443374
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Mind Map by raulblacktower, updated more than 1 year ago
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Created by raulblacktower
over 10 years ago
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INJURIES TO SPECIFIC INTERESTS
- A. DELICTS AGAINST THE PERSON
- (1) ASSAULT
- A wrongful physical act directed against another
with the intention of causing affront, insult or harm. (Bell
Principles, § 2032)
- *Ashley v Chief Constable of Sussex [2008] UKHL = Officer shot and
wounded a man without warning. He thought the deceased had been in
possession of a firearm. The incident took place in a dawn raid (took place
in the course of the officers employment) Legal question of whether the
[force would be vicariously liable]= the man jumped out of bed. The officer
fired because he thought the man was armed (even as he had no clothes
on) HELD= officer acquitted of a criminal charge of manslaughter – On this
case, he was given the benefit of the doubt *However, a civil charge was
brought (to defeat ‘self-defence’) – In civil proceedings the belief had to be
reasonably held, that he reasonably believed the other man was armed. The
onus of proof was less than in criminal law. Civil claim for damages
- Collins v Wilcock [1984] = Police officers see woman
on street with a known prostitute of the area. They
jumped to the conclusion that she was also a prostitute.
Police officer then grabbed her arm to pull her. HELD=
this was an assault. This was a hostile act by the police
officer. Woman was not a prostitute
- Wilkinson v Downton [1897] ** Scottish courts have cited
this case with approval. Facts: Defendant joked to man’s wife
that her husband had had both legs broken. Lady was so
shocked by this that she took to bed for weeks and was
unwell because if it, even though it was a joke. HELD=
Physical injury had been triggered by this joke.
- Revill v Newberry [1996] Landlord was fed up
when vandals went to trash his property. He
shot at people in desperation, but this was held
to be disproportionate.
- *Sidaway v Board of Governors of Bethlem Royal Hospital [1985] =Sidaway
needed a surgical procedure, which carried with it a small risk of damage to
the nerve route (not told about the spinal cord risk). Unfortunately, this
happened after the operation. There was a Risk of less than 1% but she
argued, that she had incomplete information in relation to this. HELD: The
doctor had to withhold information that was reasonable in the circumstances.
It was the consensus of the medical profession, that where there was a risk
of less that 1% that information did not need to be disclosed. She had not
been impugned and the claim against the doctor failed. (Operation to relieve
pain in neck and shoulders caused damage to spinal cord. Patient had been
advised of risk of damage to nerve root, but not to spinal cord. Should she
have been more fully informed? Held: doctor should inform patient about
risks which a responsible body of medical opinion would think it proper to
disclose.
- Observed: patient's consent is not vitiated by doctor's failure to give
sufficient information. Basis of liability is failure of duty of care towards
patient rather than assault.) FOLLOWED IN: Scots cases of Moyes v
Lothian Health Board 1990 (No duty to disclose risk assessed at less
than 1%); Smith v Lothian University Hospitals NHS Trust 2007
- Courts have shifted in the standard of care. English case of
Bolitho v City and Hackney Health Authority [1998] The court must
determine the practice. Lord Browne-Wilkinson conduct of
reasonable doctor required to be “responsible, reasonable, and
respectable” – to have a “logical basis”.
