LS1536 : Delict and Unjustified Enrichment
McGhee v National Coal Board (1973) SLT 14
A man who worked in a brick kiln contracted dermatitis. There were two potential causes: (1) The hot, dusty environment in which he worked - in respect of which the employer was not in breach of duty. (2) The lack of on-site washing facilities - in respect of which the employer was in breach of duty. But: it could not be shown that this made a 'material contribution' to the pursuer's injury The fact that the pursuer had to cycle home unwashed materially increased the risk of him contracting dermatitis. This led the House of Lords to the following conclusion: 'But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the every-day affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.' (Lord Reid at 53-54).
McIver v Roy 1970 SLT (Sh Ct) 58
A payment was made on the basis of a mere misprediction rather than an error as to legal liability. Because there was no error as to legal liability, the payment was not recoverable under the condictio indebiti. A branch manager of an insurance company paid out to the daughter-in-law of a deceased policy-holder the proceeds of the policy. She was not entitled thereto, and he had to pay out the said sum to a son of the deceased. The manager claimed repetition of the said sum from the daughter-in-law on behalf of his principals (1) on the basis of the condictio indebiti; and (2) on the basis of recompense.
Bolton v Stone [1951] AC 850
A person, being on a side road of residential houses, was injured by a ball hit by a player on a cricket ground abutting on that highway. The ground was enclosed on that side by a seven-feet fence, the top of which, owing to a slope, stood seventeen feet above the level of the pitch. The wicket from which the ball was hit was about seventy-eight yards from this fence and 100 yards from the place where the injury occurred. There was evidence that while over a period of years balls had been struck over the fence on very rare occasions, the hit now in question was altogether exceptional. Held, that the members of the club were not liable in damages to the injured person, whether on the ground of negligence or nuisance. Although the possibility of the ball being hit on to the highway might reasonably have been foreseen, this was not sufficient to establish negligence, since the risk of injury to anyone in such a place was so remote that a reasonable person would not have anticipated it.
The Oropesa [1943] P 32
A ship (the Manchester Regiment) suffered serious damage when it collided with another ship (the Oropesa). The captain of the Manchester Regiment thought that it could be salvaged and so organised a rescue party to that end. One of the sailors involved died in the process of trying to rescue the ship and the rescue attempt was ultimately a failure. In an action by the deceased sailor's parents against the owners of the Oropesa, it was held that the captain of the Manchester Regiment's decision to try to rescue the ship was not a novus actus interveniens.
Wylie's Executrix v McJannet (1901) 4 F 195
A solicitor, with a view to covering advances made by him to a client, induced the client to insure his life. The solicitor paid all the premiums, at first at the client's request, and thereafter—the client being unable to pay—with the view of maintaining a security for his debt. The policy remained throughout in the hands of the solicitor, but with no assignation from the client. On the death of the client, insolvent, the solicitor claimed (in a multiple-poinding raised to determine right to the proceeds of the policy, which constituted the whole executry estate) to be preferentially ranked to the extent of the premiums paid by him, and interest thereon, on the grounds that he had the custody of the policy, that his expenditure had preserved it in force, and that, to the extent of such expenditure, he had a lien over the proceeds of the policy. Held that the solicitor had, in respect of the said payments, no preferential claim on the executry estate.
McWilliams v Sir William Arrol (1962) SC (HL) 70
A steel erector fell from a great height to his death. A claim was raised against the steel erector's employer based on his employer's failure to furnish him with a safety harness. The claim failed because even if the man had been furnished with a safety harness, he would not have worn it.
M'Intyres v Orde (1881) 18 SLR 604
A teacher built a house next to the school in which he worked. When the teacher died, his sisters (who had been living with him until his death and who were his legal representatives on death) were ejected from the property. The sisters sought payment of the value of the building, arguing that the teacher genuinely thought that the house and land were his. The case went to proof.
Lister v Hesley Hall Ltd (2001) 1 AC 215
A variety of theories have been put forward to explain the rule. The expression "respondeat superior" and the maxim "qui facit per alium facit per se", while they may be convenient, do not assist in any analysis. (...) I am not persuaded that there is any reason of principle or policy which can be of substantial guidance in the resolution of the problem of applying the rule in any particular case. Theory may well justify the existence of the concept, but it is hard to find guidance from any underlying principle which will weigh in the decision...'
Neighbourhood Principle
'... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation...' (Donoghue, at 44) What has become of the principle over time? ◦'Close degree of proximity between the parties' ◦'Reasonable foreseeability of the loss or injury' Keep in mind that the two must come together. ◦It is the proximity of the parties that makes them responsible for addressing foreseeable risk of harm.
Compensation Act 2006, s. 1
'A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (...), have regard to whether a requirement to take those steps might- (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.
Law of Remoteness of Damage in Scotland
1)The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable. 2)[T]he defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer (...). 3)[T]he 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 4)The defender must take his victim as he finds him. 5)Where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury...'
the 'Caparo' test
1.Loss or injury must be reasonably foreseeable 2.Close degree of proximity between the parties 3.It is 'fair, just and reasonable' to impose duty of care.
Act or omission constitutes negligence
1.Probability of the injury to the pursuer 2.Seriousness of the injury to the pursuer 3.Value of the activity 4.Practicality of taking precautions 5.Cost of precautions 6.Usual practice in the same business, trade or profession
Kirby Test
1.The master authorised the particular act. The master is clearly liable. 2.The workman does the work he is appointed to do - in a way his master has not authorised and would not have authorised. The master is liable. 3.The servant, employed to do a particular work, does something outside the scope of that work. The master is not liable. 4.The servant uses his master's time or his master's place or his master's tools for his own purposes. The master is not liable.
The 'algorithm' for negligence action
1.There must be a duty of care owed to the pursuer 2.There must be breach of duty 3.The breach must cause a loss
Legal causation
A cause recognized by law as necessary to impose criminal liability. •The defender's breach of duty must be both a cause in fact (causa sine qua non) and a legal cause (causa causans) of the pursuer's loss. •Sometimes legal causation is couched in different language, e.g. the need for the defender's breach of duty to be a 'proximate cause' or a 'substantial cause'.
Kay's Tutor v Ayrshire and Arran Health Board 1987 SC (HL) 145
A child suffering from meningitis was given an overdose of penicillin. The child became deaf. It was held that it had not been shown that the penicillin overdose had caused the child's death under the traditional 'but for' test. There was a lack of evidence to suggest that a penicillin overdose could result in a child becoming deaf. For Fairchild to work, it has to be shown that the substance in question is capable of causing the injury. We know that asbestos can trigger cancer; the court was not satisfied that a penicillin overdose could trigger deafness.
Bolitho v City and Hackney Area HA [1998] AC 232
A doctor failed to attend to a child who had been admitted to hospital with respiratory difficulties. The child suffered a cardiac arrest and severe brain damage. In all likelihood the only means of preventing the brain damage, intubation, would not have been favoured by the doctor and she would not have been negligent in not favouring this option: i.e. even if the doctor had fulfilled her duty of care by attending to the child, the child would have still sustained the brain damage. Accordingly, the claim failed because there was no causal link between the defender's wrongdoing and the pursuer's loss.
Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428
A doctor refused to treat a man who had been poisoned. It was held that, although the doctor was in breach of his duty of care, he was not liable for the man's death given that even if he had intervened the man would still have died.
