Karteikarten
Delict
Karten in diesem Stapel (174)
- 1Strict Liability definitionwhere a person can be liable in delict for breach of duty, without the need for the person who suffers the injury/damage to establish fault
- 2Strict liability what needs to be provenonly that the product was defective - don't need to prove fault
- 3Joint liability definitionwhere more than one person has made a material contribution to the same wrongdoing
- 4several liabilityinstead of joint
wrongful acts of 2 or more persons are not connected - 5several liability caseAnderson v St Andrews Ambulance Association 1943
no collaboration but harm was indivisible - 6not joint liability caseHook v McCallum 1905
would have been joint liability if there was some kind of collaboration/conspiracy - 7joint liability case compensationSteven v Broady Norman & Co 1928
victim can sue until she gets full compensation - 8joint liability compensation awardedBalfour v Baird 1959
followed Erskine
once compensation is awarded for the whole harm, there is no place for further claims - 9joint liability wrongdoerspursuer can obtain all damages from either of the wrongdoers
wrongdoers can rely on right of relief
(Law Reform (MP) (S) Act 1940 s3(2))
NCB v Thomson 1959 - 10vicarious liability definitionone person is held to be liable for the wrongful acts or omissions of another person
respondeat superior - let the master be responsible - 11vicarious liability conditionsemployer-employee relationship
employee must be at fault
employee must be acting within scope of employment - 12vicarious liability the multiple testReady-Mixed Concrete (South East) Ltd v MPNI 1968
1. provides own work and skill in performance of some services
2. agrees (expressly or impliedly) he will be subject to the other's control in a sufficient degree
3. other provisions of the contract are consistent with it being a contract of service - 13vicarious liability independent contractorMarshall v William Sharp & Sons Ltd 1991
did the employer exercise control over what the 3rd party did - 14scope of employment authority from 1958Kirby v NCB 1958
- 15scope of employment kirby test1. master authorised particular act - master liable
2. workman does work appointed to him but in unauthorised way - master liable
3. servant, employed to do a particular work, does something outside scope of work - master not liable
4. servant uses master's time/place/tools for his own purpose - master not liable - 16scope of employment kirby scenarios distinguishing 2 and 3Taylor v Glasgow District Council 1997
employee did something outside scope of job
held scenario 2 - 17scope of employment precedent from 2002Lister v Helsey Hall Ltd 2002
applies when wrong is intentional (Wilson v Exel UK Ltd 2010)
test - close connection
but provides no guidance on degree of connection which will be regarded as sufficient (Dubai Aluminium Co Ltd v Salaam and Others 2003) - 18negligence action =duty of care owed to P + breach of duty + breach causes a loss
- 19to whom do we owe a duty of care original testDonoghue v Stevenson 1932
neighbourhood principle
close degree of proximity and reasonable foreseeability of loss/injury - 20duty of care Donoghue v Stevenson analysisestablished neighbourhood principle
breakthrough for product liability
entrenched view that law of negligence is same in England and Scotland
but only extends to latent defects
meaning no liability if only thing damaged is product itself (pure economic loss) - 21duty of care tripartite testCaparo Industries Plc v Dickman 1990
1. loss/injury is reasonably foreseeable
2. close degree of proximity between parties
3. fair, just and reasonable to impose duty of care - 22duty of care tripartite test detailcatch-all argument used as back-up in Coleridge v Miller Construction 1997
- 23duty of care proximity and assuming responsibilityGibson v Orr
assuming responsibility creates proximity - 24breach of duty standard of care owedMuir v Glasgow Corporation 1943
duty is breached when standard of care falls below what the reasonable man would do - 25breach of duty criteria- voluntary act or omission
- act or omission must amount to negligence
- harm must be reasonable and probable consequence of D's conduct - 26breach of duty criteria conduct amounting to negligenceprobability
seriousness
value of activity
practicality of taking precautions
cost
usual practice - 27breach of duty conduct amounting to negligence probabilitydoes probability justify taking extra precautions
Gillon v Chief Constable of Strathclyde Police 1997
low probability - 28breach of duty conduct amounting to negligence seriousnessthe specific circumstances should be considered