- Chester v Afshar= Chester suffered from back pain. She
needed to have disks from her back removed. There was a
risk of 1% to 2% that could lead to nerve damage. Afshar did
not tell Miss Chester about that. She suffered that adverse
consequence. He performed the operation without
negligence. The problem was that Miss Chester said in court
she would have carried on with the operation anyway. Even
after further research. The “But for test” of causation was
(blown out the water, since her claim could not succeed. In
other words----But for not mentioning the risk, she would
have still had the operation) The risk had not increased by
the defective advice. >Material risk (not satisfied)
Nevertheless, on this occasion it was held that Court would
allow a modest departure from the rules of causation. It was
important on policy grounds, to give a patient a right to
choose for herself. Court endorsed this narrow departure
from causation. ***Anomaly in the rules of causation (no
- Chester v Afshar= Chester suffered from back pain. She
needed to have disks from her back removed. There was a
risk of 1% to 2% that could lead to nerve damage. Afshar did
not tell Miss Chester about that. She suffered that adverse
consequence. He performed the operation without
negligence. The problem was that Miss Chester said in court
she would have carried on with the operation anyway. Even
after further research. The “But for test” of causation was
(blown out the water, since her claim could not succeed. In
other words----But for not mentioning the risk, she would
have still had the operation) The risk had not increased by
the defective advice. >Material risk (not satisfied)
Nevertheless, on this occasion it was held that Court would
allow a modest departure from the rules of causation. It was
important on policy grounds, to give a patient a right to
choose for herself. Court endorsed this narrow departure
from causation. ***Anomaly in the rules of causation (no
- Courts have shifted in the standard of care. English case of
Bolitho v City and Hackney Health Authority [1998] The court must
determine the practice. Lord Browne-Wilkinson conduct of
reasonable doctor required to be “responsible, reasonable, and
respectable” – to have a “logical basis”.
- Observed: patient's consent is not vitiated by doctor's failure to give
sufficient information. Basis of liability is failure of duty of care towards
patient rather than assault.) FOLLOWED IN: Scots cases of Moyes v
Lothian Health Board 1990 (No duty to disclose risk assessed at less
than 1%); Smith v Lothian University Hospitals NHS Trust 2007
- *Sidaway v Board of Governors of Bethlem Royal Hospital [1985] =Sidaway
needed a surgical procedure, which carried with it a small risk of damage to
the nerve route (not told about the spinal cord risk). Unfortunately, this
happened after the operation. There was a Risk of less than 1% but she
argued, that she had incomplete information in relation to this. HELD: The
doctor had to withhold information that was reasonable in the circumstances.
It was the consensus of the medical profession, that where there was a risk
of less that 1% that information did not need to be disclosed. She had not
been impugned and the claim against the doctor failed. (Operation to relieve
pain in neck and shoulders caused damage to spinal cord. Patient had been
advised of risk of damage to nerve root, but not to spinal cord. Should she
have been more fully informed? Held: doctor should inform patient about
risks which a responsible body of medical opinion would think it proper to
disclose.
- Psychiatric harm
has proven to be a
problem category
- Revill v Newberry [1996] Landlord was fed up
when vandals went to trash his property. He
shot at people in desperation, but this was held
to be disproportionate.
- Wilkinson v Downton [1897] ** Scottish courts have cited
this case with approval. Facts: Defendant joked to man’s wife
that her husband had had both legs broken. Lady was so
shocked by this that she took to bed for weeks and was
unwell because if it, even though it was a joke. HELD=
Physical injury had been triggered by this joke.
- Collins v Wilcock [1984] = Police officers see woman
on street with a known prostitute of the area. They
jumped to the conclusion that she was also a prostitute.
Police officer then grabbed her arm to pull her. HELD=
this was an assault. This was a hostile act by the police
officer. Woman was not a prostitute
- *Ashley v Chief Constable of Sussex [2008] UKHL = Officer shot and
wounded a man without warning. He thought the deceased had been in
possession of a firearm. The incident took place in a dawn raid (took place
in the course of the officers employment) Legal question of whether the
[force would be vicariously liable]= the man jumped out of bed. The officer
fired because he thought the man was armed (even as he had no clothes
on) HELD= officer acquitted of a criminal charge of manslaughter – On this
case, he was given the benefit of the doubt *However, a civil charge was
brought (to defeat ‘self-defence’) – In civil proceedings the belief had to be
reasonably held, that he reasonably believed the other man was armed. The
onus of proof was less than in criminal law. Civil claim for damages
- A wrongful physical act directed against another
with the intention of causing affront, insult or harm. (Bell
Principles, § 2032)
- (2) HARASSMENT
- Protection from Harassment Act 1997, s 8 “S 8— Harassment”
(1) Every individual has a right to be free from harassment +
person must not pursue a conduct which amounts to harassment
of another (a) is intended to cause “the person alarm or distress”
(s 8(3)) e.gg • Phone calls, letters, and loitering beside the
pursuer’s home McGuire v Kidston 2002 SLT • Bullying in the
work place Robertson v Scottish Ministers 2007 CSOH
• Pestering customers with unwarranted gas bills Ferguson v
British Gas Trading Ltd [2010]
- Majrowski v Guy’s & St Thomas’s [2007] Gay man, suffered.
