations; it could be foreseen that party that
carried on negotiations would rely on that information continuing to hold
good; in those circumstances court thought that representor may be taken
to assumed responsibility for representation towards contracting praty who
relied upon it throughout even tho that party changed – that representation
continued to be made so that when representee became limited ratnership
it continued to be foreseeable that they would rely on it and suffer loss; so
court held that duty persisted despite change in legal persona of
representee; but this exceptional concept of continuing representation
aside, representations made to one praty for specific purpose don’t
generally give rise to duty beyond that interaction;
 that said, there are sometimes circumstances where impact upon third parties is
very much foreseeable part of initial transaction between intial interaction etween
representor and representee; if it s foreseeable that representation to A will have
major impact on B, duty will sometimes be recognised;
 SMith v Bush
o representation was not made directly to plaintiff – when someone
buys house they look for property survey – until recently where buyer
has taken out mortgage, bank/building society at formal level
commissioned survey – borrower paid for that survey and relied on it
to decide to go ahead or not – ms smith bought her house based off
survey report to building society and surveyor had failed to pick up
on major structural problem and after she moved in chimney fell down
on her – court thought there was sufficient proximity between parties
and foreseeability that if surveyor messed up house purchaser would
lose out – surveyors knew houesbuyers relied on their reports
o “…in my opinion the valuer assumes responsibility to both mortgagee
and purchaser by agreeing to carry out a valuation for mortgage
purposes knowing that the valuation fee has been paid by the
 purchaser and knowing that the valuation will probably be relied upon
by the purchaser in order to decide whether or not to enter into a
contract to purchase the house.”
o See also Lord Griffiths at 859:
o “It must, however, be remembered that this is a decision in respect
of a dwelling house of modest value in which it is widely recognised
by surveyors that purchasers are in fact relying on their care and skill.
It will obviously be of general application in broadly similar
circumstances. But I expressly reserve my position in respect of
valuations of quite different types of property for mortgage
purposes, such as industrial property, large blocks of flats or
very expensive houses. In such cases it may well be that the
general expectation of the behaviour of the purchaser is quite
different. With very large sums of money at stake prudence would
seem to demand that the purchaser obtain his own structural survey
to guide him in his purchase and, in such circumstances with very
much larger sums of money at stake, it may be reasonable for the
surveyors valuing on behalf of those who are providing the finance
either to exclude or limit their liability to the purchaser.”
 for large houses u’d expect independent survey to be carried
out by borrower
 Housing (Scotland) Act 2006 (Consequential Provisions)
Order 2008/1889: liability for prescribed survey report:
expressly provided that surveyor owes duty to future
purchasers of property to exercise reasonable skill and care
in carrying out survey
 Compare Caparo Industries v Dickman [1990] 2 AC 605 per Lord Bridge at 621:
o “The situation is entirely different where a statement is put into more or less general
circulation and may foreseeably be relied on by strangers to the maker of the statement
for any one of a variety of different purposes which the maker of the statement has no
specific reason to anticipate. 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…to 'liability in an
indeterminate amount for an indeterminate time to an indeterminate class’;…it is also to
confer on the world at large a quite unwarranted entitlement to appropriate for their
own purposes the benefit of the expert knowledge or professional expertise
attributed to the maker of the statement.”
 wouldn’t be appropriate to subject auditors to liability bc anyone could’ve audited
 Problems of representations made to third party about the pursuer
 *Spring v Guardian Assurance [1995] 2 AC 296
o careless words about someone in ontext that is privileged
o plaintiff lost out big time abt something that was said abt him – bc former employer gave
out misleading reference about him – he was insurance salesman and company was
taken over by larger organisation and left job and then tried to go into business selling
insurance for other insurance companies – so he went back to old employer for reference
which implied that plaintiff was dishonest which wasn’t true – as a result he lost out on
chance of new work opening and couple other companies he approached; court said
former employer did have duty of care
 o Lord Slynn at 335:
o
o “…in many cases an employee will stand no chance of getting another job, let alone a
better job, unless he is given a reference. There is at least a moral obligation on the
employer to give it. In the case of an employee or ex-employee the damage is clearly
foreseeable if a careless reference is given; there is as obvious a proximity of
relationship in this context as can be imagined. The sole question therefore, in my
view, is whether balancing all the factors: '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:' per Lord Bridge of
Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605, 618.”
 McKie v Swindon College
o claimants’ former employer Swindon College had sent email to new employer City of Bath
U which insuated there were safeguarding concerns for students in contact with claimant
who was teacher at Swindon College – suggested he wasn’t suitable for work w students
as teacher on college campus – allegations led to his dismissal
o court thought duty could be established
o negligent misrepresentation duty is narrowly construed but typically where there is
assumption of responsibility there are circumstances where duty is sometimes recognised

Lecture 7

 extended to negligent provision of services – services provided in various contexts that led to
pure economic loss on part of person unveiling themselves of their services – if for reason those
original contractual arrangements ceased to provide framework for effective remedies, courts
may in some circumstances regard service provider as coming under delictual duty of care
 Henderson v Merrett Syndicates: plaintiffs were investors in Lloyds insurance market known as
Lloyds’ Names; defendants were underwriters + agents employed to manage syndicates of
Lloyds’ Names; agreements between Lloyd Names who were providing money upfront and
defendants making arrangements on ground gave agents authority to make arrangements; after
period when these arrangements were leading to significant losses, they sued their agents
alleging that they had been negligent in way they’d managed business; that negligence had
caused them economic loss; they couldn’t sue in contract bc English case and rules on limitation
meant they would have been time barred; English rules on limitations were more generous in
relation to tort claim so they sued in tort instead; but no.1 hurdle; if they were going to sue agents
in tort allegedly in negligence in managing their business,w ould they be able to establish duty
of care in pure economic loss?
o hol held from Hedley byrne it would be justifiable to establish duty bc managing agents
held themselves out as possessing special expertise to advise names on suitability of
risks etc.
o “The managing agents have accepted the Names as members of a syndicate under their
management. They obviously hold themselves out as possessing a special expertise
to advise the Names on the suitability of risks to be underwritten; and on the
circumstances in which, and the extent to which, reinsurance should be taken out and
claims should be settled. The Names, as the managing agents well knew, placed implicit
reliance on that expertise, in that they gave authority to the managing agents to bind
them to contracts of insurance and reinsurance and to the settlement of claims. I can see
no escape from the conclusion that, in these circumstances, prima facie a duty of care
is owed in tort by the managing agents to such Names. To me, it does not matter if one
 proceeds by way of analogy from the categories of relationship already recognised as
falling within the principle in Hedley Byrne [1964] AC 465 or by a straight application of
the principle stated in the Hedley Byrne case itself. On either basis the conclusion is, in
my opinion, clear."
o court thought there was enough prior authority and principle was clear enough that where
there was clear assumption of responsibility and reliance by Lloyds names duty of care
should be established and effectively to make good on gap left by law of contract where
limitation rules pull plug on claim
 Customs and Excise Commissioners v Barclays Bank plc
o commissioners were trying to recover unpaid VAT from 2 companies; they had placed
freezing injunctions on those companies’ bank accounts in effort to recover; those
injunctions were notified to bank but Barclays bank negligently forgot to comply w those
orders freezing the bank accounts and paid out cash from those companies’ accounts;
result was that commissioners lost out big time and were unable to recover VAT due;
commissioners said bank should’ve been more careful
o duty wasn’t recognised bc they said bank couldn’t be said to have assumed responsibility
specifically to commissioners in regard to that VAT; it was bound by law not by personal
arrangement between them which told them they were supposed to freeze those bank
accounts; that was matter between them and court
 White v Jones
o assumption of responsibility by service providers
o concept of reliance
o no question of assumption of responsibility but person who’d relied on it was dead and
couldn’t sue
o defendant was solicitor; situation was that plaintiffs were 2 sisters whose father had
recently died; not long before he died they’d fallen out w their dad due to way mother’s
estate had been handled; father went off in huff and made will cutting them out of his
estate; but they made up 3 months later so father went to solicitor, mr jones, and said
forget that old will pls do me new will bequeathing significant amounts to his daughters;
solicitor was given specific written instructions as to hwo to do this; solicitor didn’t get
around to doing it; father died after fall a few months later; when he died mr jones hadn’t
gotten around to drawing up will so estate was going to go to other members of family
and 2 daughters were gna lose out; he drew up will on instructions of testator – said mr
jones didn’t draw up will for beneficiaries, it was tor testator
o couldn’t say in conventional sense that daughters were relying on him for will; person
who’d relied on will being re-drawn as father rather than daughters; nonetheless hol said
duty of care should be recognised in tehse circumstances by extension of Hedley burns
principle
o fair, just and reasonable to extend duty to third praties [beneficiaries] without reliance by
those parties because
 the proper transmission of estates depended on solicitors carrying out their duties
properly;
 the consequences of a solicitor's negligence in this situation will normally not be
discovered until after the client's death when it is too late to rectify the mistake; and
 to deny liability would perpetuate a lacuna in the law that the only person who
would have a valid claim (the testator) would have suffered no loss while the only
person who would have suffered a loss (the disappointed beneficiary) would have
no claim.
 assumption of responsibility and reliance where u have chain of contracts
o Junior Books v Veitchi
 chain of contracts where person who entered into contract w main contractor was
held to be owed duty of care by sub-contractor
 pursuers were building factory and had engaged contractors to build factory for
them; junior books architects said when building factory u must get veitchi flooring
in bc it’s the best; junior books contracted w main contractors who contracted w
veitchi; veitchi did provide flooring but made mess of it; 2 years later whole floor
had to be re-laid; regarded as economic loss
 could junior books sue veitchi in relation to economic loss they’d sustained in
having to completely re-do the floors?
 veitchi had represented in negotiations with junior books – that it could be safely
relied on; junior books had relied on veitchi when they said they were gna do that;
though there was no contractual nexus court thought there was sufficient
assumption of responsibility and reliance
 lord fraser said proximity to praties was extremely close; injury to respondents was
direct and foreseeable result of negligence by appellants; respondents nominated
appellants as specialist sub-contractors and must therefore have relied upon their
skill and knowledge
 normally tho when u have chain of contractual relationships courts would not
normally allow law of delict to be used to bypass
 seen as outlier case – still good law but when invoked in cases almost always fails
 See also Realstone Ltd v J & E Shepherd [2008] CSOH 31; [2008] PNLR
21 per Lord Hodge at para 22:
o “…there is a concern that the general law should not impose duties
which would cut across the detailed contractual provisions which
parties in a contractual chain have put in place to govern their liability
inter se. The risk of introducing uncertainty into complex commercial
transactions justifies the retreat from Junior Books. That retreat
having occurred, I consider that Junior Books does not provide a
basis for the existence of an established duty of care.”
 psychiatric harm
o was much less understood than it is now – courts tended to regard it w caution in scope
– tended to back away from recognising duty of care
o now we have more secure understanding of psychiatric illness but those earlier problems
w diagnoses and cause and effect left their legacy in terms of fairly restricted rules on duty
o also in relation to range of possible claimants
o law distinguishes stress/upset from medically recognised mental disorders – if u have
suffered emotional impact alone, if it is just distress/upset that is not enough – it has to be
identifiable and medically recognised mental disorder
 Bourhill v Young: “The driver of a car or vehicle, even though careless, is entitled
to assume that the ordinary frequenter of the streets has sufficient fortitude to
endure such incidents as may from time to time be expected to occur in them,
including the noise of a collision and the sight of injury to others, and is not to be
considered negligent towards one who does not possess the customary
phlegm.”
 if driver causes accident he must be able to expect that people witnessing it can
cope w some form of upset – u should be able to cope that level of upset w/o
 actually seeking compensation - it’s only if consequences of defendants’ actions
have led to sth beyond upset (anxiety, stress) that can be medically diagnosed u
will be compensated – duty is contingent upon context – context in which harm
occurred and relationship in which pursuer stood to events
o law distinguishes between primary and secondary victims
 law is much more sympathetic towards recognising duty of care in primary victims
than secondary victims
 Alcock v Chief Constable of S Yorks
 “Broadly [the cases] divide into two categories, that is to say, those cases in
which the injured plaintiff was involved, either mediately or immediately, as
a participant [i.e. primary victim], and those in which the plaintiff was no
more than the passive and unwilling witness of injury caused to others [i.e.
secondary victim].”
 primary victim: directly involved; they were in range/risk of physical danger;
right in middle of accident; u r owed compensation if u suffer psychiatric
injury
o Page v Smith: plaintiff was in car collision; defendant was at fault;
plaintiff was wasn’t physically injured but accident triggered post-viral
fatigue system and suffered ME that he’d suffered a long time back;
court held that driver owed him duty of care in relation to all personal
injury that had happened as primary victim
o D v Amec: where injury has been caused by breach of statutory duty
rather than common law duty, same control mechanisms apply to
recognise duty of care
 duty is only recognised in v limited circumstances in relation to secondary
victims – they must fulfil additional criteria
o drawn from case of Alcock
o close tie of love and affection must be established between
secondary victim and person injured by defender’s wrongdoing
o secondary victim must have been present at accident or at its
immediate aftermath; and
o the secondary victim’s psychiatric injury must have been caused by
direct perception (i.e. through his or her own unaided senses) of the
accident or its immediate aftermath.
o in Alcock plaintiffs were present in standing room at football stadium
disaster; police opened door to standing area without controlling
access to parts that were already overcrowded; as a result of
negligence 96 people died due to crush injuries/suffocation; in
addition to 96 people who died, 400 further people needed hospital
treatment, thousands were caught up in events as rescuers,
spectators, relatives of dead converging to identify bodies; decision
concerned 16 conjoined relatives of victims deeply affected by events
but hadn’t actually been in standing area where they themselves
would have been injured; bc they weren’t directly in vicinity of
physical injury they were not considered to be immediately primary
victims; they were passive and unwilling victims of injury caused to
others; they had to meet criteria in order to establish duty of care;
almost all of them were unsuccessful
Lecture 8

 close tie of love and affection – v specific criterion, v narrowly construed – sibling relationship
wasn’t close enough; generally limited to spouse/children relationship
 Robertson v Forth Road Bridge Joint Board 1995 SC 364; 1996 SLT 263 (No duty although
victim was close colleague.)
o 3 maintenance workers travelling over old road bridge, v windy day; 2 workers were in
cab of lorry; third worker was in back of lorry; gust of wind whipped him off back of lorry
and he fell into river below and was killed; v traumatic for 2 other workers to witness; but
courts still said colleague – not close enough

 the secondary victim must have been present at the accident or at its immediate aftermath; and
o have to be directly seeing it at time/afterwards
o in alcock relatives either saw it initially on tv/visited several hours later/next day – not
immediate enough

 the secondary victim’s psychiatric injury must have been caused by direct perception (i.e.
through his or her own unaided senses) of the accident or its immediate aftermath.
o having scenes relayed by tv/telephone – not enough
o must see with ur own eyes
o McLoughlin v O’Brian: plaintiff’s husband and her 3 children had been involved in road
accident for which defendant was responsible; Mrs McLoughlin was told abt accident 2
hours after event and rushed to hospital to see them; when she got there she found that
1 child had died; husband and children hadn’t been fully attended to, still messy, were in
v distressed state – she said severe shock caused her psychiatric illness; driver causing
accident ought to be liable; driver didn’t dispute that he was liable for physical injuries but
didn’t believe he was liable for psychiatric illness; nonetheless HoL did hold duty to be
established bc they agreed that “…it is now accepted by medical science that
recognisable and severe physical damage to the human body and system may be caused
by the impact, through the senses, of external events on the mind. There may thus be
produced what is as identifiable an illness as any that may be caused by direct physical
impact.”
 she satisfied first criteria; court was satisfied that tho she wasn’t at accident, she
was present at immediate aftermath [2 hours is ok – beyond that it’s not immediate
enough]
o Young v MacVean: Mrs Young’s 26y/o son was killed due to negligent driving of defender;
Mrs Young suffered indisputable psychiatric injury as a result of son’s death; she wasn’t
immediately on scene; on day of son’s death pursuer had agreed to meet son in evening
at her gym; on way to gym she noticed that there had been bad accident in neighbouring
street but didn’t look further; she then began to feel increasingly uneasy, broke off from
her exercise class, found that she had many phone calls including from her daughter, her
son didn’t show up, became increasingly distraught; someone from gym class went and
inquired and found that her son was killed; court said second criteria wasn’t met
 Lord Brodie: “[The pursuer’s experience] did not involve the sudden appreciation
by direct sight or sound of a horrifying event or of direct sight or sound of the
horrifying immediate aftermath of such an event. The sight or sound of the
defender driving into collision with the pursuer’s son would undoubtedly have been
horrifying but the pursuer was not present when that event occurred. Coming upon
a wrecked vehicle immediately after such a collision in the knowledge that her son
 was involved in a collision which had resulted in the wreck might also be equally
horrifying, but that is not what occurred; the pursuer was unaware of any
connection with her son when she saw the vehicle. It is accepted that the pursuer
sustained psychiatric injury but hers is of the nature of an illness caused by the
accumulation over a period of time, albeit a relatively short time, of, to use
Lord Ackner’s words [in Alcock], more gradual assaults on the nervous
system.”
 she’d only seen it in distance, didn’t investigate further
 did see her son at mortuary but more than 2 hours later
 rescuers
o Chadwick v BRB: plaintiff had assisted railway disaster; this incident had occurred right
outside CHadwick’s house; train was v mangled in v precarious position; Mr Chadwick
volunteered to go in and assist rescue efforts; hadn’t been physicaly hurt but developed
psychiactric illness after; spent several months in psychiatric hospital after; court said he
fulfilled criteria – he was at immediate aftermath at physical danger to himself
o White v Chief Constable of S Yorks: upheld Chadwick; policeman in group of police
officers claimed to be psychologically damaged from HIllsborough, helping dead, dealing
w distraught relatives, etc.; so they sued COnstable whose negligence had caused
incident; court openly acknowledged that on public policy gorunds it would be difficult to
justify placing police officers in special category and opening door to duty towards them
as primary victims when already in ALcock relatives couldn’t claim as secondary victims;
essential majority reasoning is that onl y people who can be regarded as primary victims
are people in range of physical injury at time; pe
 Lord Hoffmann: “There does not seem to me to be any logical reason why the
normal treatment of rescuers on the issues of foreseeability and causation should
lead to the conclusion that, for the purpose of liability for psychiatric injury, they
should be given special treatment as primary victims when they were not within
the range of foreseeable physical injury and their psychiatric injury was
caused by witnessing or participating in the aftermath of accidents which
caused death or injury to others.”
 police officers didn’t satisfy first criteria
o rescuers must be exposed to physical danger
 category of primary victim who believes defender’s actions have put them in situation where they
were itsrumental in causing harm to third praty
o See Alcock per Lord Oliver at 408: “where the negligent act of the defendant has put
the plaintiff in the position of being, or of thinking that he is about to be or has
been, the involuntary cause of another's death or injury and the illness complained
of stems from the shock to the plaintiff of the consciousness of this supposed fact.
The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the
position of being an unwilling participant in the event establishes of itself a sufficiently
proximate relationship between them and the principal question is whether, in the
circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.”
o Anderson v Christian Salvesen: pursuer was lorrydriver deeply traumatised from
manoeuvring his lorry out of loading bay and in so doing crushed + fatally injured
colleague working in trailer behind lorry; his essential aargument was that employer had
put in palce unsafe mode of working that allowed accident to happen; but that unsafe
mode of working had put him in position of being involuntary cause of another’s death;
court accepted that reasoning
 o W v Essex CC: plaintiffs had entered into agreement w council to become foster parents;
said they already have 2 children and didn’t want child who had history of abusing other
children; 15y/o child w prior history of abusing other children was placed w them; within a
month he had begun to abuse plaintiffs’ children; this deeply distressed plaintiffs; they
weren’t physically injured themselves but they were traumatised from this incidient;
applying parallel reasoning court said they could be regarded as primary victims; council
had brought this abusive child into their home and allowed him to be in contact w their
children so plaintiffs themselves felt they had been made instrumental to abuse of their
children; court said “…the categorisation of those claiming to be included as primary or
secondary victims is not as I read the cases finally closed. It is a concept still to be
developed in different factual situations.”
 Employees suffering psychiatric harm arising from occupational stress in the workplace
o about general working environment that employer had ample time to be aware of – not
one-off event
 when u’ve been physically harmed by act/omission by public body
o duty of care must still be established
o HOWEVER – law of delict will not be able to adjudicate if not justiciable
o justiciability: substance of pursuer’s complaint must be justiciable as private law matter
o decisions made by public authorities in matters of policy are off-limits from law of delict to
avoid hampering good government
o operational matters – public authorities going about day to day business providing public
service – are justiciable
o X v Bedfordshire: school closures in ur area; court thought that was essentially policy
matter – involved policy considerations, allocating resources, changing socio-
demographic trends
o if it’s about way school is run e.g. teachers leaving classes unsupervised, bullying
problems, etc. it is operational matter
o some courts have been left in doubt on whether matter is justiciable; courts need to look
at whole facts – so they’ll allow case to go to proof/trial
 Barrett v Enfield: someone alleged that local authority failed in their duty of care to
protect his welfare when in residental care during his childhood; he hadn’t been
adequately cared for as a child; court said
 “At this early stage in the present case it is not clear in my opinion that
if the action proceeds to trial the judge will be required to weigh policy
factors which the court is not equipped to decide. It is not known at this
stage what factors the defendant and its officials and social workers did take
into account in making decisions relating to the plaintiff and in planning his
future. It may be that no matters of policy involving the balancing of
competing public interests or the allocation of limited financial resources
were involved in the decision and it may be that at a trial the judge, in the
words of Mason J in the Sutherland Shire Council case, 157 CLR 424, 469,
would be called upon: ‘to apply a standard of care to action or inaction that
is merely the product of administrative direction, expert or professional
opinion, technical standards or general standards of reasonableness.’
Therefore I would not strike out the action at this stage on the ground
that it gives rise to issues which are non-justiciable. If it does appear
at the trial that the case gives rise to an issue which relates to a matter
 of policy such as the balancing of competing public interests, then the
judge can at that stage rule out the issue as being non-justiciable.”
 Ryder v Highland Council: was allowed to go to proof; pursuer’s mother was killed
in road accident; her car had skidded on black ice on road which local authority
had not yet treated; pursuer, her son, argued that accident would’ve been avoided
had council employed more comprehensive gritting system; but after hearing
detailed facts of case at proof, Lord Ordinary said council’s decision not to operate
round-the-clock gritting system fell within category it was not appropriate for court
to intervene in
 “It is…a decision ultimately taken by elected representatives, on the basis
of information and advice from officials, with very significant financial
consequences for the budgetary process of allocation of limited resources.
It requires the balancing of competing public interests as the expense of a
24 hour service which according to Mr Guest's estimate would increase
winter maintenance costs by almost 50 per cent, could not be met out of the
existing roads budget and would presumably require to be funded by cutting
spending on some other council service. In my opinion this goes beyond the
setting of operational priorities and is dictated by considerations in respect
of which Parliament could not have intended, when enacting the 1984 Act,
that the court would substitute its view for that of the body elected to make
such decisions.”
 Santander UK Plc v Keeper of the Registers of Scotland: court thought issue was
justiciable; creditor in mortgage standard security claimed that keeper of registers
of Scotland had failed in duty of care towards it; one of borrowers who had
Santander mortgage thought she’d draw up discharge of her standard security,
present it to keeper and security would be discharged; it worked; she had no more
mortgage; so Santander didn’t have any security for loan money; they sued keeper
of registers of Scotland; Lord Boid thought this was straightforward operational
decision taken by defender just going aobut day to day service of providing
services to those involved in land transactions; no competing resources issues
here; so matter justiciable BUT after establishing matter is justiciable u must
establish duty of care which Santander couldn’t satisfy bc he thought that
Santander was big commercial lender, so it was more appropriate that Santander
should carry risk of customer carrying out criminal fraud in this way rather than
registers of Scotland; he thought that Santander had resources to make
assessments of borrowers’ credit-worthiiness/trustworthiness; they were set up to
do all that; registers of sctoalnd is just set up to deal w deeds

