George Buchan ( Sir Hugh Jewallet
Principles of Delict
Delict is part of the Law of Obligations. When studying delict, we find that the law imposes an obligation on each one of us not to cause unjustifiable harm to other persons or their protected interests. The main function of this area of civil law is to define the circumstances in which an individual or a corporate body, on finding that is interests are, or have been, harmed by another's harmful act, may seek a remedy. The wrongful act is described as a civil wrong or a delict and the remedies available are either an interdict to stop the wrong recurring or compensation, sometimes called reparation
Delicts or Civil Wrongs do not lead to the criminal prosecution of the wrongdoer, but to civil proceedings in the form of an action for damages against the wrongdoer in a civil court. If the action is successful , a sum of money, which is called ,damages, or compensation, or reparation, will be paid to the injured party.
The distinction between crimes and delicts does not depend on the kind of wrongful act itself. The conduct will be regarded as a crime if it is not only harmful to the victim but to the public at large. Such conduct must be suppressed and discouraged by the state. Therefore, the state takes action and the wrongdoer is prosecuted by public action. If the conduct is regarded as a wrong to only the individual, then the state does not interfere, and the wronged individual's remedy is to bring an action in a civil court for damages.
The distinction between crimes and delicts is rendered slightly difficult because there is sometimes an area of overlap. For example, assault is a crime for which the wrongdoer will be prosecuted in a criminal court and perhaps punished by way of imprisonment or fine. However, assault is also a delict and the injured victim, sue his attacker for damages in a separate action in a civil court. To make matters more confusing, it is possible for a compensation order to be made by criminal court. However, in practice, this is only done where the injuries are minor. Finally, if the victim of a crime cannot find the wrongdoer or if the wrongdoer has no assets and is not worth suing, a claim may be made under the Criminal Injuries Compensation Scheme
The General principles of delictual Liability
The law does not provide a remedy and compensation for all those who suffer some misfortune or loss. The rule is that for delictual liability (i.e. for the defender to pay compensation) there must be a harm caused by a legal wrong and the legal wrong must be caused by culpa (fault) on the part of the wrongdoer. Culpa means that the person liable is responsible because in a legal sense he is to blame for what happened, and he directly or indirectly caused or permitted the harm complained of. Culpa generally indicates the presence of morally reprehensible conduct. To explain this another way, some delicts can be committed intentionally (for example a deliberate fraud) but most are committed unintentionally or negligently (for example, negligent driving where someone is injured because the driver has failed to take reasonable care in driving his vehicle). In both situations, there will be fault or culpa on the part of the wrongdoer.
This is one of the general principles of delict-there can be no delictual liability without fault. However, there are some exceptions to this rule in cases of vicarious liability where the defender is liable for the actions of another person and in cases of strict liability where the defenders liability can arise again without fault on his part. In fact, he could have tried his best to prevent the wrong happening at all
Damnum injuria datum
This is the main principle for delictual liability in that there must be harm caused by a legal wrong. This is expressed neatly in the above Latin maxim. All three elements of this maxim must be present before an action is brought. There must be;
. wrongful conduct (intentionally or negligently done)
2. there must be loss or injury suffered by the pursuer
3. there must be causation- i.e., a link between 1 and 2.
Definition of a Delict
A delict is voluntary conduct, by act or omission, by a person in breach of a duty, imposed on him by law, not to cause unjustifiable harm to other persons or their legally-protected interests. This conduct may be intentional or unintentional.
Who is liable for committing the delict
Under scots law the general principle is Culpa tenet suos auctores, which simply means he who does the wrong is responsible and liable for it. Another interpretation could be, no-one is responsible for the delict of another person. For example, a husband or wife is not liable for the wrongs of their spouses
"The rule that you are to love your neighbour becomes in Law, you must not injure your neighbour" and the lawyers 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 into question
From the speeches of Donoghue and the treatment of it in later cases, it is possible to set out something of a formula for working out whether there may be an action for unintentional harm
. There must be a duty of care owed by the defender to the pursuer
2. There must be a breach of the duty
3. The breach must cause a loss
Within each of these essential components there are other issues which have to be addressed. In so doing it must be appreciated that there is no such thing as negligence in the air-every case turns on its own facts- and that the categories of negligence are never closed: except in cases where the courts have actually excluded recovery as a matter of policy or precedent, it is always possible to argue that there is a ground of action
Duty of Care
From Lord Atkin's dictum, it can be seen that very much depends on whether the defender should reasonably have foreseen that his acts or omissions would cause harm to the pursuer. At this stage it should be made clear that " acts or omissions" is not a phrase devoid of difficulty. Generally there is no liability for a pure omission, That is a failure to prevent harm where there is no duty owed, as where I see you about to walk off the edge of a cliff. What is or is not reasonably foreseeable depends on the foreseeability of the reasonable man. The reasonable man has a place in many area's of the law but certainly now spends most of his time as a legal device for determining whether or not there is a liability for unintentional harm. The reasonable man is not the average man for quite often he is far more rigorous in the conduct of his affairs than is the average man