Claimed he was being harassed.Employer was held to be
vicariously liable (sufficiently close connection)Baroness Hale
[66] “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 genuinely offensive and
unacceptable behaviour.” Robertson v Scottish Ministers [2007]
CSOH Similar case
- Majrowski v Guy’s & St Thomas’s [2007] Gay man, suffered.
Claimed he was being harassed.Employer was held to be
vicariously liable (sufficiently close connection)Baroness Hale
[66] “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 genuinely offensive and
unacceptable behaviour.” Robertson v Scottish Ministers [2007]
CSOH Similar case
- Protection from Harassment Act 1997, s 8 “S 8— Harassment”
(1) Every individual has a right to be free from harassment +
person must not pursue a conduct which amounts to harassment
of another (a) is intended to cause “the person alarm or distress”
(s 8(3)) e.gg • Phone calls, letters, and loitering beside the
pursuer’s home McGuire v Kidston 2002 SLT • Bullying in the
work place Robertson v Scottish Ministers 2007 CSOH
• Pestering customers with unwarranted gas bills Ferguson v
British Gas Trading Ltd [2010]
- (3) WRONGFUL DEPRIVATION OF LIBERTY
- (ECHR article 5) Stair, Institutions, 1.2.5 Liberty is “a most
precious right, yet it is not absolute”. Act of the Parliament of
Scotland of 1701 “For preventing wrongous Imprisonments and
against undue delayes in tryals”
- Arrest may be: A. with warrant;
B. without warrant but justifiable in
terms of common law or statute;
C. not justifiable in these terms
- *Henderson v Chief Constable, Fife Police
1988=The pursuer was a health board
worker. Workers were interfering with
hospital activities during a protest. The
police came along and arrested them. They
were taken to the police station, cautioned
and charged. Mr johns was handcuffed –
Miss Henderson though was asked to
remove her bra. Her action for wrongful
detention however failed. ***Article 5,
hasn’t been a game changer here. Not a
huge change.
- *Henderson v Chief Constable, Fife Police Case
about lady in underwear. It was held it was
reasonable in the interest of hospital business to
remove this person. Claim for damages (must
meet the test the they action was not justified.) If
is not justified on common law or statute, there is
prima facie a case for damages
- Downie v Chief Constable, Strathclyde
Police 1998 =Police came to house
looking for a check fraudster. Suspect
was not in house, but police charged
Downie after he ran eventhough he
wasn’t involved HELD = No public
interest for someone who was the wrong
man. Awarded 15.000 pounds There is
nor requirement to prove malice where
there is no justification for the arrest.
- Downie v Chief Constable, Strathclyde
Police 1998 =Police came to house
looking for a check fraudster. Suspect
was not in house, but police charged
Downie after he ran eventhough he
wasn’t involved HELD = No public
interest for someone who was the wrong
man. Awarded 15.000 pounds There is
nor requirement to prove malice where
there is no justification for the arrest.