Lecture 9

 X v Bedfordshire CC: local authority had failed in its statutory duty in regard to child welfare to
take children out of home situations where they were at risk of abuse; in another of conjoined
cases it was alleged that local authority had wrongly exercised its power to remove child from
care of mother; in 3 further cases local authorities were alleged to have failed in their duties in
terms of making provision for education for children with special educational needs
o held that it was not fair, just or reasonable to impose duty on local authorities
o “If there were no other remedy for maladministration of the statutory system for the
protection of children, it would provide substantial argument for imposing a duty of care.
But the statutory complaints procedures contained in section 76 of the [Child Care]
 Act of 1980 and the much fuller procedures now available under the [Children] Act
of 1989 provide a means to have grievances investigated, though not to recover
compensation. Further, it was submitted (and not controverted) that the local authorities
Ombudsman would have power to investigate cases such as these.”
o if there are appropriate statutory complaints procedures more tailed to dealing with issues
at hand, court held it is not fair, just and reasonable to circumvent them by imposing duty
of care in negligence
o slight qualification – those procedures didn’t provide compensation – courts would
acknowledge cases where damages SHOULD be awarded – in Phelps v Hillingdon
[where local authority had allegedly fallen short in making adequate arrangements for
children for special needs] it was held that even if there are altnerative statutory
agreements procedures in some circumstances “it may only be through a claim for
damages at common law that compensation for the damage done to the child may be
secured for the past as well as the future.”
o question asked: who was authority’s primary duty to? if to someone other than plaintiff,
then was it appropriate to recognise duty of care in favour of someone else? in cases
involving decisions whether to move children to residential care there is conflict of duties
– on one hand there’s duty of care to child, on other to parents – there u have divided
loyalties between children who are authority’s prime
o responsibility and praents; seen in JD v East Berkshire Community
 claimants were parents accused of abuse – saying that local authority owed duty
to parents
 “A doctor is obliged to act in the best interests of his patient. In these cases the
child is his patient. The doctor is charged with the protection of the child, not with
the protection of the parent. The best interests of a child and his parent normally
march hand-in-hand. But when considering whether something does not feel ‘quite
right’, a doctor must be able to act single-mindedly in the interests of the child. He
ought not to have at the back of his mind an awareness that if his doubts about
intentional injury or sexual abuse prove unfounded he may be exposed to claims
by a distressed parent.”
o Jain v Trent SHA: defendant was health authority that was regulator for operators of
nursing homes; on basis of careless investigation, it abruptly withdrew registration which
resulted in huge loss and distress; court said they were not prepared to recognise duty of
care in negligence between care home proprietors and local authority as regulators of
carehomes; conflict of loyalties – imposition of such a duty would/might inhibit exercise of
statutory powers and be potentially averse to the interests of the class of persons the
powers were designed to benefit or protect
 public authorities don’t always disappear – making them the fall guys potentially opens
floodgates
 Murphy v Brentwood Council: house with dodgy foundations signed off by local authority; court
held that duty of care shouldn’t apply here bc person primarily liable was dodgy builder, not local
authority; public authority shouldn’t be guarantor for other things going on in their area if not
liable
o Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057
per Lord Steyn at para 2:
o “On the one hand the courts must not contribute to the creation of a society bent on
litigation, which is premised on the illusion that for every misfortune there is a
remedy. On the other hand, there are cases where the courts must recognise on
 principled grounds the compelling demands of corrective justice or what has been called
‘the rule of public policy which has first claim on the loyalty of the law: that wrongs should
be remedied’ [X v Bedfordshire CC per Sir Thomas Bingham MR at 663]. Sometimes
cases may not obviously fall in one category or the other. Truly difficult cases arise.”
 welfare cases are often v complex – involve sensitive decision-making among range of different
agencies; all with overlapping roles in regard to same case; it was thought in X v Bedfordshire
that it was unfair where u have complex overlapping working relationships of that kind; it’s unfair
to pin responsibility one particular agency when there is collective failure in sensitive area; would
“cut across the whole statutory system”
 threat of negligence liability would force public authorities into defensive practices that would
hamper good administration – lead to delay, inaction while contemplating options – X v
Bedfordshire
o no evidence to suggest it would happen but it has been feature of judicial decision-making
in past
 duty doesn’t normally attach to omissions unless there’s sth particular about nexus between
parties – mostly in relation to professional rescuers
o Robinson v Chief Constable of West Yorkshire
 Police bungled operation – active conduct – attempted to arrest suspected
drugdealer in busy street in middle of afternoon; crowded; old lady was knocked
down and injured; court held there was duty of care – this was police actively going
in to make arrest, not thinking properly about hazards of trying to arrest someone;
it was foreseeable it would entail risk to passersby
 Lord Reed drew distinction here – police are not normally under duty of care to
protect individuals from danger of injury which they have not themselves created,
including injury caused by conduct of third parties, in absence of special
circumstances such as assumption of responsibility
o Hill v Chief Constable of West Yorkshire
 plaintiff’s daughter was 20y/o student murdered as final victim of notorious
Yorkshire ripper; mother argued police hadn’t done their job properly, had botched
investigation; they had info which they failed to properly collate/evaluate and if
they’d done that more efficiently they would’ve identified ripper quicker and her
daughter wouldn’t have been murdered
 HoL rejected idea that there could be open-ended duty of care to community in
general to identify and apprehend mass murderer like this; plaintiff’s daughter had
been killed at random; police couldn’t have identified her specifically
o SMith v Chief Constable of Sussex
 police knew abt specific threat to individual; claimant had suffered violence at
hands of former partner; had broken off relationship and received threatening
messages from them which he reported to police; police didn’t intercept violent
partner
 however no duty of care – HoL held core principle in Hill to effect that police don’t
generally owe other members of community duty to save them from criminal
activities of third parties even where they had certain info
 we have to respect their professional judgement
o Michael v Chief Constable of South Wales
 Joanna Michael called 999 in middle of night, said her ex-partner had just been in
her house and found her with new partner and was v threatening towards her; he
had currently left house bc he was seeing man off premise and told operator her
 violent ex-partner said he was going to come back, had already assaulted her and
said he was gna come back and kill her; she told this to operator; phone network
routed 999 call to Gwent police though her house was actually in South Wales area
– went to wrong operator – so Gwent operator told her she’d pass call on and in
meantime lock her doors, keep her phone free, etc. but she didn’t give any express
undertaking as to when police would arrive; that operator logged it as grade 1
priority but after being transferred to SOuth Wales it got downgraded to grade 2
priority so police didn’t arrive; 40min after first call girl called again, screaming was
heard, she was murdered; her family brought proceedings against both police
forces, saying that duty of care to attend swiftly was owed to her once 999 call was
received; case was unsuccessful; majority in that case said tehre was strong
dissenting minority judgment but majority held that there was nod uty of care in
police; court said
 “It does not follow from the setting up of a protective system from public resources
that if it fails to achieve its purpose, through organisational defects or fault on the
part of an individual, the public at large should bear the additional burden of
compensating a victim for harm caused by the actions of a third party for whose
behaviour the state is not responsible. To impose such a burden would be contrary
to the ordinary principles of the common law.
 The refusal of the courts to impose a private law duty on the police to exercise
reasonable care to safeguard victims or potential victims of crime, except in cases
where there has been a representation and reliance, does not involve giving
special treatment to the police. It is consistent with the way in which the common
law has been applied to other authorities vested with powers or duties as a matter
of public law for the protection of the public.”
 it’s not that police has immunity in law of negligence but as general principle of law
of negligence of equal application to third parties and private parties that omissions
are dealt with differently from positive action
o Duty may, exceptionally, be recognised where, for example:
 the police have assumed a positive responsibility to safeguard the pursuer in
regard to a specific risk, and the pursuer has relied upon the police to do so: see
Swinney v Chief Constable of Northumbria [1997] QB 464 [1996] 3 All ER 449
 plaintiffs had provided police w details about identity of driver who had
knocked down and killed police officer; those contact details had been in
document which had just been left in backseat of police car; that document
was then stolen so contact info then somehow found its way to suspect in
that case; plaintiff started receiving threats of violence; in that case court of
appeal thought claim against police could stand – claim shouldn’t be struck
out bc in that case we had assumption of responsibility for protecting
informants’ identity when they came forward which gave rise to duty to look
after that info more carefully
 the police were in a particular position of control over a third party
 in their “civil function” to promote public safety the police have taken control of a
hazard that was not of their making but presents a danger to persons such as the
pursuer: Gibson v Strathclyde Police 1999 SC 420 (and see comment on Gibson
made by Lord Drummond Young in A J Allan (Blairnyle) Ltd v Strathclyde Fire
Board [2016] CSIH 3; 2016 SC 304 at para 91: “that analysis is one that may
frequently apply to work performed by the police in controlling traffic or dealing with
 hazards on the roads. It would not, however, normally apply to work performed in
the prevention of crime and the detection of the perpetrators of crime.”)
 Gibson: bridge had collapsed due to heavy rainfall; they put out warning
cones, flashing lights on one side of bridge, etc. and went away; didn’t also
make sure they were on other side of bridge; car approached bridge from
other side and fell into river below; court held there was duty of care to road
users; Lord Hamilton distinguished cases where there were difficult policy
issues in investigating crime and third party and civic function where they
ought to have done better – was consistent with underlying principle of
neighbourhood for law to regard him as being in such relationship with such
road users as to satisfy requisite element of proximity
 the police have made an existing situation worse or created a new danger.
 fire service – general rule is that once they have attended scene of fire they
have duty not to make situation worse
 Capital and Counties plc v Hampshire CC: involved 4 cases of conjoined
fire services; firemen left scene without making sure fire was put out in
regard to property next door in 1 of 4 cases; in case 2 they ran out of water
so couldn’t fully put out fire; in 2 of cases they turned off sprinkler system
which made situation worse and failed to put out fire; so duty of care didn’t
exist where they had to leave/failed to put out fire but it did exist where they’d
switched off sprinkler system and made situ worse; upheld in Scottish case
law [A J Allan (Blairnyle) Ltd – roof timbers still smouldering when
firemen left]

Lecture 10

 Kent v Griffiths: call put to ambulance service by patient’s gp in relation to pregnant woman who
was asthmatic + having fit + breathing difficulties; was told ambulance was on its way; if she’d
realised just how long it was gna take she would’ve just bundled heri n her car and take her to
hospital herself; but ambulance took 38min to arrive; ambulance service could owe duty of care
to attend promptly, not just to attend reasonable care when they get there; goes beyond what
we’ve seen in relation to police/fire service
 duty is very sparingly imposed on omissions for roads authorities
o Stovin v Wise: roads legislation as slightly diff between scot and eng; but case law =
substantially same for both; plaintiff was injured on his motorbike when he collided w car
coming out of junction; visibility for cars at junction where driver was coming out was
blocked by high bank of land on adjoining property; so there was poor visibility;
motorcyclists sued car driver and car driver tried to bring in local authority as third party
who was also partly to blame; local authority had been empowered by statute to deal w
hazards on roads + remove features that would block view of road users; and here road
authority had been in negotiation with neighbouring owners about problem but no action
had been taken; HoL said just bc they had statutory power to tidy up/make junction
better/improve visibility didn’t mean to say they owed individual duty of care to those
harmed if they did not; local authority has failed to address potential hazard – omission;
but no duty to individuals here; if there was positive action where they’d actively done sth
to make junction dangerous [e.g. misleading road signs, high shrubbery blocking road
signs]
 claimant driver was injured in collision with another vehicle as she attempted to negotiate bend
on hill; apparently there’d been sign warning drivers to slow down as they approached difficult
 bend but this sign had disappeared so driver approached this hazard w/o reducing speed as she
should’ve done; she said local authority is required to undertake measures to ensure safety
under road traffic act; but
o Lord Hoffmann: “I find it difficult to imagine a case in which a common law duty can be
founded simply upon the failure (however irrational) to provide some benefit which a public
authority has power (or a public law duty) to provide.”
 statutory powers and duties of roads authorities don’t relieve road users of duty to take care of
their own safety
o Macdonald v Aberdeenshire County Council: potential hazard local authority could’ve
addressed; pursuer injured + passenger killed when colliding with van at junction; she
drove out of minor road onto trunk road; she drove straight out onto trunk road; her
argument was that there had been inadequate signage warning that junction was coming
up; double white lines marking stop at junction had been eroded so u couldn’t see them
anymore; court came back to principle that she should’ve been exercising reasonable
care; the way she herself described junction suggested obvious danger; duty of care didn’t
extend to making safety improvements when safe road user would be expected to go
about that road safely
o Lord Drummond Young: “…roads authorities are entitled to act on the assumption that
drivers and others who use the roads proceed with reasonable skill and care. That
means that it can be assumed that drivers will have regard to any obvious dangers on the
road and drive accordingly. There is no obligation on a roads authority to protect drivers
from anything that is obvious. Obvious dangers would include bends, blind summits,
visible road junctions, and the fact that the driver's view is restricted, whether by buildings,
vegetation or features of the land and the configuration of the road. In all such cases, a
careful driver should slow down and look carefully ahead. If he does not do so, the
accident is his own fault.”
 if failure on part of public authority also entails breach of ECHR right, there is parallel avenue of
remedy under HRA by direct action
o remedy is in HRA 1998 s8 – includes possibility of damages
o *Mitchell v Glasgow City Council 2009 SC (HL) 21
o Lord Rodger at paras 69-70: “I…see nothing in the relationship of landlord and secure
tenant to give rise to any positive Art 2 obligation on the part of the council to
protect Mr Mitchell's life. The public authority with the positive duty to protect Mr Mitchell
from criminal assaults by Drummond was Strathclyde Police, not the council…
o Indeed, any other conclusion would have significant implications for councils and housing
associations and similar organisations, with duties to provide houses for people who may
well not be desirable tenants. These bodies might come under a duty to take appropriate
general steps…to prevent outbreaks of criminal violence among their tenants. As it is,
councils and housing associations etc do not have, and are not meant to have, the
resources, staff or powers to take effective steps to prevent such crimes. On the contrary,
they are resourced on the basis that they are landlords operating within a society
where the responsibility for preventing violent crime lies with the police, who, in
their turn, are given the resources, training and powers to do the job. Costly
duplication of the work of the police is neither necessary nor indeed desirable.”
o duty of care of landlord to protect tenant who was murdered – family argued art.2 echr
was breached; pursuers were arguing for 2 remedies [echr + negligence in duty of care]
– court decided that no direct action lay, applying same considerations for duty of care;
 council isn’t resourced to have policing function; even in regard to police, saying they
breached echr art.2 is v problematic
o Van Colle v Chief Constable Hertfordshire Police: no issue of duty against police but
breach of echr art.2 alleged giving rise to obligation under hra 1998; in van colle claimant’s
son was murdered; he had received threatening home calls from former employee saying
that employee was just abt to go on trial on charges of theft; his former employer was gna
testify against him; these phone calls were to persuade former employer not to testify
against him; calls were reported to police but no action taken; shortly before trial took
place, accused approached van colle and shot him dead; court acknowledged that there
was positive duty under art.2 echr not just to apply criminal law but in certain well-defined
circumstances to take preventive measures to protect human life
 test: it must be established to court’s satisfaction that authorities knew/ought to
have known at time of existence of real + immediate risk to life of identified
individual/individuals from criminal acts of third party
 but in this case tehre was nothing to suggest he was real + immediate threat to van
colle’s life; so in these circumstances no breach of echr art.2
 Michael v Chief Constable of South Wales: lady who phoned police abt ex coming back to kill
her; in those circumstances there was much more pressing issue here; at least arguable that
there was real immediate risk to life; but court said no duty of care in negligence against police
but allowed art. 2 case to go to trial in order to ascertain more fully facts of case/whether police
knew/ought to have known abt existence of threat to life of victim
o so we have 2 parallel routes to remedy when we have public authorities which are quite
separate and have 2 different criteria
 immunity from duty
o Hall v Simons [2002] 1 AC 615 (English solicitors and barristers no longer immune,
conduct of civil or criminal proceedings)
 could be found liable for negligence in conduct of civil/criminal proceedings in
England;
o Wright v Paton Farrell 2006 SC 404 (Scottish solicitors and advocates immune, conduct
of criminal proceedings)
 don’t have immunity in civil litigation but do have in criminal proceedings
o Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 (expert witnesses no longer immune
from suit)
 summary of negligence
o For a pursuer to succeed in a negligence action the following conditions must be satisfied:
 (1) A duty of care must be owed to the pursuer by the defender.
 (2) The defender must be in breach of that duty. This is the standard of care
question.
 (3) The harm suffered by the pursuer must have been caused by the defender.
 (4) The harm should not have been too remote a consequence of the defender’s
conduct.
 (5) No relevant defences are applicable.
 sometimes preliminary question must be asked before looking at conditions – was behaviour
voluntary and thus capable of being judged according to standard of care?
o generally speaking individuals are not held liable if actions were wholly beyond their
physical control – complete, total loss of consciousness can’t be held liable
o Waugh v James Allan: driver drove off road and knocked him over; driver had lost control
of lorry bc had suffered fatal heart attack + dropped dead off wheel; court said we can’t
 subject them to any meaningful standard of care – had completely lost consciousness
and any kind of control; standard of care inquiry had become meaningless; couldn’t say
he was negligent in any meaningful way; qualified judgment to extent that if before
embarking on this course of conduct u had some inkling that u would become
compromised then that’s different – u failed in ur standard of care at that point; lorrydriver
was driving up large lorry w huge cargo; felt nauseous, had to have glass of water; court
asked whether that was clearly sign of heart attack but said should lorrydriver have
realised that actually he was gna have heart attack? prob not – how would he know? he
suffered from stomach problems, picked up bonemeal which smelled bad; understandable
that he would feel nauseous for innocent reasons; so in that situ he couldn’t have realised
he was gna have heart attack; but if u have inkling that u were going to be made incapable
of driving properly u r failing ur standard of care at that point + u can be judged at that
point
o driver’s consciousness was merely impaired; after event driver was found to have suffered
severe stroke; although it clouded his consciousness it didn’t completely make him capble
– still retained some awareness of surroundings; could still continue driving albeit badly
so he crashed; court said we can still judge his behaviour bc he hasn’t completely lost
consciousness – Roberts v Ramsbottom
o Dunnage v Randall – impairment was in mind rather than body; Mr Randall was having
paranoid delusions from schizophrenia; had gone to meet his nephew (Mr Dunnage) and
started spouting crazy stuff to him; then suddenly ran out to his car, got can of petrol,
came back in to nephew’s house, poured it over himself and set it alight; he died of his
injuries but nephew tried to help and put it out and he himself was also injured; so he
subsequently sued uncle’s estate for negligently causing his injuries; couldn’t really say
his uncle’s conduct was voluntary; he was in grip of paranoid delusions; but court of
appeal acknowledged that uncle’s psychiatric issues meant he wasn’t thinking rationally;
but they took view that he had retained physical control over his actions; motivation was
delusional but nonetheless he retained physical control over his actions; Lady Arden said
his mind, albeit deluded, directed his actions…I do not consider that Vince’s capacity was
removed. He was able to choose to bring the petrol and lighter into the claimant’s flat.
 thus they could still assess him w normal standards of care
 unless ur completely lacking in physical control of ur actions, ur still gna be held to
standard of care inquiry
o one minor qualification – Mansfield v Weetabix: defendant had crashed his car into
plaintiff’s property after becoming overcome by hypoglycaemic state bc he had been
subject to malignant condition he hadn’t known about; court thought there was no
negligence; they said that he couldn’t have known this was gna happen to him – if at the
time when he got into his car/embarked on his course of conduct he has no inkling that
his consciousness will be impaired then at that point u can’t say there was any failure in
standard of care and when he ventually does become overcome by that magligant
condition it is not appropriate to hold him to normal standards
 main question: assuming defendant owed duty of care and was acting voluntarily, did they fall
short in standard of care expected of them?
o this inquiry doesn’t make defendant guarantor of pursuer’s safety – that’s not what law of
negligence is abt – defendant is only required to take such care as is reasonable for
pursuer’s safety – relative standard – so how is that standard assessed?
 Bourhill v Young: baseline here is that “the duty to take care is the duty to avoid doing or omitting
to do anything the doing or omitting to do which may have as its reasonable and probable
consequence injury to others.”
o defender’s conduct is looking at it w benefit of hindsight; it is easy to see that other things
could’ve been done that would’ve been safer – so important concessions must be made
– court doesn’t assume knowledge that someone in defender’s position couldn’t have
possessed at that time; secondly, they are trying to achieve some measure of objectivity
in their inquiry; they can’t look into defender’s mind; question is not what defender actually
did foresee at time of accident but what they should have foreseen; court hypothesizes
about reactions of prudent, conscientious person at scene in circumstances of defender
w/o requiring of them “prophetic vision of a clairvoyant”

Lecture 11

 *Muir v Glasgow Corp 1943 SC (HL) 8 per Lord Macmillan at 10:

o standard of foresight relevant for assessing required standard of care
o “The standard of foresight of the reasonable man is in one sense an impersonal test. It
eliminates the personal equation and is independent of the personal idiosyncrasies of the
particular person whose conduct is in question... The reasonable man is presumed to
be free both of over-apprehension and over-confidence, but there is still a sense in
which the standard of care of the reasonable man involves in its application a subjective
element. It is still left to the judge to decide what in the circumstances of the
particular case the reasonable man would have in contemplation, and what
accordingly the party ought to have foreseen.”
o how would reasonable person have behaved in those circumstances? still left to judge
what in circumstances of particular case reasonable man would’ve had in contemplation
o mix of objective + subjective
o not looking at particular characteristics of defender but also looking at specific
circumstances in which they found themselves
o what reasonable person would’ve done in circumstances of case w/o thinking of
defender’s particular idiosyncrasies but also particularised for what reasonable person
would’ve done in circumstances of particular case
o took place in king’s park in Glasgow; park belonged to Glasgow corporation; king’s park
was extensive, lovely park w mansion house in centre with tea room; weather shelter was
in grounds of park; one afternoon park was w crowded w summer picnics; during ww2 in
1940s; no weather forecasts – suspended for duration of wartime in case of giving
assistance to any intelligence; so picnic parties didn’t know it was gna rain; there was
large community group including many children + smaller church party from church in city
centre; when it started to rain big group was left to its own devices but church group was
given favoured status; manageress of tea room and shop said they could have their picnic
in their tea room; part of that paraphernalia was large urn of hot tea; in order to get to tea
room they had to go past sweetie shop outside tea room; at sweetie shop there was large
crowd of young kids clustering around to buy sweets; just as they passed this queue of
children one of church officers carrying urn’s hand slipped and tipped over and scalded
those children – severe injury – one of children was little girl Eleanor; father on her behalf
didn’t sue church officer for negligence; instead he sued Glasgow Corp as employer of
tea room manageress – no one disputed that manageress had duty to take care for safety
of her public; but question of standard of care encumbent upon her was sticking point –
eleanor’s counsel argued that reasonable tea room manageress would realise that
 allowing urn half full of hot tea to be carried through ur premises through busy area w
many children was accident waiting to happen – should’ve taken greater precautions
 court said “It is not, of course, a question of what [Mrs Alexander] actually thought
at the moment but what the hypothetical reasonable person would have
foreseen. That is the standard to determine the scope of her duty. This involves
the question: Was the operation of carrying the tea-urn something which a
reasonable person in Mrs Alexander's position should have realised would
render the place in which it was performed dangerous to the children in the
circumstances? This is the crucial issue of fact and the acid test of liability.”
 court took view that it wasn’t foreseeable that one of church officers would lose his
grip so there was duty of care but no failure of standard of care
 reasonable manageress wouldn’t have realised they would be so incompetent as
to lose their grip on urn – there was no failure of standard of care
 Bolton v Stone [1951] AC 850 per Lord Oaksey at 863: “an ordinarily careful person does not
take precautions against every foreseeable risk. He can, of course, foresee the possibility of
many risks, but life would be almost impossible if he were to attempt to take precautions against
every risk which he can foresee”
o there may be all sorts of permutations of things that possibly could happen but if u took
account of all of them u’d never do anything – ur not expected to accommodate for every
foreseeable risk, just the main one
 Mackintosh v Mackintosh (1864) 2 M 1357 per Lord Neaves at 1362-1363
o “the amount of care which a prudent man will take must vary infinitely according to
circumstances. No prudent man in carrying a lighted candle through a powder magazine
would fail to take more care than if he was going through a damp cellar. The amount of
care will be proportionate to the degree of risk run, and to the magnitude of the mischief
that may be occasioned.”
o there are many variables that must be taken into consideration when working out what
relevant standard of care is – calculation of risk must be taken into account
o factors that should be taken into account in calculation
 probability of harm
 Bolton v Stone: plaintiff was stepping out of her garden gate on residential
street adjacent to cricket ground when she was ht on head by stray cricket
ball; balls had been hit out onto street but only v rarely in past; usually right
over boundary of fence on only 6 occasions in last 20 years and none of
them had involved personal injury; recurrence was foreseeable to extent but
likelihood was quite small; it was even less probable that it would actually
injure someone; ball had been hit some 78 yards from fence about 100
yards from where plaintiff had been injured; court said probability of harm
occurring was v slim; also club had taken precautions as court thought were
adequate against these fairly small chances of injury occurring; so no failure
in standard of care
 if defender knows pursuer/claimant has certain vulnerabilities they must
take into account of that ; if they make probability of harm greater