Watt v Hertfordshire County Council
A fireman was injured by lifting-gear while travelling in a lorry not specially fitted for carrying the gear to an emergency where a woman was trapped under a heavy vehicle:— Held, that though the fire authorities were under a duty to provide proper appliances and to take reasonable care to avoid exposing their firemen to unnecessary risks, they were not negligent in requiring the firemen to take abnormal risks which they were ready to take in order to save life and limb. Per Denning L.J. In balancing the risk against the measures necessary to eliminate it, the risk must be balanced against the end to be achieved. Dictum of Asquith L.J. in Daborn v. Bath Tramways Mot
Watt v Hertfordshire County Council (1954) 2 All ER 368
A fireman was injured by lifting-gear while travelling in a lorry not specially fitted for carrying the gear to an emergency where a woman was trapped under a heavy vehicle:— Held, that though the fire authorities were under a duty to provide proper appliances and to take reasonable care to avoid exposing their firemen to unnecessary risks, they were not negligent in requiring the firemen to take abnormal risks which they were ready to take in order to save life and limb. Per Denning L.J. In balancing the risk against the measures necessary to eliminate it, the risk must be balanced against the end to be achieved. Dictum of Asquith L.J. in Daborn v. Bath Tramways Mot
Findlay v Monro (1698) Mor 1767
A gift (consisting of an ox) failed because it was delivered to the wrong person.
Masters and Seamen of Dundee v Cockerill (1869) 8 M 278
A gift was made as a result of an erroneous belief (i.e. the belief that the recipient's husband was dead when he was actually still alive). However, because this error was not an error as to legal liability, the gift was irrecoverable under the condictio indebiti. Indeed, by definition, a gift can never be something that you think you owe
Carrick v Carse (1778) Mor 2931
A guarantor (or 'cautioner', to use the Scottish term) paid a debt even though his obligation to pay this debt had ceased to exist ('negatively prescribed').
Corr v IBC Vehicles Ltd [2008] 1 AC 884
A man suffered severe head injuries in an industrial accident which necessitated reconstructive surgery. He subsequently suffered from post-traumatic stress disorder, severe anxiety and depression, and eventually committed suicide. It was held that the deceased's employer was liable for his death and that the suicide was not a novus actus interveniens.
McKew v Holland, Hannen, Cubitts (Scotland) Ltd 1970 SC (HL) 20
A man was injured in a work-related accident thanks to which his left leg became periodically numb. Three weeks after the accident, he was descending a steep staircase of ten steps (there was no handrail). His injured leg went numb and because he feared he might fall he jumped to the bottom of the staircase, injuring himself further. The man's employer was not liable for the second injury. The man acted unreasonably in descending the stairs in the way he did and that unreasonable conduct was a novus actus interveniens.
Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd 1998 SC (HL) 90
D, developers and former tenants of a shopping centre, appealed against the Extra Division's decision to dismiss their claim for unjust enrichment against their former landlords, C, following C's irritation of their sublease (1997 S.L.T. 260, [1996] C.L.Y. 7105). In terms of the sublease, D were entitled to retain a portion of the rents they collected from the occupational tenants. D pled that the portion of rents which they were entitled to retain represented a return for their investment in the development. When the sublease was irritated, C lost their entitlement to this return. D argued that C was unjustly enriched by the capitalised value of that element of D's interest which did not correlate to the rent payable to C. Held, dismissing the appeal, that (1) the remedy sought by D was recompense; (2) for a claim of recompense to be successful the pursuers must show the defenders to have been enriched at their expense, that there was no legal justification for the enrichment and that it would be equitable for the enrichment to be redressed; (3) the irritancy of the lease had clearly resulted in the enrichment of C at D's expense and equitable considerations suggested that D ought to be compensated by C, and (4) however it was not the case that the enrichment could not be justified by reference to the lease from which D's entitlement to any benefit was derived, the irritancy clause clearly stated that all right and title would revert to the landlord and the exercise of irritancy would, of necessity confer some advantage on a landlord, consequently the enrichment which had accrued to C could not be said to be unjust. Lord Jauncey of Tullichettle and Lord Hope of Craighead gave speeches with which Lord Browne-Wilkinson, Lord Nolan and Lord Hoffman agreed. Observed per Lord Jauncey of Tullichettle, that irritancy clauses for non payment of rent in leases did not reflect social policy and any development of the law should follow Hannan v Henderson (1879) 7 R. 380, [1879] 12 WLUK 56.
Overseas Tankship v Morts Dock Engineering Co Ltd (The Wagon Mound) (1961) AC 388
Damage to property. By the negligence of the defendant's servants large quantities of oil escaped into a harbour. The oil spread to a wharf owned by the plaintiff where, some floating cotton waste acting as a wick, it was ignited by hot metal falling from oxy-acetylene welding there carried on. The fire spread to the wharf and the equipment on it. The trial judge found that the plaintiff did not know, and could not reasonably be expected to have known, that the floating oil could be set alight, but that the damage to the wharf and equipment was a direct result of the escape of the oil.
Wardlaw v Bonnington Castings Ltd (1956) SC (HL) 26
Established that only a material contribution is sufficient in proving factual causation. A worker contracted pneumoconiosis (a lung disease) as a result of inhaling dust in his place of work. The dust emanated from two sources: (1)Dust from a pneumatic hammer - in respect of which the employer was not in breach of duty. (2)Dust from swing grinders - in respect of which the employer was in breach of duty.
Dollar Land (Cumbernauld) v CIN Properties 1998 SC (HL) 90, at 94 (per Lord Hope).
Facts: Dollar Land (DL) was the landlord in a lease of land developed partly as a shopping centre and CIN Properties Ltd was a tenant. Under this arrangement, CIN paid a nominal rent of £1/year to DL. Far more importantly, CIN, in turn, sub-let the property back to DL. Under this sub-lease arrangement, DL had the benefit of 22.468 per cent of the occupational rents (i.e. the rents derived from the shops in the shopping centre) but had to pay 77.352 per cent of these occupational rents to CIN as rent under the sub-lease. When DL failed to pay the rent under the sub-lease on time, CIN brought the sub-lease to an end. Because of this, CIN was effectively able to take the benefit of 100 per cent of the occupational rents (including the 22.468 per cent from which DL had previously benefited). CIN had thereby made a very large windfall. On the other hand, DL had made a massive loss: DL had originally paid £2.2 million to obtain the sub-lease and had relied on its entitlement to 22.468 per cent of occupational rents to obtain a return on that investment. Now that the sub-lease had been brought to an end, CIN would not make a return on its investment. The question arose whether CIN had been unjustifiably enriched in bringing the sub-lease to an end.
Anns as a two-stage approach
First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a 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 consider 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 or the damages to which a breach of it may give rise.'
Gibson v Orr (1999) SC 420
G sued O, a chief constable, after a car in which he was a passenger drove off a collapsed bridge. Two police officers attended the north side of the bridge and the division which served the area on the south of the bridge was contacted. The constables coned off the north side of the bridge and positioned their vehicle with its blue lights flashing. The constables left the scene without having received confirmation that any barrier or warning sign was in place on the south side. Shortly thereafter the car carrying G approached from the south side. The driver and an other passenger were killed. C argued that although the accident was foreseeable no duty of care existed.
Criteria for establishing breach of duty
I.Voluntary act or omission by the defender II.The harm must be the reasonable and probable consequence of the defender's conduct. III.The act or omission must constitute negligence.