Paris v Stepney Borough Council 1951
blinded - 29breach of duty conduct amounting to negligence value of activityCompensation Act 2006 s1 encourages judges to factor in value of activity
factors should be balanced
Watt v Hertfordshire County Council 1954 - no liability as was reasonable to take on risk - 30breach of duty conduct amounting to negligence practicality of taking precautionsQuinn v Cameron and Roberton Ltd 1956
no practical way to get rid of particles in the air - 31breach of duty conduct amounting to negligence costchallenge of balancing risk
balancing test - "Learned Hand Formula" says defender is negligent if probability of injury and harm don't equate to cost of precautions (US v Carroll Towing Co 1947) - 32breach of duty conduct amounting to negligence usual practiceMorton v William Dixon Ltd 1909 - looked at other mines
Brown v Rolls Royce Ltd 1960 - deviation from usual practice but was better - 33breach of duty criteria voluntary act/omissionWaugh v James K Allen Ltd 1964
if lorry driver thought there was a chance he would die at wheel then he would've been liable - but didn't - 34breach of duty criteria harm must be reasonable and probable consequence of D's conductMuir v Glasgow Corporation 1943
one is not at fault if harm isn't a reasonable or probable consequence of conduct - 35factual causation definitionwrongdoer's conduct is cause of harm
(cause sine qua non)
P must prove on balance of probabilities that D's breach of duty was the cause of the harm sustained - 36factual causation but for testbut for the defender's conduct, the pursuer would not have suffered harm
- 37factual causation but for test analysisnot always reliable
overdetermination problem - 2 lethal shots, none are but for causes
attribution problem - several wrongdoers so can't identify - 38factual causation but for test caseBarnett v Chelsea and Kensington Hospital Management Committee 1969
remove wrongdoing of DR and get same outcome
not but for - 39factual causation acting on dutyBolitho v City and Hackney Area HA 1998
acting on duty might have made a difference - 40factual causation victim's actionsMcWilliams v Sir William Arrol 1962
would have been same outcome in alternative scenario as victim previously refused to wear harness - 41factual causation material contributionWardlaw v Bonnington Castings Ltd 1956
breach of duty caused or materially contributed to his injury (but for test didn't establish) - 42but for test doesn't establish factual causation so...try to prove material contribution
- 43factual causation but for test attribution problemFairchild v Glenhaven Funeral Services 2003
can only identify potential but for causes - 44factual causation current standardP must make it appear at least on balance of probabilities that the breach of duty caused or materially contributed to his injury (Wardlaw) - subject to Fairchild exception - material increase of risk sufficient in certain cases
- 45factual causation victim's negligencecan't cause harm to yourself so must be disregarded
Barker v Corus UK Ltd 2006 - 46factual causation more than one employerdoesn't matter how much exposure, you will be liable
Sienkiewicz v Grief (UK) Ltd 2011 - 47factual causation multiple sources of riskFairchild exception (material increase of risk sufficient) can only be used when one noxious agent is involved
- 48legal causation definitionwrongdoer's conduct is legal cause of harm (causa causans)
- 49legal causation novus actus interveniensnovus actus interveniens breaks the causal link
can be an external event, conduct of 3rd party, action of victim himself - 50legal causation novus actus interveniens caseThe Oropesa 1943
must be something extraneous/unreasonable to shift liability - 51legal causation novus actus interveniens victim's behaviour caseMcKew v Holland & Hannen & Cubbits (Scotland) Ltd 1970
- 52legal causation novus actus interveniens voluntary decision by victim and unreasonablenessCorr v IBC Vehicles Ltd 2008
suicide not a voluntary, informed decision so was irrelevant - 53remoteness of damage definitionthis doctrine saves the wrongdoer from having to pay for all the consequences of his wrongdoing
arises when D's fault has already been established - 54remoteness the grand ruleAllan v Barclay 1864
damages directly and naturally arising and reasonable foreseeability - 55remoteness development of English law had impact on Scottish lawRe Polemis and Furness Withy & Co 1921
harm was not reasonably foreseeable but was a direct consequence - 56remoteness contradiction English and Scottish lawOverseas Tankship v Morts Dock Engineering Co Ltd (The Wagon Mound) 1961