 Haley v London Electricity Board: LEB dug hole; inorder to prevent
pedestrians from walking into it they placed large hammer as barrier and put
up signs saying beware; that would’ve been fine for normally sighted
persons but plaintiff in that case was visually impaired and his white stick
 missed hammer and fell into hole and was severely injured; LEB said theyw
ere only thinking of non-visiually impaired passersby; court said that
wouldn’t do; there were high enough visually impaired residents in this
particular area of London – probability of someone visually impaired passing
by and being much more seriously affected by this was significant enough
for standard of care to be adjusted accordingly;
 gravity of injury
 Bolton v Stone: u can’t always ignore risk just bc it’s marginal one; but if
harm that might eventually happen is really serious that ups standard of
care; u have to think abt known vulnerabilities of people who might be
affected
 Paris v Stepney: plaintiff had lost sight of one of his eyes in military service;
later on civilian life he was working as garagehand and dismantling sth from
vehicle when metal fragment hit him in eye; he had lost sight of one eye
already; metal fragment caused injury to other eye so he lost his sight
completely; probability of worker being hit in eye in this way was v small;
court accepted that it was so marginal that it wouldn’t hv justified
requirement to provide goggles for workers w sight in both eyes; but court
said he was known to only have sight in one eye; consequences for that
particular worker if it eventuated were so great that standard of care should
be raised which would’ve required employer to provide goggles for worker
who would be so badly affected in that way
 Latimer v AEC Ltd: defendat’s factory was flooded after rainstorm; factory
owners set various workforce to clean floor, put sawdust down, but despite
efforts there were little slippy patches; plaintiff slipped while working inarea
that hadn’t been properly treated and injured his ankle; court said they tried
to clean place and only further precaution that would’ve compelted
eliminated risk would be to close factory altogether w resultant loss of
revenue/production; court thought that reasonably prudent eployer wouldn’t
have gone to those lengths – too much to ask – not proportionate to minimal
risk still leftover after cleaning operation – no failure in requisite standard of
care
 burden of precautions
 utility of defender’s activities
 reasonable person is allowed to factor in utility of their conduct in standard
of care incumbent upon then
 if measures necessary completely to eliminate risk would’ve made it
possible for defender to continue w activity that was socially useful, danger
would have to be v great before court took view that defender was obliged
to discontinue –
 Humphrey v Aegis Defence Services Ltd: employee of private security
contractor in Iraq was injured in training exercise bc another employee also
involved in same exercise dropped stretcher they were carrying during
simulation exercise due to fatigue; all staff were required to participate, both
security staff and Iraqi interpreters; defendants said itw as important for
viability + smooth operation of their services that Iraqi interpreters were
brought in to these exercises but it was also case that it was v difficult to
recruit Iraqi interpreters on same level of fitness of security staff; contractor
 could’ve conceivably continued w/o system but it would’ve harmed
efficiency so standard of care had to be tailed accordingly; it’s legitimate to
consider whether taking precautious would’ve burdened defender’s
activities to unacceptable degree
 custom and practice
 if there is recognised and established practice (way of handling safety
issues) that is starting point for arguing what standard of care is incumbent
upon defender
 in Brown v Rolls ROyce Ltd pursuer suffered acute dermatitis which he
attributed to contact w oily machinery at his place of work; he said his
employers had failed to provide him w barrier cream standard in industry;
but employers said their medical advisor was sceptical abt cream; they had
implemented alternative preventative measures that were equally viable
that their medical advisor said was just as effective; court accepted that;
evidence of standard practice is important starting point but not conclusive;
if u can prove there’s altnerative way of addressing particular risk that
defendant has adhered to _ provided evidence of its efficacy
 not static – u have to look at custom and practice at time of incident taking
perspective of defender at time of accident
 Roe v Ministry of Health: plaintiffs had suffered paralysis after minor
operations bc they had been injected w anaesthetic stored in ampose that
had been corrupted from being stored in containers w liquid preservative;
unknown to medical staff ampose had developed microscopic cracks so
liquid preservative had leaked into anesthetic; court said by 1954 it was
known that this could happen but in 1947 medical profession generally was
not aware of this risk so doctors hadn’t failed in standard of care; it was not
negligent for him not to know abt it
o “Dr Graham … did not know that there could be undetectable cracks,
but it was not negligent for him not to know it at that time. We must
not look at the 1947 accident with 1954 spectacles.”
 if defender is child w other children – relevant standard upon which u judge them is standard of
care expected of reasonable, prudent child of that age
o McHale v Watson: 12y/o boy was playing w 9y/o; threw sharp stick that bounced against
post and injured 9y/o; court said we have to apply standard of care appropriate to child’s
age; what would 12y/o child have realised as dangerous? court said he wouldn’t have
realised throwing stick would cause serious injury so no breach of standard of care;
o Mullin v Richards: 15y/o girls having playfight w plastic rulers, one of which snapped and
fragment of plastic entered one of girls’ eyes so she lost sight in that eye; court looked at
standard of ordinary prudent and reasonable 15y/o school girl – would she realise that u
could conceivably blind person ur playing w w ruler? said she wouldn’t realise so standard
of care not breached
 but once child becomes involved in interaction w adults then things change – they must measure
up to objective adult standards
 novices – will not take into account that defender was novice – are judged by same standards
as more learned individuals
o Nettleship v Weston: defendant was learned driver, didn’t know how to change gear; she
was out having lesson with her driving instructor; she was attempting to steer and
 managed to drive into lamppost and injured her driving instructor; court said she could be
liable in negligence bc she was out in roads and had to meet standard of drivers generally
 “It is no answer…to say: 'I was a learner driver under instruction. I was doing
my best and could not help it.' The civil law permits no such excuse. It requires
of him the same standard of care as of any other driver. 'It eliminates the personal
equation and is independent of the idiosyncrasies of the particular person whose
conduct is in question': see Glasgow Corporation v Muir [1943] AC 448, 457 by
Lord Macmillan. The learner driver may be doing his best, but his incompetent
best is not good enough. He must drive in as good a manner as a driver of skill,
experience and care, who is sound in wind and limb, who makes no errors of
judgment, has good eyesight and hearing, and is free from any infirmity…”
 Wilsher v Essex Area Health Authority: standard of care expected is tailored to post occupied
o “…duty of care [relates] not to the individual, but to the post which he occupies. I would
differentiate ‘post’ from ‘rank’ or ‘status.’ In a case such as the present, the standard is
not just that of the averagely competent and well-informed junior houseman (or whatever
the position of the doctor) but of such a person who fills a post in a unit offering a highly
specialised service. But, even so, it must be recognised that different posts make different
demands. If it is borne in mind that the structure of hospital medicine envisages that the
lower ranks will be occupied by those of whom it would be wrong to expect too much, the
risk of abuse by litigious patients can be mitigated, if not entirely eliminated.”
 those acting in emergency
o courts say u have to weigh up risks they took in terms of speed against acute nature of
emergency they’re attending
o Gilfillan v Barbour; policeman himself was injured; was question of whether he had been
contributorily negligent
 “The only question, as it seems to me, is whether it is reasonable for him in the
particular circumstances to drive at a given speed, notwithstanding the risk of
possibly injuring another road user. The answer to that question must depend on
the circumstances, in particular those circumstances relevant to the urgency of
the police business on which he is engaged, and those circumstances
relevant to the degree of risk which he is taking. For example, in deciding
whether it was reasonable for a police driver to drive at a given speed, and to take
the concomitant risks as regards other road users, it might be relevant to know
whether he was in pursuit of an escaping murderer or in pursuit of a motorist with
defective lights; whether he was trying to get an injured man to hospital in time to
save his life, or trying to catch a car thief. There will of course be circumstances
where the risk to other road users is so high that it would not be reasonable to take
that risk, however urgent the police business might be.”
 employers have duty of care towards their workforce – as well as duty to provide working
environment reasonably free of undue stress
o Barber v SOmerset: teacher who had history of stress, being off work, coming back, teling
his employer he couldn’t cope; ultimately he cracked and shook up people and left school
and never returned; what was standard of care incumbent on employer in that situation?
court is looking at whether defendant’s conduct measured up to reasonable, prudent
employer
 Overall assessment is made by reference to “conduct of the reasonable and
prudent employer, taking positive thought for the safety of his workers in the light
of what he knows or ought to know [about a certain employee]” (Lord Walker at
 para 65), but see also list of “practical propositions” suggested by Lady Hale in
Court of Appeal [2002] EWCA Civ 76; [2002] 2 All ER 1 at para 43.
 in this case mr barber had kept employer inofmred abt his problems and they were
put on notice that he was hving trouble coping so employer should’ve inquired
further and tried to do sth to put in place measures so they failed to act on standard
of care incumbent upon them
 Flood v University of Glasgow: employee told uni she was working 100+hrs per
week; getting v stressed bc of workload; facts presented indicated to employers
there was problem; they didn’t react to it; they failed to act on standard of care
incumbent upon them
 u have to prove that stress employee was under is product of stress at work bc v
often these problems can work both ways – stressful working enviro can cause
depressive illness/depressive illness can make themfeel they can’t work – u need
to prove first one not other way around
 problem for Cross v HIghland and Islands Enterprise: THERE WAS HISTORY OF
MENTAL ILLNESS BUT NO EVIDENCE THAT IT WAS WORKING ENVIRO THAT
CAUSED MENTAL ILLNESS; ULTIMATELY HE COMMITTED SUICIDE; IN
SITUATIONS WHERE LOTS OF ENVIRONMENTAL PRESSURES
CONTRIBUTE TO HIS WELLBEING IT COULDN’T BE ESTABLISHED THAT HIS
WORKING CONDITIONS CAUSED SUCH SEVERE DETERIORIATION IN HIS
MENTAL HEALTH RATHER THAN OTHER CONDITIONS
Lecture 12
 standard of care between fellow sports players: Sharp v Highland and Islands Fire Board 2005
SLT 855 per Lord Macphail at para 26, aff’d 2008 SCLR 526:
o “In the circumstances of a football match… any player when tackling an opponent may be
guilty of an error of judgment. Where by such an error of judgment he has caused injury
to his opponent, the test of liability is whether the error of judgment was one that a
reasonable football player would not have made. A reasonable football player is not a
paragon who never makes a mistake. A player is therefore liable only for damages
caused by errors of judgment or lapse of skill going beyond such as, in the stress
of circumstances, may reasonably be regarded as excusable.”
o arose out of 1 amateur footballer tackling another one which inflicted injury on that fellow
player
o nature of standard of care is determined by kind of game/sport it is
 referees owe duty of care to supervise rules of game so safety of players isn’t compromised
unduly; nature of standard of care is determined by kind of game/sport it is
o rugby referee allowed inexperienced player to play in front row which was apparently in
breach of rules of game; scrum collapsed; plaintiff’s neck was broken and argued that this
was consequence of referee’s decision which was in breach of standard of care
o Vowles v Evans [2003] 1 WLR 1607. See Lord Phillips at para 38: “this is a case in which
the decision of the referee, which has been under scrutiny and which we have concluded
amounted to a breach of duty, was taken while play was stopped and there was time to
give considered thought to it. Very different considerations would be likely to apply in a
case in which it was alleged that the referee was negligent because of a decision made
during play.”
 standard of care between players and spectators – tailored to nature/circumstances of sport;
McMahon v Dear
 o injured at golf tournament by stray golf ball; defender was one of competitors of
tournament and had hit his shot in wayward fashion; match officer, ball spotter, had been
hit in eye and injured v significantly
o Lord Jones at para 209:
o “…in deciding whether the competitor has committed an error of judgment that a
reasonable competitor would not have made, it is relevant to have regard to the perils
which might reasonably be expected to occur and the extent to which the ordinary
spectator might be expected to appreciate and take the risk of such perils”.
 professionals – law demands that they exercise level of competence normally associated with
persons in that profession holding that particular post; if they harm one of their clients, sometimes
it’s possible that law of contract may provide remedy but law of delict may also do so where
contract can’t
o White v Jones – disappointed beneficiary case
o Hunter v Hanley
 Dr Hanley allegedly messed up when giving Mrs Hunter penicillin injection bc he
used hypodermic needle but broke and left point embedded in her hip; Mrs Hunter
said Hanley had been negligent bc he’d used needle not strong enough for this
purpose – issue was standard of care by which doctors’ conduct was to be judged
 “The true test for establishing negligence in diagnosis or treatment on the part of a
doctor is whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty of if acting with ordinary care…To establish
liability by a doctor where deviation from normal practice is alleged, three facts
require to be established. First of all it must be proved that there is a usual and
normal practice. Secondly it must be proved that the defender has not adopted
that practice, and thirdly (and this is of crucial importance) it must be established
that the course the doctor adopted is one which no professional man of ordinary
skill would have taken if he had been acting with ordinary care … and without
all three his case will fail.”
 doctor can’t just deviate from standard practice of medical profession
 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118
o English test: whether practice was accepted by responsible body of medical opinion
skilled in particular treatment in question
 Bolitho v City and Hackney HA
o doctor against whom various failings was alleged including that she’d failed to intubate
breathing tube down toddler suffering from recurring breathing difficulties
o was this failure of requisite standard of care? medical witnesses were actually divided;
majority tilted towards fact that most doctors would’ve intubated in that situation but bc
there was significant number that said this situ wasn’t clear; responsible doctor would
regard situ as one which was not appropriate to intubate; so breach of standard wasn’t
established; as further qualification in that case
 “…the court is not bound to hold that a defendant doctor escapes liability for
negligent treatment or diagnosis just because he leads evidence from a number of
medical experts who are genuinely of opinion that the defendant's treatment or
diagnosis accorded with sound medical practice. … The use of these adjectives
- responsible, reasonable and respectable - all show that the court has to be
satisfied that the exponents of the body of opinion relied upon can
demonstrate that such opinion has a logical basis.”
 o that framework – ordinary doctor of ordinary skill- is carried to other professions too
including solicitors
o Dunvale Investments Ltd v Burness Paull & Williamsons LLP: liability is established only
if course adopted by defenders was one which no professional person of ordinary skill
would have taken if acting with ordinary care - solicitors
o architects – Atwal Enterprises Ltd v Toner (t/a Donal Toner Associates)
 Montgomery v Lanarkshire Health Board: son was damaged at birth and born w serious disability;
Mrs Montgomery was diabetic and had been identified as having various problems w her
pregnancy; she’d been in care of consultant obstetrician hired by Lanarkshire Health Board who
didn’t tell her that woman w her profile had specific risk of about 9-10% that baby’s shoulders
would be larger than normal; consultant knew this wouldn’t really harm mother; but there was
small possibility that child could be damage; sadly both those risks eventuated – child did have
larger shoulders and was damaged during birth due to difficulties associated w delivery; Mrs
Montgomery said doctor had fallen below standard of care incumbent upon her in informing her
what options were prior to birth; had said v clearly that if she’d been told abt risks she would’ve
opted for C-section so damage would’ve been avoided
o so what is relevant standard of care when doctor tells patient abt risks?
o court said focus now should be on what reasonable patient would wish to know abt risks
of procedure; adult of sound mind is entitled to decide which form of treatment they prefer
to undergo; doctor is under duty to take reasonable care to ensure that patient is aware
of any aterial risks involved in any recommended treatment
o subject to qualification that doctor is entitled to withhold info if they think it will be
dangerous for ptaient’s health/if there’s emergency where patient is unconscious – but
these exceptions are to be v narrowly drawn. supreme court was satisfied that pregnant
mother would’ve wanted to know abt these risks
o onus is on pursuer throughout to prove all elements of negligence; v occasionally accident
happens where no definite explanation can be ascertained but there’s clear failure of
standard of care somewhere along ine; pursuer can raise res ipsa loquitur – case speaks
for itself; which creates inference of standard of care has been breached
o Scott v St Katherine Docks Co: plaintiff walking past defendant’s warehouse; 6 large bags
of sugar fell upon them; no evidence as to how exactly it had occurred; but it was known
that defendant’s employees had been using crane to unload loads of sugar from
warehouse at time; so court was prepared to draw inference of fault on part of defendants
 “Where a thing is shown to be under the management of the defendant or his
servants, and the accident is such as, in the ordinary course of things, does not
happen if those who have the management of the machinery use proper care,
it affords reasonable evidence, in the absence of explanation from the
defendant, that the accident arose from want of care.” (Per Erle CJ at 601.)
 McDyer v Celtic Football Club 2000 SC 379: lump of timber fell on pursuer sitting in stadium;
CFC proprietors of stadium conceded that they/those answerable to them had exclusive control
of stadium and part where wood had fallen from was inaccessible to members of public; so
nobody else could’ve tampered w it; so that created inference of fault that defenders couldn’t
rebut
 accident must be of type that doesn’t normally occur w/o someone being at fault
 cause is unknown and there is no other explanation consistent with absence of fault
o MacQueen v Glasgow Garden Festival: pursuer injured at fireworks display; tried to use
ipsa doctrine against defenders as organisers of event but court wouldn’t have it bc they
 said fireworks had latent defect – breach of duty on prat of manufacturers rather than
display organisers
 so if u can meet these criteria then prima facie case is made by pursuer simply by relying onf act
of accident; in those circumstances onus of proof then passes to defender; if defender doesn’t
show any evidence there’s nothing to rebut that negligence and pursuer has proved their case;
but if defender shows there are other explanations/did exercise duty of care then that doctrine
flies off

Lecture 13

 factual causation – but for test

 Duke v Buccleuch v Cowan: action for damages bc water polluted; take any of them – can it be
said that but for defender’s conduct pursuer would’ve escaped harm? there were several
defenders here – u cant say that by taking 1 of them out of equation harm wouldn’t have
occurred; so r u going to say that factual causation can’t be established against any of them?
court said this was unfair; court was prepared to recognise that clearly cumulatively tgt they were
all causing that harm and had made material contribution to harm which was sufficient
 industrial disease – workers have contracted diseases that they attribute to unwholesome
conditions in their workplace where they may have been exposed to harmful substances in
number of different places; how can u say w confidence when any individual employer has
caused harm?
o wardlaw v bonnington castings: pursuer was working at bonnington steel factory and
contracted lung disease from inhaling silica at work; his employers had various types of
machine in operation, some of which were grinding machines and pneumatic hammers
which were what pursuer had been operating; pursuer accepted that although there were
minute particles of silica escaping from those hammers employers were not at fault for
failing to contain escape of silica bc no known way of doing that effectively -but established
that they were at fault for failing to contain escape of silica from grinding machines; so
one of sources was non-negligent while other source was
 so they materially contributed to injury
 “…the source of his disease was the dust from both sources, and the real question
is whether the dust from the swing grinders materially contributed to the disease.”
 Williams v Bermuda Hospitals Board: patient presented himself at defendant hospital with acute
abdominal pain which turned out to be appendicitis; turned out that his appendix had already
ruptured; but hospital negligently delayed in performing appendectomy to about 140min longer
than they should’ve done; so Mr Williams suffered sepsis from his ruptured appendix which
meant that there was long period of recovery; sued hospital saying their delay had materially
contributed to injury
o “material contribution” test and medical negligence
o “where on the balance of probabilities an injury is caused by two (or more) factors
operating cumulatively, one (or more) of which is a breach of duty, it is immaterial whether
the cumulative factors operate concurrently or successively.”
o privy council case – high authority
 “material increase in risk” test – usually in context of industrial diseases – tricky problem of
proving source of harm
o McGhee v National Coal Board: Mr McGhee worked at brickworks; he’d been sent to work
in brick kilns themselves which were v hot and dusty; he developed dermatitis and sued
his employers for damages citing 2 grounds of fault
  that they had sent him into brick kilns to collect bricks when kilns were still v hot
which caused dust to settle on his skin
 that they hadn’t provided washing facilities so when he finished day’s work he had
to cycle home and it wasn’t until he got home that he could wash stuff off; so for
10-15min a day he had extended exposure of dust to skin
 court thought that employers were not at fault for first alleged ground of fault but
they were at fault in not providing washing facilities; pursuers’ expert medical
witnesses didn’t say that that extra time made material contribution to his dermatitis
but what he could say was that extra time w brick dust on his skin materially
increased risk of contracting dermatitis
 “…the question remains whether a pursuer must necessarily fail if, after he has
shown a breach of duty, involving an increase of risk of disease, he cannot
positively prove that this increase of risk caused or materially contributed to the
disease while his employers cannot positively prove the contrary. In this
intermediate case there is an appearance of logic in the view that the pursuer, on
whom the onus lies, should fail — a logic which dictated the judgments below. The
question is whether we should be satisfied, in factual situations like the present,
with this logical approach. In my opinion, there are further considerations of
importance. First, it is a sound principle that where a person has, by breach of a
duty of care, created a risk, and injury occurs within the area of that risk, the loss
should be borne by him unless he shows that it had some other cause. Secondly,
from the evidential point of view, one may ask, why should a man who is able to
show that his employer should have taken certain precautions, because without
them there is a risk, or an added risk, of injury or disease, and who in fact sustains
exactly that injury or disease, have to assume the burden of proving more: namely,
that it was the addition to the risk, caused by the breach of duty, which caused or
materially contributed to the injury? In many cases, of which the present is typical,
this is impossible to prove, just because honest medical opinion cannot segregate
the causes of an illness between compound causes. And if one asks which of the
parties, the workman or the employers, should suffer from this inherent evidential
difficulty, the answer as a matter of policy or justice should be that it is the creator
of the risk who, ex hypothesi must be taken to have foreseen the possibility of
damage, who should bear its consequences.”
 people exposed to asbestos in 1960s and only now contracted mesothelioma (lung cancer); it
was 40 years ago and no way of proving which fibre of asbestos has caused this malignant
disease
o Fairchild v Glenhaven Funeral Services Ltd: employers developing mesothelioma
following exposure of asbestos at work many years previously working for sequence of
employers but it was probably only one specific employer that was main cause; but no
way of proving that; HoL held that where u had employee exposed to asbestos dust by
different employers for different periosd of time different test of causation was justified –
the greater the quantity of fibres u were exposed to, the greater the risk of developing
disease; so u could, referring back to reasoning of McGhee (u couldn’t say for sure that
any one single employer caused mesothelioma but u could say that each employer
materially increased risk that they would contract that disease) – held that causal link was
sufficiently satisfied
o “First, the principle is designed to resolve the difficulty that arises where it is inherently
impossible for the claimant to prove exactly how his injury was caused. It applies,
 therefore, where the claimant has proved all that he possibly can, but the causal link could
only ever be established by scientific investigation and the current state of the relevant
science leaves it uncertain exactly how the injury was caused and, so, who caused it.
McGhee and the present cases are examples. Secondly, part of the underlying rationale
of the principle is that the defendant's wrongdoing has materially increased the risk that
the claimant will suffer injury. It is therefore essential not just that the defendant's conduct
created a material risk of injury to a class of persons but that it actually created a material
risk of injury to the claimant himself. Thirdly, it follows that the defendant's conduct must
have been capable of causing the claimant's injury. Fourthly, the claimant must prove that
his injury was caused by the eventuation of the kind of risk created by the defendant's
wrongdoing. In McGhee, for instance, the risk created by the defenders' failure was that
the pursuer would develop dermatitis due to brick dust on his skin and he proved that he
had developed dermatitis due to brick dust on his skin. By contrast, the principle does
not apply where the claimant has merely proved that his injury could have been
caused by a number of different events, only one of which is the eventuation of the
risk created by the defendant's wrongful act or omission. Wilsher is an example.
Fifthly, this will usually mean that the claimant must prove that his injury was
caused, if not by exactly the same agency as was involved in the defendant's
wrongdoing, at least by an agency that operated in substantially the same way. A
possible example would be where a workman suffered injury from exposure to dusts
coming from two sources, the dusts being particles of different substances each of which,
however, could have caused his injury in the same way…. Sixthly, the principle applies
where the other possible source of the claimant's injury is a similar wrongful act or
omission of another person, but it can also apply where, as in McGhee, the other possible
source of the injury is a similar, but lawful, act or omission of the same defendant.”
o Barker v Corus UK Ltd: court said that employer was only liable in proportion to amount
of asbestos exposure; was effectively reversed by Parliament in relation to mesolithoma
by way of COmpensation Act 2006 s3 which said that these cases; however not overruled
in relation to other industrial diseases

Sienkiewicz v Greif UK Ltd: asbestos in atmosphere; it was held that exposure on part of
employer only increased risk by 18%; court said that was material contribution which was
enough; COmpensation Act 2006 s3 meant that employer had to pay up in full – once material
contribution has been identified 2006 Act kicks in
o Gibson v Babcock INternational Ltd: pursuer’s mother hadn’t been employed by
defenders; she was married to employee of Babcock International (engine fitter); every
day he came home from work w his overalls covered in asbestos dust and shook out his
overralls and laundered them and in 2015 she contracted condition and died; only source
of asbestos was from his clothes; was held to have made material increase in risk that
she would suffer that condition and therefore her husband’s employers were held to be
liable
o Fairchild: like Wardlaw/Duke, although there were various possible sources of harm there
was only ever one type of causal agent acting in more or less the same way; sepsis in
Williams was one single process; if by contrast u r looking at different possible causal
agents that could all independently have caused harm in different ways then courts don’t
allow litigants to get round these issues of causal uncertainty; these special rules of
material contribution/increase in risk are dealing w situation where u have substantially
same agent in substantially same way/in single process
 o Wilsher v Essex Area Health AUthority: premature baby needed more oxygen; procedure
was bungled; baby was given far too much oxygen; subsequently baby turned out to be
blind; fact that baby had been given too much oxygen was possible cause of blindness
but wasn’t only possible cause; there were lots of other factors which could’ve caused
blindness; risk of blindness was complication for very premature babies in any event and
several other factors could’ve independently caused that blindness; court said that where
u have range of different factors any one of which could’ve independently caused and u
couldn’t prove on balance of probabilities which was to blame causation wasn’t
established in this case
 “whether we like it or not, the law… requires proof of fault causing damage as the
basis of liability in tort. We should do society nothing but disservice if we made the
forensic process still more unpredictable and hazardous by distorting the law to
accommodate the exigencies of what may seem hard cases.”
 loss of a chance – pursuer alleging that defender’s conduct has deprived them of chance of
better outcome
o divide between way that law approaches this in commercial sector and in medical sphere
o in commercial cases where u have lost opportunity, if it’s purely speculative claim is likely
to not succeed; but where lost chance is one of clearly defined commercial benefit and
where it could be seen to be contingent on predictable action by third party court seems
to be more comfortable by idea that that lost chance can be identified
o Allied Maples v SImmons & Simmons: solicitors messed up in drawing up contract to buy
up other shops; they were supposed to put clause into that contract to make sure that
clients were protected against outstanding liabilities but they forgot to put it in; plainly in
breach of their duty of care towards clients; it’s possible that other side might not have
agreed to wording but court was persuaded that plaintiffs would’ve been able to re-
negotiate with sellers to put this clause into their contract; on that basis they thought that
they would’ve had real/substantial chance as opposed to speculative one that they
could’ve successfully agree dthat those liabilities would fall on them so case was remitted
to lower courts to determine in first case whether there was realistic chance they would’ve
been successful in negotiating this clause and if so to value what they had lost in
percentage terms
o courts do seem to be prepared to put value on lost chance of satisfactory outcome in
litigation
o John Kyle v P & J Stormonth Darling: solicitors had failed to launch appeal in time for their
client after being found liable in earlier court action
 “There may be cases in which the litigant, suing his negligent solicitor, can
demonstrate that the claim against the original defender would have been bound
to succeed; in that event the measure of his claim against the solicitor may be close
to or identical to the measure of his lost claim against the original wrongdoer.
Equally, there may be cases in which the prospects of success in the original claim
were so remote that the court could confidently conclude that the claim in the
litigation was worthless and that the loss of the right to pursue it was a nugatory
loss. In between there may be a whole spectrum of possibilities…the pursuer in
the present case is right to claim damages for what he offers to prove he has lost,
namely the value of the lost right to proceed with his appeal in the original litigation.
The pursuer will fail unless it is established that the lost right had an
ascertainable, measurable, non-negligible value; but he is under no
obligation, as a precondition of obtaining an award against the present
 defenders, to show that he would probably have succeeded in the original
litigation.”
 courts will not recognise lost chance at recovery/improved condition
o Hotson v East Berkshire HA: plaintiff was teenager who fell out of tree; went to hospital;
took medical staff 5 days to properly diagnose injury; at end of 5 days he was found to be
permanently disabled; problem was that there were 2 ways in which that injury could’ve
occurred; court thought that medical evidence showed that there was strong probability
that he was disabled at instance he fell out of tree (75% chance); there was 25% chance
that he wasn’t permanently disabled at that point but bc bruising/bleeding wasn’t property
addressed in intervening 5 days he’d lost chance at better outcome
 “Once liability is established, on the balance of probabilities, the loss which the
plaintiff has sustained is payable in full. It is not discounted by reducing his claim
by the extent to which he has failed to prove his case with 100 per cent certainty.”
o Gregg v Scott: plaintiff’s doctor delayed in diagnosing his skin cancer which meant that
his chances of survival over 10-year period were reduced from 42% to 25%; court said
that wasn’t good enough; u had to convince them on balance of probabilities that u had
chance of more than 50%; if medical evidence had shown that at point patient went to
doctor he had 51+% of surivival and due to doctor’s negligence that went down to 30%
that would’ve been enough; but bc he’d had less than 50% chance to start off w they held
that on balance of probabilities he wouldn’t survive for 10 years;
 that reasoning was challenged by significant minority dissent
 “It cannot be right to adopt a procedure having the effect that, in law, a
patient's prospects of recovery are treated as non-existent whenever they
exist but fall short of 50%. If the law were to proceed in this way it would
deserve to be likened to the proverbial ass. Where a patient's condition is
attended with such uncertainty that medical opinion assesses the patient's
recovery prospects in percentage terms, the law should do likewise.”)