Shilliday v Smith 1998 SC 725
P and D cohabited and became engaged. D bought a house which the couple intended to repair and refurbish to be their matrimonial home. P spent considerable sums of her own money on materials for the house and also gave money to D for that purpose. P and D then separated, the marriage was called off, and P raised an action against D for payment of the sums she had expended on his house on the basis of unjustified enrichment. The sheriff granted decree in favour of P and the sheriff principal refused D's appeal. D appealed to the Court of Session arguing that it was insufficient that the money was paid in contemplation of marriage, marriage would have had to have been a condition of the payments, and that, in any event, P had acted for her own benefit. Held, refusing the appeal, that, as the condictio causa data causa non secuta was not based on contract but on law, there was no need for a pursuer to demonstrate that the expenditure was on a strictly conditional basis, the fact that payments were made in contemplation of marriage was sufficient. The critical factor in P's action was that she had paid money in contemplation of a marriage which did not take place and the benefits to herself were incidental to that purpose.
Virdee v Stewart [2011] CSOH 50
P built a house on her brother (D)'s land in 1994. There was an informal understanding that P would be allowed to live in the house. In 2009, P and D fell out. Could P claim against D in unjustified enrichment? The Court of Session held that D had been unjustifiably enriched as soon as the house was built on his land (i.e. in 1994). The prescriptive period for unjustified enrichment claims is 5 years. As the claim was raised in 2010, P's claim was held to have prescribed. Arguably, the condictio c.d. would have led to a better result.
Beattie v Lord Napier (1831) 9 S 639
P built a school on T's land with T's consent but neglected to obtain title to this land. T sold the land to D. P was ejected from the land and was not able to claim against D in unjustified enrichment.
Courtney's Executors v Campbell [2016] CSOH 136
P enriched D by £150,000 in the expectation that they would continue to cohabit. P and D separated. When P died, his executors (i.e. legal representatives on death) claimed the value of the improvements. P's claim in unjustified enrichment failed because he could have relied on a statutory remedy under the Family Law (Scotland) Act 2006, s 28.
Anderson v Anderson (1869) 8 M 157
P managed a farm in the genuine belief that he was the sole lessee, when in fact he was one of four lessees. P was able to recover from the other lessees.
Connelly v Simpson 1993 SC 391
P paid £16,000 to D with a view to purchasing one third of the shares in a company. However, P asked D to postpone delivery of the shares. Later, following a breach of contract by D, P sought to recover his prepayment in unjustified enrichment. It was held that, because there was a valid contract, P was confined to a contractual claim for damages which, owing to the fact that the shares had fallen in value, was restricted to £400.
Oliver and Boyd v Marr Typefounding Co Ltd (1901) 9 SLT 170 (OH)
P's 'type' (i.e. metal used for printing) was stolen. The type ended up in D's hands. D melted the type down, thereby making it into a new thing. P was able to claim the value of the type. RESTITUTION—STOLEN GOODS ACQUIRED BY BONA FIDE PURCHASER AND SUBMITTED TO MANUFACTURING PROCESS—RESTITUTION IN FORMA SPECIFICA NO LONGER POSSIBLE—LIABILITY OF PURCHASER TO ACCOUNT TO OWNER OF GOODS FOR THEIR VALUE.
McKillen v Barclay Curle & Co Ltd (1967) SLT 41
Personal Injury A plumber's mate who fractured a rib when he was descending a three-step staging maintained that tuberculosis from which he was found to be suffering had been reactivated by the accident. In an action against his employers it was held that the accident was caused by their negligence, and damages, including damages in respect of his tuberculosis, were awarded. The defenders reclaimed on the measure of damages and maintained (a) that the reactivation of the pursuer's tuberculosis was not a foreseeable consequence of the accident for which the defenders were bound to compensate him; and (b) that, in any event, the pursuer had failed to prove that the fracture of his rib did cause the reactivation of the tuberculosis since only one medical witness gave evidence to that effect. In my opinion it has never been the law of Scotland that a man guilty of negligence towards another is only liable for the damage in respect of physical injuries which a reasonable man would foresee as likely to follow from it.'
McTear v Imperial Tobacco Ltd (2005) 2 SC 1
Probability of injury - the role of 'informed choice' he pursuer (T) sought damages from the defender cigarette manufacturer (D) in respect of the death of her husband from lung cancer. T claimed that her husband's death was caused to a material extent by smoking from 1964 to 1992 cigarettes manufactured by D and that throughout the period during which he smoked them D was negligent in selling cigarettes, or in any event in selling them without appropriate warnings. T accepted that the process by which lung cancer developed was not known. T relied on evidence from medical experts who had relied upon epidemiological literature (the study of patterns of disease in populations) relating to the association between cigarette smoking and lung cancer to support their conclusions that smoking was a cause of lung cancer in general and had specifically caused the deceased's cancer. T argued that (1) cigarette smoking could cause lung cancer and that D had admitted that fact; (2) the deceased's lung cancer had been caused by smoking; (3) the deceased's lung cancer had been caused by the fault and negligence of D. D submitted that (1) it had accepted the statistical association between smoking and lung cancer but it did not accept that smoking was a cause of cancer and that the expert evidence from T had failed to impart to the court a special knowledge of epidemiology so that it could make its own judgment on general causation; (2) epidemiological evidence could not be used to determine individual causation; (3) the level of public awareness about the risks of smoking was so widespread when the deceased had started smoking that there had been no duty on D to cease manufacture or to give warnings of the risks and that it was for the deceased to make a choice about whether to smoke. There had been no lack of reasonable care by D. The evidence showed that the deceased would have continued to smoke even if D had stopped manufacturing cigarettes and therefore, even if D had been negligent, it would have made no difference to whether the deceased contracted lung cancer.
Malcolm v Dickson (1951) SC 542
Reasonable and probable consequences The pursuer and her husband were staying at his mother's house, which was being painted by the defenders. She alleged that owing to the negligence of one of the defenders' workmen the house caught fire, whereupon her husband went into a room over the fire to rescue some of his own belongings and then to another room away from the fire and started to remove from it the furniture therein, and that while he was so doing he collapsed through the exertion, strain and excitement and died. The Court of Session, Inner House, dismissed the pursuer's action as irrelevant, holding that the death of the pursuer's husband was too remote from the alleged negligence. At 556, per Lord Patrick: ◦'It would not occur to the ordinary reasonable man that a reasonable and probable consequence of his being careless in burning paint from a window-frame would be that some intervener would suffer a substantial injury through over-exertion, strain and excitement in carrying furniture from the house.'
Paris v Stepney Borough Council (1951) AC 367
A workman employed as a garage hand had, to the knowledge of his employers, only one good eye. In working on the back axle of a vehicle to remove a U-bolt, which had rusted in, he struck it with a hammer and a metal chip flew off seriously injuring his good eye. He was not wearing goggles. He claimed damages against his employers in respect of that injury on the ground that they were negligent in failing to provide and require the use of goggles as part of the system of work. Held, that, in the case of a workman suffering, to the employer's knowledge, from a disability which, though it did not increase the risk of an accident occurring, did increase the risk of serious injury if an accident should befall him, the special risk of injury is a relevant consideration in determining the precautions which the employer should take in the fulfilment of the duty of care which he owes to the workman. Lord Oaksey: 'The fact that the servant has only one eye if that fact is known to the employer, and that if he loses it he will be blind, is one of the circumstances which must be considered by the employer in determining what precautions if any shall be taken for the servant's safety. The standard of care which the law demands is the care which an ordinarily prudent employer would take in all the circumstances.'