Reasonable foreseeability is partly an objective test-we do not ask; did this defender foresee the harm ; but neither do we assume a completely objective approach and say the reasonable man does or does not foresee x or y. Instead we ask whether a reasonable man in the position of the defender would have contemplated the harm-a technique which might conveniently be described as defender objectivity-we put the reasonable man in the defenders position and ask him what he can see. What is required is the application of reason and not prophesy
Professional Liability (a difficult topic)
There are two main reasons why it is appropriate to treat professional liability separately. The first is that the existence of a duty of care in certain professional areas has been the subject of decision. The second is that the standard of care differs-the reasonable man, although he might be prepared to give it a try will not make a very successful attempt at brain surgery. One thing which has to be made clear immediately is that the word "profession" is used here as a matter of convenience. The legal considerations do not depend upon the defender being the member of a professional body as opposed to , say, a trade association; " if I engage a man to exercise his expertise on my behalf... it matters not whether he is to prepare a conveyance of land or to drive a straight furrow across it
Economic Loss
Economic loss causes difficulties because the interest which it is alleged should be protected by delict is the economic sphere, and any change in the law of delict will affect the economic balance. The , Economic loss can be unlimited in amount where, for example, an electricity supply is cut off. If there is to be liability for such an event then electricity suppliers would have to find insurance cover for the contingency and pass the cost of it on to consumers (or, if still under state control, to the tax payer). There is the possibility that no insurance could be found. But this is to anticipate. It is appropriate to begin with the view that the laws general approach is that loss wrongfully caused should attract reparation
Indeed the law quite happily awards damages for what could be economic loss in many cases. It is possible to say that all damage to property is an economic loss. But that view is not taken in the law. What is regularly compensated is a person's loss of wages while he is injured, or the loss of use of an item while it is being repaired. These are economic loses but losses which are well recognized as beyond dispute. The law has no difficulty with such claims because they are in the sense derivative-a person is injured or property damaged and other losses follow. Such consequential loss is quite easily and reasonably foreseeable and likely to be limited to an amount of money bearing some proportional relationship to the person or thing damaged. In an excellent historical and analytical review of the Scots law on this topic, Wilkinson and Forte distinguish between primary and secondary economic losses
By primary or non-derivative loss is meant loss which is not associated with physical injury to person or property.....
By secondary, or derivative loss is meant loss which arises as a consequence of physical injury to the person or property of another (i.e. someone other than the pursuer)
Although George may think he has a case of delict against Sir Hugh as his case meets the formula laid out by Donaghues speeches and a reasonable man should have seen the consequences of his advice, because,the fabric of the (western ) world is built upon an edifice of free market economics and to interfere with that in the course of awarding compensation to one individual might be to court possible disaster or, perhaps, retrospective legislation. If of course, court decisions, in particular those of the House of Lords, did not completely bind lower courts then there would be more scope for experiment, but that is not the case, and decisions of the House allowing recovery will result in enterprises realigning their resources. So although a general floodgates fear exists and is not entirely unfounded there is this macro-economic concern underlying judicial thinking. George would have no case
Deliberate or Fraudulent Misrepresentation
The case of Derry v Peek produced the following definition of fraudulent misrepresentation. There if fraudulent representation where a person makes a false statement of fact either;
. Knowing it to be untrue; or
2. without belief in its truth; or
3. recklessly, not caring whether it is true or false.
It does not matter that there was no intention to cheat or injure the person to whom the statement was made; there will be fraud if a statement is made without any belief in truth.
As with innocent misrepresentation, the fraudulent statement must have been relied upon by the other party and must have been a deciding factor in his decision to proceed to enter a contract. Where the error induced by fraud is an error in the substantials, the contract is void; where the error is error concomitans, the contract is voidable. Unlike innocent representation, fraud is a civil wrong and, accordingly, a pursuer may seek damages in addition to having the contract reduced. There is also authority to the effect that damages may be awarded even if the contract is not reduced. In Smith v Sim 1954 Smith bought a public house from Sim for £ 21,600 as the turnover was represented as being very high. Sim had stated the turnover as twice its true figure. Smith was held entitled to choose not to resile from the contract but to keep the pub and sue for damages of £10,000
Some people might need further explanation as to the economic consequences of George being successful in suing Sir Hugh. When people buy shares there is no limit to the amount of money these shares can earn. They also know that there is a risk involved in buying shares and that they can go down as well as up. Had the shares doubled in value he would have been very happy. The consequences of George winning this case could possibly leave the floodgates open for everyone who has lost money in share dealing to sue their advisers with the resulting catastrophic effects on the financial sector of the economy. I doubt if there is any authority to prove that the results (above) of a case such as this would be any different and stand by my initial findings (above).