courts follow different logic
foreseeability instead of direct consequence - 57remoteness Scottish lawmore complicated
McKillen v Barclay Curle & Co 1967
reasonable foreseeability not appropriate
eggshell-skull rule
damage sustained by individual, not average man
liable for all damage to injured man which naturally and directly arises out of the negligence - 58remoteness Simmons v British Steel plc 2004 defender is liable if...1. damage is greater in extent than was foreseeable or it was caused in a way that couldn't have been foreseen
2. for any personal injury which was reasonably foreseeable - 59remoteness Simmons v British Steel plc 2004 defender is not liable if...1. for a consequence of a kind which is not reasonably foreseeable
2. for damage caused by a novus actus interveniens or unreasonable conduct on part of P - 60remoteness Simmons v British Steel plc 2004 defender must...take victim as he finds him
(eggshell-skull rule) - 61remoteness Thomson's alternative to Simmons1. victim must have sustained harm which is constitutive of delictual liability
2. D is liable for loss which is reasonably foreseeable
3. in case of personal injuries, D takes victim as he finds him and is liable for unforeseeable losses (provided D's conduct is legal cause of these losses - eggshell-skull rule) - 62CN definitionwhere victim is partly to blame for their own injury so the amount of compensation payable to them is reduced by a % of the total award
Law Reform (CN) Act 1945
now always a partial defence - 63CN fault legislationwrongful act, breach of statutory duty or negligent act/omission which gives rise to liability in damages
(s5a) - 64CN fault caseReeves v Commissioner of Police for the Metropolis 2001
fault could include intentional acts as well as negligence - 65CN seatbelt caseMitchell v Hutchison 1983
deduction made for husband as he made injuries worse - 66CN assessing reduction caseStapley v Gypsum Mines Ltd 1953
1. matter of blameworthiness
2. causal potency - 67CN children casesGough v Thorne 1966 - guilty if of such an age as to be expected to take precautions for their own safety
Banner's Tutor v Kennedy's Trs 1978 - court gives weight to age of child and what kind - can expect some awareness from 5 y/o - 68volenti non fit injuriaa legal wrong is not done to one who is willing
victim can willingly accept risk and endorse the danger they have been subjected to
complete defence - 69volenti workers complainingSmith v Charles Baker & Sons 1891
dangerous practice had been going on for some time
majority held mere knowledge is not acceptance
workers accepted unwillingly - 70volenti does it apply to negligence casesMorris v Murray 1991
depends on extent of risk
need wild responsibility and to prove willingness - 71volenti rescuerBaker v Hopkins & Son 1959
DR willing to take on risk
rescue effort is part of normal consequences of wrongdoing, wrongdoer bears that risk
defence doesn't apply - 72volenti duty to prevent P's behaviourReeves v Commissioner of Police for the Metropolis 2000
guards were warned and it was the very thing they had to focus on
defence doesn't apply - 73volenti s149 Road Traffic Act 1988 (for passengers)Winnick v Dick 1983
there is liability for injury of passenger
defence doesn't apply - 74ex turpi causa non oritur actiolaw will not protect interest of those who are in process of doing something immoral
complete defence
generally from case law but court do factor in morals - 75ex turpi severityWeir v Wyper 1992
not just any illegality, requires some kind of severity - 76ex turpi common criminal activityJoyce v O'Brian 2012
- 77limitation of PI actions statutePrescription and Limitation (S) Act 1973
actions must be brought within:
3 years of injury
3 years of date on which P became aware of it or would have been "reasonably practicable" for them to become aware - 78limitations of PI actions statute detailsinjuries sufficiently serious to justify an action, injuries attributable in whole or part to act/omission
act/omission attributable to defender or their employee
(no limit on childhood abuse cases) - 79limitations of PI actions court's discretions19A (1) can accept claim if good reason
Comber v Greater Glasgow Health Board 1989 - advised wasn't advised that she could have a case - missed deadline by over 10 years - 80psychiatric injury testCaparo Industries plc v Dickman 1990
1. reasonable foreseeability
2. proximity between parties
3. fairness, justice and reasonableness - 81psychiatric injury must be a conditionRorrison v West Lothian College 2000