General Principle of Enrichment
An enrichment will be 'unjustified' if: (1) The defender (D) was enriched; (2) D's enrichment was at the expense of the pursuer (P); (3) D has no legal ground/basis on which to retain the enrichment; (4) It is equitable to compel D to surrender his/her enrichment.
Wilsher v Essex Area Health Authority [1988] AC 1074
An excessive amount of oxygen was administered to a prematurely born baby. The baby ended up blind. In total, there were five different possible causes (e.g. the aforementioned oxygen overdose, and various other conditions from which the baby was suffering such as hypercarbia and apnoea) of the blindness. The defendants were only in breach of duty as regards the oxygen overdose. Because of the existence of different factors, it was not possible to show that the oxygen overdose had caused or materially contributed to the child's blindness.
Re Polemis and Furness Withy & Co. (1921) 3 KB 560
Besides other cargo, the charterers loaded in the hold of a ship a quantity of benzine and/or petrol in tins in cases. During the voyage the tins leaked, and in consequence there was a considerable quantity of petrol vapour in the hold. At one of the ports of call it became necessary for the stevedores, who were employed by and were the servants of the charterers, to shift some of the cases of benzine, and for that purpose the stevedores placed a number of heavy planks at the forward end of the hatchway, which they used as a platform for transferring the cases from the lower hold to the 'tween deck. When the sling containing the cases of benzine was being hoisted up, owing to the negligence of the stevedores the rope by which the sling was hoisted or the sling itself came in contact with the boards, causing one of the boards to fall into the hold, and the fall was immediately followed by a rush of flames, the result being the total destruction of the ship. The shipowners claimed from the charterers as damages the value of the ship.
Secretary of State for Defence v Johnstone, 1997 SLT (Sh Ct) 37
D continued to occupy P's property after the end of a lease. It was held that D had to pay back the rent that P would reasonably have been able to charge had the property been let on the open market.
Jamieson v Watt's Tr 1950 SC 265
Reg. 56A of the Defence Regulations, 1939 (as amended), by par. 2 , declares unlawful any work, with certain specified exceptions, done without a licence in the construction, reconstruction, alteration, demolition, repair or decoration of a building, or work required for the purpose of providing water, light, heating or other services for a building. The proprietor of a house instructed a joiner to execute all the *266 joinery work in connexion with repairs and alterations to the house. The joiner applied for and obtained, under Reg. 56A , a licence for the expenditure of £40 upon the joinery work. On its completion he rendered an account for £114, 8s. 6d., being the total cost of the work done by him. The proprietor admitted his obligation to pay the joiner the sum of £43, 7s. 7d., the excess of £3, 7s. 7d. being admittedly a reasonable margin of error, but he refused to pay the remainder on the ground that Reg. 56A had been contravened. Held that the pursuer was not entitled to payment for work not covered by the licence in respect that his claim depended on his breach of a statutory regulation, and accordingly that the equitable doctrine of recompense was inapplicable.
Animals (Scotland) Act 1987
Section 1 (1) [A] person shall be liable for any injury or damage caused by an animal if— (a) at the time of the injury or damage complained of, he was a keeper of the animal; (b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and (c) the injury or damage complained of is directly referable to such physical attributes or habits.
Consumer Protection Act 1987
Section 2 (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. (2) This subsection applies to— (a) the producer of the product; (b) any person who (...) has held himself out to be the producer of the product;
Simmons v British Steel plc (2004) SC (HL) 94
Sided with Wagon Mound The pursuer sustained injuries in the course of his employment as a burner at the defenders' steel works. He tripped and fell from the burning table and struck his head on a metal stanchion. He sustained a severe blow to the head. After the accident the pursuer experienced an exacerbation of a pre-existing skin condition, and he developed a change in his personality which resulted in a severe depressive illness. '[T]he foreseeability test which lies at heart of the grand rule had a function to play in questions as to the remoteness of damage as well as to liability. (...) In my opinion the basic principles are well settled.'
Strict liability
Strict liability is where a person can be liable in delict for breach of duty without the need for the person who suffers the injury or damage to establish fault.
Caparo Industries Plc v Dickman (1990) 2 AC 605
TR, a firm of accountants, appealed against a decision of the Court of Appeal (Times, August 5, 1988) that they owed a duty of care to shareholders when preparing an auditor's report as required by statute. C had brought an action against D and another, directors of F, a public company in respect of which the report had been prepared, alleging negligent misstatement. C had purchased shares in F as part of a take over bid and, placing reliance on TR's report, had bought further shares. The report was subsequently proved to have to given a false picture of F's profits and C suffered a loss. The Court of Appeal had drawn a distinction between existing shareholders, to whom TR owed a duty and potential investors in respect of whom no duty was owed. TR submitted that it did not owe a duty to either group, since the necessary degree of proximity between the parties was missing. Held, allowing the appeal, that no duty was owed either to existing shareholders, or to potential investors, since for a duty to arise, three factors had to exist, namely: (1) a sufficient degree of proximity in the relationship between the parties; (2) the knowledge that the report would be communicated to the shareholder or investor in connection with a particular transaction in the contemplation of the parties, Smith v Eric S Bush (A Firm) [1990] 1 A.C. 831, [1989] 4 WLUK 214 applied, and (3) the shareholder or investor would place reliance on the report when deciding whether to enter into the relevant transaction. Auditors of a public company routinely preparing accounts, in contrast to the preparation of a report for a specific purpose for an identified party, owed no duty to the public at large who might place reliance on company accounts when making investment decisions. To impose such a liability would open the floodgates to an indeterminately wide class of people, JEB Fasteners Ltd v Marks Bloom & Co [1981] 3 All E.R. 289, [1980] 12 WLUK 231 distinguished. Furthermore, it was necessary to impose some limit on liability for economic loss arising in the absence of a contractual relationship between the parties.
Latimer v AEC Ltd (1953) AC 643
The Factories Act 1937 s.25 provides that "All floors, stairs, passages and gangways shall be of sound construction and properly maintained," and s.152(1) of the Act defines "maintained" as meaning "maintained in an efficient state, in efficient working order, and in good repair." S.25 is aimed at some general condition of the gangway or floor, etc., e.g., a dangerously polished surface or the like or possibly some permanent fitting which makes it unsafe. The section does not apply to a transient and exceptional condition. An unprecedented downpour of rain caused flooding in the respondents' factory and oil pumped to certain machines became mixed with the water. When the water receded the floor was left wet and oily, and sawdust was spread over it as far as supplies permitted. The appellant slipped on an untreated part of the floor and claimed damages for negligence and breach of the Factories Act 1937 s.25(1) Held, (1) the appellant had not established that a reasonably careful employer would have shut down the factory, and therefore the appellant failed on the issue of common law negligence; (2) it had not been proved that the floors and passages had not been maintained in an efficient state, and therefore the appellant's claim for damages for breach of statutory duty under the Factories Act 1937 s.25(1) also failed. Galashiels Gas Co Ltd v Millar [1949] A.C. 275, [1949] 1 WLUK 298 distinguished.