Lecture 14

 factual causation: whether particular factor was causal in literal sense; renders too many false
positives
 legal causation: causes that are sufficient; disregards factual causes that aren’t sufficient enough
to be legal causes – causes that attract liability under law of delict; mostly matter of common
sense
 Where one factual cause is followed by another, the possibilities are:
o (1) Cause B may be of so little significance that cause A remains the legal cause (e.g.
Scott v Shepherd (1772) 2 Wm Bl 892); or
 consecutive causes – if u have act of negligence followed by another act of
negligence and that second act of negligence was involuntary and foreseeable
reaction to first, then first cause doesn’t go away
 Scott v Shepherd: defendant had thrown lighted firework into crowded
marketplace; one trader caught it and tossed it instinctively away whereupon
another trader similarly managed to toss it away whereupon it landed upon
plaintiff’s face and blinded him in one eye; court held that initial action of throwing
firework was legal cause – so first thrower was liable
 whether or not sth is legal cause depends on foreseeability of act and culpability of
first actor
o (2) Cause B may be of such significance that it is a novus actus interveniens, removing
the causative impact of cause A. Consider the following permutations:
 Knightley v Johns: defendant A drove negligently and overturned his car in tunnel
which had bend in it; police inspector with various police officers arrived at scene
but forgot to close tunnel immediately to traffic so he ordered plaintiff, one of his
police officers, to ride back to tunnel against flow of traffic on his motorbike to do
this; this involved plaintiff riding wrong way into flow of traffic and around blind bend
in tunnel; at entrance to tunnel plaintiff was knocked down and injured by defendant
C; so plaintiff claimed damages from all of defendants (C and police inspector);
court held that first driver’s negligent driving in initially overturning car was certainly
initial trigger but police inspector’s negligence – first in not closing tunnel and then
in ordering plaintiff to perform this dangerous manoeuvre – was novus actus
interveniens
 “The question to be asked is accordingly whether that whole sequence of
events is a natural and probable consequence of the first defendant's
negligence and a reasonably foreseeable result of it. In answering the
question it is helpful but not decisive to consider which of these events were
deliberate choices to do positive acts and which were mere omissions or
failures to act; which acts and omissions were innocent mistakes or
miscalculations and which were negligent having regard to the
pressures and the gravity of the emergency and the need to act
quickly. Negligent conduct is more likely to break the chain of causation
than conduct which is not; positive acts will more easily constitute new
causes than inaction. Mistakes and mischances are to be expected when
human beings, however well trained, have to cope with a crisis; what
exactly they will be cannot be predicted, but if those which occur are natural
the wrongdoer cannot, I think, escape responsibility for them and their
consequences simply by calling them improbable or unforeseeable. He
must accept the risk of some unexpected mischances.”
 so foreseeability and culpability of second cause was again important point
 Robinson: claim was brought against police by elderly lady knocked over in
busy street in middle of day when police were trying to perform arrest of
suspected drug dealer; tpolice tried to argue that whether or not they were
negligent suspect’s action in trying to evade arrest which was immediate
cause of fraca in which lady was injured was novus actus interveniens which
disrupted chain of causation; court said if u try and arrest known suspect in
middle of day in busy street, it is foreseeable that they will try and run away
and it is foreseeable that there will be scuffle
 Donaghy v NCB: if pursuer reacted in unreasonable way to defender’s act
of recklessness; court may say that pursuer acted so unreasonably that their
own act is novus actus interveniens – but this only occurs if pursuer acted
highly unreasonably
 McKew v Holland & Hannon & Cubitts (Scotland) Ltd: pursuer claimed
damages from his employers; he’d injured his leg at work for which his
employers were at fault and liable; that was uncontentious; 3 weeks later he
went to view flat in tenement up several flights of stairs; he’d been to see flat;
as he was coming down stairs again there was no handrail; as he was coming
down that flight of stairs he felt weakness in injured leg; he jumped down 10
 steps of staircase and consequently injured the other leg; he argued that his
employers should be liable for that injury bc had it not been for his workplace
injury he wouldn’t have had that weakness and jumped down stairs in that
way; court held that chain of legal causation was broken here – employers’
negligence may have been initial factual cause but it wasn’t legal cause; legal
causation had been interrupted by pursuer’s own action; pursuer shouldn’t
have attempted what he did
 Corr v IBC Vehicles Ltd: Mr Corr suffered blow to head in accident at work
caused by employers’ negligence; that triggered depression + PTSD; he got
into spiral of despair which eventually culminated in him committing suicide 6
years later; mental harm deriving from physical injury which in principle should
be recoverable; but was chain of causation broken when we get to suicide (Mr
Corr’s own act? court held that employers should remain liable for that final
harm bc Mr Corr’s death was direct result of depressive illness which was
caused by PTSD which was caused by blow to head; once u accepted that
employers were responsible for that initial injury, all steps in causal chain were
foreseeable; it was foreseeable that those affected badly by depression may
have suicidal tendencies
 Sayers v Harlow: Mrs Sayers went in to cubicle in public toilet, shut door and
found that she couldn’t get out; she screamed for 15min; there was no one
around; when no one came she attempted to escape by climbing over 7foot
high gap; she climbed up toilet seat, realised she couldn’t manage it, stepped
down on toilet roll holder which spun underneath her foot and she fell; initial
act of negligence is at hands of Harlow DIstrict Council which ran public toilets
and should’ve kept their doors in better repair; court was satisfied that put in
that situation where there was no one else around and u couldn’t get out u
would do sth a bit desperate to try and escape; so council was liable; attempt
at escape didn’t break chain of causation; but it did also hold that Mrs Sayers
hadn’t been entirely prudent in regard to her own safety; so they reduced
amount of damages she was awarded by 25% to reflect contributory
negligence
 defender who has caused initial injury can’t expect that pursuer will act entirely
rationally in face of peril/danger/unpleasant situation but it will take a lot for
pursuer’s reactions to remove causal impact of initial negligence by defender;
but there is scope for contributory negligence to reduce amount of damages
awarded
 there might be joint fault – combination of causes operating tgt, e.g. road
traffic accident where pedestrian is injured in accident where there are 2
cars and both have been driving negligently to some degree; in that situ u’ll
have joint fault on all negligent drivers
o Grant v Sun Shipping: D1 (ship repairers) leave hatch open; D2 (ship
owners) fail to check area is secure; P (dock worker) falls through
open hatch into hold; joint fault on part of D1 and D2, split 75%/25%
(but no contributory negligence by P bc P was entitled to assume that
area was safe)
 D1 is liable as D2’s subsequent negligence is not novus actus
and thus does not exonerate it
 joint fault can only arise when talking abt one single incident
 o Anderson v St Andrew’s Ambulance Association: nurse travelling in
ambulance is injured in crash; ambulance crashes with bus; both had
been driving negligently and therefore there was 50-50 split between
ambulance driver and bus driver as to who was liable to compensate
her for her injuries
o Phee v Gordon: golfer was injured by stray shot on golf course; golfer
who hit shot was regarded as being negligent to degree and held to
be 20% liable; court thought that greater fault was w golf club itself
bc layout of golf course was in itself dangerous; so golf club was
liable 80%
o if there are separate wrongs u can’t join them tgt as joint fault –
separate defenders doing separate things impacting pursuer in
separate ways
o Fleming v McGillivray: person injured when knocked down by van;
tried to claim lump sum for compensation for his injuries jointly from
van driver and van owner; van driver driving negligently; argued that
driver wasn’t covered by owner’s insurance policy so owner had
allowed driver to drive van uninsured; so this potentially left victim in
difficulties to get damages due to them; victim tried to say this was
joint fault; court said that wouldn’t do; these were 2 entirely separate
wrongs;
 apportionment of liability
o When both/all wrongdoers called in same action:
 “Where in any action of damages in respect of loss or damage arising from any
wrongful acts or negligent acts or omissions two or more defenders are in
pursuance of the verdict of a jury or the judgement of a court found jointly and
severally liable in damages or expenses, they shall be liable inter se to contribute
to such damages or expenses as the jury or the court, as the case may be, shall
deem just” Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 s 3(1)
o But when all the wrongdoers are not called in the same action:
 “Where any person has paid any damages or expenses in which he has been found
liable in any such action … he shall be entitled to recover from any other person
who, if sued, might also have been held liable in respect of the loss or damage on
which the action was founded, such contribution, if any, as the court may deem
just.” (s 3(2))
 (And remember Compensation Act 2006, s 3 in relation to mesothelioma cases at
page 48 above.)
o what happens when pursuers suffer harm following wrongdoing but that harm is followed
by separate distinct subsequent event? in what circumstances does that supervening
event affect liability to defender?
 if supervening/subsequent event is entirely attributable to defender’s initial
wrongdoing his liability is reduced – Corr: ultimate harm, 6 years on, was
completely bound up in causal terms with defender’s initial act of negligence and
therefore causation wasn’t disrupted; and full amount of damages was payable to
Mr Corr’s family
 but situation was different where there was further unrelated subsequent
wrongdoing unrlated to defender’s initial act of negligence; in baker v willougby
plaintiff’s leg was injured by defender’s negligence; 3 years later there was robbery
 at which he was shot in asme leg; leg was amputated; he had already begun
proceedings in relation to first accident in which he’d claimed compensation for
injury to his leg; in those proceedings defendant (driver) then came back and said
shooting has removed his leg so he shouldn’t have to compensate him; court
wouldn’t hold with that; court said that original accident caused devaluation of
plaintiff – reduced his capacity to do things, enjoy life, etc.; original defendant is
responsible to full extent unless sth has happened which either diminishes injury
(i.e. he gets better) or his life expectancy is diminished; so first car driver should
remain liable to full extent; person who shot him potentially should be liable for that;
so original amount that was awarded should be assessed on first accident and
remains unreduced
o where original breach of duty is followed by non-delictual event
 Jobling: plaintiff suffered injury to his back; 3 years later he suffered onset of mild
opathy which was unconnected w accident and which would ultimately have
caused total disability in any event; so he suffered natural health condition which
in anye vent would’ve caused him complete disability; court in jobling cause
distinguished baker – said that reasoning in baker was not applicable where
plaintiff has been overtaken by sth which is unconnected disabling illness; so
employer is liable for loss of earnings only until illness took hold; bc when court is
considering appropriate amount of compensation for loss of earnings they’re
entitled to hypothesise abt future eventualities – how long person will be able to
work in normal way, etc.; so where they know actually that one of these
contingencies has actually happened they’re entitled to take that into account
o issue of remoteness
 certain consequences of otherwise negligent conduct will be regarded as just too
remote from recently culpable action of defender; so liability is interrupted
 Sally the Cow – it was auctioneers who had duty of care to make sure that animals
were properly penned in; failed in their duty to ensure that there were adequate
fencing arrangements; but ultimate consequence of her escape – her rampage
causing structural and water damage – was wholly unrelated + too remote from
original act of negligence for auctioneers to be held liable to dairyowner
 it was foreseeable that if auctioneers didn’t look after animals properly and
they got out some damage would happen; so standard of care expected of
auctioneers was to have decent doors on their premises; they’d fallen before
standard of care here; but it wasn’t foreseeable that she’d cause ceiling to
fall down + water + structural damage – remoteness inquiry is looking at
TYPE of damage, not standard of care of defender; if form of injury is too
far-fetched it’s too remote
 Scottish cases had nineteenth century rule on remoteness;
 leading authority is Overseas Tankship: for Privy Council, key criteria as to whether
damage was too remote was concept of foreseeability; defendants negligently
allowed oil to spill on to water while they were loading up their ship; plaintiffs were
ship repairers who ran their business from neighbouring loch and working on other
ship; oil spill caused lots of mess; plaintiffs’ foremen said to stop welding for time
being and was assured by operators of original ship that it was safe to resume work
bc it was thought that when oil was in water it couldn’t ignite; rag fell on oil slick
and was set alight and caused major damage; court took view that it was
reasonably foreseeable that oil slick would cause mess, damage, water to be
 polluted, slipways in areas around warf, etc.; at that time received wisdom was that
oil on water would not ignite so damage that did actually happen was not
foreseeable to defendants; thinking in this case is that it is not consonant w current
ideas/morality that for act of negligence actor should be liable for all consequences
however unforeseeable/grave; it should be judged by standard of REASONABLE
man that he ought to have foreseen them
 Simmons v British Steel: “…there is a line of Scottish authority, stretching back to
Allan v Barclay, that is consistent with Wagon Mound in that it limits a defender's
liability to damage that was reasonably foreseeable. While there are references to
damage that arises ‘naturally and directly’ or to consequences that are ‘natural or
necessary or probable’, it has long been recognised that these formulae are vague
and by no means easy to interpret. … As was recognised in Allan v Barclay and
Wagon Mound, the ultimate test is whether the damage was reasonably
foreseeable.”
 general type of harm must be reasonably foreseeable
 pursuer suffered head injury at work which caused him to have personality
change; he became v angry; this triggered pre-existing skin complaint which
in turn caused him to suffer depression; there was no question that
employers were liable for original physical injury at work; employers had to
take all consequences of physical injury including personality change,
psychiatric injury, that flowed from it; so having accepted that employers
were liable for initial physical injury, employers had to take consequences
of psychiatric injury; that was not too remote
 “[O]nce liability is established, any question of the remoteness of damage is
to be approached along the following lines… (1) The starting point is that a
defender is not liable for a consequence of a kind which is not reasonably
foreseeable…(2) While a defender is not liable for damage that was not
reasonably foreseeable, it does not follow that he is liable for all damage
that was reasonably foreseeable: depending on the circumstances, the
defender may not be liable for damage caused by a novus actus
interveniens or unreasonable conduct on the part of the pursuer, even if it
was reasonably foreseeable…(3) Subject to the qualification in (2), if the
pursuer's injury is of a kind that was foreseeable, the defender is liable,
even if the damage is greater in extent than was foreseeable or it was
caused in a way that could not have been foreseen ( Hughes v Lord
Advocate , per Lord Reid at pp 38, 40). (4) The defender must take his
victim as he finds him…. (5) Subject again to the qualification in (2), where
personal injury to the pursuer was reasonably foreseeable, the
defender is liable for any personal injury, whether physical or
psychiatric, which the pursuer suffers as a result of his wrongdoing
(Page v Smith, per Lord Lloyd of Berwick at p 197F–H).”