As you probably know the shareholder's in British Rail recently received compensation from the government owing to the fact that their shares, bought on privatization of British Rail had become worthless, due to the company facing huge losses. At first the government refused to compensate shareholders due to the reasons (above) after a lengthy period they relented and paid them compensation. The reasons for this were many and complex (if you want me to explain the reasons I will) This is the nearest I can think of to a comparison to this case and I am still sure that one private individual would have no success in a case such as this
Charlie Strachan/ (Ivor Notion)
Vicarious ( in place of another) liability
As the name suggests, this doctrine enables a person who has done no wrong to himself, to be held liable for a wrong done by another. This type of liability is now clearly established and it satisfies a desire to transfer liability to pay damages to the person who has been gaining, in a general way, from the actings of the actual wrongdoer.
Vicarious liability is an example of joint and several liability. Accordingly, if it applies the actual wrongdoer and the person who is vicariously liable for his actings, are both liable. The most common examples of vicarious liability are for agents and employees .
Vicarious Liability For Agent
The first point relates to the law of contracts. There is a distinction between the contract of agency ( and mandate gratuitous agency) and employment ( locatio operarum). Because of the different nature of these contracts, the delictual consequences differ. The obligations of the agent depend upon the instruction given to the agent. In relation to third parties, the agent's ability to affect his principle depends upon his authority, express or implied, so therefore the principle's delectable liability is formulated by reference to this relationship
While the liability in respect of an agent and the liability in respect of an employer can be distinguished, it is quite possible for someone to be vicariously liable both as an employer of an employee and as the principle of an agent. This is particularly important for an act may be outside the scope of an employees employment but within the scope of his authority, express or implied, as an agent
A principle will be liable for the acts of an agent where;
. The acts complained of were expressly authorized
For example, where a solicitor writes defamatory letters on the instructions of a client, the client will be vicariously liable
2. The principle ratifies the act after it has been done
For example if a law lecturer in the college was doing private work when not actually doing what he/she was contracted to do, and this lecturer gave someone advice( while indulging in this private work) which led to them incurring some loss if his/her principle had told him/her it was ok to do this work or, the lecturer had come to him after giving the advice and he said it was ok to give this person this advice(very unlikely as the principle would be accepting liability for an act he hadn't instructed), the principle can be held vicariously liable
3. The act complained of is within actual or ostensible authority of the agent
This requires an understanding of the contractual position because liability is established by reference to the scope of the agent's authority. However for the purpose of the law of delict it seems that the courts will often hold someone vicariously liable as a principle where they would perhaps not hold the "agent" able to bind the principle in contract. In the case of Launchbury v Morgans this area of the law was examined by the House of Lords.
Mrs Morgans was the ...
This is a preview of the whole essay
3. The act complained of is within actual or ostensible authority of the agent
This requires an understanding of the contractual position because liability is established by reference to the scope of the agent's authority. However for the purpose of the law of delict it seems that the courts will often hold someone vicariously liable as a principle where they would perhaps not hold the "agent" able to bind the principle in contract. In the case of Launchbury v Morgans this area of the law was examined by the House of Lords.
Mrs Morgans was the owner and registered keeper of a motor car. There were five people in the car. Mr. Morgans, Mr Cawfield and three passengers( who were the plaintiffs in the case). Mr Morgans had gone out drinking and passed the keys to Mr Caufield. They picked up three plaintiffs. Mr Morgans fell asleep in the back seat. Mr
Caufield driving without due care crashed the car at 90 m.p.h. Mr and Mrs Morgans considered the car as "our car"
The issue before the House of Lords was whether Mrs Morgans could be held vicariously liable for the actions of Mr Caufield. The court rejected this argument. Lord Wilbourforce said, " I regard it as clear that in order to fix vicarious liability on the owner of a car in such a case as the present, it must be shown that the driver was using it for the owner, purposes, under delegation of a task or duty." The argument that the car should be treated as a matrimonial car, making the owner liable for it's use was also rejected
Liabilities of an Independent Contractor
Generally a person is not vicariously liable for the delicts committed by an independent contractor hired to do a job as opposed to an employee under a contract locatio operarum
The Law of Agency
The Law of Agency is based on Common Law
The Agency Relationship
It is hard to envisage any kind of business organization that could function without either employees or agents. Te distinction is that an employee performs certain services for his employer in return for a wage or salary, while an agent, representing his principle, again usually In return for payment, enters into transactions with third parties. If the agent is acting with the authority of his principal, this will result in the principle being in a legally binding contract with a third party. When the task has been properly completed, the agent incurs no obligation or rights under that contract with the third party. An agent can be an employee of his principle or he can be performing services for him in the capacity of an independent contractor, or the agent could even be a partnership or a company representing another organization
For example, if you go into a large store like Marks & Spencer to purchase a shirt, you will negotiate the contract of sale with a shop assistant. This assistant is both an employee and an agent of Marks & Spencer. She is an agent because she is authorized by her employer to sell goods to the general public. She will have no authority to reduce the price of anything that she is selling. Provided she acts within the authority given by her employer/principal, your contract will be with the principal, Marks and Spencer, and the assistant incurs no liability under the contract. It follows that the relationship of agency involves two contracts. The primary contract is between the agent and the principal and, under this contract the agent is given authority to represent the principal in transactions with other parties. Provided the agent carries out these instructions properly a second contract is formed between the principal and the third party. This relationship is illustrated below:
CONTRACTUAL CAPACITY
The agent and the principal must have contractual capacity to enter into the agency agreement. Regarding the validity of the second contract, which is between the principal and the third party, it is the contractual capacity of the principal that is important and not that of the agent. For example, if the agent is a child under 16 years old, he may still bind a principal in the contract with the third party. On the other hand, if the principal is under 16, he can not extend his contractual capacity by using an agent, with full contractual capacity, to enter into contracts with third parties. The child's contract with the third party remains void.