Reeves v Commissioner of Police for the Metropolis (2001) 1 AC 360
The case confirms that 'fault' under the Act 'could include intentional acts as well as negligence.' (at 361) Reeves: Martin Lynch was held in a police cell in the custody of officers, who had been alerted to the risk that he might commit suicide. Taking advantage of the officers' inadvertence in leaving the flap of the cell door open, Lynch tied his shirt through the spyhole on the outside of the door and hanged himself, as a result of which he died. An action was brought by Sheila Reeves who had lived with Lynch for some years and had a child by him. She sued the Metropolitan Police Commissioner under the Fatal Accidents Act 1976 for negligently causing Lynch's death. The trial judge found that the police had been negligent. Was Lynch guilty of contributory negligence? Was his death partly caused by his own fault (as required by the 1945 Act)? But his conduct was deliberate, not negligent. How could he be guilty of contributory negligence? The House of Lords held that 'fault' for the purposes of the 1945 Act could include intentional acts as well as negligence. Contributory negligence was assessed at 50%. Contributory negligence can be pleaded even where the responsibility of the pursuer for the loss was the very thing that the defender was supposed to prevent.
Satchwell v McIntosh 2006 SLT (Sh Ct) 117
The condictio c.d. was applied in the context of an agreement to continue cohabiting rather than an agreement to marry. S sought return of GBP 75,861.38, comprising sums paid M to refurbish the house in which the parties lived, and net proceeds of the sale of properties used to buy the house. S averred that the monies were made available to M on the basis that they would continue to reside together at the house for the rest of his life. The action came to debate before the sheriff on whether it was necessary for S, in a case based on unjust enrichment, to make averments of a "mutual understanding" between the parties as to the basis on which the sums of which recovery was sought were first paid over. The sheriff rejected M's contention that there was any requirement for S to aver a mutual intention to marry at the time the transfers were made and allowed a proof before answer. M appealed, acknowledging the significance of S's concession that the case was not based on the proposition that advances had been made to M in contemplation of marriage, but submitting that the main issue was whether continuing cohabitation could be said to be a cause sufficient to form the basis of an unjust enrichment case. While the categories of unjust enrichment might never close, there had to be a causa in respect of which the property was transferred even if the law did not require a mutual understanding as to its basis.
Muir v Glasgow Corporation (1943) SC (HL) 3
The harm to the pursuer must be the reasonable and probable consequence of the defender's act or omission Negligence—Public tea room and shop—Shop crowded with children—Tea urn carried through with leave of manageress—Urn upset and children scalded—Liability of owners of premises.
Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39,[2008] 1 AC 281
The issue was whether pleural plaques (a thickening of the pleural membrane surrounding the lungs) constituted loss for the purposes of a delictual claim. It was held that the pleural plaques did not constitute loss. They were usually symptom-less and, although they indicated the presence of asbestos in the lungs and pleura (hence the potential development of such diseases as asbestosis or mesothelioma) the plaques themselves did not cause an asbestos-related disease.
Sayers v Harlow Urban District Council (cont.)
The plaintiff became trapped in a public toilet. In an effort to climb over the door she slipped and fell, injuring herself. It was held that the plaintiff's escape attempt was not a novus actus but was a reasonably foreseeable consequence of the breach of duty. However, she was still held contributorily negligent to the extent of one quarter 'A woman goes to a public lavatory and finds that she is immured [i.e. trapped] in it. She finds, after ten or fifteen minutes, that the obvious and proper means of attracting attention had been entirely without avail; shouting and waving through the window has produced no result at all. It is an extremely disagreeable situation in which to find oneself; and it seems to me to be asking too much of the so-called reasonable man or woman to suppose that he or she would just remain inactive until her husband, or someone else, chose to come and look for her and find her [...] However that may be, I think that, applying the ordinary tests of reasonableness, it [i.e. the plaintiff's standing on the toilet seat to see whether she could escape] was not either an unreasonable thing to do, nor was it indulging in grave risk'. I would apportion the matter as to three-fourths liability to the defendants, and one-fourth to her.'
Alliance Trust Savings Ltd v Currie [2016] CSOH 154, 2017 SCLR 685
The proceeds of a pension were accidentally paid out tax-free. The question was whether the windfall that had been conferred on the beneficiaries (three brothers) could be recovered under the condictio indebiti. It was held that each of the brothers had averred a relevant case of 'change of position', suggesting that they had relied on the windfall in good faith and that it would now be inequitable for them to have to return it.
Cuthbertson v Lowes (1870) 8 M 1073
The purchaser of potatoes sold by the Scots acre obtained delivery, hut refused payment of the price on the ground that the contract was null and void under the Weights and Measures Acts. Held that, although the Court could not enforce the contract, the seller was entitled to recover the market value of the potatoes as at the date of delivery.
Sabri-Tabrizi v Lothian Health Board 1998 SC 373
The pursuer underwent a sterilisation procedure in September 1991 but fell pregnant in June 1992 after which she had an abortion. In July 1992, the pursuer became pregnant a second time. It was held that the defenders were only liable for the first pregnancy as a result of the failed sterilisation. The second pregnancy was seen to stem from a novus actus: the pursuer's continuing to have sexual intercourse after discovering that the sterilisation procedure had been unsuccessful.
Mitchell v Hutchison (1983) SLT 392
There is a need for a causal link between the pursuer's fault and the damage. Mitchell: Mr and Mrs Mitchell were injured in a road accident. The accident was the sole fault of the other driver. Neither Mr nor Mrs Mitchell was wearing a seat-belt. Was this a cause of their injuries? The Lord Ordinary (Lord Mayfield) held that, if Mr Mitchell had been wearing a seat-belt, his injuries would have been less serious. 15% of the damages were deducted. Lord Mayfield held that Mrs Mitchell's failure to wear a seat-belt resulted in her sustaining fewer injuries than had she been wearing one. She received the full amount of damages for her injuries. In other words, her failure to wear a seat-belt had not contributed to her injuries.
Wagon Mound definition of foreseeability
There is not one criterion for determining culpability (or liability) and another for determining compensation; unforeseeability of damage is relevant to liability or compensation - there can be no liability until the damage has been done; it is not the act but the consequences on which tortious liability is founded.'
Waugh v James K Allen Ltd (1964) SC (HL) 102
There needs to be a voluntary act or omission by the defender. A lorry driver employed by the defenders was liable to gastric attacks which passed off quickly after vomiting. After one such attack had passed off, and when he felt better, the driver drove his lorry on the road; he shortly afterwards suffered a fatal coronary thrombosis and the lorry injured the pursuer, a pedestrian. Held, dismissing the pursuer's appeal against the decision of the Court of Session, that there was no evidence that the driver had been guilty of negligence in driving off after his gastric attack.
Fairchild v Glenhaven Funeral Services [2003] 1 AC 32
There were several cases involving the following issue: a worker (W) was employed at various times by employers E1 and E2. Both E1 and E2 had negligently exposed W to asbestos and W had subsequently contracted a form of cancer called mesothelioma. This raised various problems regarding causation:-'but for' test could not establish causation;-'material contribution' test could not establish causation;-This case differed from McGhee in that it was uncertain from whose conduct the disease arose. The House of Lords decided to depart from the 'but for' test and to hold that, exceptionally, it sufficed that the exposure in question materially increased the risk of injury. The court's reasoning: -Fairchild can be viewed as an extension of the doctrine in McGhee to a new scenario. -Decision in Fairchild was largely policy-based.-Notion that scientific indeterminacy should not benefit the wrongdoer.-Notion that one wrongdoer should not be able to hide behind another's wrongdoing.
