Delict (Scots law)
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Delict is the responsibility to make reparation caused by breach of a duty of care in Scots Law. The equivalent in English law is called tort law.
Delict deals with the righting of legal wrongs in civil law, on the principle of liability for loss caused by failure in the duty of care, whether deliberate or accidental. While it broadly covers the same ground as the English law of Tort, the Scots law is different in many respects and concentrates more on general principle and less on specific wrongs. While some terms such as assault, defamation are used in both systems, their technical meanings differ.
"Delict" as a word derives from the Latin "delictum" and as a branch of Scots Law revolves around the general principle, "Damnum Injuria Datum" - literally, loss wrongfully caused. Where A has suffered wrongful loss at the hands of B (generally where B was negligent) B is under a legal obligation to make reparation. There are many various delicts which can be committed, ranging from assault to procurement of breach of contract.
The landmark decision on establishing negligence, for Scotland and for the rest of the United Kingdom, is the House of Lords appeal case, Donoghue v. Stevenson 1932 AC 562, 1932 SC (HL) 31, 1932 SLT 317.
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[edit] The Duty of Care
Donoghue v Stevenson, is considered to have defined the concept of duty of care. To whom do we owe a duty of care? Donoghue says that we owe this duty to our neighbours:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” per Lord Atkin at 44 of SC
[edit] Breach of Duty of Care
However, the idea of delict is not to prevent a person's acts or ommissions from ever causing harm occurring, but is to take reasonable precautions to prevent harm. This is seen in the ratio of 'Muir v Glasgow Corporation 1943 SC(HL) 3'
To be sued successfully under delict it must be proven that you have breached the duty of care (i.e. taken insufficient precautions to prevent harm). In determining what constitutes sufficient precautions several factors apply:
[edit] 1) Probability of Injury
'Bolton v. Stone [1951] AC 850' - A cricket ball was hit out of the ground, resulting in harm to a passer by. It was decided that despite the fact that the precautions had not been sufficient to prevent this from happening, it was not a breach of the duty of care. This was because over a 20 year period this had only occurred 5 previous times an injury was possible but not probable.
[edit] 2) Severity of Injury
'Paris v. Stepney Borough Council [1951] AC 367' - It was decided that a welder was not owed a duty of care to be provided with safety goggles (today this duty would exist), but that due to Mr Paris' unique circumstances (he only had one eye) the severity of his potential (and resulting) injury was so great that he be owed a more comprehensive duty of care.
[edit] 3) Availability of Precautions
'Roe v. Minister of Health [1954] 2 QB 66' - When the danger of an act is not known (eg. working with Asbestos prior to knowing it was dangerous) or the precautions are not known and it is reasonable not to know about them, no duty can exist to provide such precaution.