- Wrongful arrest
- *Henderson v Chief Constable, Fife Police Case
about lady in underwear. It was held it was
reasonable in the interest of hospital business to
remove this person. Claim for damages (must
meet the test the they action was not justified.) If
is not justified on common law or statute, there is
prima facie a case for damages
- *Henderson v Chief Constable, Fife Police
1988=The pursuer was a health board
worker. Workers were interfering with
hospital activities during a protest. The
police came along and arrested them. They
were taken to the police station, cautioned
and charged. Mr johns was handcuffed –
Miss Henderson though was asked to
remove her bra. Her action for wrongful
detention however failed. ***Article 5,
hasn’t been a game changer here. Not a
huge change.
- Arrest may be: A. with warrant;
B. without warrant but justifiable in
terms of common law or statute;
C. not justifiable in these terms
- (ECHR article 5) Stair, Institutions, 1.2.5 Liberty is “a most
precious right, yet it is not absolute”. Act of the Parliament of
Scotland of 1701 “For preventing wrongous Imprisonments and
against undue delayes in tryals”
- (1) ASSAULT
- B. CONFIDENTIALITY AND PRIVACY
- (1) Breach of confidence
- • Confidentiality – restraining others from divulging truthful information
- • Article 8(1): Everyone has the right to respect for his private and family life,
his home and his correspondence. • Article 10(1): Everyone has the right to
freedom of expression.
- CONFIDENTIAL INFO
- Coco v A N Clark (Engineers) The information
Must have the necessary quality of confidence; +
MUST have been imparted in circumstances importing an
obligation of confidence; + MUSThave been used in a way
that was not authorised.
- Campbell v MGN 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.” Campbell case: photographs about
Naomi Campbell, picture by a photographer coming out of a
narcotics anonymous meeting Held: privacy was owed.
Baroness Hale at para 149 “intimate details of a fashion model's
private life.”
- Information gained by former members of the security services. Particular
sensitive area Attorney General v Guardian Newspapers Ltd (No.2) [1990]
Former employee of MI5 attempted to publish his memoirs **** i.e. MI5 had
bugged Downing street when Macmillan was PM. [Spycatcher] *** This
information became public. Attorney general wanted an injunction against the
book. HELD: The contents were already known, and out there. Also on
grounds of public interest and freedom of information the request for interdict
was denied.
- Volkswagen v Garcia [2013] Prevention of disclosing how to
unlock VW vehicles in a research paper****Researchers reversed
engineered the chip inside the car immobiliser you can work out
how to use it. (VW cars) Company was concerned this might be
used by thieves. HELD: This was not information in the public
domain. Public interest that if this was published, it would be
opened door for car thieves to carry out thefts. Injunction granted
against academic paper.
- *Mosley v News Group Newspapers [2008] Mosley had had
relations with dominatrices (it involved group sex and SM) One
woman filmed the proceedings, and got a fee from newspaper.
Mosley has an important figure in wolrd of racing. HELD=
Damages of 60.000 pounds, his right to privacy. Consensual
sexual relationship. All this was off limits if it was between
consenting adults. Marital or extra marital- this information is
protected.
- Private correspondence/diaries HRH Prince of Wales v
Associated Newspapers Ltd [2008] Prince Charles had
kept a journal, about when he travelled in China. One
friend leaked it to newspapers. HELD: This is
confidential, and should not be broadcasted.
- Private correspondence/diaries HRH Prince of Wales v
Associated Newspapers Ltd [2008] Prince Charles had
kept a journal, about when he travelled in China. One
friend leaked it to newspapers. HELD: This is
confidential, and should not be broadcasted.
- *Mosley v News Group Newspapers [2008] Mosley had had
relations with dominatrices (it involved group sex and SM) One
woman filmed the proceedings, and got a fee from newspaper.
Mosley has an important figure in wolrd of racing. HELD=
Damages of 60.000 pounds, his right to privacy. Consensual
sexual relationship. All this was off limits if it was between
consenting adults. Marital or extra marital- this information is
protected.