Roe v Minister of Health (1954) 2 QB 66
Two patients in hospital were operated on on the same day. Both operations were of a minor character, and in each case nupercaine, a spinal anaesthetic, was injected by means of a lumbar puncture by a specialist anaesthetist assisted by the theatre staff of the hospital. The nupercaine had been contained in sealed glass ampoules which had been stored in a solution of phenol. After the operations both patients developed severe symptoms of spastic paraplegia, caused by phenol, which had percolated into the ampoules through invisible cracks or molecular flaws, resulting in permanent paralysis from the waist down. Held, the anaesthetist, for whom the hospital authorities were responsible, was not negligent in relying upon visual inspection as a precaution against percolation from the ampoules and the nursing staff had no reason to foresee invisible cracks
Williams v A. & W. Hemphill Ltd. (1966) SC (HL) 31
◦There can be no doubt that that deviation occurred in a journey which the servant had originally started on his master's business, and (...) he was in the employ of his master at the time of committing the grievance in the sense that his employment was not yet done, albeit he had chosen to complete it in an unauthorized manner.' A lorry driver engaged by the defendants to drive a party of boys back from a summer camp deviated widely from his route at the instigation of the boys. A serious accident occurred during the unauthorized deviation and the plaintiff, one of the boy passengers, was seriously injured. The negligence of the driver was conceded but the defendants contended that he was acting outside the scope of his employment. Held, that the defendants were liable notwithstanding the unauthorised deviation. (Decision of Court of Session, 1966 S.L.T. 33 affirmed).
Joint and several liability (also known as liability in solidum)
- Two or more persons have contributed to one single delict. Each person has made a material contribution. - If A is injured by the joint fault of B and C, she can sue both, or either one of them.
Novus actus interveniens
-it was not reasonably foreseeable and or -it was unreasonable (i.e. the pursuer does something unreasonable which breaks the chain of causation).
Joe Thomson's View on Remoteness
1)'The victim must have sustained harm which is constitutive of delictual liability...' 2)The defender is liable for the losses which are reasonably foreseeable. 3)In the case of personal injuries only, the defender takes the victim as he finds him and is liable for unforeseeable losses provided that the defender's wrongful conduct is a legal cause of these losses. ("egg shell skull" or "thin skull" rule).' (Thomson)
Majrowsky v Guy's and St Thomas's NHS Trust (2007) 1 AC 224, at 229, per Lord Nicholls
'A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorized to do that, for the purposes of the liability of the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment.' The appellant NHS trust appealed against the decision ([2005] EWCA Civ 251, [2005] Q.B. 848) that it was vicariously liable in damages to the respondent (M) under the Protection from Harassment Act 1997 s.3 for harassment committed by one of its employees in breach of s.1 of the Act. M, who had been employed by the trust, had alleged that his manager had harassed, bullied and intimidated him while acting in the course of her employment. An investigation by the trust had resulted in a finding that harassment had occurred. M had claimed against the trust for damages under s.3 of the Act based exclusively on the trust's vicarious liability for its employee's alleged breach of the statutory prohibition of harassment. The trust, relying on the phrase "damages may be awarded" in s.3 of the Act, submitted that the award of damages under that section was discretionary, and therefore harassment could not be equated with a common-law tort. The trust also submitted that the Act was not aimed at the workplace but was a legislative response to the public order problem of stalking. Held, dismissing the appeal, that (1) the principle of vicarious liability was not confined to common law torts, but was also applicable to equitable wrongs and breaches of statutory obligations. Unless statute expressly or impliedly indicated otherwise, vicarious liability was applicable where an employee committed a breach of a statutory obligation sounding in damages while acting in the course of his employment
Rose v Plenty (1975) ICR 430
'In considering whether a prohibited act was within the course of the employment, it depends very much on the purpose for which it is done. If it is done for his employers' business, it is usually done in the course of his employment, even though it is a prohibited act.' An employee who contrary to an express prohibition imposed by his employer engages another to assist him in the performance of his duties may despite the prohibition render his employer vicariously liable for injuries caused to that other by the employee's negligence. The defendant milk roundsman was expressly prohibited by his employers from engaging young persons to assist in the performance of his duties. Nonetheless the defendant engaged the 13-year-old plaintiff to assist in the collection and delivery of milk bottles. The plaintiff was injured whilst riding on the back of the milk float due to the defendant's driving. The judge found the defendant liable for the injuries, subject to a 25 per cent allowance for the plaintiff's contributory negligence, but dismissed the claim against the employers on the grounds that the defendant roundsman had been acting outside the scope of his employment and that the plaintiff was a trespasser on the float. Held, allowing the plaintiff's appeal (Lawton L.J. dissenting), that the roundsman had been acting in pursuance of his employer's business and had not engaged the plaintiff for his own purposes; that accordingly the employers were vicariously liable.
Kirby v NCB (1958) SC 514
'It is probably not possible and it is certainly inadvisable to endeavour to lay down an exhaustive definition of what falls within the scope of the employment. Each case must depend to a considerable extent on its particular facts.'
Re Polemis Foreseeability
'The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act.'
Mitchell v Glasgow City Council (2009) SLT 247
'The situation would have been different if there had been a basis for saying that the defenders had assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so. It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship.' The appellant local authority appealed against a decision ([2008] CSIH 19, 2008 S.C. 351) allowing a proof before answer on the case of the respondents (M) in negligence. M cross-appealed against the court's decision to exclude from probation their averments that the local authority had acted incompatibly with the European Convention on Human Rights 1950 art.2. M were the widow and daughter of a man (D) who had been attacked and killed by his next-door neighbour (X). D and X were tenants of the local authority. In 1994, X used an iron bar to batter D's door and smash his windows after D had tried to get him to turn the volume of his music down. Thereafter X made repeated threats to kill D and intimidated other residents. On July 26, 2001, the local authority wrote to X inviting him to a meeting to be held on July 31. He was told that the purpose of the meeting was to discuss a recent incident involving D and a notice of proceedings for recovery of possession that had been served on him earlier that year, as consideration was being given to the issuing of a further notice. X attended the meeting and was told that a fresh notice of proceedings to recover possession would be served on him. X lost his temper and became abusive but then apologised. After leaving the meeting, he returned home and fatally assaulted D. M's case in negligence and under art.2 of the Convention was that the local authority had a duty to warn D of the risk that he faced given the meeting that was taking place on July 31 and the steps being taken against X.
'Learned Hand formula' : Balancing test
'[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms....' ◦United States v Carroll Towing Co, 160 F.2d 482, 1947 US App. The formula: the defender is negligent if B < PL ◦B - burden (cost) of precautions ◦P - probability of the injury (expressed in percentage terms) ◦L - harm (expressed in monetary terms)
Damages (Asbestos-related Conditions) (Scotland) Act 2009 (asp 4), section 1
(1) Asbestos-related pleural plaques are a personal injury which is not negligible. (2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries. (3) Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect. (4) But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.
Compensation Act 2006, s 29
(1) This section applies where-(b) The victim has contracted mesothelioma as a result of exposure to asbestos.(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty [which] exposure [...] caused the victim to become ill [...](d) the responsible person is liable in tort [i.e. delict], by virtue of the exposure [...] (2) The responsible person shall be liable-(a) in respect of the whole of the damage...(b) jointly and severally with any other responsible person.