CONSTITUTION OF AGENCY
It is important to recognize the different ways in which agency nay be constituted. Proof that the relationship was agency can be vital to the liability of the principal/employer if there is a dispute as to whether someone was carrying out orders and transactions, in the capacity of agent, or as an independent contractor. Agency may be constituted in five ways.
By an express contract
This contract between the principal and the agent can be agreed verbally or in writing. Obviously, a written agreement is desirable as it will define the agent's powers and duties clearly. A formal deed of factory and commission, or power of attorney, may be drawn up.
2 Implied by law or by the actions and conduct of the parties
Under the Partnership Act 1890 s 5, every partner is to be regarded as on agent of the firm, and of the other partners, in carrying on the firm's business. Also, a director of an incorporated company is impliedly an agent for the company in all matters usually entrusted to directors. Agency can be implied from the employment of a person to a particular job, for example a manager. If that position normally involves entering into transactions with customers or the general public, then it is implied that he is an agent with the usual authority customarily conferred on such employees in oreder to carry out that job.
3 By holding out
Where a course of conduct has indicated that one party has been acting intentionally for the other with the latter's consent, the latter is said to have held out the person as his agent and is barred from denying that the relationship of agency exists. This can happen quit easily in business where an employer has limited, or has withdrawn, his authority form an agent. If the third party (the customer or supplier) has not been informed, by the principal, about this change then the agency relationship continues and the principal will be bound by the actions of his employee.
4 Ratification
The relationship of agency can be constituted by the principal subsequently ratifying, or endorsing, the unauthorized actions of the agent. It is not necessary for a relationship to have existed at the time of the agent's action but, usually, there is some kind of existing relationship. The agent in these circumstances is often an employee who has entered into a contract without any authority at all or possibly he may have exceeded the limited authority which had been conferred on him. The ratification may be express or inferred form the conduct of the principal. Certain conditions are necessary for ratification:
(a) The agent must have been acting as an agent with an identifiable principal in mind. He must not have entered the contract taking a chance that later he would find someone interested in adopting the transaction.
(b) When ratifying, the principal must have full knowledge of the actions of the agent. The principal can only subsequently ratify what he himself had legal power, and capacity, to do at the date of the agent's contract. Therefore, a company cannot ratify contracts made by its promoters prior to its incorporation, although, in those circumstances, it can enter into a new contract on the same terms as the old.
5 By necessity
In certain circumstances where an emergency arises, a person is deemed by law to have the authority to act as agent for another party. For this to happen, it must be impossible for the person acting as agent to contact the principal. For example, in an emergency, the master of a ship has power to put into harbour and order repairs to his ship, or sell the cargo, if it is in danger of perishing or being spoilt. He can take these steps if he cannot contact the owners to ask for authority to proceed and the law recognises that he has not personally entered these contracts but has acted as an agent of necessity. Such a way of constituting agency is justified in Scotland on the principle of negotiorum gestio. This is the management of the affairs of a person who is absent, or not capable of taking care of his own affairs, and in an emergency they are undertaken for him, without his knowledge, by another party acting from altruistic motives. The negotiorum gestor must have acted for the benefit of the absent party and not for himself and he must take reasonable care of the other's property. He is not entitled to be paid for what he does but he is entitled to be reimbursed for all reasonable expenses even if it turns out that his actions have not benefited the absent party.
Authority of an Agent
It has already been explained that a principle can find himself contractually bound to a third party as a result of his agents actions. Whether the principle is bound depends on what the agent has done and what "authority" he had at the time. In this context, authority can be actual or ostensible and the distinction between the two is explained below
If the agent acts within his actual authority, his principle is bound by the contract with the third party and the agent incurs no liability under that contract.