Reed - must be a recognised illness (has a name)
distinction drawn between mental illness and distress - 82psychiatric injury PHYSICAL INJURY TO PURSUER OR DAMAGE TO HIS PROPERTY WAS SUSTAINED AND IT HAPPENS THERE IS ALSO PSYCHIATRIC HARMsuccessful P may recover damages for patrimonial loss or solatium
Attia v British Gas plc 1988 - was property damage so could claim for all loss suffered, including psychiatric harm - 83psychiatric injury PHYSICAL INJURY TO P WAS REASONABLY FORESEEABLE BUT ONLY PSYCHIATRIC INJURY WAS SUSTAINEDPage v Smith 1996 - only injury sustained wasn't foreseeable - held liable - criticised
Simmons v British Steel plc 2004 - Lord Rodger - where personal injury is RF D is liable for any injury (physical or psychiatric) which P suffers as result of his wrongdoing - 84psychiatric injury DIRECT PSYCHIATRIC INJURY WAS RF AND ACTUALLY SUSTAINED AND P WAS KNOWN TO BE PECULIARLY SUSCEPTIBLE TO PSYCHIATRIC INJURYWalker v Northumberland County Council 1995 was more than RF - D knew about susceptibility
Hatton v Sutherland 2002 - hard to impose liability unless they know - employer usually entitled to assume P can withstand normal pressures of job - 85psychiatric injury DIRECT PSYCHIATRIC INJURY TO P WAS RF AND SUSTAINED AND P WAS NOT KNOWN TO BE PECULIARLY SUSCEPTIBLE TO PSYCHIATRIC INJURYDulieu v White & Sons 1901 anyone in this position would have suffered
sudden shock test - 86psychiatric injury INDIRECT PSYCHIATRIC INJURY TO P WAS RF AND SUSTAINEDHillsborough disaster
indirect harder to predict
there is limit as to how far chief constable could have thought - 87psychiatric injury victimsprimary - suffer directly
secondary - suffer indirectly - not directly at risk of any form of personal injury - suffered as result of awareness of what happened - McLoughin v O'Brian 1983 - recognisable illness, close relationship, presence at scene/aftermath - 88psychiatric injury secondary victim testAlcock v Chief Constable of South Yorkshire Police 1992
1. person of ordinary fortitude
2. sudden shock to nervous system
3. close ties of love and affection
4. presence at scene/aftermath
5. experienced with own senses
increasingly considered unsatisfactory (SLC) - 89psychiatric injury exceptionsrescuers - now can't recover if don't fulfil Alcock, not special category since White v Chief Constable of South Yorkshire Police 1999
bystanders - may be treated differently if made to feel responsible - Dooley v Cammell Laird & Co Ltd 1951 - 90economic loss policy argumentsintrinsic value (loss of chance to make money)
social interest (deprive someone can affect society)
market freedom (wealth generation)
risk allocation (firm makes gain and has info)
point of principle - indeterminacy (economic loss is often indeterminate) - 91economic loss RESULTING FROM DAMAGE TO PROPERTYSpartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd 1973
can't claim for items not yet made or for damages to someone else's property
can't claim for pure economic loss
negative recovery - 92economic loss RESULTING FROM A DEFECT IN PROPERTYBellefield Computer Services Ltd v E Turner & Sons Ltd 2000 (claim successful)
A & J Stephen (Builders) Ltd 1996 (applied Murphy)
^no material differences^
Murphy v Brentwood District Council 1991 laid down exclusionary rule (purely economic loss may not get compensation)
negative recovery - 93economic loss RESULTING FROM A MISLEADING REMARKHedley Byrne & Co v Heller and Partners Ltd 1964 - RF of financial loss not sufficient - requirement for special relationship (beyond contractual, D assumes responsibility and P relies on it)
Cramaso LLP v Earl of Seafield 2014
positive recovery - 94economic loss RESULTING FROM INADEQUATE SERVICESHenderson v Merrett Syndicates 1995 - Hedley Byrne Liability - negligent services
positive recovery - 95economic loss problemsSmith v Eric S Bush 1990
buyer relied on overvaluation - HoL treated as Hedley but could've been Murphy and had a different outcome - 96economic loss Caparo testCustoms and Excise Commissioners 2007
no specific category
liability found unjust, unfair and unreasonable
Lord Bingham says Caparo is sufficient - 97medical negligence error of judgementWhitehouse v Jordan 1981
may or may not be negligent - depends on nature of error
standard of ordinary professional in D's position - 98medical negligence new DrWilsher v Essex Health Authority 1988
expected to be at standard of someone in that position - 99medical negligence reasonable body of medical men skilled in that particular artBolam v Friern Hospital Management 1957
not guilty if acted in accordance with practice accepted as proper by body...