- Volkswagen v Garcia [2013] Prevention of disclosing how to
unlock VW vehicles in a research paper****Researchers reversed
engineered the chip inside the car immobiliser you can work out
how to use it. (VW cars) Company was concerned this might be
used by thieves. HELD: This was not information in the public
domain. Public interest that if this was published, it would be
opened door for car thieves to carry out thefts. Injunction granted
against academic paper.
- Information gained by former members of the security services. Particular
sensitive area Attorney General v Guardian Newspapers Ltd (No.2) [1990]
Former employee of MI5 attempted to publish his memoirs **** i.e. MI5 had
bugged Downing street when Macmillan was PM. [Spycatcher] *** This
information became public. Attorney general wanted an injunction against the
book. HELD: The contents were already known, and out there. Also on
grounds of public interest and freedom of information the request for interdict
was denied.
- Campbell v MGN 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.” Campbell case: photographs about
Naomi Campbell, picture by a photographer coming out of a
narcotics anonymous meeting Held: privacy was owed.
Baroness Hale at para 149 “intimate details of a fashion model's
private life.”
- Coco v A N Clark (Engineers) The information
Must have the necessary quality of confidence; +
MUST have been imparted in circumstances importing an
obligation of confidence; + MUSThave been used in a way
that was not authorised.
- CONFIDENTIAL INFO
- • Article 8(1): Everyone has the right to respect for his private and family life,
his home and his correspondence. • Article 10(1): Everyone has the right to
freedom of expression.
- • Confidentiality – restraining others from divulging truthful information
- (2) Territorial privacy
- (3) Personal privacy
- (1) Breach of confidence
- C. DEFAMATION
- TYPES
- Interpretation of defamatory imputations
Pursuer must prove that: • the defender
made the imputation in question; • the
imputation referred to, or was capable of
being understood as referring to, the
pursuer; and • the imputation conveyed a
defamatory meaning.
- Lewis v Daily Telegraph Limited [1964] Lord Reid
“what the ordinary man, not avid for scandal, would
read into the words complained of” Objective standard
- Norman v Future Publishing Singer sued a
magazine (she was a large lady) the magazine
had reported an incident when she got stuck in
doors. Singer denied that the whole thing had
taken place. She argued about the innuendo
“Honey I aint got no sideways” this implied she
was ungrammatical. She was unsuccessful, CA
found that article gave mention of her successful
career and was very complementary. It wasn’t
holding up to ridicule.
- Legal persons and natural persons can sue
Jameel v Wall Street Journal Europe [2007]
HL accepted that you can sue where there is
an impact in your commercial reputation.
Even if you can’t quantify your trading losses
- Legal persons and natural persons can sue
Jameel v Wall Street Journal Europe [2007]
HL accepted that you can sue where there is
an impact in your commercial reputation.
Even if you can’t quantify your trading losses
- Norman v Future Publishing Singer sued a
magazine (she was a large lady) the magazine
had reported an incident when she got stuck in
doors. Singer denied that the whole thing had
taken place. She argued about the innuendo
“Honey I aint got no sideways” this implied she
was ungrammatical. She was unsuccessful, CA
found that article gave mention of her successful
career and was very complementary. It wasn’t
holding up to ridicule.
- Lewis v Daily Telegraph Limited [1964] Lord Reid
“what the ordinary man, not avid for scandal, would
read into the words complained of” Objective standard
- Interpretation of defamatory imputations
Pursuer must prove that: • the defender
made the imputation in question; • the
imputation referred to, or was capable of
being understood as referring to, the
pursuer; and • the imputation conveyed a
defamatory meaning.
- DEFENCES
- (a) Veritas
- Defence of truth
(presumption) – that
presumption is rebuttable
the defender can rebut it,
using this defence of
veritas [it operates on the
balance of probabilities]
This defence must meet
the sting of the
allegation.