If the agent acts outwith his actual authority, but within his ostensible authority, the principle is bound by the contract with the third party. However, as he has acted beyond his actual authority and disobeyed his principle, he will be in breach of their agency agreement and, consequently, the principle could sue him or terminate the agreement
If the agent acts outwith his actual and his ostensible authority, the principal will not be bound by the contract with the third party( although he might choose to ratify the contract). The agent will be personably liable to the third party who could sue him for breach of warranty of authority if the contract is not carried out
An agent may be a general agent, that is an agent acting for his principle in all his affairs, or acting for him in all his affairs of a particular kind. A solicitor is a general agent. A general agent may have actual and ostensible authority. A special agent has only the powers actually given to him to carry out one particular task and he can never have ostensible authority
The difference between actual and ostensible authority
Actual authority is the authority which the principle has expressly or impliedly conferred on the agent. The agent can be given express instructions as to the kind of transactions and tasks which he can perform for his principle. These instructions can be given verbally or in writing. The agent can also have actual authority conferred impliedly. This implied authority will be to do anything necessary for, and incidental to, what is usual in his business, trade or profession, for the purpose of carrying out his function. The exercise of the usual or customary authority in these circumstances will be regarded as actual authority and the principal will be bound unless he has expressly limited the agents authority
Ostensible authority which has not been actually conferred on the agent by the principal but which the third party dealing with the agent is entitled to believe existed. The third party is thus entitled to rely on the agents authority because, in the past, the principle, by words or conduct, has represented, or held out, the agent as having authority to act for him. Consequently, the principle is barred from denying that the agent has authority and will be bound by the contract with the third party
Examples of ostensible authority are as follows
. In the past, the agent had no authority from the principal or he only had limited authority. Since then, the agent has exceeded his authority in his transactions with a third party and the principal has permitted it to happen without protest
2. In the past, the agent did have actual authority to carry out transactions with third parties. Since then, the principle has removed, or limited, his agents authority without notifying the changes to these third parties. In these circumstances, the third parties are entitled to assume that the agent still has his principles full authority
3. In the past, the agent has carried out transactions acting within his implied authority, the usual authority of agents in his business, trade or profession. Since then the principle has instructed the agent and has either removed or limited the agents authority without notifying the changes to third parties. As the third parties do not know, they are entitled to assume that agent can still act within his implied authority
In International Sponge Importers v Watt 1911
International Sponge Importers had a traveler called Cohen. Cohen called on the customers and took orders, but also carried with him bags of sponges which he could sell "on the spot". He was authorized by his employers only to accept payment by cheque payable to the company. In the past, Watt and Sons had given Cohen cheques, made out to him personally, in spite of the fact that the company sent out invoices with directions for payment on them. The company, in the past, had accepted payment this way and had not contacted Watt and Sons to object. One day, Watt and Sons paid Cohen in cash which he embezzled. He then disappeared. The principles sued Watt and Sons for the missing payment. The court held that they were not entitled to be paid again by Watt and Sons as the customer was entitled to assume from their prior dealings with the agent, Cohen, that he had authority to receive payments in this way
The personal liability of an agent
An agent will be personally liable if he exceeds his actual and ostensible authority. Because there will be no contract between the third party and the principle. This personal liability arises because there will be no contract between the third party and the principle. This personal liability arises because an agent is held to impliedly warrant to the third party that he has authority to bind his principal. The third party can sue him for damages for breach of warranty of authority.
In Anderson v Croall & Sons 1903
At a horse racing meeting, there was one race where the winning horse had to be put up for sale to the highest bidder. The horse which came second in the race was standing outside the auction ring with the stable boy. The auctioneer presumed the horse was to be sold and indicated to the boy to bring it into the ring. The auctioneers, Croall & sons, auctioned the horse and sold it to the highest bidder, Anderson. It turned out the owner had no intention of selling the horse. The auctioneer had sold it without authority and there was no contract of sale between Anderson and the owner. Anderson successfully sued the auctioneers for breach of warranty
Liability of the Agent
This depends on how the agent represents himself to the third party. So far, we have seen that the agents liability depends on whether he has authority to transact. Normally, the contract entered into with the third party is within the agents actual authority and he incurs no liability for defective performance of that contract. However, an agent can be liable to his principle if he acts beyond his actual authority, but still within his ostensible authority, and he will be liable personally to the third party, if he acts beyond his actual and ostensible authority
Apart from the question of authority, the agent 's possible liability also depends on how he contracts with the third party. He could tell the third party that he is an agent of a particular principle, or he could say that he is an agent, but not disclose who he represents, or he may not mention that he is an agent at all.. the agent's liability will vary depending on which of the three ways he decides to contract
Agent contracting for named Principle
In this situation, the agent will incur no personal liability on the contract provided he acts within his authority. The exceptions to this are where the agent accepts personal liability or where it is implied by trade or custom.
Where an agent is signing a letter on behalf of his principle, he must take great care to make it clear that he does so in his capacity as an agent or he could incur personal liability. The usual way to do this is to put after his signature words like "for and on behalf of" followed by his principle's name, or per pro or PP followed by the principle's name
In Stewart v Shannessy 1900
Shannessey was an agent for two bicycle companies. He employed Stewart as a representative and sent him a letter confirming his appointment and detailing his pay and conditions of service. This letter was written on the notepaper of one off the companies and signed by Shannessey without any indication he was signing as an agent for that company. Stewart took his instructions from, was always paid by Shannessey, and was ultimately dismissed by him. Stewart sued for arrears of pay and the court held that Shannessey was personally liable as he had signed the letter of appointment personally, without indicating his status as agent
Agent contracting for an undisclosed sum
In this situation, the third party knows that he is dealing with an agent but, at the time, he does not know the identity of the principle. In this situation the agent remains personally liable even if the identity of the principle is later revealed. If the agent is buying goods, he must pay for them and, if he is selling them, he must deliver the goods or he could be sued for breach of contract. The only qualification to this rule is if the identity of the principle is disclosed to the third party who then elects to treat the principle as the debtor, then the agent is no longer liable on the contract.
