HND大二BCR 報(bào)告

1、Report on Delict and DefensesPrepared for:DinaTutor of Business Contractual RelationshipsPrepared by:Edward mingmin YUGTB 1contentsIntroduction11.1 Definition of duty of care21.2 Standard of care expect from Danny21.3 If Mrs. McGregor can sue Danny in respect of her injuries and the damage caused to

2、 her car32.1 The kind of liability applies to the keeper of an animal32.2 Precautions Mark should have taken when going for a walk in the country42.3 If Mark will be able to justify his failure to have Tricky on a lead43.1 Five defenses available to a defender in a negligence action53.2 Defenses tha

3、t the defender attempt to rely upon in order to escape liability63.3 If the defender will be able to plead successfully the appropriate defense in each situation6Conclusion8Introduction This report mainly deals with the issue of law of delicate. In the report, three cases have been analyzed and the

4、information such as duty of care, liability and defenses has been covered in this report.1.1 Definition of duty of careIn tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeab

5、ly harm others. It is the first element that must be established to proceed with an action in negligence. The plaintiff must be able to show a duty of care imposed by law which the defendant (or defender) has breached. In turn, breaching a duty may subject an individual to liability in tort or delic

6、t. The duty of care may be imposed by operation of law between individuals with no current direct relationship, but eventually become related in some manner, as defined by common law. Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individ

7、uals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.There is no liability of a failure to take due care unless there was a duty to take care in the first place. A duty of care is impos

8、ed by both the common law and by statutory lawDonoghue v Stevenson (1932) can be used as a judicial precedent .Mrs. Donoghue had gone to a cafe in Paisley with her friend who bought her an opaque bottle of ginger beer. The shopkeeper poured some ginger beer over ice cream in a glass from which Mrs.

9、Donoghue drank. Then her friend poured out the remainder of the ginger beer which was when Mrs. Donoghue alleged she saw a decomposed snail in the bottle. She alleged that as a result of having drunk the contaminated ginger beer she suffered a serious illness. Mrs. Donoghue did not have a contract w

10、ith the seller or with the manufacturer of the goods and so her only possible remedy was in delict against the manufacturer on the basis of his fault is not taking care in the production of the product.1.2 Standard of care expect from DannyThe standard of care which is expected by the defender is th

11、e reasonable care. Reasonable care is the standard of care expected of the hypothetical reasonable man or woman who is a person of ordinary care and prudence and who is neither overcautious nor overconfident. Giving the fact that Danny is a motor mechanic whose duty is to repair customers motor vehi

12、cles. Making sure that the brake has already been repaired is the standard of care expect from Danny. Stand at a normal angle, Danny can foresee the result if he didnt repair the brake. Danny knows that it will case accident; the lady however, thought that the car can be used. When she drove the car

13、, it caused an accident because of the brake. As a matter of fact there is a breach of duty of care. Hughes v Lord Advocate (1963) can be used to support as a judicial precedent, there was an uncovered manhole in a road covered by a canvas shelter and lit by paraffin lamps placed around this. When t

14、he workmen left for a break, two boys opened the canvas and knocked a paraffin lamp into the hole, causing an explosion which badly burned one of the boys. It was held that although the accident was not foreseeable, it was foreseeable that a child may enter the tent with a lamp and spill paraffin ca

15、using injury. Therefore there was a breach of the duty of care owed to pedestrians.1.3 If Mrs. McGregor can sue Danny in respect of her injuries and the damage caused to her carMrs. McGregor can sue Danny as she was injured and there is a delict existed in this case. A delict has been defined as a c

16、ivil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise. According to the case, because of Dannys culpa, Mrs. McGregor suffered from a loss and injury. As Danny has a breach of care so

17、he should be responsible for this.In McGhee v NCB (1973), a worker contracted dermatitis and sued his employers for failing to take reasonable care for his safety. His employers failed to provide showers and the worker had to cycle home with brick dust on his skin. The employers admitted that they h

18、ad been in breach of their duty of care but claimed that it had not been proved that the failure to provide showers had caused the dermatitis. However, medical witnesses stated that the failure to provide showers added materially to the risk of dermatitis and the House of Lords held that on the bala

19、nce of probabilities this breach of duty lead to the worker contracting dermatitis.2.1 The kind of liability applies to the keeper of an animalSection 1 of the Animals (Scotland) Act 1987 states that if an animal belongs to a species whose members generally are, by virtue of their physical attribute

20、s or habits, likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent, the keeper of the animal is strictly liable for any injury or damage caused by the animal and directly referable to these physical attributes or habits. Its a

21、 strict liability, where liability can arise without fault through statutory provision. Strict liability means that you must have taken effective precautions to stop the injury occurring in the first instance. A defender will still be liable even if she/he has taken reasonable precautions to prevent

22、 the animal causing harm.It was given in the case that, the dog Tricky chased the lambs as lacking control, and makes them frightened as lacking control. So the lambs squeezed through a hole in the fence in order to escape from Tricky. However, the lambs run down by a farm truck. So no matter whethe

23、r the pet owners have done the duty of care, he must take strict liability for the loss.2.2 Precautions Mark should have taken when going for a walk in the countryIt is known to all that dogs are treated as a kind pet with offensive power so that it is clear the dogs can cause damages to others so w

24、hen Mark take Tricky outside, he should make sure that Tricky is under his control.It is the responsibility of the pets owners to ensure that their pets are under well control under all circumstances.2.3 If Mark will be able to justify his failure to have Tricky on a leadAccording to Section 1 of th