Lecture 15

 *Hughes v Lord Advocate: 8y/o boy playing w 10y/o uncle; post office had monopoly over
telephone services so was working on telephone cable on road in this area; workforce left for tea
break and left site unattended; left 2 manholes with covers off which were covered over by
temporary shelter as makeshift tent operation; had also set out 4 red paraffin lamps; 8y/o tripped
and knocked lamp into manhole; with escape of paraffin and paraffin vapour there was explosion
 that knocked 8y/o into manhole and suffered severe burns; action was brought against Lord
Advocate representing postmaster general; post office brought to public highway set up that was
danger to passersby and children in that area; they were under duty to protect nearby residents
from possible hazards from that site; so they fell below standard of care incumbent upon them;
but was harm suffered by boy injury which was reasonably foreseeable to post office employees?
court held that explosion wasn’t foreseeable but it was reasonably foreseeable that children
might be attracted to this canvas and play w stuff and given there were 4 paraffin lamps left lying
around unattended itw as foreseeable that fire and burn injuries might be consequence of leaving
these hazards unattended; so although actual means by which injury actually occurred was quite
surprising and freakish it was foreseeable that by leaving site unattended children might happen
upon it and suffer injury [probably burns]
o “The fact that the features or developments of an accident may not reasonably have been
foreseen does not mean that the accident itself was not foreseeable. The pursuer was, in
my view, injured as a result of the type or kind of accident or occurrence that could
reasonably have been foreseen…[T]he defenders do not avoid liability because they
could not have foretold the exact way in which the pursuer would play with the alluring
objects that had been left to attract him, or the exact way in which in so doing he might
get hurt.”
 thin skull rule: if pursuer was foreseeably within range of potential victim of defender’s
action/breach of duty and injury was of general type that was foreseeable, defender doesn’t get
off the hook just bc pursuer had particular vulnerability/weaknesses that made them abnormally
vulnerable to that type of injury; defender has to take their victim as they find them in terms of
vulnerabilities etc.
o “If a man is negligently run over or otherwise negligently injured in his body, it is no answer
to the sufferer's claim for damages that he would have suffered less injury, or no injury at
all, if he had not had an unusually thin skull or an unusually weak heart.” (Dulieu v White
[1901] 2 KB 669 per Kennedy J at 679.)
o Smith v Leech Brain: plaintiff’s husband suffered burn from spillage of molten metal down
to employer’s negligence; plaintiff’s husband was within range of foreseeable victims that
might suffer if molten metal got spilt; so there was duty + breach of duty; but pursuer’s
husband had pre-cancerous condition which was triggered by burn injury that he suffered
and developed into cancer which was ultimately fatal; court took view that here was
underlying vulnerability and in that case took the view that burn was promoting agency of
cancer in his tissue which ultimately turned out to be fatal; so in these circumstances if
initial type of injury was foreseeable then u have to take victim as u found them in terms
of their vulnerability; here employers were liable in respect of fatal result triggered by burn
o that rule also applies if there is foreseeable medical intervention as a result of defender’s
negligence e.g. standard form of medical treatment and pursuer bc of particular
allergies/vulnerabilities reacts badly; Robinson v Post Office: plaintiff slipped and injured
his leg in workplace accident; breach of duty by employers; was given anti-tetanus
injection [standard form of treatment for that injury] but he had abnormal reaction to it;
developed ensyphilitis; employers were nonetheless found liable for that consequence –
that injection was standard procedure for accident of that kind; if defenders’ delict results
in pursuer being subject to standard form of medical treatment in which they react badly
defenders remain liable and can’t escape from liability
 defences: applied in negligence cases but some do also apply in relation to statutory
liability/intentional delicts
 contributory negligence
 o if pursuer is partly to blame - not necessary for accident itself but damage/injury they’ve
suffered – their claim doesn’t fail completely but any compensation they are due may be
reduced proportionately to take into account their contribution to that injury
o Law Reform (Contributory Negligence) Act 1945 s 1(1): “Where any person suffers
damage as the result partly of his own fault and partly due to the fault of another person
or persons, a claim in respect of that damage shall not be defeated by reason of the fault
of the person suffering the damage, but the damages recoverable in respect thereof shall
be reduced to such an extent as the court thinks just and equitable having regard
to the claimant’s share in the responsibility for the damage.”
o Jackson v Murray: 13-year-old schoolgirl leaving school bus runs across busy road and
is knocked down by defender driving car too fast for road conditions. Contributory
negligence fixed at 50%.
o Sayers v Harlow Urban District Council [1958] 1 WLR 623 (Woman locked in public
lavatory due to malfunctioning lock tries to escape by climbing over door but is injured
when she slips on rotating toilet roll holder. Contributory negligence fixed at 25%.)
o Contrast Ferguson v Ferguson 2015 SLT 561 (Woman bitten by previously “good-
natured” dog at a family party on January 1st had behaved in “a very provocative manner”
by putting her face near the elderly animal when it had just woken up. Contributory
negligence fixed at 85%.) (her claim was reduced by 85%)
 if ur in accident and thrown abt bc not wearing seatbelt ur likely to have ur damages reduced to
reflect contributory negligence – u don’t bear any share of responsibility for causing accident but
u do bear responsibility for contributing substantial cause of damage by being more vulnerable
from not wearing seatbelt;
 so question is Did the pursuer “take reasonable care for his or her own safety”?/ (b) Did the
pursuer’s failure to take reasonable care for his or her own safety constitute a “substantial cause”
of the damage?
o risk that pursuer’s lack of care laid them open to must coincide w risk that eventuated
from defender’s conduct
o Jones v Livox Quarries : claimant was quarry worker who in breach of his employers had
hitched a lift and was badly injured bc truck had bumped into slow-moving behicle and he
was crushed between two vehicles ; question arose whether quarry worker had been
contributorily negligent in riding shotgun on vehicle in effectively irresponsible manner ;
plaintiff tried to argue that risk to which he made himself open was risk that he would be
thrown from vehicle, not risk that someone would crash into vehicle from behind ; court
said taht if passenger rides vehicle in dangerous condition and are subsequently more
injured than they should’ve been in safe condition then they are still liable ; court made
important distinction – they said that if plaintiff had been driving in dangerous position on
back of vehicle and had been hit in eye by stray shot from negligent sportsmen
contributory negligence wouldn’t have applied b chis dangerous mode of travel would’ve
had nothing to do w injury he ultimately suffered ; riding in dangerous position didn’t lay
him more open to being shot negligently than riding safely would’ve done ; but court was
satisifed that his dangerous position on vehicle here was cause of damage so contributory
negligence would apply
o Neill v Doherty: she had been thrown out of taxi but evidence before court was able to
establish that most significant of her injuries were actually suffered on impact – when car
hit taxi; damage would’ve been just as bad whether or not she was wearing seatbelt; she
wasn’t wearing seatbelt; but her failure to wear it made no impact on level of injury she
 suffered; so contributory negligence wasn’t one of causes of her damage and wasn’t
applied in that case
 seat belt cases
o Motor Vehicles (Wearing of Seat Belts) Regulations 1993, SI 1993/176, as amended by
the Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006, SI
2006/1892.: it is criminal offence not to wear seatbelt
o damages were reduced by 1/3 bc pursuer had not put seatbelt on and in knowledge that
driver had been drinking – Hill v Chivers
o Pace v Cully: was pursuer taking sufficient care for their own safety in circumstances? Mr
Pace was taxi driver and wasn’t belted up, wasn’t wearing seatbelt when Mr Cully’s car
crashed into him; Mr CUlly argued that his injuries would’ve been less severe had he been
wearing seatbelt; at this particular point in time police had advised taxi drivers in this
particular area to not wear their seatbelt in event that one of their passengers got
potentially violent bc at time there was violence against taxi drivers; but u couldn’t say he
hadn’t taken sufficient care of his own safety – he had – he just made judgment in the
wrong way – so no contributory negligence established
o Capps v Miller: person didn’t tie up their motorcycle helmet properly and thus suffered
more injuries than they would’ve done if tied up properly; so reduced 10%
 passengers driven by drunk drivers
o Currie v CLamp’s Executor: amounts to contributory negligence; pursuer allowed himself
to be driven home afterheavy drinking seession where he’d been w driver; driver was
killed; pursuer tried to raise action against driver; damages reduced by 1/3 to reflect fact
that pursuer was very well aware that driver had been drinking and was not in fit state to
drive safely
 children and contributory negligence
o case law suggests children can be contributorily negligent – but courts try to make
assessment of what would be expected of reasonable child of that age in that particular
situation
o Galbraith’s Curator v Stewart (No 2) 1998 SLT 1305: Eight year old injured while playing
on pipes left in street overnight. No contributory negligence. Child did not have capacity
to recognise risk involved. court weighed up dangers of defender’s conduct against
capacity of child of that age.
 Anderson v Imrie [2016] CSOH 171; 2017 Rep LR 21 per Lord Pentland at para 40 (aff’d [2018]
CSIH 14; 2018 SLT 717):
 8y/o boy playing at his friend’s farm; his friend’s mother was close by and watching them at play
but had gone off for a moment into farmhouse to get sth; children had been told not to go
wandering; 8y/o boy did go wandering and tried to climb onto heavy stockgate; gate fell on top
of him and he suffered serious head injuries; Lord Pentland looked at circumstances, facts and
said that 8y/o should have sufficient understanding to realise that it was dangerous to climb onto
heavy gate (had been warned)
o “[T]his is a case in which it is right to hold that the pursuer was partly to blame for the
accident. I recognise, of course, that he was eight years old at the time, but nonetheless
he would have been aware that he should comply with the instructions Mrs Imrie gave
him not to leave the courtyard and, in particular, not to go into the race. The pursuer must
have appreciated that the race was out of bounds and was not somewhere he was allowed
to play. I consider also that the pursuer would have had sufficient understanding to
realise that it was dangerous to climb onto and interfere with the heavy stock gate
 by detaching it from the barrier in the race. In the circumstances, I consider that the
pursuer should be found 25 per cent to blame for the accident.”
 even children of 5-6 y/o should have some idea of road safety
 Jackson v Murray: 13y/o girl was dropped by school bus at busy road in countryside; she had to
get across road to get home; it was busy road, 60mph speed limit; girl ran across road; driver
behind bus knocked into her; she suffered v severe injuries; driver was going 50mph which was
too fast given road conditions; Lord Ordinary thought that she should’ve had more sense so
reduced her damages to 90%; on appeal IH reduced this to 75% this was appealed to SC which
reduced it down to 50% bc pursuer was only 13
o “[The Pursuer] was only 13 at the time, and a 13 year old will not necessarily have the
same level of judgment and self control as an adult… She had to take account of the
defender's car approaching at speed, in very poor light conditions, with its headlights
on…The assessment of speed in those circumstances is far from easy, even for an adult,
and even more so for a 13 year old. It is also necessary to bear in mind that the situation
of a pedestrian attempting to cross a relatively major road with a 60 mph speed limit, after
dusk and without street lighting, is not straightforward, even for an adult.”
 family alleged that defender shouldn’t have allowed pursuer to harm themselves; given that
pursuer died essentially at their own hand, can that deceased person be held to be contributorily
negligent to their own death?
 Reeves v Commissioner of Police of the Metropolis: Mrs Reeve’s partner killed hiself in police
custody; was known to be suicide risk; was put in prison on his own; used open flap and his shirt
to hang himself; police officer sued police for negligence and not looking after him better; but
HoL also ruled that damages should be reduced by 50% to take into account contributorily
negligent
o s1(1) “where any person suffers damage as the result partly of his own fault” – this wasn’t
negligence bc he INTENDED on harming himself; so defendants were negligent in first
place by putting him in this situ but his deliberate act had
o also contributed to ultimate end (his death) so damages were reduced to reflect that by
50%
 calculation of proportion
o Damages reduced “to such an extent as the court thinks just and equitable having regard
to the claimant’s share in the responsibility for the damage”.
o in practice trial judge will do that but if case is appealed appellate courts will normally
agree w trial judge’s assessment there bc he’s seen all witness + evidence; it’s only if
there is apportionment which appeal court thinks is outside range of reasonable
determination
o Jackson v Miller case: court thought it was unreasonable that child should be regarded
as primarily responsible for her injuries
o contributorily negligence is unlikely to go below 10% bc court sees less than 10% as so
negligible there’s no point in messing about w damages
o so 10-90% range
o what do u do if we have contributory negligent AND joint fault in same case?
o Fitzgerald v Lane: “What is being contrasted is the plaintiff's conduct on the one hand and
the totality of the tortious conduct of the defendants on the other hand”
 plaintiff walked out on pedestrian crossing when light was at red and struck by 2 cars;
plaintiff was at fault but also 2 drivers who negligently had collided with him
 stage 1: work out total damages without contributory negligence would have been
£600 000
  Stage 2
 Work out percentage reduction attributable to pursuer’s contributory negligence (Law
Reform (CN) Act 1945 s 1(1). In Fitzgerald this is 50%, so balance of £300,000 only
payable.
 Stage 3
 Take the balance and work out appropriate apportionment according to relative fault
of defenders. In Fitzgerald this was 50/50, i.e. £150,000 each. This is joint and several
liability, so plaintiff could opt to pursue one of the defendants for the whole amount,
but if he did so, that defendant would be entitled to recover £150,000 from the other.
 volenti non fit iniuria: = “To one consenting no wrong is done” (J Trayner and A G M Duncan,
Trayner’s Latin Maxims 4th edn (1993) p 633)
 A complete defence if successful
o Winnik v Dick 1984 SC 48 per LJC Wheatley at 53: “the maxim proceeds on the basis
that there is a duty to take care and not be negligent, but the successful establishment of
the maxim means that the pursuer has accepted the risk of the defender's negligence in the
exercise of his legal duties and has absolved the defender from the consequences arising
from that negligence” – so no liability
 defender must establish that fullying knowing + understanding risk they have voluntarily taken the
risk
o *Titchener v British Railways Board 1984 SC (HL) 34: Fifteen year old crossing railway
line should have known she might get hit by a train. See report of the proof, 1981 SLT
208 per Lord Hunter at 212: “There is a passage in [the pursuer’s] cross-examination
which proceeded as follows: ‘Q. And you knew that it would be dangerous to cross the
line because of the presence of these trains? A. Yes. Q. Well why did you do it if you knew
it would be dangerous? A. Because it was shorter to get to the brickworks. Q. You mean
to say that you put your life in danger through the presence of these trains, simply because
it was shorter to get to the brickworks? A. Well, before my accident I never ever thought
that it would happen to me, that I would never get hit by a train, it was just a chance that
I took.’ A person who takes a chance necessarily consents to take what comes.”
 girl and her bf were hit by rain in crossing railway line; boy was killed; she was
severely injured; girl claimed that BRB had been negligent in not making their fence
more intruder proof; court held that this was such obvious hazard that they didn’t
need to have improved their fencing; their fencing was adequate to that risk; so no
duty; but even if BRB had failed in their duty girl herself admitted she knew it was
dangerous to cross railway line; so she had knowingly, voluntarily and in full
understanding submitted herself to risk of getting hit by train; so caught out by
defenders in this case in cross-examination
 in ICI v SHatwell: pursuer was experienced quarry worker injured in explosion
where his colleagues had set off explosives w short leads and without retiring to
place of safety contrary to employer’s safety regulations; tried to say this was down
to negligence of his colleague so employer was vicariously liable; court said he
was experienced quarry worker – he understood what would entail when setting
off explosion only using short leads and without retiring to place of safety – he
understood risk + safety implications of what he was doing so employers were
absolved of liability; violenti was complete defence

Lecture 17

 Traffic Act – volenti defence doesn’t apply to motor vehicles

 Morris v Murray: pilot and passenger were drinking at pub; went on joyride; crashed after take-
off; volenti defence couldn’t be used; evidence pointed to voluntary acceptance of risk; claim was
dismissed; u must be v drunk before defence of violenti will kick in
 Reeves: partner committed suicide in police custody; opportunity for him to harm himself was
down to conditions in which he was incarcerated; partner successfully sued police in negligence;
police had tried to argue defence of volenti but court rejected it, saying in this case that police
had specific duty of care to look after someone who is known suicide risk and protect them from
deliberate act induced by themselves
 Corr: court held that chain of causation was’nt broken bc death was due to depressive result
from stress disorder from blow tod eath caused by employer’s negligence; as in Reeves
defenders tried to invoke volenti defence; court said his suicide was not sth to which Mr Corr
consented voluntarily and with his eyes open
o “It is a salutary and fair principle that a tortfeasor cannot be held responsible for injury or
damage to which a victim, voluntarily and with his eyes open, consents. But it is not
suggested that Mr Corr consented in any way to the accident and injury which befell him
on 22 June 1996 [date of original physical injury at work]. It is an argument addressed
only to his suicide. But that was not something to which Mr Corr consented voluntarily and
with his eyes open but an act performed because of the psychological condition which the
employer's breach of duty had induced. I conclude, again, that this is an argument which
has no independent validity.”
o so he couldn’t be regarded as having voluntarily put himself in this position – it was
employer’s negligence that brought him to his suicidal state
o consent is normally inferred if defender has attempted to give notice that pursuer was
acting on his own risk
o contract terms act – s16 in regard to attempt to incorporate unreasonable terms in contract
in relation to liability for death/personal injuries – shored up in relation to consumer rights
act s65 – any attempt to contract out of liability for death/personal injuries is not allowed
 Volenti and contributory negligence distinguished

 “…a plaintiff may be guilty of contributory negligence if he did not know but ought to have known
of the danger which confronted him. But he can never be held to have been volens unless it is
shown that he had full knowledge of the nature and extent of the risk. Again, a plaintiff may be,
and usually is, guilty of contributory negligence when he is careless for his own safety, but he
may be truly volens even when he is exercising the utmost care for his own safety.” Salmond
and Heuston on the Law of Torts 21st edn (1996) para 22.4.
o volenti defence is not available unless pursuer is fully aware of nature and extent of
specific risk they’re running; by contrast, with regard to contributory negligence pursuer
might be contributorily negligent if they don’t take sufficient care for their own safety
o Jackson v Murray: 13y/o schoolgirl running across road; wasn’t taking sufficient care so
her damages were reduced to reflect contributory negligence but u couldn’t say at point
when she decided to run across road she voluntarily + knowingly consented to risk of
serious injury due to defender’s negligent driving
 illegality defence: when pursuer is injured in course of illegal conduct
 Should a pursuer who was engaged in unlawful conduct be permitted to recover for harm suffered
in the course of that conduct, or should unlawful conduct by the pursuer extinguish any claim?
Tony Weir has pointed out that “bad people get less” (A Casebook on Tort 9th edn (2001) 258),
but should they receive nothing at all, on the basis of the maxim ex turpi causa non oritur actio
 (“no right of action arises from a disgraceful or immoral consideration” J Trayner and A G M
Duncan, Trayner’s Latin Maxims 4th edn (1993) p 205)? Consider the following contexts:
 in practice rule isn’t as straight forward/absolute; recovery is sometimes but not always denied
 pursuer has gone joyriding in stolen car, defender is driver, both engaged in illegal enterprise; if
defender crashes car should they be liable for damages to pursuer?
 pursuer alone is engaged in illegal enterprise, e.g. u’ve just robbed bank, running away at great
speed, ur knocked down by car; does u robbing bank preclude u getting damages from driver?
 in practice each individual case turns on its own facts but in first type of case defence is more
likely to stand rather than second;
 Joyce v O’Brien: claimant and defendant, nephew and his uncle, had just stolen ladders from
garden, loaded them into back of transit van and zoomed off fast; doors wouldn’t close so
claimant was perched on back of van, trying to hold doors closed as van drove off; “I would
formulate the principle as follows: where the character of the joint criminal enterprise is such
that it is foreseeable that a party or parties may be subject to unusual or increased risks
of harm as a consequence of the activities of the parties in pursuance of their criminal
objectives, and the risk materialises, the injury can properly be said to be caused by the
criminal act of the claimant even if it results from the negligent or intentional act of
another party to the illegal enterprise. I do not suggest that this necessarily exhausts
situations where the ex turpi principle applies in joint enterprise cases, but I would expect it to
cater for the overwhelming majority of cases.”
o illegality defence upheld
 Andersen v Hameed: pursuer was injured when car in which he was travelling hit tree; could he
sue driver? Lord Tyre said at time of accident he was participating in joint criminal activity; he
knew car was taken w/o owner’s consent; was committing offence; was not entitled to damages
for injury; driver was underage, unlicensed, uninsured
o “I find it proved that the pursuer knew, when he allowed himself to be carried in the car,
that it had been taken without the consent of its owner and that he could have been
charged and convicted of an offence under s 178(1)(b) of the Road Traffic Act 1988. In
these circumstances I hold that at the time of the accident he was participating in a joint
criminal activity with the defender and that he is accordingly not entitled to recover
damages from the defender for loss and injury sustained as a consequence of the
defender's negligent act.”
 Taylor v Leslie: 2 boys mucking abt in car on farm track on remote island; driver was only 16,
not entitled to drive; passenger was 19; driver wasn’t wearing seatbelt; passenger told driver to
rev up; when he did so car shot out from farm track onto single track road and collided with van;
passenger was killed; his parents sued for damages from driver; court looked at other joyriding
cases and said this case was different – court took view that actually looking at those
circumstances youngsters playing abt in cars was quite common in remote area like this; so they
were just messing abt, not on main road except to extent it shot out; weren’t engaging in serious
criminal activity; so they were not barred from illegality; relative heinousness of pursuer’s criminal
activity wasn’t so great in circumstances that damages couldn’t be obtained
 where pursuer alone has been involved in illegal conduct and somehow managed to be harmed
 relative heinousness of pursuer’s wrongdoing is important factor in balance
 Henwood v The Municipal Tramways Trust (South Australia): pursuer’s son leaned over tram to
be sick and his head knocked against metal poles immediately beside tram lines; he was fatally
injured; local by-law forbade people from leaning out of trams; when his parents tried to sue tram
corporation illegality defence was invoked; court said this is too trivial – it’s very minor offence;
not so serious it should be preclude possibility of recovering for damages
 Revill v Newbery: defendant was retired; his allotment shed kept being vandalised; he sat waiting
in his shed with shotgun; defendant shot at plaintiff through hole in door and injured him; here
potential vandal was on allotment; court still said illegality defence shouldn’t stand; would-be
vandal successfully sued him for damages tho contributory negligence reduced them by 2/3; just
bc someone does sth bad doesn’t exclude them from civil remedies; u can’t just allow people to
go around shooting burglars; whereas in Joyce v O’Brien injuries suffered and omission of crime
were inexplicably bound up tgt; in this case vandalising allotments is v obnoxious but not bound
up w risk of being shot
 Vellino v Chief Constable of Greater Manchester [2001] EWCA Civ 1249; [2002] 1 WLR 218; [
 2002] 3 All ER 78 per Sir Murray Stuart-Smith at para 70
 police arrived at criminal’s flat to arrest him; he leapt from window in attempt to get away; he
sued police on basis that they had failed to prevent him from harming himself in course of
attempted arrest; majority said court didn’t owe duty of care; but said illegality defence did apply;
facts that gave rise to claim, jumping from flat which was illegal attempt to evade arrest, - injury
was inextricably linked with criminal activity; so criminal conduct was sufficiently serious to merit
application of principle
 "(1) The operation of the principle arises where the claimant's claim is founded upon his own
criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the
criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious
conduct of the defendant.
 (2) The principle is one of public policy; it is not for the benefit of the defendant. Since if the
principle applies, the cause of action does not arise, the defendant's conduct is irrelevant. There
is no question of proportionality between the conduct of the claimant and defendant.
 (3) In the case of criminal conduct this has to be sufficiently serious to merit the application of
the principle. Generally speaking a crime punishable with imprisonment could be expected to
qualify. If the offence is criminal but relatively trivial, it is in any event difficult to see how it could
be integral to the claim.”
 Gray v Thames Trains: essential test
o "Can one say that, although the damage would not have happened but for the tortious
conduct of the defendant, it was caused by the criminal act of the claimant? (Vellino v
Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position
that although the damage would not have happened without the criminal act of the
claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB
567).”
 McLaughlin v Morrison: applies Gray v THames Trains test in Scottish context
o pursuer standing at side of road; defender drove deliberately car at him to run him down;
caused serious injury; pursuer and defender belonged to rival factions in Eastend
Glasgow gang feud; shortly before incident occurred, defender thought pursuer was one
of gang that had attacked pub belonging to her associates; so this was reprisal of earlier
attack; court said even assuming pursuer had been part of gang that attacked, illegality
defence couldn’t stand
o “…the first defender took it upon herself to assault Mr Rennie with a car…the cause of Mr
Rennie's injuries was the assault on him, not any criminal activity on his part. To adopt
the distinction drawn by Lord Hoffman between the facts of Vellino and the facts of Revill,
it cannot be said that, although the damage would not have happened but for the alleged
illegal conduct of the first defender, it was caused by the criminal act of Mr Rennie.
(Vellino) The position is, rather, that although the damage would not have happened
 without the alleged criminal act of Mr Rennie, it was caused by the illegal act of the first
defender. (Revill)”
 effect on integrity of legal system
 Clunis v Camden [1998] QB 978 per Beldam J at 989:
o plaintiff had been convicted of ENglish crime of manslaughter when killing stranger in
London tube station platform; he had history of significant mental problems; local health
authority had recently discharged him from hospital community; he was sueing health
authority, saying had they looked after him better he wouldn’t have killed someone; court
wouldn’t allow that to proceed – court didn’t think they’d been negligent but even if they
had been illwegality defence would apply to preclude any claim
o “In the present case the plaintiff has been convicted of a serious criminal offence. In such
a case public policy would in our judgment preclude the court from entertaining the
plaintiff's claim unless it could be said that he did not know the nature and quality of his
act or that what he was doing was wrong…The plaintiff in this case, though his
responsibility is in law reduced, must… be presumed to have known that he was doing an
unlawful act.”
o here criminal penalties have been applied u can’t use civil law to make good damage that
u’ve suffered quite rightly as operation of criminal law; that would be attack on integrity of
legal system
o u can’t recover from damage that results in loss of liberty/another punishment as a result
of committing crime using civil law
 Gray v Thames Trains Ltd [2009] 1 AC 1339
o (Claimant suffering post-traumatic stress following train crash caused by defendants’
negligence went on to commit manslaughter.)
o claimant was passenger in train crash; suffered from ptsd; train crash caused as a result
of negligence of Tames Trains; while suffering from that disorder he killed man and was
convicted of manslaughter – diminished responsibility; detailed long-term in secure
psychiatric hospital; then tried to recover from LTd for injuries + loss earnings + loss of
liberty and earnings during time that he was incarcerated; defendants admitted liability in
relation to rail disaster; but they successfully raised illegality defence in relation to loss of
earnings etc. after date of manslaughter; court thought it was important to avoid
inconsistency in justice system so civil court shouldn’t award damages to compensate
claimant for damages imposed upon him by criminal courts for punishment for criminal
act;
 prescription and limitation – no matter how meritorious ur claim is it will be time limited so u will
lose out if u don’t pursue it promptly; undue delay will provide complete defence
 rules are statutory – crucial – looking at reasons for claims brought in professional negligence
against solicitors; so client whose claim hasn’t been brought within proper time scale will often
have claim against their solicitor instead
 prescription extinguishes substantive obligation itself after stipulated period of time; limitation
doesn’t extinguish underlying obligation but it bars right to raise action if proceedings aren’t
commenced within stipulated period of time even if underlying obligation has not itself prescribed
 General rule is that the obligation to make reparation prescribes after 5 years, Prescription and
Limitation (Scotland) Act 1973 s 6, Sch 1 para (1)(d), but there are various specific exceptions.
(All refs to 1973 Act unless stated otherwise.)
o Obligations in respect of personal injuries or death do not prescribe, s 7(2), Sch 1 para
(2)(g),
o Obligations in respect of defamation prescribe after 20 years, s 7, Sch 1 para (2)(gg).
 o Obligations in respect of defective products under Consumer Protection Act 1987, s 2,
prescribe after 10 years, s 22A, Sch 1 para (2)(ggg).
 When does the time period start?

 Prescription and Limitation (S) Act 1973, s 11 (with amendments as per the Prescription
(Scotland) Bill 2018, s 5, assumed to have taken effect)

 “(1) Subject to subsections (2) and (3) below; any obligation (whether arising from any
enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise)
to make reparation for loss, injury or damage caused by an act or omission shall be regarded for
the purposes of section 6 of this Act as having become enforceable on the date when the loss,
injury or damage occurred.
o starting period is on date when loss/injury/damage occurred
 (2) Where as a result of a continuing act or omission loss, injury or damage has occurred before
the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the
purposes of subsection (1) above to have occurred on the date when the act, neglect or
default ceased.
o wrongful conduct on continuing basis – e.g. illegal nuisance created; prescriptive period
runs from date the act ceased
 (3) In relation to a case where on the date referred to in subsection (1) above (or, as the case
may be, that subsection as modified by subsection (2) above) the creditor was not aware, and
could not with reasonable diligence have been aware of each of the facts mentioned in
subsection (3A), the said subsection (1) shall have effect as if for the reference therein to that
date there were substituted a reference to the date when the creditor first became, or could
with reasonable diligence have become, so aware.
o if nature of wrongdoing is difficult to ascertain
o new wording is currently being introduced; prescription bill which is today going through
stage 3 proceedings in Scottish parliament brings in new wording for 3A – to the effect
that prescription doesn’t run during such time as pursuer hasn’t been able to find
 (a) that loss, injury or damage has occurred,
 (b) that the loss, injury or damage was caused by a person’s act or omission,
and
 (c) the identity of that person.
 (3B)
 It does not matter for the purposes of subsections (3) and (3A) whether the creditor is
aware that the act or omission that caused the loss, injury or damage is actionable in law.”
 personal injuries actions are subject to limitation unless u bring proceedings within 3 years –
then action is time-barred
o 3-year limitation period applies to:
 personal injuries actions including personal injuries resulting in death – ss. 17-18.
 defamation actions – s 18A.
 actions in respect of defective products under Consumer Protection Act 1987 s 2
– ss 22B, 22C.
 actions of harassment under the Protection from Harassment Act 1997, ss 8 or 8A
– s 18B.
o Where personal injuries do not result in death, limitation period runs from date on which
the injuries were sustained, or from date on which offending act or omission
ceased, s 17(2)(a).
 o If the action relates to a death, limitation period runs from date of death, s 18(2)(a).
o Can time period be extended?
 (a) The limitation period does not run during the pursuer’s nonage (under 16, as
per Age of Legal Capacity (Scotland) Act 1991, s 1(2)), or during such time as he
or she is suffering from mental incapacity, ss 17(3), 18(3) 18A(2) 22B(4) 22C(3).
 (b) In personal injuries actions the time period does not run if it was not reasonable
practicable for the pursuer to realise:
 that the injuries were sufficiently serious to merit raising an action, s
17(2)(b)(i); or
 that the injuries were attributable in whole or in part to an act or omission, s
17(2)(b)(ii) (see, e.g., Agnew v Scott Lithgow 2003 SC 448.vibration
white finger; Young v Borders Health Board [2016] CSOH 13; 2016 GWD 8-
162); or
o agnew v scott Lithgow: pursuer suffered from disability; worked in
shipyard in 1980s; noticed symptoms then but didn’t realise he had
this condition; stopped worked in 1995 and knew that his colleague
suffered from same thing; were discussing claims they were making
for vibration white finger; but even then he dithered in getting medical
decision; didn’t get definitive opinion from vascular consultant until
1999; action was held to be time-barred; even tho diagnosis wasn’t
received until v recently, pursuer said he knew back in 1955 – 4 years
previously – that this was probably cause of his injury; he was
sufficiently aware of material facts in 1995; hadn’t discharged heavy
onus on him why he didn’t get diagnosed earlier; court said we’re not
going to make any concessions for dithering; onus is on pursuer to
get their act tgt quickly
 that the defender was the person responsible, s 17(2)(b)(iii).
Elliot v J and C Finney 1989 SLT 208, affirmed 1989 SLT 605 (period in
hospital).