Agent contracting ostensibly as a principle
When the agent contacts in his own name without mentioning that he is an agent, he makes himself personally responsible for the contract. Again, if the third party discovers the existence, and identity, of the principle, he may elect who to hold liable on the contract. Once the third party has made this election, he cannot change his mind
THE RALATIONSHIP BETWEEN AN AGENT AND HIS PRINCIPLE
This special relationship gives the agent certain rights against his principle but also imposes on him certain duties which he owes that principle
The duties of the agent owed to his principle
To carry out his principles instructions personally
If the agent fails to carry out his principle's instructions and causes him loss, he will be personally liable and can be sued for damages. In the absence of precise instructions, he must act in the best interests of his principle or according to trade usage. He should carry out his duties personally. This obligation is expressed in the Latin maxim delegates non potest delegare and certainly applies where there is any element of delectus personae in the choice of agent. This means that the principle chose that agent because he posed some special skill or expertise. However there are exceptions to this rule and authority to delegate the task to a competent assistant, or sub-agent, may be expressly given to the agent or implied by usage
To exercise skill and care
An agent must exercise due skill and care in performing his tasks. If the agent is a professional person, he must demonstrate the degree of care and skill to be expected of a reasonably careful and competent member of his profession. A gratuitous agent must take reasonable care. If the agent fails to take care and his principle suffers loss, he could be sued for damages for negligence.
The first matter to be determined in this case is whether Ivor Notion the person who committed the delict is an employee or a contractor and the proposed other defender an employer. In other words if their contract of employment is one of service (locatio operarum ) as opposed to one for services( locatio operus faciendi). There are four main reasons why this might be necessary
. An employer is vicariously liable for the negligent acts of his employees if the act was done during the course of employment. The employer is not usually responsible for the negligence of independent contractors
2. Under common law an employee owes a number of duties to his employer and the employer owes his employees a number of duties but the employer does not owe the same duties to an independent contractor
3. Under the modern employment legislation, many new and important statutory rights ( like the right not to be unfairly dismissed) have been conferred on employees but not on independent contractors
4. If the employee is employed under a contract of service, the employer is under a statutory duty to deduct PAYE (pay as you earn) and national insurance contributions from the employee's wages or salary. An independent contractor is responsible for making his own income tax and national insurance returns
The most difficult area is to distinguish between locatio operarum, for example, a chauffeur, and Locatio operas faciendi for example, a taxi driver. The element of control is an important factor and solves many of the most common cases. Since a chauffeur must take the precise route given by his employer he is employed locatio operarum; Whereas tha cab-driverwho undertakes only to take the fare to a destination and himself chooses the route is "employed" under a contract locatio operis faciendi
However, in modern society, the control test may not be sufficient to resolve all cases, mainly because of the existence of many highly technical employments where the employer may not understand what it is the employee is doing let alone control how he performs his task. The courts now look to various factors in resolving the question. It is said that courts would consider the following
. the intention of the parties
2. Freedom of selection of employees
3. duration of the contract
4. Whether payment is by salary or wages and whether made by the job or by the piece
5. Whether the tools and equipment belong to the employer or employee
6. The nature of the arrangements for termination
Advise to Charlie
The bottom line in this case is that Ivor was acting outwith the scope of his employment and that this situation was nothing to do with his employment therefore no case of vicarious liability could be brought also as they were just having a chat at a party there was no contractual capacity between him and Ivor and no duty of care.
The advise I would give Charlie if Ivor is an independent contractor and an agent of the principle
Ivor Notion being a college lecturer would be by the nature of his work an independent contractor (we were also informed of this by the tutor) and that generally a person is not vicariously liable for the delicts committed by an independent contractor hired to do a job. Also as they were at a party and Ivor is a wielding lecturer this would be outwith his scope of employment, also that he would have had to have expressly authorized that he could advise people on stocks and shares and as he was a wielding lecturer this is highly unlikely. He would have no case against Ivor's employer
. As an agent he has acted outwith his actual and ostensible authority and the principle will not be bound by the contract he has with him
An agent will be personally liable if he exceeds his actual and ostensible authority. Because there will be no contract between the third party and the principle. This personal liability arises because there will be no contract between the third party and the principle. This personal liability arises because an agent is held to impliedly warrant to the third party that he has authority to bind his principal. Charlie can sue him for damages for breach of warranty of authority
International Widgets ( Fred Cash )
Vicarious liability of the employer for his employees' actions
An employer is liable for the wrongful acts or omissions of an employee provided the act is done within the scope of employment. Vicarious liability is an example of joint and several liability in that the injured party can sue the employee, personally and/ or the employer who is vicariously liable. If the employer is found vicariously liable, then it is open to him to sue the employee for the amount he has paid in damages. However, in practice, this rarely happens and the employer is insured against such risks.