(later abandoned this test - Montgomery v Lanarkshire Health Board 2015 - patient's point of view) - 100professional negligence lawyersWhite v Jones 1995
Wright and Paton Farrell 2006 - can't bring action against lawyer, immune so can do job properly - 101professional negligenceaccountants (Caparo Industries plc v Dickman 1990)
insurance brokers (Henderson v Merrett Syndicates Ltd 1995)
surveyors (Smith v Eric S Bush 1990) - 102occupier's liability nuisance definitionharm to those who are not on the property
- 103occupier's liability definitionharm towards persons who enter upon the property
Occupiers' Liability (S) Act 1960 - 104occupier's liability promptEnglish influence
Dumbreck v Addie & Sons (Collieries) 1929
boy dies playing on machinery - 105occupier's liability who bears the dutyperson occupying or having control of land/premises
Feely v Co-operative Wholesale Society Ltd 1990 - 106occupier's liability whose interests are protectedperson entering the premises
this can be trespassers - s1(1)
(different from English law)
protected against dangers due to state of premises - inherent dangers on property (s1(1)) - 107occupier's liability standard of cares2
what was occupier supposed to do
reasonable care
positive duty to take steps to see that person will not suffer - not just avoiding being negligent - 108occupier's liability pursuer must prove...occupier fell short in terms of standard of care
(Wallace v City of Glasgow District Council 1985 - occupier should know/expect to know about it and P should point out)
(Wilkinson v Hjaltland Housing Association Ltd 2015 - contrast - Ass was aware and failed to check if fixed) - 109occupier's liability risk calculuswhat steps are reasonable
factors - nature of danger, occupier's knowledge of danger, extent of injury/harm, age of person injured, whether pursuer was permitted on premises, cost of eliminating danger - 110occupier's liability permanent dangerPorter v Strathclyde Regional Council 1991
should have been mechanism in place to provide protection - 111occupier's liability age of victimM'Glone v British Railways Board 1966
court says protection was inadequate
but
was warning signs and could argue was adequate protection for 12y/o - 112occupier's liability duty to exclude people from prremisesDawson v Page 2013
just because there is a wide risk of dangers doesn't mean harm will become foreseeable
pursuer loses - 113occupier's liability obvious dangersno protection
Tomlinson v Congleton Borough Council 2004
English case - 114occupier's liability Leonard v Loch Lomond and the Trossachs National Park Authority 2014over time footpath became part of landscape
permanent, ordinary and familiar feature - 115occupier's liability defencesCN can be pleaded
also room for volenti (Titchener v British Railways Board 1984 - entered willingly so volenti would have applied) - 116occupier's liability landlord's responsibility for repairsduty to show same care as it required to be shown by occupier (s3(1))
Scott v Glasgow City Council 1997 - no duty to improve - 117liability of public authorities includespublic services (police, fire)
public authorities (govt depts, local authorities)
public bodies (HRA 1998) - 118liability of PA can be found liable throughclaim for breach of statutory duty
claim for breach of duty of care - 119liability of PA why does it matter if D is PAinappropriate use of public funds - is compensation from tax payers' money
(Montgomery v Lanarkshire Health Board 2015)
distraction from fulfilling responsibility (Hill v Chief Constable of South Yorkshire Police 1989)
arrogation of responsibility delegated by parliament, constitutional issue about PS (Anns v Merton London Borough Council 1978) - 120liability of PA 2 levels of liabilityX(minors) v Bedfordshire County Council 1995
direct - PA been negligent
indirect - someone employed by PA been negligent (must be distinguished from prof neg) - is PA responsible
duty of care issue either way so look to Caparo - 121liability of PA direct liabilityis there an overriding reason to hold authority liable (did something that made situation worse)
- 122liability of PA indirect liabilityoverriding reason not to hold PA liable - would imposing a duty distract from protection of the public
- 123liability of PA HRA 1998s6(1) unlawful for PA to act in way incompatible with convention right
s6(3) PA is any person certain functions are of a public nature
s7 proceedings against PA by person whose rights are infringed
s8 judicial remedies available in such proceedings - 124liability of PA HRA art 3 caseD v Commissioner of Police of the Metropolis 2016
negligent failure by police to apprehend serial rapist
successful action under art 3 on "inhuman or degrading treatment" - 125liability of PA HRA unsuccessful caseSmith v Chief Constable of Sussex Police