Lecture 17

 in exceptional circumstances court may accept that limitation period had not yet started during
any time that it wasn’t practical for pursuer to realise one of crucial elements of info prior to
raising action
 if pursuer was injured in accident but more serious, long-term effects of injury took a while to
become apparent
 time period doesn’t run if pursuer doesn’t realise injuries were attributable in whole/in part to
act/omission – Young f Borders: pursuer had gone to her gpa nd then local hospital complaining
of severe leg pain; sent away with painkillers; was more sinister condition – 2 days later
diagnosed with serious long-term condition whicih caused her serious long-term health
problems; in immediate aftermath she said she was preoccupied with getting on w her life; it
wasn’t until 2 years later she was referred to pain clinic and she started to hink that her delay in
diagnosis could’ve been cause of long-term health problems she suffered; action was raised
against health board in 2011; court held that 2007 was appropriate date bc she’d known right at
start abt failure to diagnose – she was put on notice that sth was amiss in her medical treatment
 and was required then to take reasonable steps to raise action; court is v strict; onus is right at
start despite how bewildered patient may be initially
 in Elliot v J and C Finney: solicitors missed 3-year limitation period by a few days; case had
arisen out of road accident; during that period he didn’t make inquiries as to who driver was;
pursuer said u shouldn’t count period he was in hospital; court refused tod o so bc even tho he
was in hospital he could’ve asked for inquiries to be made on ur behalf; so didn’t extend 3-year
period
 victims of child abuse – difficult for litigants to raise action; for complex psychological reasons
it’s taken a while for pursuer to come forward
 In relation to actions in respect of personal injuries resulting from childhood abuse see Limitation
(Child Abuse) Scotland Act 2017 inserting new ss 17A-17D in the Prescription and Limitation
(Scotland) Act 1973. These provisions lift the three-year time limit, although note that s 17D
provides that the court may not allow the action to proceed if the defender satisfies the court that
a “fair hearing” is not possible or that the defender would be “substantially prejudiced” [by long
delay in bringing action e.g. if there’s been a lot of damning media coverage] if the case were to
proceed.
 In cases of personal injuries, death, and defamation, court has discretionary power to override
the time limits if it is “equitable” to do so, s 19A. (See discussion e.g. in Elliot v J and C Finney
1989 SLT 208, affirmed 1989 SLT 605; Ferguson v J & A Lawson (Joiners) Ltd [2014] CSIH 82;
2014 GWD 33-640; Young v Borders Health Board [2016] CSOH 13; 2016 GWD 8-162.)
o factors to be considered
 length of time that’s elapsed
 consequent loss of evidence
 difficulties respecting investigation of pursuer’s claims
o Elliot: court wasn’t persuaded under general equitable grounds to extend limitation period
bc pursuer couldn’t offer clear, cogent explanation as to why she’d delayed
o s19A did result in court extending time limit: Ferguson – mesothelioma case in which
pursuer’s husband who since died had been exposed to asbestos several decades earlier;
former employers were liable in principle but there wree logistic problems in tracking
employers from that far back within 3 year period so court was persuaded that time limit
should be extended
 strict liability is available without having to prove defenders were at fault – just need to prove that
they suffered from type of harm provided for in legislation and defenders caused it
 product liability
o strict liability where injuries have been caused by defective products – goods that have
defect that makes them unsafe, not merely of inferior quality (for which see SOG Act 1979
s14)
o consumer protection act 1987
o European initiative was imposed to impose strict liability on manufacturers for defective
products – In implementation of the EC Product Liability Directive 85/374/EEC, OJ 1985,
L210/29, a strict liability regime was introduced by Part 1 of the Consumer Protection Act
1987 (applicable to Scotland, England and Wales).
o pre-existing common law negligence was still applicable – from time to time consumer
can’t meet criteria laid out in act but can still establish remedy in common law
o strict liability imposes fewer problems of proof bc don’t have to show pursuer at fault
o Section 2 Liability for defective products.
o (1) Subject to the following provisions of this Part, where any damage is caused wholly or
partly by a defect in a product, every person to whom subsection (2) below applies shall
be liable for the damage.
o (2) This subsection applies to--
 (a) the producer of the product;
 (b) any person who, by putting his name on the product or using a trade mark or
other distinguishing mark in relation to the product, has held himself out to be the
producer of the product;
 (c) any person who has imported the product into a member State from a place
outside the member States in order, in the course of any business of his, to supply
it to another.
o who is potentially liable?
 producer
 producer of component of complex products will be joint and severally liable with
producer of product – if that component turns out to be defective
 own-brander: people who mark it their own product and hold themselves out to be
producer even if they are not (s2(2)(b)
 importer (s2(2)(c))
 supplier (s2(3)) if consumer can’t identify producer and supplier can’t tell them who
producer is either
o product: s1(2)
 “product” means any goods/electricity and…includes product which is comprised
in another product, whether by virtue of being a component part or raw material or
otherwise
o damage: s5
 damage means death or personal injury or any loss of/damage to any property
[including land] (s5(1))
 not loss of, or damage to, product itself (s5(2)) – this goes back to contractual
remedies
 damage to property can be recovered if that property is of type for “private use,
occupation or consumption” (s5(3)) – bc protecting consumers, not businesses
 Renfrew Golf CLub v Motocaddy: court said u can’t say clubhouse which is used
by over 700 members and others is ordinarily intended for private use
o product is defective “if safety of product is not such as persons generally are entitled to
expect” (s3(1))
 courts tend to fall back on what reasonable person would expect in judging this
standard
 A v National Blood Authority (No 1): case was brought by group of claimants who
for various reasons had received transfusions of blood which was infected by
Hepatitis C virus; as a result of receiving these transfusions claimants became
infected; at time of transfusions taking place, national blood authority knew there
was risk of this nature; so small number of cases might involve contaminated blood;
but they hadn’t yet developed effective screening techniques in order to screen
donated blood for that infection; was safety of those blood products which public
was entitled to expect? answer was no – hwoever difficult their position was,
patients were entitled to expect that that blood was safe and free from infection
 Richardson v LRC: Mrs Richardson became pregnant after condom used by her
husband burst; thereafter sued manufacturer under consumer protection act;
 fundamentally court thought she wasn’t entitled to expect that condom would be
100% effective; defendants had never expressly claimed their product was 100%
effective; court said it wasn’t reasonable to expect this
 Tesco v Pollard: child opened bottle of Tesco detergent which had tamper-proof
seal and ate some of it; made him v ill; was this defective product for purposes of
1987 Act?
 Tamper-proof seal didn’t meet British safety standards; court said they didn’t
think this was defective product bc consumers were entitled to expect that
dishwasher detergent bottles would be more difficult to open than if they had
just ordinary screwtop and this one was more difficult to open; so on that
basis producer had met standard required by 1987 Act; public didn’t have
specific knowledge of British safety standards laid down in those standards
so they couldn’t say their expectations of safety were determined by British
safety standards bc they didn’t know what they were anyway
 s3(2)(a): some products are hazardous, e.g. sharp knife; risk is obvious; question
is at what point do ur eally need warning with that product that is adequate to risk
it presents
 in V v Macdonald: tried to sue after coffee tipped over on him; court said everyone
knows coffee is hot when it’s served; it’s obv risk even w/o printing warning on cup
that hot coffee is hot and u should try to avoid spilling; it’s up to consumers to take
care when handling drinks; some hazards r so obv u don’t need warning
 other products that are inherently dangerous do need warning that is appropriate
risk – they then become safe in eyes of law
 has led to wave of defensive packaging in recent years – manufacturers stating
obvious in order to make sure all eventualities are warned against
 Worsley v Tambrands Ltd: individual became ill w toxic shock syndrome bc of using
defendants’ tampon brand; risk of toxic shock and description of symptoms had
been mentioned in instruction booklet which was enclosed in every box of that
product; when W started to feel ill she didn’t realise tampons were problem and
delayed ines eking treatment that she became v ill until she died; she said
instructions were inadequate, tucked away in leaflet inside of box; given that this
was such severe syndrome risk should’ve been pbrought to her attention more
prominently; court said they acknowledged this was severe condition but was dealt
w perfectly adequately by enclosing booklet; thus tampons weren’t defective as
defined in 1987 Act
 even in case of products that are safe for vast majority of users, if there is risk to
few question arises – at what point is warning required? what level of warning is
adequate ro risk?
 RIchards v Pharmacia Ltd: producers were manufacturers of anti-inflammatory
drug which in ordinary run of things was perfectly safe but long-term use carried
small risk of causing adverse cardiovascular event which hadn’t featured in
instruction booklet of prdocut; went to proof; was absence of warning even tho
riskw as v low-level enough to constitute defective product?
 AH case: ongoing litigation
 court can also take into account what might be reasonably done w or in relation to
product: e.g. poodle in microwave reported in Urban Myths Case Reports: not
expected use of product and therefore no liability would arise – s3(2)(b)
  s3(2)(b): time when product was supplied by its producer to another – e.g.
characteristic wasn’t regarded as defective at time when product was first supplied
but has become defective now – e.g. airbags of cars
 if producer can effectively prove that they weren’t negligent in these matters,
product escapes definition of defective and no liability arises
 Ide v ATB Sales: defect in handlebar quality incident – on balance of probability it
was likely that handlebar disintegrated – so it was manufacturing defect even tho
they didn’t actually know
 courts are more likely to accept that product simply failed
 McGlinchey: she was unable to prove that on balance of probabilities defect in
handle bar caused accident; court tested it, nothing was wrong, and preferred
inference that Mrs M hadn’t used handlebar properly – so no manufacturing defect
 on manufacturing defects they’re more likely to accept than other defects

Lecture 18

 defences open to producer in circumstances of safety defects

o (a) That the defect is a result of the producer having to comply with UK statutory or EC
regulations (s 4(1)(a)).
o (b) The defender did not supply the product (s 4(1)(b)).
o (c) Goods were not supplied in the course of a business (s 4(1)(c)) (i.e. non-
commercial producers have complete defence) – e.g. u give ur friend an old
washing machine
o (d) Defect did not exist in the product at the relevant time, for example, if it was not
defective when it left the producer but was mishandled subsequently (s 4(1)(d)).
o (e) The state of scientific and technical knowledge at the relevant time was not such
that a producer might be expected to have discovered the defect. (‘We must not
look at 1947 events with 1954 spectacles’ per Lord Denning in Roe v Minister of
Health [1954] 2 QB 66.) No obligation to consult learned in-house journals from
Manchuria (s 4(1)(e)) – see A v National Blood Authority [2001] 3 All ER 289 per
Burton J at para 49.
 ‘development risks’ defence
 A v National BLood Authority: court said that if sth was published in trade journal
in Manchuria, producer in UK wouldn’t necessary be expected to have discovered
that defect; defendants said that although they knew potentially there may be
hepatitis C in donor population they had no way of screening for it so they couldn’t
reasonably have been expected to discover defects in individual batches of blood;
court wasn’t prepared to accept that – said they knew at the time of the defect and
in principle products might be contaminated so we can’t avail u of that defence;
read s4(1)(e) v literally;
o (f) Defence available to producer of component parts in complex products if defect due
to design defect in finished product, or due to instructions given to him/her by the producer
of the finished product (s 4(1)(f)).
 contributory negligence: normal rules apply (s(6)(4))
 in theory, volenti non fit injuria doesn’t apply in relation to statutory liability unless statute makes
provision for it
o however, s3(2) of 1970 Act – in deciding when product is defective there are various ways;
o if consumer ignored safety warning/did sth unforeseeably stupid w item which caused
accident, product is likely not to be classified as defective;
 o quite demanding hurdles that pursuer must surmount
 occupiers’ liability
 law contained in occupiers’ liability (Scotland) act 1960 – different from English legislation
 concerned with occupiers and relationship with land e.g. occupiers are liable to compensate
people for anything that causes danger to others that go on their land
 injured party needs to establish that occupier fell short of standard of care as specified in Act
 mcdyer v celtic fc: mcdyer was in celtic football stadium; wood fell on him; stadium proprietors
were held liable
 occupier means “the person occupying or having control of land or other premises” (s 1(1)). The
common law rules may be applied in conjunction with the Act to determine liability (s 1(2)).
 Anderson v imrie: contributory negligence; 8y/o boy playing on harm, heavy gate fell on him and
injured him; at time of accident he was visiting friend of his living on harm and sued friend’s
mother bc although farm was owned by grandfather it was mother and father who actually lived
there and controlled premises; so in those circumstances, although farm was owed by someone
else it was people on ground who were deemed to have control for purposes of occupiers’ liability
act
 even owners in certain circumstances will be able to exclude liability if they don’t exercise some
degree of control over their premises
 Gallagher v Kleinwort benson (trs) ltd: pursuer had fallen from roof of tenement building when
handrail gave way; he was on roof estimating to do common repairs; he brought claim under
1960 act against various praties including owners of ground floor and basement bc they had right
in common to roof along w other praties of buiding; but they said pursuer couldn’t point to ground
floor and basement proprietors having any physical control whatsoever over roof’s safety
features; so ownership will v often denote that ur an occupier but not always
 if pursuer still has control of land even if they’ve moved out, ur still liable
 telfer v Glasgow corporation: young boy was injured in disused building; he was injured in
accident; at time of accident it was owned by Glasgow corporation society though they’d long
moved out of it; they still had it in their power to keep out local kids so they were held liable as
occupiers when kids got injured
 landlords are dealt with in s3 – if lease makes landlord responsible for repairs of rented property,
then landlord is liable in terms of act for any failure to address those repairs
 haggarty v Glasgow corporation: she injured her hand on glass door; mum was tenant and bring
action against Glasgow corporation as landlord (had control over repairs)
 premises: “any fixed or moveable structure, including any vessel, vehicle or aircraft” (s1(3))
 What sort of hazards should the occupier recognise as dangerous?
o Dilapidated or poorly maintained buildings (Telfer above); unfenced hole in the ground
(Cowan v Hopetoun House Preservation Trust [2013] CSOH 9; 2013 Rep LR 62); slippery
floors (Porter below); electric current (McGlone below); leaving a water bucket full of petrol
(Ross v McCallum's Trs 1922 SC 322); growing poisonous berries near a children's
play area (Taylor v Glasgow Corporation 1922 SC (HL) 1); dangerous lay-out of golf
course (Phee v Gordon 2013 SC 379); aggressive dogs (Hill v Lovett 1992 SLT
994), but not, apparently, a divebombing seagull where it could not be proved that the
offending bird came from the defender’s roof Kelly v Riverside Inverclyde Ltd [2014]
CSOH 86.
 What sort of damage is covered?
 o “Injury or damage” suffered by person entering premises as a result of the occupier's
failure to take reasonable care (s 2(1)). – mostly personal injury but could be property
damage
 What is the extent of the standard of care expected of the occupier?
o “The care which the occupier of premises is required, by reason of his occupation or
control of the premises, to show towards a person entering thereon in respect of dangers
which are due to the state of the premises or to anything done or omitted to be
done on them and for which the occupier is in law responsible shall... be such care as
in all the circumstances of the case is reasonable to see that person will not suffer
injury or damage by reason of any such danger” (s 2(1)).
 duty must be pro-active – there is duty to take active measures to make ur premises reasonably
safe – but it’s not absolute duty – REASONABLY SAFE
 Leonard v Loch Lomond and the Trossachs National Park Authority: pursuer was 12y/o child
who was injured when he lost his footing and slilpped on path on hillside; he tried to argue
occupiers’ liability on part of park authority but court didn’t think it was reasonable to expect
occupiers of rural parkland to be super cautious in putting up fencing/handrails/tarmacking their
paths; if u go for walk on Scottish hills u obv have to expect that terrain will be a bit wild so u
have to take care on ur footing
 Tomlinson v Congleton Borough Council: defendants were occupiers of country park which had
v attractive artificial lake in it; swimming in lake was prohibited; defendants had put up signs
telling them not to swim, dangerous waters; nonetheless 18y/o plaintiff was visiting park and
decided to dive into water and water was v shallow at this point and broke his neck; he claimed
damages against defendants, alleging that they were in breach of their duty of care under
occupiers’ liability; said this shallow lake was hazard they should’ve done more about; that claim
was rejected; court said stretch of water was no more dangerous than any other stretch of water
o “it is not, and should never be, the policy of the law to require the protection of the
foolhardy or reckless few to deprive, or interfere with, the enjoyment by the
remainder of society of the liberties and amenities to which they are rightly entitled.
Does the law require that all trees be cut down because some youths may climb them
and fall? Does the law require the coastline and other beauty spots to be lined with
warning notices? Does the law require that attractive waterside picnic spots be destroyed
because of a few foolhardy individuals who choose to ignore warning notices and indulge
in activities dangerous only to themselves? The answer to all these questions is, of
course, no…In truth, the arguments for the claimant have involved an attack upon the
liberties of the citizen which should not be countenanced. They attack the liberty of the
individual to engage in dangerous, but otherwise harmless, pastimes at his own risk and
the liberty of citizens as a whole fully to enjoy the variety and quality of the landscape of
this country. The pursuit of an unrestrained culture of blame and compensation has
many evil consequences and one is certainly the interference with the liberty of the
citizen.”
o And see Lord Scott at para 94:
o “Of course there is some risk of accidents arising out of the joie-de-vivre of the young. But
that is no reason for imposing a grey and dull safety regime on everyone.”
 To what extent do the “circumstances of the case” include the circumstances of those
entering the premises?
o plank v stirling mags: toddler was injured on faulty/defective play equipment in play park
that was operated in stirling; local authority was held to be liable bc court thought that if u
 impliedly invite kids to come to ur play park it’s reasonable to expect high degree of care
from those who are operating play parks
o Dvie v Edinburgh Corporation: tenant on 2nd floor flat; stair on landing was maintained by
corporation; lighting had gone out for some time; he fell down stairs in dark, sustained
head injury; family’s claim for damages was unsuccessful bc court didn’t accept that unlit
staircase in itself wasn’t necessarily danger; he had had a drink or two;
 Driver v Dover Roman Painted House: drunk girl tried to urinate in painted house but injured
herself; hazard presented by premises was one that could’ve been safely negotiated by someone
in less agitated state
 Bermingham v Sher Brothers 1980 SC (HL) 67: firemen called to fire at occupier's warehouse
premises at which seven firemen were killed on upper floor building when hardboard ceiling of
first floor suddenly erupted in flames and they were trapped; so pursuers, firemen’s relatives,
tried to argue defendants were at fault bc ceiling was so inflammable and they didn’t have fire
screen protecting staircase (only way out of building); HoL was held to agree that there would
be duty of care but in these circumstances court was satisfied that proprietors were not expected
to have foreseen just how combustible ceiling would be in fire
o “It would in my opinion impose an impossible burden on an occupier if he had to
take reasonable care to provide firemen with an escape route which will continue
to be adequate during the whole time that they are on his premises fighting a fire.
An escape route which is adequate for employees leaving the premises in the early stages
of a fire, is clearly liable to become inadequate if the fire spreads, and so creates the very
circumstances in which firemen will remain there. The occupier cannot foresee how a fire
will develop or how long the firemen will need a means of access and egress” (per Lord
Fraser at 72)
 McGlone v British Railways Board 1966 SC (HL) 1: 12-year old boy was playing in wasteland
owned by BRB besides railway line, climbed through fence, ignoring warning notices, to scale
20-foot framework supporting electricity transformer. BRB not liable for the injuries sustained
following severe electric shock. The occupier's duty was “not to ensure the entrant's safety but
only to show reasonable care” (per Lord Guest at 15), therefore “perfect boy-proof fence” was
not necessary, nor “such precautions as would repel a deliberate invader”.
o “In deciding what degree of care is required, in my view regard must be had both to the
position of the occupier and to the position of the person entering his premises and it may
often be reasonable to hold that an occupier must do more to protect a person whom he
permits to be on his property than he need do to protect a person who enters his property
without his permission” (per Lord Reid at 11).
o “... it is ... enough, even where the danger is both lethal and artificial, if the occupier makes
it clear beyond the possibility of mistake, that all persons are forbidden to enter, and, in
addition, backs up that manifestation by some serious obstruction which can only be
overcome by a deliberate act intended to defeat its obvious function” (per Lord Pearce at
18).transformer was surrounded partly by concrete fence, barbed wire fence, mesh fence,
there were signs saying danger, overhead wires, keep out; there were significant barriers
o court held they had done enough
 Titchener v British Railways Board 1984 SC (HL) 34: 15-year old girl struck by train while
crossing a railway line. BRB had not failed in their duty by not constructing a stronger fence
round their property. The more self-evident the hazard, the less the need for signposts and
fences.
 o defence of volenti was applied bc she conceded that she appreciated what risk was; but
in any event court thought that BRB had met requisite degree of care incumbent upon
them in those circumstances
 It is not sufficient to state a danger was present in the occupier's premises, and that the pursuer
suffered injury as a result. The pursuer must show that the injury resulted from the failure of the
defender's duty to take care. to bring successful claim pursuer must show that occupier failed to
exercise such care as was reasonable in all circumstances of case and that pursuer suffered
harm by reason of such failure to take care. What action ought the defender to have taken to
avoid harm to the pursuer?
o See Davie above, where pursuer failed to specify in what way the defenders' system of
inspection was inadequate. Compare Porter v Strathclyde Regional Council 1991 SLT
446. (Pursuer slipped on mince and mashed potato on a nursery floor. Pursuer showed
that Council did not operate a system whereby spillages were promptly mopped up and
children were supervised at mealtimes.)
 occupier can modify ur liability by agreement but it’s generally not enough to unilaterally put up
sign saying no liability for injury; u must show that u’ve accepted that person who’s entered
premises has agreed to take risk
 workplace
o lots of public law provision in regards to workplace
o in old days public law statutes it was also recognised that injured person could invoke civil
liability where there was breach of public law safety obligations; in workplace that
landscape has changed v considerably as of 2013 so u need to look at more recent
textbooks on this one
o 2013 Act amended 1974 Act to effect that where u have public law health + safety
regulations regarding workplace they are not civilly actionable except to extent that
regulations so provide which goes against pre-2013 position

Lecture 19

 NEGLIGENCE
 English framework is slightly different
 contrast
o occupiers’ liability – about damage/injury caused within defender’s premises by hazard
encountered there
o nuisance – about activities that originate within defender’s property but cause
damage/disturbance outwith defender’s boundaries
 interference with amenity/enjoyment of property but no actual physical harm
 physical harm of property
 Ireland v smith: 2 neighbours; 1 neighbour was keeping flock of hens in their garden
making v loud noise; hens were not objectionable in themselves but in wrong place
 webster v la;
 pursuer was one of proprietors of flats adjacent to castle; she got fed up w
Edinburgh military tatoo happening every summer; court wasn’t prepared to
accept that Edinburgh military tattoo on castle was nuisance bc if u live in
castle u have to prepare for events from time to time; but they were prepared
to accept that scaffolding construction for seating for audience was creating
huge racket through summer months which could constitute nuisance for
proprietors nearby; ultimatum was given to tattoo organisers to find way to
do this more quietly
  Davidson v kerr: domestic applicances working during night was within
scope of normal domestic disturbance; outwith scope of nuisance
o Smells:
o Wheeler v Saunders [1995] 2 All ER 697: piggery close to holiday cottage
o Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] QB 455: smell from refuse
dump
o
o Offence to sensibilities:
o Laws v Florinplace [1981] 1 All ER 659 (available Lexis): defenders had bought over dress
shop and had converted it into sex shop in “residential” area; court recognised this as
nuisance bc it might offend sensibilities of residents; in 1981 this was affront to reasonable
sensibilities; lack of more recent authority as to what today might be regarded as offence
to sensibilities
o
o Disturbance of amenity causing loss of business?
o Globe (Aberdeen) Ltd v North of Scotland Water Authority 2000 SC 392
 authority was working on sewage network that they operated in Aberdeen; works
went on for ages entailing lots of mess, mud on pavements above sewage network;
so pursuers who operated pub were experiencing downturn in business; court
accepted that this disturbance to amenity could constitute nuisance; so economic
loss that derived from that disturbance could be recoverable; case was sent to
proof to see if facts could be established
o Interference with television reception?
o Hunter v Canary Wharf [1997] AC 655
 generally wont be regarded as nuisance
 huge building site in docklands of London; residents argued that wharf tower was
disturbing their television reception; court said that is not nuisance; they didn’t have
much precedent in point but they said well let’s look at analogies; there is no right
to pleasant view – interfering w pleasant view doesn’t constitute nuisance so
interference w television signal doesn’t constitute nuisance
 physical damage
 Flooding:
 RHM Bakeries v Strathclyde Regional Council 1985 SC (HL) 17

 Fire hazard:
 Cunningham v Cameron [2013] CSOH 193; 2014 GWD 3-69 – proprietor in block of flats blocked
off boiler to neighbour’s property which caused fumes to back up and buildup of heat caused fire
for which neighbour was liable – activities in ur own property that cause fire hazard to property
next door - constitute

 Structural damage:
 *Kennedy v Glenbelle 1996 SC 95 – proprietors in basement flat take out wall w consequent
structural damage for flats upstairs = nuisance

 Damp penetration:
 Powrie Castle Properties v Dundee City Council 2001 SCLR 146 – defenders went in for
extensive building works which meant that neighbours caused side wall to be exposed to
elements for protracted period which then became penetrated by damp
 Advancing knotweed:
 Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514 – pernicious type of weed
grows v fast and spreads v rapidly; chokes off other vegetation in area and can also start
interfering w structures; if u have it in ur property and don’t address it reasonably promptly and
allow it to spread to property next door, that constitutes significant disturbance of amenity which
can constitute nuisance

 Leakage of waste chemicals:
 Esso Petroleum Co Ltd v Scottish Ministers [2015] CSOH 21; 2015 GWD 7-134: Scottish GOv
had acquired land to make motorway; had been contaminated with chemicals; hadn’t taken
suffficent care to contain chemicals in course of works which spread to neighbours = nuisance

 Damaging fumes and vapours:
 *Watt v Jamieson 1954 SC 56 – faulty heating boiler was spreading fumes to properties in same
stair = nuisance
 Chalmers v Diageo Scotland Ltd [2017] CSOH 36; 2017 GWD 9-126 – pursuers lived next door
to large whisky bond operated by DIageo (large premises where whiskey matures in barrels and
small proportion called ANgel’s Share evaporates); angel’s share caused black fungus to
develop in neighbouring property; if these facts could be proved that would constitute nuisance
 must separate where pursuer is asking for interdict only [nuisance to be stopped] or damages
[compensation for what’s already happened]
 in all cases, first principle: u have to establish that harm was sufficiently grave to be actionable
o in addition, if uw ant damages u have to persuade court that defender was at fault for
causing nuisance
 The fault requirement is discussed at length by Lord President Hope in *Kennedy
v Glenbelle Ltd 1996 SC 95 at 100-1:
 “The essential requirement is that fault or culpa must be established. That
may be done by demonstrating negligence, in which case the ordinary
principles of the law of negligence will provide an equivalent remedy. Or it
may be done by demonstrating that the defender was at fault in some other
respect. This may be because his action was malicious, or because it was
deliberate in the knowledge that his action would result in harm to the other
party, or because it was reckless as he had no regard to the question
whether his action, if it was of a kind likely to cause harm to the other party,
would have that result. Or it may be -- and this is perhaps just another
example of recklessness -- because the defender has indulged in
conduct which gives rise to a special risk of abnormal damage, from
which fault is implied if damage results from that conduct. In each case
personal responsibility rests on the defender because he has conducted
himself in a respect which is recognised as inferring culpa by our law. So
what is required is a deliberate act of negligence or some other
conduct from which culpa or fault may be inferred.”
 fault can be established in range of ways – some may be
intentional/reckless/negligent etc.
  quite often neighbour knkows what they’re doing + that its irritating but will
carry on regardless bc they want to use property in way they choose – so
nuisances tend to be intentional
 damage nuisances tend to be negligent

 “Malice, intent, recklessness, negligence and conduct which creates a special risk of abnormal
danger” (Stair Memorial Encyclopaedia vol 14 para 89).