In Lister v Romford Ice and Cold Storage Co [1957] AC555 both Lister and his father were employed by the company. While working, the son, who was a lorry-driver, reversed and knocked down his father, who recovered damages from the company. The company's insurers paid the amount of damages and then brought an action against Lister to recover the sum which they had paid to the injured third party (who just happened to be Lister's father). The House of Lords held that they were entitled to that amount.
Brining an action against the employer
The pursuer, the person injured by an employee, in order to bring an action against the employer (the defender), must prove that the wrongdoer has been negligent. Then he must prove:
that the wrongdoer was an employee of the defender; and
2 that the delict (the wrongful act) was committed within the scope or course of his employment.
The first essential
The first essential is to establish that the relationship between the employer and the person working for him is that of employer/employee (under a contract of service) and not employer/independent contractor (working under a contract for services).We will examine the various tests that the courts have devised to ascertain whether a person is working under a contract of service or a contract for services. These tests are; the control test; the integration test; the multiple test; and other variations of the multiple test. It is important to establish the relationship because the general rue is that an employer is not vicariously liable for the negligent acts of independent contractors working for him, the theory being that an independent contractor is not under the control of his employer and so remains responsible for his own negligent acts.
However, there are certain situations where an employer will be personally liable for the actions of a contractor, usually because in some way he is controlling or is responsible for the operation:
Where the contractor is authorised or instructed to commit a delict by the employer. For example, if a passenger orders his taxi-driver to drive fast and an accident happens, then both the passenger and the driver are at fault. In Stewart v Adams 1920 SC129 a man was held liable when he employed a contractor to repair his boat and instructed him to throw the paint scrapings over a hedge where a neighbour's cow ate them and died.
2 Where the employer instructs an incompetent contractor to do a job for him. An employer is always under a duty to take care in picking a qualified, experienced and apparently capable contractor or tradesman. If the incompetent tradesman negligently causes injury to a third party or to his property, then the employer will be personally liable.
3 Where the employer instructs the contractor to carry out an inherently dangerous operation, in certain circumstances, the employer will be personally liable for injury to third parties. For example, rock blasting, working on gas pipes, digging holes in the public highway.
4 Where the employer is under a statutory duty to take care, he cannot escape liability for an accident by delegating it or employing and independent contractor to do it for him.
5 Where the employer is controlling and directing an operation and the contractor is obeying instructions, then the employer will be personally liable for any injury or damage caused to third parties.
The second essential
The second essential for the employer to be vicariously liable is for the pursuer to show that the employee was acting within the scope or course of his employment. This is usually quite clear; the employee will be doing his job as instructed by his employer and an accident happens affecting a third party. Equally, if an employee has finished work or if he is using the employer's tools and equipment for his own purposes, then the employer is not vicariously liable. However, there have been situations where it has not been clear as to whether the employee was acting within his scope of employment or not, and the courts have had to settle the matter. In Kerby v NCB 1958 SC 514 some miners took a break and went to smoke in an unauthorized area. This resulted in an explosion which injured Kirby. The NCB were not held vicariously liable. Smoking was expressly forbidden by statute. Lord President Clyde said that whether an employee was acting within the scope of his employment depended on the facts of each case. He gave four guidelines:
If the employer actually authorized the act he is vicariously liable for it.
2 Where the employee does some work which he is appointed to do, but he does it in a way that his employer has not authorized and would not have authorized had he known of it, the employer is nevertheless still liable.
3 If the employee uses his employer's time or his employer's tools (vehicle?) for his own purposes the employer is not liable.