- Sarwar v News Group
Newspapers 1999 --Successful
candidate in a parliamentary
election. Story that he paid to make
it easier to win. The paper was set
with proving that money had
changed hands as an inducement to
bribe. [Defence must meet the sting
of the original defamation]
- Sarwar v News Group
Newspapers 1999 --Successful
candidate in a parliamentary
election. Story that he paid to make
it easier to win. The paper was set
with proving that money had
changed hands as an inducement to
bribe. [Defence must meet the sting
of the original defamation]
- Defence of truth
(presumption) – that
presumption is rebuttable
the defender can rebut it,
using this defence of
veritas [it operates on the
balance of probabilities]
This defence must meet
the sting of the
allegation.
- (f) Qualified privilege
- Malice need not be proved by the
pursuer
- Reynolds v Times Newspapers
[2001]. Reynolds sued on
grounds that the article defamed
his role in Irish parliament. HELD:
As per lord Nichols –were all these
factor in the balance?
- “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 is a matter of public concern. 3. The
source of the information. Some informants
have no direct knowledge of the events.
Some 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. 7. Whether
comment was sought from the plaintiff. 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. 10.
The circumstances of the publication,
including the timing.”
- Jameel v Wall Street Journal Europe [2007]- This
case followes Reynolds case and condensed criteria
(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. Idea of
responsible journalism
- Jameel v Wall Street Journal Europe [2007]- This
case followes Reynolds case and condensed criteria
(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. Idea of
responsible journalism
- “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 is a matter of public concern. 3. The
source of the information. Some informants
have no direct knowledge of the events.
Some 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. 7. Whether
comment was sought from the plaintiff. 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. 10.
The circumstances of the publication,
including the timing.”
- Reynolds v Times Newspapers
[2001]. Reynolds sued on
grounds that the article defamed
his role in Irish parliament. HELD:
As per lord Nichols –were all these
factor in the balance?
- Malice need not be proved by the
pursuer
- (a) Veritas
- • Defamation – restraining others from telling lies
- TYPES
- D. NUISANCE
- TYPE OF HARM
- (i) NO PHYSICAL DAMAGE
- *Webster v Ld Advocate 1985 [Leading Scot cases] Pursuer was
one of the inhabitants of Ramsey garden. She sued the
organisers of the annual Edinburgh Tattoo (argued the noise was
very loud, and the preparation for sittings was a nuisance) Held:
Court did not agree that the Tattoo constituted the nuisance, but
agreed that the sound of putting up the metal structure so the
hammering over the summer months. (In principle constituted a
material invasion of her rights) this was therefore a nuisance
[organisers were given an ultimatum to reduce noise levels]
- Globe (Aberdeen) v North of Scotland Water Authority
2000 In principle if your neighbour makes the local
environment messy and uninviting, there is nuisance, if it
causes loss of business. (In this case there was work being
carried in sewers and path outside pursuer’s pub had been
made muddy and impassable) This was actionable as a
nuisance Rules for recovering economic loss (in certain
cases this might be available under a claim for nuisance)
- Disturbance causing loss of business?
- Disturbance causing loss of business?
- Globe (Aberdeen) v North of Scotland Water Authority
2000 In principle if your neighbour makes the local
environment messy and uninviting, there is nuisance, if it
causes loss of business. (In this case there was work being
carried in sewers and path outside pursuer’s pub had been
made muddy and impassable) This was actionable as a
nuisance Rules for recovering economic loss (in certain
cases this might be available under a claim for nuisance)
- *Webster v Ld Advocate 1985 [Leading Scot cases] Pursuer was
one of the inhabitants of Ramsey garden. She sued the
organisers of the annual Edinburgh Tattoo (argued the noise was
very loud, and the preparation for sittings was a nuisance) Held:
Court did not agree that the Tattoo constituted the nuisance, but
agreed that the sound of putting up the metal structure so the
hammering over the summer months. (In principle constituted a
material invasion of her rights) this was therefore a nuisance
[organisers were given an ultimatum to reduce noise levels]
- (ii) PHYSICAL DAMAGE
- *Kennedy v Glenbelle 1996 SC (leading modern
Scots case) = Defenders were the proprietors of
a basement flat in Glasgow. After Consultation with
structural engineers, they removed sections of a load
bearing wall – there was structural damage (cracking
for flats above) Upper floor proprietors sued
- Noxious fumes and
vapours: *Watt v
Jamieson 1954 SC 56
- Noxious fumes and
vapours: *Watt v
Jamieson 1954 SC 56
- *Kennedy v Glenbelle 1996 SC (leading modern
Scots case) = Defenders were the proprietors of
a basement flat in Glasgow. After Consultation with
structural engineers, they removed sections of a load
bearing wall – there was structural damage (cracking
for flats above) Upper floor proprietors sued
- (i) NO PHYSICAL DAMAGE
- FIRST TEST: CULPA
- (a) Damages for Fault or culpa
must be proved. Strict liability
does not apply in nuisance.