Taylor v Glasgow District Council (1997) SC 183
In an action by T against G, a district council, for damages in respect of losses resulting from building warrants and completion certificates fraudulently issued by G's employee (E) to a development company (D) from whom T had purchased properties, G reclaimed against the Lord Ordinary's interlocutor restricting proof to causation and quantum. G argued (l) that no relevant case was made out for vicarious liability for E's actions since E issued false documents to D and not to T; that only D were in a position to recover for losses from G based on vicarious liability Lloyd v Grace Smith & Co [1912] A.C. 716, [1912] 7 WLUK 87 , but that D were not acting in good faith; that G could not be liable for any further fraud committed by the party to whom the documents were issued; and that, although it was not necessary to show that G received any benefit from the fraud ( Lloyd ) or that there was any contractual relationship between G and T, Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 K.B. 248, [1939] 3 WLUK 36 , there was no reported case in which another fraudulent party had been interposed between employers such as G and the wrong party such as T; (2) that E's fraud was not within E's actual authority and it was not sufficient for T to argue that E's acts were within a class of acts or field of activities which he was employed to perform; and (3) that the Lord Ordinary misdirected himself by treating the case as one of ostensible authority and went too far in holding that on the averments E was acting within the scope of his authority since that was not an admission made by G, Kooragang Investments Pty v Richardson & Wrench [1982] A.C. 462, [1981] 7 WLUK 230 . Held, allowing reclaiming motion and proof before answer on the whole averments, that (1) the Lord Ordinary was correct in holding that T's pleadings were relevant, but went too far in holding that G's admissions precluded any argument that E's actings were outwith the scope of his authority; (2) G's argument that the interposition of D rendered T's case irrelevant was unsound since the exhibition of the documents by D was not a novus actus interveniens, but was an integral part of a fraudulent scheme perpetrated by E and D and not two separate and independent frauds and (3) since T averred that E had actual authority to issue warrants and certificates and G averred that E's authority was at a lower level, proof was necessary. Opinion of the Court per Lord Sutherland. ◦'In the present case it is a matter of admission that Deeney had authority to process applications for building warrants and completion certificates and to carry out a good deal of the work in connection therewith. The pursuers also aver that he had authority to issue warrants and certificates. If that is established then the issue of a false certificate could perhaps be regarded as an improper mode of exercising his authority and if that be so the defenders would be vicariously liable.'
The 'eggshell skull' rule
It has always been the law of Scotland (...) that once a man is negligent and injures another by his negligence he is liable for all the damage to the injured man which naturally and directly arises out of the negligence.' (McKillen, at 42, per the Lord President Clyde)
Hughes v Lord Advocate (1963) SC (HL) 31
Kind of injury must be reasonable 'There was thus an unexpected manifestation of the apprehended physical dangers. (...) The resulting damage, though severe, was not greater than or different in kind from that which might have been produced had the lamp spilled and produced a more normal conflagration in the hole. The Post Office opened a manhole in a street under its statutory powers to maintain underground telephone equipment. In the evening it was left with a tent over it and paraffin lamps round it. An eight-year-old boy went into the tent and knocked or dropped one of the lamps down the hole, causing an explosion which injured him. He sued the Lord Advocate on behalf of the Post Office for damages in negligence. Held, that the action succeeded as the lamp was a foreseeable source of danger and the injury flowed from it, albeit in an unpredictable way Glasgow Corp v Muir [1943] A.C. 448, [1943] 4 WLUK 24 distinguished.
Sienkiewicz v Greif (UK) Ltd (2011) 2 AC 229
L and G were the sole known sources of exposure of the respondents (W and S) to asbestos dust, S from her employment in a steel drum factory and W from her secondary school. In each case, the extent of the exposure had been found to be small. Similar facts to Fairchild, albeit there was only one employer. The two exposures to asbestos were as follows: (1)Exposure as a result of the general environment. (2)Exposure as a result of the factory in which the employee worked. This increased the employee's risk of contracting mesothelioma as a result of exposure (1) by a mere 18 per cent. The House of Lords held:-That the Fairchild exception applied even though there was only one wrongful exposure. -There was no need for the defender's wrongdoing to have doubled the risk of the employee contracting the disease.
Quinn v Cameron and Roberton Ltd (1956) SC 224
Lord President (Clyde): 'Indeed, any apparatus to cope with the dangerous dust only seems to have come into the market in 1950, and went into general use thereafter. (...) The removal of visible dust might have made work at the plough buff more pleasant, but it would not have removed, and was not being designed to remove, the invisible silica dust... A grinder in an iron foundry brought an action of damages against his employers on the ground that he had contracted pneumoconiosis through their negligence and breach of statutory duty. He had been employed by them for a period of nine years, ending in 1951, in the dressing shop of the foundry. Previously he had worked, in, inter alia , a steel foundry for five years. He attributed the onset or aggravation of his disease to prolonged exposure to silica dust, produced by, inter alia , the plough buffs at which he worked. Each of these buffs consisted of a carborundum wheel, driven by an electric motor and housed in a moveable frame. In the buffing process the buff was held in position over the casting and, when the rotating wheel was in contact with the casting, a stream of sparks and dust was emitted in a horizontal direction away from the operator. The pursuer blamed the defenders at common law for their failure to provide adequate ventilation in the dressing shop, their failure to provide masks or respirators, and their failure to provide dust-extraction apparatus on the plough buffs; and, on the view that the work on which he had been engaged was "dry grinding," he also blamed the defenders for a breach of Reg. 1 of the Grinding of Metals (Miscellaneous Industries) Regulations, 1925 , in failing to provide dust-extraction appliances on the plough buffs. Held (1) that the employers had not been guilty of negligence at common law, since on the evidence the danger from silica dust in iron foundries (as distinct from steel foundries) had not been generally appreciated prior to 1951, and the employers were accordingly under no duty during the period in question to take precautions against it; and (2) that, although ( rev . judgment of Lord Guthrie) "dry grinding" and "cleaning of castings" were not, under the Regulations, mutually exclusive processes, and although the use of the carborundum wheels might therefore be "grinding" if such a wheel was a "grindstone" or an "abrasive wheel" (which it was unnecessary to decide), the pursuer had not proved that the alleged breach of Reg. 1 was causally related to his disease; and defenders assoilzied
Harper Collins Publishers Ltd v Young [2007] CSOH 65
P (a publisher) lost a number of books. The books ended up in D's hands, although it was never established that they had been stolen or that D had received them in bad faith when he acquired them. D sold a large number of these books on eBay. P claimed successfully against D for the profits arising from the sales.
Cantiere San Rocco v Clyde Shipbuilding and Engineering Co. Ltd., 1923 SC (HL) 105
P (an Austrian firm) entered into a contract with D (a Scottish firm) in which the latter party undertook to supply and build marine engines. P paid the first instalment due under the contract. On the outbreak of the First World War, the contract was frustrated. After the war, P was able to recover the instalment in unjustified enrichment, notwithstanding that there was a valid (albeit frustrated) contract.
Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H (1996) AC 211
Used Caparo for damage to property It would not be fair, just or reasonable to impose a duty of care on classification societies so that they would have unlimited liability in negligence to shipowners and cargo owners. In the course of a voyage, the vessel Nicholas H developed a crack in its hull. The shipowners requested their classification society, NKK, to perform a survey of the damage. D, an employee of NKK, carried out the survey and at first recommended that the vessel put in to dry dock for permanent repairs, but after protests from the shipowners over the costs of such an action changed his mind and recommended temporary repairs only. Shortly afterwards the ship sank as a result of the crack and the entire cargo, valued at USD 17.6 million, was lost. MR, the cargo owners, recovered USD 17 500,000 from the shipowners, which represented the extent of the shipowners liability having regard to the tonnage limitation applicable to the vessel, and sued NKK for the balance. Their claim succeeded at first instance but this decision was reversed by the Court of Appeal. Held, dismissing MR's appeal, that (1) whatever the nature of the harm suffered by the plaintiff, it was necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties, and to be satisfied in all the circumstances that it was fair, just and reasonable to impose a duty of care, Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004, [1970] 5 WLUK 19 applied; (2) although there was a sufficient degree of proximity in this case to fulfil that requirement for the existence of a duty of care, it would be unfair, unjust and unreasonable to impose a duty of care on NKK as against the shipowners who would ultimately have to bear the consequence of holding classification societies liable, such consequences being at variance with the bargain between shipowners and cargo owners based on an internationally agreed contractual structure, and (3) it would also be unjust, unfair and unreasonable towards classification societies because they act for the collective welfare and would not have the benefit of any limitation provisions.
Vicarious liability
Vicarious liability means that one person is held to be liable for the wrongful acts or omissions of another person.
Thomson v Mooney [2013] CSIH 115
Virdee can be contrasted with Thomson. Here P conferred a benefit on D in anticipation of a marriage that did not take place. Did the claim arise as soon as P enriched D (2005) or only when there was a breakdown in the parties' relationship (2007)? The Inner House favoured the latter analysis. As the claim was raised in 2011, it had not prescribed. This analysis stemmed from the treatment of the case in terms of the condictio c.d..
Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (C)
What if P has built only partly on D's land? What if D doesn't want the building? These considerations loomed large in the following South African case:
Law Reform (Misc. Provs.) (Sc.) Act 1940, s. 3(2)
Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, 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.
Barker v Corus UK Ltd (2006) 2 AC 572
Where employers were liable on the basis that they had negligently exposed an employee to asbestos and thereby created a material risk of mesothelioma which had eventuated, it would be fair that they should be severally liable only to the extent of the share of the risk created by their breach of duty. Where there was more than one wrongdoer, the liability should be divided according to the proportion of the risk created by each wrongdoer. E.g. 2 employers contribute 50% of the risk of the pursuer contracting mesothelioma. Each can be sued for 50% of the damages awarded only
Bell v Blackwood Morton & Sons Ltd. 1960 S.C. 11
Where the pursuer was jostled on a factory staircase when leaving her work, the Court of Session held that the employers were vicariously liable. ◦'By the law of Scotland I regard it as settled, that the scope of the employment, and the consequent duties and responsibilities of the employers, do not necessarily cease when the actual work for the day comes to an end.'
Establishing Legal Causation
if D's breach of duty is a factual cause of P's loss it will very often be a legal cause unless D can establish the existence of a novus actus interveniens (new intervening act). A novus actus interveniens is said to break the chain of causation. A novus actus interveniens can consist of: -an external event;-conduct of a third party; -the conduct of the victim himself/herself.
Morgan Guaranty Trust Company of New York v Lothian Regional Council 1995 SC 151
n July 16, 1987 a local authority entered into an interest rate and currency exchange agreement (a "swap agreement") with a merchant bank. The agreement was to subsist until July 17, 1992. In terms of the agreement each party agreed to pay to the other, on a specified date or dates, an amount calculated by reference to the interest which would have accrued over a given period on the same notional principal sum, on the assumption that different interest rates applied in each case. Prior to October 17, 1989, the bank had made net payments to the local authority of GBP 368,104.52. Following upon the decision of the divisional court in England in Hazell v Hammersmith and Fulham LBC [1992] 2 A.C. 1, [1991] 1 WLUK 792 , that such "swap agreements" were ultra vires local authorities and unlawful, no further payments were made by either party after October 17, 1989. The bank sought repayment of the sums paid to the local authority. The Lord Ordinary, having held that such agreements were ultra vires local authorities in Scotland, dealt with the question of the remedies which were available to the bank to recover the moneys paid. He found that the decisions of Glasgow Corp v Lord Advocate and Taylor v Wilson's Trustees were binding upon him and were authority for the view that an error of law in the interpretation of a public general statute as to the contractual capacity of the local authority rendered the condictio indebiti inapplicable and undermined the bank's right to a remedy in general. Before a court of five judges, on the assumption that it was ultra vires the local authority to enter into the agreement, it was argued for the bank that those cases had been wrongly decided and that error of law was not a bar to an action of repetition under the condictio indebiti, and, in the alternative, that the remedy of recompense was available. Held, that (1) the appropriate remedy for the recovery of money paid or property transferred under an obligation which was void but was erroneously thought to be valid, was an action of repetition under the condictio indebiti and not a claim based on recompense; (2) a payment not due might be recovered under the condictio indebiti irrespective of whether the mistake under which it was paid was one of fact or of law, and that the error of law rule had no sound foundation in principle; (3) the essentials of the condictio indebiti were that the sum which the pursuer paid was not due and that he had made the payment in error, and these matters had to be the subject of averment by the pursuer to show a prima facie entitlement to the remedy; (4) it was not part of the law of Scotland that the error had to be shown to be excusable, although the nature of the error and the question whether it could have been avoided might play a part in the decision as to where the equities might lie where that point was raised in answer to the pursuer's claim, it being for the defender to raise the issues which might lead to a decision that the remedy should be refused on grounds of equity; (5) the pursuers' averments were sufficient to show that they were prima facie entitled to their remedy, and the defenders had not made any averments to show that it would be inequitable for the pursuers, to recover the sum paid; and reclaiming motion allowed, decree granted de plano and case remitted to the Outer House for consideration of the question of interest. Stirling of Northwoodside v Earl of Lauderdale (1733) Mor. 2930, [1733] 7 WLUK 16 , approved; Glasgow Corp v Lord Advocate 1959 S.C. 203, [1959] 3 WLUK 73 and Taylor v Wilson's Trustees 1974 S.L.T. 298, [1974] 4 WLUK 53 , overruled. Authorities reviewed.
Agnew v Ferguson (1903) 5 F 879
overpayment of debt : tenant in a mine, had to pay rent. tax was due on the rent, tenant pays tax to council and rental - tax to the landlord. By sec. 40 of the Income-Tax Act, 1853 , it is enacted that every person who *880 shall be liable to the payment of any rent, or any yearly interest of money, or any annuity, or other annual payment, shall be entitled "on making such payment" to deduct income-tax therefrom, provided always that no tenant should be entitled to deduct any greater sum than the duty charged on the property and "actually paid by such tenant." Held ( diss. Lord Young, and rev. judgment of Lord Kincairney) that a lessee of a colliery who had paid to the Revenue income-tax on royalties due by him to the proprietor, and who had paid the royalties without deducting the income-tax, had right to recover it from the proprietor.
Factual Causation
was the defender's breach of duty a cause of the purser's loss as a matter of fact? (causa sine qua non). This must be established on the balance of probabilities. The traditional test for establishing factual causation is known as the 'but for' test: we ask whether, but for the defender's negligence, the pursuer's loss would have occurred?
Loss
•Damage to property. •Physical injury. •Pure economic loss. •Psychiatric injury. Both pure economic loss and psychiatric injury raise special considerations to be addressed in later lectures.
Limitations of Donoghue V Stevenson
◦The duty only extends to latent defects. If the defects are obvious, and the consumer chooses to use the product, the manufacturer may escape liability ◦The duty is to prevent harm to the consumer's person or property. There is no liability if the only property damaged is the product itself. (That would be pure economic loss.)