 Chalmers v Dixon (1876) 3 R 461 per Lord Justice Clerk Moncreiff at 464:

 “I think that culpa does lie at the root of the matter. If a man puts upon his land a new combination
of materials, which he knows or ought to know are of a dangerous nature, then either due care
will prevent injury, in which case he is liable if injury occurs for not taking that due care, or else
no precautions will prevent injury, in which case he is liable for his original act in placing the
materials upon the ground.”
 defenders were mining company and deposited mineral waste on their own
site which was flammable, caught fire and released noxious fumes that
spread to property next door
 successful claim of nuisance was made – health of proprietors next door
was affected
 there is heightened duty of care if u import dangerous materials to ur land
 fault in relation to omissions
o nuisance comes down harder than negligence law on omissions
o where proprietor has failed to protect potential hazard
 Sedleigh-Denfield v O'Callaghan [1940] AC 880 – 2 parties in fixed, enduring
relationship; proprietors are expected to know what’s going on in their land; owner
is at fault if they’ve continued to adopt nuisance on their land
 The defendants “knew the danger [that layout of drain structure meant it got
choked up and flooded onto neighbour’s property when rain was heavy],
they were able to prevent it and they omitted to prevent it” (Lord Atkin)
 Leakey v National Trust [1980] QB 485
o parties occupied neighbouring land on hillside; plaintiffs warned defendants of danger of
landslide coming onto defendant’s property down to plaintiff’s property; defendants didn’t
do anything abt it in time; landslide happened; defendants were held to be liable bc they
knew abt this problem aiting to happen on this land + failed to do anything to address it
 interdict – just need to show that nuisance exceeds tolerable levels; culpa doesn’t need to be
pled or proved – Logan v Wang
 English court allows future damages in lieu of injunction – allows praties to bargain – defenders
might find it hard to stop so damages can be awarded instead; Scottish Courts don’t do this –
say u can only get damage from past nuisance – but u can claim for protective measures – if u
suffered flooding in past, uc an get protected measures to protect u against flooding in future
 GA Estates Ltd v Caviapen Trs Ltd (No 1): shopping centre was flooded; proprietors successfully
claimed from various proprietors including those of adjacent property costs of better drainage to
protect themselves against problem
 second test: evaluating gravity of harm
 o If physical damage has been caused, this test does not require lengthy consideration. It
has more significance when what is alleged is interference with comfortable enjoyment of
property.
o The “plus quam tolerabile” test (“more than is tolerable”). See *Watt v Jamieson 1954 SC
56 per Lord Cooper at 58: - what would reasonable people living in area generally regard
as tolerable?
 “The balance in all cases has to be held between the freedom of a proprietor to
use his property as he pleases and the duty on a proprietor not to inflict material
loss or inconvenience on adjoining proprietors or adjoining property; and in every
case the answer depends on considerations of fact and of degree. I cannot accept
the extreme view that in order to make a relevant case of nuisance it is always
necessary for the pursuer to aver that the type of user complained of was in itself
non-natural, unreasonable and unusual...The critical question is whether what (the
pursuer) was exposed to was plus quam tolerabile when due weight has been
given to all the surrounding circumstances of the offensive conduct and its effects.”
 faulty gas boiler emitting noxious fumes throughout tenement – unpleasant
for flats above – causing structural damage – cour tagreed that creation of
unpleasant/damaging fumes from one flat to another was more than
reasonable neighbour should be expected to put up with; whole variety of
factors can be assessed; it’s not pursuer as individual but reasonable people
living in that locality would find intolerable/tolerable
o relevant factors in evaluating gravity of harm
 bone v seale: piggery smells spreading to residential accommodation; discussion
abt just how bad nuisance would have to be – smell didn’t have to be so bad to
make plaintiff physically sick;
 Ireland v smith: fact that u’d get hens in suburban garden was bad enough; but that
they’d make sounds first thing in morning
 Davidson v kerr: shipworkers using machines at regular hours wasn’t enough bc it
was normal activity

 Other factors such as the frequency of the disturbance and the time of day may be relevant in
evaluating the extent of the harm.
 if using property in way in character of rest of neighbourhood, generally neighbours
must put up w that
 macguire v Charles mcneil ltd: defenders were forgemasters who started
using new, noisier machinery; neighbours werearchdiceys of Glasgow – had
church, school, residential accommodation; they weren’t happy w increased
noise; but bc general character of area was p industrial they refused
injunction – it wasn’t greatly increasing noise levels
 those who are discharging public duties in industrial district may ahave to
put up with considerable amount of discomfort which they wouldn’t…

possibilities for reduction of impact of alleged nuisance - Has the pursuer taken reasonable
measures to reduce the harm suffered? What is reasonable?

o Edinburgh tattoo case: court said u could shut out noise by double glazing but this was
asking too much; had to be simple things to do -
 esnsitivitiy to harm of person/properlyaf fected
o generally not relevant consideration
  fact that pursuer has put their property to ultra-sensitive use is generally sth that
court can’t really take into consideration
 Armistead v Bowerman: proprietor was trying to run fish farm hatching salmon eggs
in woodland stream; proprietor next door was forrester and going abt routine
forestry operations; this dislodged debris, mud etc. that came downstream and
effectively destroyed salmon eggs so pursuer was engaged in v sensitive activity
trying to hatch salmon eggs; guy upstream was engaging in normal forestry
activities but debris that came down stream effectively destroyed fish factory
operation; court held that forestry operation couldn’t constitute nuisance in that
way; it was held that landowners can’t impose burden of extra care on neighbours
just bc they’ve chosen to put their property to special use – if neighbours are going
abt their normal business they shouldn’t have to take special measures just b cur
doing sth special – not regarded as nuisance – but different if someone acts w
malice
 relevance of public interest
o webster v ld advocate: emt was enterprise of massive importance for Scottish tourism;
court said that interest can’t overrule law; u can’t make one proprietor carry unfair burden
of disturbance even for greater good of larger community; that’s not fair; court granted
interdict
o ben nevis: nuisance was from fumes from aluminium smelter responsible for huge
aluminium production for Britain; but that didn’t mean operators could operate their
business in such a way that fumes were being emitted to surrounding property so
livestock,m vegetaition was suffering; they had to clean up their act so it wasn’t causing
nuisance to proprietors
 must not contravene ECHR Art.8
o Marcic v Thames Water Utilities: M’s garden was flooded every time that there was heavy
rain up to his door with sewage effluent bc in heavy rain local sewerage network was
getting eroded and bursted and flooding; was overloaded to level of usage in area – said
under ECHR that this was incompatible w Art.8; HoL said this was not nuisance/breach
of Art.8 bc water authority couldn’t be said to have adopted nuisance in same way as
previous case; water authority was obliged by statute simply to accept new proprietors by
right; they had no way of excluding them when new houses were built; they had to operate
system of priority as best they could; proportionality – national legislatures must have
discretion in choosing appropriate frameworks that balance resources w needs;
parliament had put in palce statutory framework to deal w severage syste – had put in
place regulator, statutory complaints procedure, etc. which M had attempted to bypass;
so proper course here was to go through statutory complaints procedure; but they weren’t
prepared to recognise liability/nuisance
o DObson: sewage works was spreading unpleasant odor _ mosquitos to nearby residential
area; court was persuaded that residents had made relevant claim under ECHR but said
that bc they’d already claimed remedy under law of nuisance they weren’t going to reward
increased compensation under ECHR since award of damages was already made under
law of nuisance; one of claimants was actually son of one of owners and was allowed to
make claim under ECHR which wouldn’t have been available to him under law of nuisance
 title to sue
o focus of law of nuisance is to protect right to enjoy property – focuses on property, not
person – doesn’t deal w physical injury – right is normally restricted to owners and tenants
 o hunter: litigation as brought by whole range of people – owners, tenants, cohabitees; court
immediately threw out claims made by individuals not owners/tenants; under ECHR ARt.8
protects home so remedy may lie in ECHR for disturbance to home but not law of nuisance
– Dobson illustrates that
 liability in nuisance for actions of tohers
o stewart v malik: u can’t avoid liability by saying that u’ve delegated hazardous works to
third party contractor
o powrie castle: court said u can’t just say ur not liable bc u instructed someone else to do
it for u – if u instruct someone to do necessarily dangerous works u have to accept
consequences
 (a) Statutory authorisation
o A defence may be available where the statute expressly authorised the nuisance, or
alternatively if the creation of a nuisance was an inevitable consequence of the operations
expressly authorised ( Allen v Gulf Oil Co Ltd [1981] AC 1001). However, this is subject
always to compliance with the Human Rights Act 1998, s 6(1): “It is unlawful for a public
authority to act in a way which is incompatible with a Convention right”.
o Note also that planning authorities have no jurisdiction to authorise a nuisance: i.e. the
grant of planning permission is in itself no defence to an action brought in nuisance. At
the same time, the effect of the grant of planning permission may be to change the
character of a locality over time.
o Wheeler v Saunders [1995] 2 All ER 697: piggery case; saundres got planning
permission for building piggery; court recognised there was nuisance – fact that there is
planning permission is neither here nor there
o Coventry v Lawrence [2014] UKSC 13; [2014] AC 822: planning permission for racing
track was not in itself defence when neighbours complained that noise had exceeded
tolerable levels
 (b) Volenti not fit injuria etc
o No defence that the pursuer knowingly “came” to the nuisance – moved there with
knowledge of nuisance (see e.g. Webster v Lord Advocate 1985 SC 173: lady who moved
to garden knew tattoo happened every year at castle), but valid defence if pursuer
indicated that s/he was willing to accept the nuisance, or if pursuer can be proved to have
acquiesced in the nuisance in such a way as to imply consent.

Lecture 20

 there are separate delicts against the person that each have their own rule system
 assault
 Bell, Principles, § 2032:
o “Assault and Battery. Personal violence is to direct and gross an invasion of the right [of
personal safety], as to require reparation wherever there is no justification on account
of official duty; or absolute necessity; or self-defence; or the defence of one’s wife or child,
or property; or excuse by unavoidable accident. Verbal injury is no justification. The civil
claim of damage is not merely for damage sustained, but in solatium for affront and
insult. It is not discharged by the interposition of the criminal law; and the demand is for
indemnification of the injury, not for punishment.”
o in civil case standard of proof is lower – on balance of probabilities
o in criminal case standard of proof is beyond reasonable doubt
 Downie v Chief Constable, Strathclyde Police: civil claim of assault + obtained reparation bc of
excessive of physical force he experienced at hands of police
 assault can be constituted by threatening behaviour – old authorities but no modern case law on
this point – modern delict of harassment is more suitable for this
 physical element of assault can be affront/hostile element
o relevant in actions against public officials, e.g. police
o Collins v Wilcock:
o English law of assault and battery is slightly different in structure; good example of what
hostile intent is tho English case
o police on patrol spotted 2 women who he wrongly thought were soliciting for trade as sex
workers; he went to grab them and take them away for questioning; it was held that action
of grabbing them to put them into police car for questioning was capable of constituting
assault; physical contact was perhaps not huge/lasting but there was significant hostile
dimension to this unlawful contact to her person without justification
o that being said police use of force is justified; in police cases there is presumption against
necessary hostile intent – there is presumption that there is no hostile intent if use of force
is regarded as proportionate to detain someone who there is reasonable grounds to
suspect
o Mckie v Orr: that presumption is hard to shift
o where unwanted physical contact takes form of sexual abuse there is recognised delict of
child sexual abuse
 AvN
 DC v DG and DR: also applies to sexual assault on adults (women); pursuer
alleged that 2 defenders had sexually assaulted and raped her; prosecution fell
apart + didn’t proceed; nonetheless pursuer was able to bring civil proceedings and
was able to establish on balance of probabilities that that assault had taken place
and was thus able to vindicate wrongs in that way
 AR v Coxen: not proven verdict was returned in rape case but pursuer
subsequently brought civil proceedings; on balance of probabilities in civil case she
was able to establish that this attack had taken place w/o her consent and establish
liability
 assault is non-consensual invasion of physical/bodily integrity; if pursuer has contented to level
of physical contact there’s no action of assault; element of hostility is not present if there is
consent
 consent requires that individual had capacity to give consent
o dc: there was no dispute that sexual contact had taken place; but defender’s argument
was that it was consensual on victim’s part; a lot of tension of court at proof was taken up
w examining evidence of witnesses that brought it to conclusion that he was so heavily
intoxicated that her cognitive functioning was severely impaired that she was incapable
of giving consent to sex
o contact mustn’t exceed level that pursuer has consented to
 e.g. sport – if it’s contact sport u impliedly consent to level of contact in
rugby/football scrimmage – that physical contact is not considered assault bc it’s
consensual + not hostile
 if there is tackle/foul play within normal tumble of game that is still regarded as sth
to which u impliedly consent
 but if u have deliberate violence that goes beyond what u’d normally expect in
match that is capable of constituting assault; even if there’s no hostile intent lack
of due care falling below standard of ordinary player might constitute negligence
 o contact by doctor is impliedly consented to unless it goes way beyond what would
normally be expected
 As already discussed, the issue of consent also arises in relation to medical treatment. Patients
are normally asked to give consent before treatment proceeds, which means that the subsequent
physical contact does not constitute an assault. However, note that medical personnel are under
a duty to take care that the patient is informed of any material risks, to which a reasonable patient
would attach significance, involved in any recommended treatment. Failure to provide adequate
information is a breach of the doctor's duty of care towards the patient; i.e. this is a matter for the
law of negligence. For more on this point look back to discussion of Montgomery v Lanarkshire
Health Board [2015] UKSC 11; 2015 SC (UKSC) 63 in lectures on standard of care at page 41
of this handout).
o parents consent to procedures for v young children – 16 is age of capacity
o according s2(4) age of legal capacity 1991 act children under 16 are capable of giving
consent to medical treatment if capable of understanding, e.g. younger teenagers on
advice on contraception
 defences: self-defence/provocation
o right to reparation arises where there is no justification – use of force can be justified by
way of self-defence but only if it’s proportionate to danger presented by pursuer
o Ashley v Chief Constable Sussex Police: use of force was put forward as example ofs elf-
defence but court didn’t think it was proportionate
 action was brought against police as vicariously liable for police officer taking prat
in raid of house of suspect; burst into this man’s house v early in morning armed;
as police burst into his home deceased jumped out of bed and had no clothes on
and police said they thought he was armed and thus shot him; misapprehension
that man w no clothes on w nothing in his hands was armed is v bizarre; man was
killed; police officer was later acquitted on criminal charge in relation to killing but
victim’s family was allowed to bring civil claim bc standard of proofw as different
between criminal and civil proceedings
 criminal – someone who mistakenly but honestly believed they had to act in self-
defence was judged on basis that that mistaken but honest belief was true
 civil – belief that ur acting ines lf-defence must be both honestly and
REASONABLY held and on facts of this case it did not appear that it was
reasonable for that police officer to believe that he needed to shoot man to defend
himself
 “It is one thing to say that if A's mistaken belief was honestly held he should not be
punished by the criminal law. It would be quite another to say that A's unreasonably
held mistaken belief would be sufficient to justify the law in setting aside B's right
not to be subjected to physical violence by A. I would have no hesitation whatever
in holding that for civil law purposes an excuse of self-defence based on non
existent facts that are honestly but unreasonably believed to exist must fail.”
 if defender was provoked by pursuer pursuer’s claim isn’t denied altogether but amount of
damages is reduced proportionately
o McLaughlin v Morrison: court has to be convinced there is causal connection
 “…provocation by a pursuer may operate to reduce the amount of damages
recoverable by him or her for an injury caused by an assault. It is clear from the
decisions, however, that it must be established that the defender was provoked by
something that the pursuer did or said. There must, in other words, be a causal
connection between the alleged act of provocation and the delictual
 response. Further, the act of provocation must be a wrongful act, otherwise
an entirely innocent act which happens to anger an irrational wrongdoer would
operate to exclude or mitigate damages for injury caused by the irrational
wrongdoer's unlawful act. It is necessary, therefore, to establish what behaviour on
the part of the victim operated on the mind of the wrongdoer and to what effect.”
 intentional infliction of emotional distress
 Wilkinson v Downton: English case Scots courts hv refered back to; defendant went into pub and
told pub landlady that her husband has gone to races one day and that he’s broken his leg in a
bad way and she’ll need to transport him to get him back home – was practical joke – wasn’t
true, nothing happened to husband at all; did this to entertain people in pub; produced nervous
shock in landlady to such extent that she was physically unwell for weeks; defendant was found
liable in damages
 OPO v Rhodes: ex-wife of musician raised proceedings in name of their 11y/o son to try to
prevent Rhodes publishing his memoirs bc they detailed harrowing experiences that he had had
of abuse at his ENglish public school and discussed his reaction to this; she argued that
publishing this would inflict distress on their 11y/o son if he heard of it; cited Wilkinson v Downton
– said this was intentional infliction of emotion distress on her son; court acknowledged that this
case had continuing relevance in modern law and pulled tgt what u need for this tort into 3
elements
 “We are inclined to the view, which is necessarily obiter, that the tort is sufficiently contained by
the combination of (a) the conduct element requiring words or conduct directed at the claimant
for which there is no justification or excuse, (b) the mental element requiring an intention to cause
at least severe mental or emotional distress, and (c) the consequence element requiring physical
harm or recognised psychiatric illness.”
o publication of this bookw asn’t targeted directly at son – there was justification here that
defendant alluded to – freedom of expression – in principle one ought to be able to publish
one’s memoirs when experiences of this nature have occurred – so (a) element wasn’t
established
o (B) – there was no intention to cause harm here – he wasn’t intending to cause his son
distress
o bc (a) and (b) weren’t established (c) wasn’t established
o in order to establish liability u need sth quite serious
 harassment
o harassment Act 1997 s8 – imposes obligation not to cause harassment ine vent of actual
harassment/apprehended harassment – court can award interdict/damages in respect of
past distress – if interdict is breached criminal liability kicks off at back of that
o statutory delict
o catch for this is that harassment must be constituted in course of conduct – single incident
is not enough (only exception is in context of domestic abuse – s8a says one incident is
enough) but otherwise u need more than 1 incident
o harassment is v broadly understood – any form of conduct including speech as well as
physical actions – doesn’t require immediate violent acts/physical confrontations – no
requirement that it needs to be criminal in nature (s8(3): defined non-exhaustively simply
defined in terms of victim’s reactions – any conduct that causes someone alarm/distress
o bc harassment is defined so broadly it tends to take over other delicts which are more
difficult to set up
o Majrowski v GUy’s & St Thomas’s: “All sorts of conduct may amount to harassment. It
includes alarming a person or causing her distress…But conduct might be harassment
 even if no alarm or distress were in fact caused. A great deal is left to the wisdom of
the courts to draw sensible lines between the ordinary banter and badinage of life
and genuinely offensive and unacceptable behaviour.”
o Green v Chalmers: neighbour relationship went sour; it was whole catalogue of harassing
incidents – all capable of constituting harassment;
o must occur in circumstances where it would appear to reasonable person that this conduct
amounts to harassment – it’s not enough for pursuer to think this when reasonable person
wouldn’t
o dickie: pursuer thought campaign of harassment against him by manager at previous
workplace; evidence indicated that he had sensitive personality and had unrealistic
exepctations of how other people should be around him; he had irrational beliefs that
conduct was targeted at him when it wasn’t
o employer can be held vicariously liable for employee who has harassed colleague if there
is close connection between harassment and nature of employment – Majrowski
 wrongful deprivation of liberty
o right to protect personal liberty is fundamental – echr art.5
o Liberty is a “most precious right, yet it is not absolute” (Stair, Institutions, 1.2.5).
o private law right to reparation
o in principle someone who is detained against their will by another private party has
grounds for claim against them long before ECHR – this is actionable delict
 MacKenzie v Cluny Hill Hydropathic: hotel guest has dispute w some other guest;
goes to manager’s office and won’t let her leave office until she apologies to other
guest; held for 15min until she agrees to apologise; court held in that case that
despite this v short time period if facts were proved that would constitute wrongful
detention on part of hotel manager; so private disputes generally don’t weigh
sufficiently against right to individual liberty
 police will often bring public interest arguments to justify detention
 Henderson: industrial dispute where hospital lab workers had sit-in at lab;
were perfectly peaceful; police was called, removed workers and took them
to police station; court held that was detention was justified on public policy
grounds – to allow work of lab to continue so patients’ health wouldn’t suffer
 Austin: claimants along w many others were kettled – held in confined public
space in London to wait for nearby demonstration to die down – held for
many hours – court held that didn’t constitute English tort of false
imprisonment – also didn’t constitute breach of Art.5 ECHR – bc police
response was proportionate in public interest – there was threat of public
disorder so this was proportionate and legitimate response to that threat
 some degree of physical confinement is necessary but any physical
confinement beyond what’s necessary for their mental health/safety issues
is unlawful
o wrongful arrest – how to establish damages if wrongfully arrested
 McKinney v Chief Constable Strathclyde Police 1998 SLT (Sh Ct) 80 per Sheriff
Principal Cox at 82:
 “In my opinion the decided cases can be divided between those in which the
pursuer avers that he or she has been deprived of liberty unlawfully — in
which case averments of malice are unnecessary — and those in which the
pursuer concedes that the constable had the power to arrest or detain but
 that the exercise of that power on the particular occasion was unwarranted
— in which case malice must be averred and proved.”
 first case – u have grounds of action which give rise to right to reparation
and u don’t need to prove malice
 second case – u need to prove malice
 Whitehouse v Gormley:
 arose out of rangers football club insolvency – pursuer was one of
administrators appointed to hel pw insolvency administration – was accused
of fraud + perverting justice
 in association w that he was questioned, detained for lengthy periosd of time
at police station including overnight on 2 occasions; no charges were ever
brought against him; he claimed damages against police; lord Malcolm said
police should be able to discharge the duties of their office without being
exposed to civil damages claims unless want of probable cause and malice
are proved; anything less isn’t enough to set aside privilege – even if arrest
was unlawful malice must still be proved
 Downie: police found another suspect at DOwnie’s house; didn’t find suspect; so
they frightened him, assaulted him, arrested him, held him in cell for 4 days;
criminal charges against him were patently trunked up; thrown out – charges
against him didn’t stand; so in subsequent civil case he was awarded £1500 for
assault and £2000 for wrongful arrest in detention where clearly they’d detained
him on trunked up charges – no valid justification for that; court didn’t expressly
address malice bc no whitehoues v g but it was fairly extreme cricumstances where
u can establish malice; it’s v hard to set up usually; so court in whitehoues is telling
us it is required – it has gone forward to proof; it remains to be seen whether there
will be appeal to that case, whether it goes to proof or not, there may be further
developments on that point; but at the moment last word is that u need to prove
not just that arrest was prima facie unlawful but malice too in order to get damages
against police