Strict liability = Pursuer does
not have to prove that the
defendant was at fault, but the
conduct was negligent. All the
pursuer has to prove is that the
defendant caused harm. In
Scotland culpa must be proved
in all cases
- RHM Bakeries v Strathclyde
Regional Council 1985(HL)
Lord Fraser, no possibly of strict
liability in this contest- You
couldn’t just say the sewer had
collapsed and the council were
therefore liable. No, you had to set
a case in which the defendants
were at fault. (You have to deal with
the issue of fault)
- The fault requirement Lord President Hope in
Kennedy v Glenbelle Ltd. “The essential
requirement is that fault or culpa must be
established. That may be done by demonstrating
negligence + action was reckless + conduct gave
rise to a special risk of abnormal damage
- The fault requirement Lord President Hope in
Kennedy v Glenbelle Ltd. “The essential
requirement is that fault or culpa must be
established. That may be done by demonstrating
negligence + action was reckless + conduct gave
rise to a special risk of abnormal damage
- RHM Bakeries v Strathclyde
Regional Council 1985(HL)
Lord Fraser, no possibly of strict
liability in this contest- You
couldn’t just say the sewer had
collapsed and the council were
therefore liable. No, you had to set
a case in which the defendants
were at fault. (You have to deal with
the issue of fault)
- (a) Damages for Fault or culpa
must be proved. Strict liability
does not apply in nuisance.
Strict liability = Pursuer does
not have to prove that the
defendant was at fault, but the
conduct was negligent. All the
pursuer has to prove is that the
defendant caused harm. In
Scotland culpa must be proved
in all cases
- SECOND TEST: GRAVITY OF HARM
- How the pursuer establishes that the nuisance was sufficiently
severe- 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.
The plus quam tolerabile test
- *Watt v Jamieson 1954 SC Lord Cooper at p 58
“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
- (vi) ECHR, Article 8? *Marcic v Thames Water Utilities [2004]
- (vi) ECHR, Article 8? *Marcic v Thames Water Utilities [2004]
- *Watt v Jamieson 1954 SC Lord Cooper at p 58
“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
- How the pursuer establishes that the nuisance was sufficiently
severe- 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.
The plus quam tolerabile test
- DEFENCES
- (I) STATUTORY DEFENCES
- (II) VOLENTI NOT FIT INJURIA
- No defence that the pursuer knowingly “came” to the
nuisance, 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.
- No defence that the pursuer knowingly “came” to the
nuisance, 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.
- “The general principles are that where the nuisance is an inevitable consequence
of the carrying out in a particular place or within particular limits of operations
authorised by statute to be carried out there, then there is no liability at law for the
nuisance, which is taken to be impliedly permitted by the statute.” (Lord Keith in Rae
v Burgh of Musselburgh 1974 ) However, this statement must be weighed against
Human Rights Act, s 6 (unlawful for a public authority to act in a way which is
incompatible with a Convention right).
- (II) VOLENTI NOT FIT INJURIA
- (I) STATUTORY DEFENCES
- TYPE OF HARM
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