25、e Animals (Scotland) Act 1987, if an 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, the keeper of the animal is

26、 (strictly) liable for any injury or damage caused by the animal and directly referable to these physical attributes or habits. According to the case, the dog has caused trouble and made other people suffer loss which was caused by the carelessness of its master so, although Mark didnt caused the ha

27、rm directly, but as the master of the dog he should have taken good care of his pet and he should be sure that it was under his control. Here Mark should take full responsibility as its a strict liability. In the case Behrens v Bertram Mills Circus Ltd. Husband and wife, were both midgets and were o

28、n exhibition inside a booth in the funfair at Olympia, for which their manager had obtained a license from the defendants, when the booth was knocked down by elephants on their way to perform in the circus ring. A small dog, the property of the daughter of the plaintiffs manager, which, contrary to

29、regulations, had been brought into the funfair, had run out of the booth, snapping and barking at one of the elephants, which turned and went after the dog; some of the other elephants followed, and parts of the booth fell on the wife who received injuries. After investigation, the court held that t

30、he owners of dog should take the strict liability to the loss and harm to the couple.3.1 Five defenses available to a defender in a negligence action1. Contributory negligence. A defender may argue that the pursuer contributed to his or her losses. This is known as a plea of contributory negligence

31、and it is used where it is established that: the defender has been negligent but the pursuers own actions, in falling to take care for his own safety, have partly contributed to his injuries.According to Contributory Negligence Act 1945, this is available as a partial defence, and damages are reduce

32、d to such an extent as the court thinks just and equitable having regard to the pursuers share in responsibility for the damage. This share could be as much as 99%.2. Consent. A person has no right of action if they have expressly or by implication consented to something being done to them. However,

33、 such consent must be freely given an example would include the implied consent of sportsmen, or express consent to a medical operation. There may also be a defense of necessity when saving lives or property. This broadly translates as to one consenting no wrong is done3. Dumdum FataleA dam nun fata

34、le or Act of God would offer a complete defense. This would be some extraordinary event outside the control of man such as an earthquake. Mere heavy rainfall would not constitute a dam nun fatale, even if it were exceptional.4. ImmunityIn certain circumstances individuals have a general exemption to

35、 immunity from edictal liability, for example the Queen as an individual, Judges from liability for their judicial acts.5. CriminalityIt means a person in the course of the crime suffered by the infringement is not established. For example, a thief is breaking into ones house and a robber is robbing

36、 ones bags. During this courses, if the criminal suffer from a delict, they dont have right to acquire compensation which means that dismissing the claim that as a matter of public policy, the law might not recognize a duty of care owed by one participant in a crime to another for acts done in the c

37、ourse of that commission.3.2 Defenses that the defender attempt to rely upon in order to escape liabilityFrom the case we can know that Rab is going to use the criminality to make a defense for himself. However, as Jamesie and Rab are both in the course of a crime- Jamesie break into a house through

38、 a downstairs window but he was found by the owners daughter, he got to the care and screamed at Rab to drive the car as fast as he could. But Rab is not a great driver at the best times and he lost control and crashed. In the second case, the two parties can both use contributory negligence to make

39、 a defense. Margaret and the bus driver both have inappropriate behavior. As for Margaret, she can point out that the bus driver had decided to take a chance when the traffic lights changed to amber and thats against the traffic rules. The accident wouldnt happen if he didnt do so. For the bus drive

40、r, he can indicate that Margaret has contributed to her injuries to a certain extent as she hasnt wore the seat belt which can prevent her from being thrown through the car windscreen and suffering severe facial injuries. In the third case, the Knockbuckle player will use consent to make a defense.

41、Knockbuckle player points out that rugby is a contact sport, accidents will happen and anyone who plays the game knows this only too well. He said that Gavin was suffered a voluntary hurt since Gavin can foresee the danger of getting hurt so he should be responsible for it by himself.3.3 If the defe

42、nder will be able to plead successfully the appropriate defense in each situationGiving the fact that the by the time that Jamesie was injured, she was in the process of escaping in order not to be caught. Criminality is available to a defender in a negligence action. It means that a person in the c

43、ourse of the crime suffered by the infringement is not established. For example, a thief is breaking into ones house a robber is robbing ones bags. During this courses, if the criminal suffer from a delict, they dont have right to acquire compensation.Ashton v Turner (1981) can be used as a judicial

44、 precedent. After an evenings drinking, three men committed a burglary and sought to escape in a car owned by one of them. The car crashed and the passenger was injured. He claimed damages alleging negligence against the driver and the car owner. The court held dismissing the claim that as a matter

45、of public policy the law might not recognize a duty of care owed by one participant in a crime to another for acts done in the course of that commission.In the second case, as Margaret was not wearing her seat belt So Margaret has contributed to her hurt to some extent. So the bus driver can reduce

46、his responsibly and reduce the number of compensation. According to Contributory Negligence Act 1945, this is available as a partial defense, and damages are reduced to such an extent as the court thinks just and equitable having regard to the pursuers share in responsibility for the damage. In Saye

47、rs v Harlow Urban Councio (1958). Sayers was injured whilst she was trying to climb out of a faulty locked toilet cubicle. It was held her actions were not a Novus act us intervenient and that the local authority was liable. However, the damages payable were reduced by 25% because she tried to climb out whilst putting weight on the toilet roll fitting which was