Lecture 21

 defamation: restraining others from telling lies in such a way as to diminish pursuer’s reputation
 common law delict
 defamatory imputations
 pursuer must establish that
o the defender made the imputation in question;
o the imputation referred to, or was capable or being understood as referring to, the
pursuer; and
o the imputation conveyed a defamatory meaning in the sense that it
 injured the pursuer’s reputation in the eyes of others;
 exposed the pursuer to public hatred and contempt; or
 exposed the pursuer to affront by insulting his or her character.
 manner of defamatory imputation
o Words and images spoken or written in print or electronic form. No formal distinction
between “libel” and “slander” in Scots law.
 examples
o Dishonesty or criminal conduct e.g. Gilbert v Yorston 1997 SLT 879 (finance officer
fiddling expenses).
 o Sexual impropriety e.g. Sheridan v News Group Newspapers Ltd [2016] CSIH 67; 2017
SC 63 (married politician labelled a “love rat”) – accusing someone of sexual infidelity
o Allegations of conduct “that most people would find repugnant” e.g. Cayzer v Times
Newspapers Ltd 2015 SLT 501 (accused executor of failing to honour testamentary
wishes of deceased in terms of disposing of collection of vintage cars).
o Professional misconduct or incompetence e.g. Fraser v Mirza 1993 SC (HL) 27
(accusations of racism on part of police officer); Munro v Brown 2011 SLT 947 (unsporting
conduct by a curling champion)
o exposure to ridicule?
 defender says sth untrue but as a joke
 courts expect that people in public eye/media would develop thick skin when it
comes to certain amount of banter
 sunday herald reported:
 Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555 per Lord Macphail at
para 24: said skittish story in Herald abt him was defamatory;
 “it would have been clear to the ordinary reasonable reader that the pursuer,
like the other three journalists mentioned, was being chaffed or teased by
the diarist in a good-humoured or bantering manner for having written a
story which could be described as a ‘gaffe’…the reader would not have
regarded the passage as conveying any of the very serious meanings
pleaded by the pursuer.”
 if joke masks more serious allegations about character that would be
different; but here it was just a gaffe
 mode of communication
o defamation can only take place if imputation in question was communicated, usually
published
o difference betweens cots and English law; in scots law it’s sufficient that imputation is
spoken/sent to pursuer; it doesn’t have to be published
o Thomas v Kindell: defamatory remark in telegram that only pursuer saw was enough to
constitute defamation; but this case was 100+ years ago; these days courts would prob
be quite sceptical if u suffered injury from false allegation that has gone no further than ur
own eyes
o Remarks on twitter can be held to be defamatory: Lord McAlpine of West Green v Bercow
[2013] EWHC 1342 (QB).
o
o On potential liability of internet service providers see Tamiz v Google Inc [2013] EWCA
Civ 68; [2013] 1 WLR 2151.
 ISP INternet service providers are only liable up to point that they are made; after
defamatory remarks are made ISPs have to take them down
 The question is “what the ordinary man, not avid for scandal, would read into the words
complained of” (Lewis v Daily Telegraph Limited [1964] AC 234 per Lord Reid at 260)). – it’s
what ordinary person ought to think
o See, e.g., Roddie v Associated Newspapers Ltd [2015] CSOH 30; 2015 SCLR 589.
 But who is the “ordinary” person, and how can the court second-guess the “ordinary” person’s
assessment. See Cowan v Bennett 2012 GWD 37-738 per Sheriff McGowan at para 107 on the
question: “Is an Imputation of Homosexuality Defamatory?”
o “… it appears to me that an imputation of homosexuality cannot generally be regarded as
calculated (i.e. likely) to harm the reputation of a person, save perhaps in very special
 circumstances. As [counsel for the defender] put it, times have moved on. Homosexuality
is not illegal. On the contrary, the rights of homosexuals are widely protected by the law.
There are many people in public life in Scotland and the UK who are openly homosexual.
Looked at in that way, it is difficult to see how an imputation of homosexuality could be
defamatory.”
o whether or not it’s true, it couldn’t be construed as defamatory bc no matter what individual
parties may have thought it shouldn’t and therefore couldn’t be regarded these days as
lowering individual in estimation of ordinary person to suggest they are gay; so it’s not
defamation
 innuendo can sometimes be thought of as having defamatory connotation bc of innuendo that
they create – beyond absolute literal meaning, people on receiving end would put this tgt w other
facts they know abt and construe sth further from it
 Norman v Future PUblishing: famous opera singer was very large; she sued English record
magazine for reporting instance in which she allegedly got stuck in doorway; passerby suggested
to her why don’t u go in sideways; report said her respone was “honey, I ain’t got no sideways”’
she didn’t like report; she didn’t deny she was large but said she was cultured, educated person;
she was also black American; she wouldn’t have made remark like that bc that suggests it’s
uneducated, uncultured turn of speech; so this report was making her appear ridiculous; doesn’t
mean much on its own but put together with other things creates innuendo that she is uncultured;
case was unsuccessful bc of context of articles – other reasons – but innuendo was seen to be
defamatory
 Lord McAlpine of West Green v Bercow: tweet in middle of media storm abt prominent politician
implicated in child abuse; defendant tweeted why is lord mcalphine trending w innocent face; in
midst of media speculation abt who was implicated in this child abuse story that carried innuendo
– sarcastic, innocent face – knowing that media storm was in background carried innuendo that
lord mcalphine was individual concerned; thus accepted as being defamatory
 Monson v Tussauds: pursuer was put in wax effigy in chamber of horrors; created innuendo that
he was horror; when in fact he’d been found not proven in murder case
 effect of imputation
 See Gillick v British Broadcasting Corporation [1996] EMLR 267 per Lord Neill at 272-273:
o “(1) The court should give to the material complained of the natural and ordinary
meaning which it would have conveyed to the ordinary reasonable viewer watching the
programme once.
o (2) The hypothetical reasonable reader (or viewer) is not naive but he is not unduly
suspicious. He can read between the lines. He can read in an implication more readily
than a lawyer and may indulge in a certain amount of loose thinking. But he must be
treated as being a man who is not avid for scandal and someone who does not, and
should not, select one bad meaning where other non-defamatory meanings are
available.
o (3) While limiting its attention to what the defendant has actually said or written the court
should be cautious of an over-elaborate analysis of the material in issue.
o (4) A television audience would not give the programme the analytical attention of a
lawyer to the meaning of a document, an auditor to the interpretation of accounts, or
an academic to the content of a learned article.
o (5) In deciding what impression the material complained of would have been likely to
have on the hypothetical reasonable viewer the court are entitled (if not bound) to have
regard to the impression it made on them.
o (6) The court should not be too literal in its approach.
o (7) A statement should be taken to be defamatory if it would tend to lower the plaintiff in
the estimation of right-thinking members of society generally, or be likely to affect a
person adversely in the estimation of reasonable people generally.”
 Christie v Robertson: dispute; was blurted out in heat of moment and not meant as serious
allegation; so remarks in heat of moment wouldn’t regarded as defamatory
 its presumed that when someone says sth false and damaging that they intended to harm
individual; it’s no defence to say u didn’t mean to offend
 focus isn’t on defender’s subjective level of intention but objective interpretation by reasonable
person
 In unprivileged cases the defender’s subjective level of intention is not relevant – what is the
objective interpretation that the reasonable person would put on the statement? Innocence of
intention is therefore no defence at common law.

 E Hulton & Co v Jones [1910] AC 20: magazine published article abt someone called Artemis
Jones; unfortunately a real Artemis Jones sued for libel; it was accepted that author/editor didn’t
necessarily know abt this individual’s existence and thus couldn’t intend to harm him; but even
so this was no defence if reasonable readers could take that story as referring to plaintiff and
he’d suffered injury as a result
 Munro v Brown: pursuer had been member of Scottish curling team; she’d been dropped from
side; defender was coach; he had said publicly that pursuer had refused to play for side; not true
she hadn’t refused, she had been dropped; it damaged her reputation as sportswoman; defender
said he got his facts wrong, he genuinely believed that’s what happened; court said this wasn’t
enough for him to say he was misinformed; so ur subjective level of intention doesn’t matter
 Defamation Act 1996 ss 2-4 provides statutory mechanism whereby the defender may make an
offer of amends – u can make offer in writing to make correction/pay agreed amount of
compensation; if that offer is accepted it’s end of story; if u make REASONABLE offer and it’s
rejected, then that is defence in any subsequent action
 who can sue?
o Companies, partnerships and voluntary associations may be defamed, but cannot sue for
solatium, only patrimonial loss, bc they don’t have feelings although this may include
impact on the “good name of a company”. Jameel v Wall Street Journal Europe [2007] 1
AC 359
o Elected governmental bodies? – can’t
 “It is of the highest public importance that a democratically elected governmental
body, or indeed any governmental body, should be open to uninhibited public
criticism. The threat of a civil action for defamation must inevitably have an
inhibiting effect on freedom of speech.” (Derbyshire County Council v Times
Newspapers [1993] AC 534 per Lord Keith at 547.)
o Defaming the dead: distinguish communications made before and after subject’s death.
Damages (Scotland) Act 2011 s 2.
 executors can continue any actions that deceased commenced before their death
 executors can raise action to recover patrimonial loss for communications made
before subject’s death
 once subject is dead, no action in defamation will lie;
 defences
 veritas (truth)
 if person is defamed theres presumption that that defamatory is false; pursuer doesn’t have to
prove that; but it’s up to defender to rebut that presumption; if they can prove on balance of
probabilities that statement is true, case against them falls – what they have to prove depends;
if remark is abt one specific incident, defender has to prove that that incident did occur; but
sometimes it’s abt pattern of behaviour/ general character trait it becomes more difficult to prove
 that it’s true; if newspaper runs story that politician is dishonest/habitual liar it’s difficult to prove
that that’s true – they cant just show that he told lie on one occasion; one incident is not enough
to prove pattern of behaviour; defence of veritas must prove that sting/substance of allegation
was true
o sarwar: pursuer was successful candidate in parliamentary election; newspaper ran story
that he had bribed rival candidate to run unsuccessful campaign so pursuer would more
readily win election; it was held that in order to establish defence of veritas defenders
would have to prove v specifically how this happened – not just that money changed
hands but that more specifically money had been paid as bribe to this individual; so actual
sting, specific target of allegation, was true; defence of veritas must match real target of
allegation; if it doesn’t it’s not sufficient
 However, error as regards ancillary, non-defamatory details will not bar the defence.
o “In an action for libel or slander in respect of words containing two or more distinct charges
against the plaintiff, a defence of justification shall not fail by reason only that the truth of
every charge is not proved if the words not proved to be true do not materially injure the
plaintiff's reputation having regard to the truth of the remaining charges.” (Defamation Act
1952, s 5)
o Spent criminal convictions? Effect of Rehabilitation of Offenders Act 1974, s 8
 innocent dissemination – defamation where defender wasn’t actual author/editor of statement
but someone that disseminated it, e.g. ISP
o that defence flies off as soon as they are made aware of content
o defamation act 1996 s1
 failure to accept offer of amends
o defamation act 1996 s4
 fair comment/honest opinion
o when someone has made allegedly defamatory remark in position of being
critic/expressing honest opinion – in interest of freedom of speech any person should be
able to express pov which might be critical w/o fear of litigation
o essential features of that are in Joseph v Spiller: statement in issue was regarded as
comment rather than statement of fact; matter was sth there was public interest in; factual
background was true even tho comment itself may be negative
o defenders must prove this – even if defender proves these 3 things pursuer can then turn
round and say that even so it’s not fair bc statement was made out of malice rather than
any desire for legitimate comment
 absolute privilege
o Absolute defence - malice irrelevant.
 Remarks made in the Westminster of Scottish Parliaments (Scotland Act 1998,
s.41), or before Select Committees, or reported in Hansard.
 Statements made during judicial and quasi-judicial proceedings by judges,
pleaders, witnesses.
o Defamation Act 1996, s 14 – fair and accurate reports of court proceedings.
 cases that attract qualified privilege – presumption that statement was made in good faith – case
will only succeed if pursuer can show malice
o employment references – old employer is under social duty to provide it and in interest of
new employer to receive it; situ that’s protected by qualified privilege; law of defamation
will not enter into that interaction bc there’s qualified privilege unless u can prove malice
o similar privilege would apply to complaints given to police with regard to crime/wrongdoing
 Specific contexts for qualified privilege
o Published reports
 Fair and accurate reports of proceedings in Parliament, meetings of international
organisations, local authorities etc. Defamation Act 1996, s 15.
o Peer-reviewed statement in scientific or academic journal etc, Defamation Act 2013, s 6.
o Media coverage of matters of public concern?
 “Responsible journalism”
 Article 10 ECHR
 must balance Art.8 + Art.10 – right to reputation + right to freedom of expression
 Human Rights Act 1998, s 12
 Reynolds v Times Newspapers [2001] 2 AC 127 per Lord Nicholls at 205. PM of
Ireland claimed he was defamed by Times article saying he misled his colleagues
in Irish Parliament. The following are the factors listed by Lord Nicholls as
indicators of responsible journalism in determining whether privilege should apply.
A combination of these may require to be present before privilege is recognised,
but note that it is not necessary for all to be established:
 “1. The seriousness of the allegation. The more serious the charge, the
more the public is misinformed and the individual harmed, if the allegation
is not true.
 2. The nature of the information, and the extent to which the subject matter
is a matter of public concern.
 3. The source of the information. Some informants have no direct knowledge
of the events. Some have their own axes to grind, or are being paid for their
stories.
 4. The steps taken to verify the information.
 5. The status of the information. The allegation may have already been the
subject of an investigation which commands respect.
 6. The urgency of the matter. News is often a perishable commodity.
 7. Whether comment was sought from the plaintiff. He may have information
others do not possess or have not disclosed. An approach to the plaintiff will
not always be necessary.
 8. Whether the article contained the gist of the plaintiff's side of the story.
 9. The tone of the article. A newspaper can raise queries or call for an
investigation. It need not adopt allegations as statements of fact.
o they hadn’t sought comment from plaintiff so defence wasn’t
available to them bc they hadn’t met this important criteria
 10. The circumstances of the publication, including the timing.”
 *Jameel v Wall Street Journal Europe [2007] 1 AC 359. Endorsed list of 10 factors
and summarising the main elements of responsible journalism:
 (i) whether the subject matter of the article was a matter of public interest;
 (ii) whether the inclusion of the defamatory statement was justifiable; and
 (iii) whether the steps taken to gather and publish the information were
responsible and fair.
 said u don’t have to tick every single one of these tests; u have to look at
them as whole and see if individual press organisation has acted
responsibly – flexible guide to which privilege would apply; boiled 10 factors
down to 3 elements
  defence was successful. newspaper article that claimants’ business
accounts were monitored by Saudi arabian authorities to see if they were
being used for terrorist organisations. court held 3 elements were satisfied.

Lecture 22

 confidentiality and privacy

 The essence of breach of confidence is that if A discloses confidential information to B, B must
not then pass it on to C. If B nevertheless does so, C is similarly under an obligation not to pass
on the information to D where C “has notice, or is held to have agreed, that the information is
confidential” (Attorney-General v Guardian Newspapers [1990] 1 AC 109 per Lord Goff at 282
(emphasis added)).
 How should B know that the information disclosed to him/her is confidential?
 “The information...must have the necessary quality of confidence about it. Secondly, that
information must have been imparted in circumstances importing an obligation of confidence.
Thirdly, there must be an unauthorised use of that information to the detriment of the party
communicating it.” (Coco v A N Clark (Engineers) Ltd [1969] RPC 41 per Megarry J at 47)
 second criterion is difficult – how is someone receiving info supposed to know it’s confidential?
 “I start with the broad general principle ... that a duty of confidence arises when confidential
information comes to the knowledge of a person (the confidant) in circumstances where he has
notice, or is held to have agreed, that the information is confidential, with the effect that it would
be just in all the circumstances that he should be precluded from disclosing the information to
others.” (Attorney-General v Guardian Newspapers [1990] 1 AC 109 per Lord Goff at 281)
 AG v Guardian Newspapers
o “I of course understand knowledge to include circumstances where the confidant has
deliberately closed his eyes to the obvious.”
 Campbell v Mirror Group Newspapers Ltd
o Naomi Campbell photographed leaving drug rehabilitation centre
o “[Breach of confidence] has now firmly shaken off the limiting constraint of the need for
an initial confidential relationship… Now the law imposes a “duty of confidence” whenever
a person receives information he knows or ought to know is fairly and reasonably to be
regarded as confidential.”
o damages were rewarded against newspaper from receiving that photo from paparazzi –
they were deemed to have notice that that info was confidential in addition to paparazzi
 Commercial Information
 Oil Technics Ltd v Thistle Chemicals Ltd 1997 SLT 416: court granted interdict to stop former
employees taking w them and using old employers’ formulae for cleaning solvents
 Response Handling v BBC 2008 SLT 51

 Information gained by former members of the security services.
 Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
 Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122
o even tho there may be breach of confidence there may be principles that limit scope of
breach of confidence
o info obtained by members of intelligence services is jealously guarded
o former agents for MI6 and MI5 threatened to publish their memoirs; court held that this is
form of employee secret jealously guarded in regard to security services; in this case
content of those memoirs – these were retired personnel – was old news; ppl knew abt it
 anyway; so court refused to bring down protection of breach of confidentiality when it was
concerning sth that was well-known anyway; didn’t satisfy first criterion
 Professional confidences
 Turner v Royal Bank of Scotland [1999] All ER (Comm) 664
o banks shouldn’t disclose info w/o customers’ consent; confidentiality obligation flies off if
effect of keeping secret would be covering up fraud
 Cf Conoco v Commercial Law Practice 1997 SLT 372

 Information about personal relationships
 Duchess of Argyll v Duke of Argyll [1967] Ch 302
o DUke had recently divorced Duchess; afterwards he decided he would publish details of
their life tgt in sunday newspaper; duchess successfully brought action to prevent him
from doing so; even tho in 1960s u may regard duchess as being on moral low ground
nonetheless that didn’t give duke right to broadcast intimate confidences of their marriage
o personal relationships can be friendships
 breach of privacy? no tort in English law; scots law was undecided on matter
 this changed at beginning of 21st century w enactment of HRA 1998 and need to provide
appropriate protection by courts for Art.8 which protects home and private life; however there is
also Art.10 protection for freedom of expression; HRA 1998 actually filled out/developed common
law; courts used impetus of HRA to fill that gap in common law
 Since the enactment of the Human Rights Act 1998, the rights set out in Articles 8 and 10 ECHR
have ceased to be “merely of persuasive or parallel effect” and have now entered into “the very
content” of the common law in this context (McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB
73 per Buxton LJ at para 11).
 so new tort of misuse of private info was borne out of case of Campbell v Mirror Group
Newspaper Ltd: “The continuing use of the phrase ‘duty of confidence’ and the description of the
information as ‘confidential’ is not altogether comfortable. Information about an individual's
private life would not, in ordinary usage, be called ‘confidential’. The more natural description
today is that such information is private. The essence of the tort is better encapsulated now as
misuse of private information.”
 Mosley v Newsgroup Newspapers Ltd [2008] EWHC 1777 (QB); [2008] EMLR 20 per Eadie J at
para 7:
o “The law now affords protection to information in respect of which there is a reasonable
expectation of privacy, even in circumstances where there is no pre-existing relationship
giving rise of itself to an enforceable duty of confidence. That is because the law is
concerned to prevent the violation of a citizen's autonomy, dignity and self-esteem.”
 Balancing Act
o The “new methodology” for balancing Article 8 (right to private life) against Article 10 (right
to freedom of expression) in relation to “misuse” of private information is as follows
(paraphrasing Mann J in Richard v BBC [2018] EWHC 1837 (Ch) at para 230):
o (a) Did the pursuer have a reasonable expectation of privacy in relation to the information
published by defender? Putting it another way, were his or her Article 8 rights engaged?
o (b) If so, in cases where it is accepted that the defender’s Article 10 rights (freedom of
expression) are engaged, how are those rights to be balanced against the pursuer’s
Article 8 rights, and in particular was there a public interest in publishing the information
that was published?
 Mosley: president of governing body for world motor sport; in his spare time he had been having
rendezvous w dominatresses [sado-masochistic roleplay]; one of ladies took secret camera, took
pictures and sold it to newspapers;
o sexual relationships between consenting adults even if unusual are off-limits for press –
it’s within individual’s reasonable expectation of privacy that what they do in their spare
time should be protected
o they weren’t persuaded that there was anything for greater public good that could be said
for disclosure of this case
 when story does involve public figure media will try to push hard case for public right to know
o Ferdinand v MGN
 McKennitt v Ash: well-known singer; close friend who went on tour w her tried to publish book
abt their friendship including dteails abt how she dealt w bereavement; court said these were
matters over which mckennitt had reasonable expectation of privacy
 health matters
 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 per Baroness Hale at para 149: “The
political and social life of the community, and the intellectual, artistic or personal development of
individuals, are not obviously assisted by pouring over the intimate details of a fashion model's
private life.”
 Family life
 Compare: von Hannover v Germany No 1 (2005) 40 EHRR 1 and von Hannover v Germany No
2 (2012) 55 EHRR 15
 Murray v Express Newspapers Plc: JK Rowling challenged publication of pictures of her son;
court said no matter how famous parent is that doesn’t affect child’s expectation of privacy;
there’s no great public good to be served in publicising face of toddler who just happens to be
offspring of famous person
 X v BBC: 17y/o girl successfully obtained interdict to prevent BBC documentary going about
which used her image; doc was abt work of Glasgow sheriff court showing her in environs of
court intoxicated, behaving badly around court while her bf was standing trial within sheriff court;
she initially agreed to story coming about but then she changed her mind; her being only 17 was
major factor in granting her interdict – went towards protecting her image
 Richard v BBC: suspected of child abuse; BBC were tipped off by police and filmed live police
search live; court thought (para 300) that there had been reasonable expectation of privacy here;
if police are searching ur house there’s reasonable expectation privacy bc consequences of that
are v traumatic for person involved
 limiting principles on breach of confidence
 von hannover cases: second case
 once public info events public domain court will not try to zealously protect it
o attorney general v guardian newspapers ltd:
 publication may be suppressed if further disclosure would be likely to add significantly to the
intrusiveness of the infringement of privacy
 pjs: well-known singer was married and he had v young children; there were threatened
disclosures by media of various extra-marital affairs he was indulging in; newspaper in Scotland
had already published part of story bc Scottish courts not subject to English litigation and
claimants hadn’t moved quicklky enough in Scotland; nonetheless supreme court was persuaded
they should grant injunction in England to prevent further disclosure; presence of children was
important factor
 public interest
 Response Handling Ltd v British Broadcasting Corporation: scots case; undercover reporter of
BBC got job at pursuer’s call centre dealing w sensitive info for clients in insurance companies;
uncovered that working practices were inadequate – inadequate security for monitoring staff;
wanted to make programme abt this using info she obtained; to disclose this in media was in
breach of contract but court thought that disclosure was justified here bc
o “There is confidential information which the public may have a right to receive and others,
in particular the press, now extended to the media, may have a right and even a duty to
publish, even if the information has been unlawfully obtained in flagrant breach of
confidence and irrespective of the motive of the informer.”

 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 per Lord Nicholls at para 31: “In
general photographs of people contain more information than textual description. That is why
they are more vivid. That is why they are worth a thousand words.”
 But distinguish those situations where the individual does not wish to be photographed at all,
e.g. Campbell, von Hannover, Mosley, Murray, from
 those situations where the individual is happy for his or her image to be published but wishes to
control its use – i.e. the objective is not so much to protect privacy as to control the subject’s
“image rights”. “There is no law of ‘image rights’” as such ( Weller v Associated Newspapers
Ltd [2014] EWHC 1163 (QB); [2014] EMLR 24 per Dingemans J at para 19, aff’d [2016] 1 WLR
1541), but see:
 douglas v hello: celebrity wedding between Michael douglas and Catherine zeta jones; secured
exclusive photo deal w ok! magazine; photographer managed to sneak into wedding reception
and get unofficial photos which he then sold on to hello! magazine; douglases ultimately received
damages from hello magazine on basis of breach of confidentiality; those pirated photos had
necessary quality of confidence bc they were obtained in circumstances importing confidentiality
and used in unauthorised way;
 remedy in harassment
 martin v mcguiness: private detective mounted surveillance operation on individual’s house; their
client was defender in personal injuries action and sent PI out to check whether pursuer was as
badly injured as he claimed to be; in the end court held that in these circutsances private
surveillance could be held to be justified – was proportionate tactic to make sure defender
protected his rights against him in court of justice; even assuming surveillance hadn’t been
justified, Lord BOnomy said: “Of course it does not follow that, because a specific right to privacy
has not so far been recognised, such a right does not fall within existing principles of the law.
Significantly my attention was not drawn to any case in which it was said in terms that there is
no right to privacy.”
 Henderson v Fife Police: hospital lab workers were removed from scene of hospital sit-in by
police so hospital lab could get on w its work and protect patient interests; court held that
detention in police cells was justified in those circumstances but when they got to police cells
women workers were asked to remove their bra and men were handcuffed; one of women and
men brought action to claim this was insult to their dignity and privacy; court agreed and granted
damages; court thought distress of being forced to remove her underwear was grounds for
awarding damages; he said that it was invasion of liberty and privacy
 Wainwright v Home Office; lady was subject to humiliating strip serach contrary to prison
regulations visiting her son in prison; court said her privacy was invaded and we don’t recognise
privacy in England so no remedy
 Scottish courts have this possibility of recognising privacy of physical person shown by
Henderson
 p104-108 of handout on quantification of delictual damages won’t be examinable
 You can try out :
 http://global.oup.com/uk/orc/law/tort/brennan_concentrate3e/resources/mcqs1/
 http://documents.routledge-interactive.s3.amazonaws.com/unlockingthelaw/content/unlocking-
torts.html
 But note that these are based on English law, so avoid the sections on topics where the English
law is significantly different. It is safe enough to use the sections on Negligence, Vicarious
Liability, Product Liability.