police not held liable unless done something to make matters worse
if brought under art 2 might have succeeded - 126liability of PA HRA claim failMitchell v Glasgow City Council 2009
threat not real and imminent - 127personal injury damagesP will only receive net earnings
BTC v Gourlay 1956 - 128PI damages solatium definitionreparation for the pain/suffering inflicted in consequence of commission of a delict
Duffy v Kinneil Cannel & Coking 1930
loss of amenity, expectation of life
quantam varies - 2k (Beck v United Closures & Plastics Plc 2001) - 85k (Reynard v Exquisite Quisine Ltd 2006) - 129PI damages calculating solatiumno formula
look to previous cases
Judicial Studies Board created guidance for equivalent in England - Scottish follow but will deviate if good reason - 130PI damages solatium apportionmentinterest is due on past element, not future
- 131PI damages patrimonial definitionperson entitled to loss of earnings, expenses and outlays
- 132PI damages patrimonial past lossinterest due (judicial rate presently 8%)
pick a reference point, everything that was done from there - 133PI damages patrimonial future loss calculatione.g. wage loss, ongoing cost of care
involves degree of speculation
multiplier technique, Odgen tables, disadvantage in labour market - 134PI damages patrimonial multiplier techniquerationale - award of damages should be sufficient compensation for remainder of P's life
annual loss is multiplied by number of years to produce lump sum figure
how is multiplier selected (not just how long until retirement - this could be overcompensating) - 135PI damages patrimonial Odgen Tablesaddresses morality issue and provides amended multiplier
Howard v Comex Houlder Diving Ltd 1987 - court reduced multiplier to 4 years - 136PI damages patrimonial disadvantage in labour market definitionmaking an award of damages which reflects fact that due to injuries sustained, person might struggle to be re-employed if (due to normal risks and vicissitudes of life) they lose their employment
- 137PI damages patrimonial disadvantage in labour market casesPaterson v Paterson & Paterson 2012 where victim was physically less able
(followed English case Moeliker v Reynole & Co Ltd 1976 -
1. what is the likelihood of the risk actuating
2. when is that risk likely to materialise
3. what are the claimant’s chances of obtaining a job if that occurs
4. would he be at a disadvantage compared with an able-bodied contemporary)
award 60k as compensation for future risk - 138PI damages calculating patrimonial loss problemsspeculative future loss
McCall v Fowlis 1966
awarded compensation for year of not being promoted as would've passed exam
pro-footballer claim held too speculative - 139PI damages benefitsnot taken into account
Social Security (Recovery of Benefits) Act 1997 - 140PI damages provisional damages for PIs12(1) of Administration of Justice Act 1982
must be proven that there is a risk of serious disease/deterioration in future
D must be PA or corp or otherwise indemnified
Prentice v William Thyne Ltd 1989 - medical evidence clear that injury would inevitably get worse - 141PI damages relatives' claimsDamages (S) Act 2011 s4
loss of financial support and reasonable funeral expenses
distress/anxiety for suffering
grief/sorrow for death - 142defamation definitionfalsehoods of a particular nature, maliciously spread with intention of diminishing the reputation of P
- 143defamation requirementsstatement must be:
1. about the pursuer
2. defamatory, as a matter of law
3. false
4. maliciously communicated with intention of injuring P
only 1 and 2 are required to be proved to have a prima facie case
law makes presumptions about 3 and 4
do these presumptions mean law is too pursuer friendly - 144defamation statement mediumcan be in any medium
written, verbal, other media
Monson v Tussauds 1894 - 145defamation communicationno need for broad communication
addressed to P alone is sufficient but will impact upon quantification of damages
Ramsay v MacKay 1890 - 146defamation statementmust be of and about P - RH v MH 2012
group of which P is a member - Browne v Thomson 1912
companies may be defamed - BCA v Singh 2010 - 147defamation not just any dishonest statementmust tend to lower P's standing in estimation of right thinking members of society
objective test provided in Sim v Stretch 1936
also -
evolve through time with evolution of society - Tolley v Fry 1931 - 148defamation secondary line of authorityattitudes of particular community are considered
Munro v Brown 2011 - 149defamation allegations sexual immorality criminality competence of profsQuitly v Windsor 1999
Monson v Tussauds Ltd 1894
Simmers v Morton 1900 - 150defamation statement can be innuendoMonson v Tussauds Ltd 1894
- 151defamation repeated statementis defamatory
Marshall v Renwick 1835 - 152defamation context is relevantin rixa:
Christie v Robertson 1899
people watching wouldn't have taken seriously
joke:
McLeod v NewsQuestion Ltd 2007 - 153defamation elements 3 and 43 - falsity - may be rebutted by defence of veritas
4 - malice communication with intention of pursuer - generally can't be rebutted - only specific defences (qualified privilege and fair comment) - 154defamation defence veritascomplete defence
rebuts presumption of falsity
onus on D to prove statement is true on balance of probabilities
if partially true - Defamation Act 1952 s5 - doesn't matter if one is false, if one is true - 155defamation defence absolute privilegecomplete defence
parliament, court, judicial proceedings
free speech shouldn't be inhibited in any way - 156defamation defence qualified privilegenegates presumption of malicious comm. so P will have to prove it
where there is a duty (legal or moral) to speak - James v Baird 1916
press will get in certain circumstances (Reynolds v Times Newspapers 2001)
get privilege because of occasion - 157defamation defence qualified privilege criteriaNicholls criteria simplified in Jameel v Wall Street Journal Europe Sprl 2006:
1. is subject matter a matter of public interest
2. was inclusion of statement justifiable
3. were steps taken to gather & publicise the info responsible and fair - 158defamation defence fair commentdisplaces presumption of malicious comm. with intent to injure
statement must be comment, not fact (Merivale v Carson 1887) - 159defamation statutory defence no responsibility for publicationDefamation Act 1996 s1
D must show:
1. he was not author, editor, publisher
2. he took reasonable care in relation to publication
3. he didn't know and had no reason to believe that what he did contributed to publication of a defamatory statement
(Godfrey v Demon Internet Ltd 2001 - failed, knew) - 160defamation statutory defence offer to make amendsDefamation Act 1996 s2
offer must:
1. be in writing
2. expressed as offer to make amends under relevant section of act
3. state whether it is a qualified offer (if so, set out defamatory meaning in relation to which it is made)
4. be an offer to make a suitable correction & apology with publication, compensation and costs if appropriate
if accepted, aggrieved party is barred from suing (s3) - 161defamation remedies successful pursuer entitled to...solatium (usually relatively modest in Scotland) and patrimonial loss
- 162defamation remedies damagesintended to compensate, not punish (Stein v Beaverbrook Newspapers Ltd 1968)
- 163defamation remedies pursuer need not prove...loss in respect of insult
but
if patrimonial loss is also claimed then has to be established by P
must have been published to 3rd parties for damages for patrimonial loss to be awarded
if communicated only to P, only damages for solatium can be awarded - 164defamation remedies legal personscan only claim for patrimonial loss
- 165defamation remedies interdictP who knows defamation is about to be committed against him will have title to seek interdict to prevent threatened harm
can also do so for repetition - 166defamation remedies interim interdictwhether it is granted turns on the balance of convenience
Kwik-Fit Euro Ltd v Scottish Daily Record & Sunday Mail Ltd 1987 - had already been publication so wouldn't fully protect and had held conference - 167verbal injury definitionP must suffer an injury caused by false and harmful - but non-defamatory - words maliciously communicated with intent to injure
Lamond v The Daily Record 1923 - 168Harassmentconcerned with anti-social behaviour (not reputation as such)
Protection from Harassment Act 1997 s8 - 169Harassment elements1. repeated conduct
2. causing the target "alarm or distress"
3. either intention or circumstances where an impartial observer would conclude the conduct constituted harassment - 170breach of confidence and privacyno need to prove falsity
info that should be confidential - 171breach of confidence and privacy accessory liabilitynot only party who breached relationship of confidentiality but others who knowingly procured/took advantage of breach are also liable (Roxburgh v McArthur 1841)
- 172breach of confidence/privacy in Englandpre-ECHR (Kaye v Robertson 1991 - no breach of confidentiality)
developments since ECHR
balancing act between art 8 and art 10 - 173breach of confidence/privacy in England ECHRart 8 - right to private life
art 10 - right to freedom of expression - 174breach of confidence/privacy Scotlandsystem of rights not remedies
not constrained by rigidity of English causes of action - unifying concept in Scotland means don't need to fit into specific categories like England
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- Karteikarten am Delict, erstellt von Eilidh Murray am 22/11/2017.
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