4 If the employee is employed only to do a particular job or a particular class of work and he does something outside the scope of that work, the employer is not liable
Usually the delict must be committed during working hours; therefore, accidents happening while the employee is comutingare"not within the scope of employment" However it all depends on the facts
In Smith v Stages (1989) two men were employed to install insulation in power stations. They were sent on a job for a week in Wales- and were paid there hourly rate for the journey to Wales and back to the Midlands plus traveling expenses. How they were to travel was not mentioned by their employer. They decided to go in Stage's car. At the end of the job, after working 24 hrs without a break they drove home. Stages drove into a wall and Machin, the other employee was injured. Machin sued Stages for negligence (he turned out to be uninsured) so the employer was joined as a defendant on the grounds that he was vicariously liable for the negligence of the driver. Machin died in the middle of the proceedings. The House of Lords found the employer vicariously liable. The fact that the employees were paid wages for the time traveled was an important factor. Lord Lowry gave six rules as guidance
. Commuting to work even in transport provided by the employer is not within the course of employment unless the employees contract requires him to use the employers transport-that would be within the course of employment
2. Traveling between sites during the course of a day is within the course of employment
3. Being paid wages for traveling time indicates that the employee is "on duty" while traveling-but being paid travel expenses does not
4. Traveling in the employers time from home to a place of work different from the employees usual place of work is within the course ofemployment
5. A deviation from or interruption of a journey undertaken in the course of work (unless it is merely incidental to the journey) will for the time being (which could include an overnight interruption) take the employee out of the course of his employment
6. Return journey's have the same status as outward journey's
Problems have arisen where an employee is doing what he was employed to do, but he is doing it in an unauthorized or negligent way. It is clear from a number of decisions that in these circumstances the employee is within the scope of employment and his employer vicariously liable
In Williams v Hempill (1966) a lorry and a driver were hired to pick up some BB boys and there equipment from summer camp. The driver's employer instructed him to take the boys from Benderloch to Glasgow by the usual route. The boys persuaded the driver to deviate from his route (they wanted to see some girl guides) and, while deviating, an accident happened and some boys were injured. The case was brought by the father of a boy who had not asked the driver to deviate. The employers argued that they were not vicariously liable for the drivers negligent driving and that the deviation had taken the driver outwith the scope of his employment. The court decided that the drivers job was to take the boys to Glasgow. At the time of the accident, he was still doing that, although in an unauthorized way, the deviation was not for his own purpose and so he was still in the scope of his employment
In cases where the employee has committed a delict while doing something that he was not authorized to do, the court will teke into consideration the purpose of his actions. If they decide that the employee's action's were entirely for his own purposes or that he was off on an "independent frolic of his own" as one judge described it, then the decision will be that he was outwith the scope of employment. However, if it can be argued that the purpose of the unauthorized act was to further his employers interests or protect his employers property, then that will be within the scope of employment
In Rose v Plenty(1976) a milk float driver knew that children must not under any circumstances be employed to help on his milk round. There was a notice to that effect displayed in the dairy. Rose, a 13-year-old boy, was injured helping the driver on his round. The employers protested that it was expressly forbidden to have anyone on the milk-float and so, when the accident happened, the driver was outwith his scope of employment. The court held that the boy was there on the float to help the driver do his job, further the employers interests and so was within the scope of employment
In Neville v C&A Modes 1945 the employers were held vicariously liable for the actions of the manager and staff wrongfully detaining and accusing a customer of shoplifting. Again, although not employed to do this, they were acting for their employer's benefit in an attempt to protect his property, and this brought the act within the scope of employment
However, note the different facts and decision in Warren v Henlys Ltd 1957 an employee in a garage thought that a customer, Warren, was going to drive away without paying for his petrol. There was an argument, Warren paid for his petrol and then the employee hit Warren and knocked him to the ground. It was held that in these circumstances, assault was not within the scope of employment. The act was beyond what was necessary in the circumstances and dictated by personal malice
When the employee acts in breach of an express prohibition by the employer, this may appear to be outwith the scope of employment. However, it is not always the case, as was seen in rose v plenty. There are orders given by the employer to the employee which amount to some restriction as to what he can actually do as part of his job. Breach of the former will mean that the employee has gone beyond the limits of his job-i.e., outwith the scope of employment; breach of the latter will mean that the employee was doing his job in a way, unauthorized , perhaps totally prohibited by his employer, but he was still doing his job- so he remains within the scope of employment. There have been problems where employees give others a prohibited lift in a vehicle
In Conway v George Wimpey & Co 1951 a driver employed by Wimpey was under strict orders not to carry passengers and a notice to this effect was clearly displayed in the cab of the lorry. The driver gave a lift to Conway who was injured as a result of the drivers negligence. Conway was not a fellow employee, in fact had no connection with the employer's business and this is what distinguishes Conway's case from Rose, the milk boy. The court held that George Wimpey were not vicariously liable, as the act of giving a lift was outwith the scope of employment and at the time of the accident Conway knew it was prohibited .
In Young v Edward Box & Co 1951 Box Ltd's foreman gave his consent to the giving of a lift to Young in one of the companies lorries, although it was forbidden. Owing to the negligence of the driver, Young was injured and the employers were held vicariously liable as granting permission for the giving of a lift was within a foreman's usual
authority.
I would advise Widgets that they would be held vicariously liable because it would be held that Slick was acting in the interests of his employers( Neville v C&A Modes) and that although perhaps unauthorized to give lifts to people, the lift given was not for his own purpose ( Williams v Hempill 1966) and that probably Slick was on wages at the time of the accident ( Smith and Stages 1989) therefore it would be found that Slick was within his scope of employment leaving Widgets vulnerable to an action against them.
Sophia Olivetti (Ardex)
Negligence
Delict is concerned with intentional wrongful acts and also and also incidents where liability is incurred unintentionally. The latter is the commonest kind of delictual case and is called negligence. Negligence is not the same as carelessness. For negligence, as we shall see , the defender must owe a duty of care.
One of the problems with negligence is that it is difficult to prove. The burden of proof rests with the pursuer-i.e., the injured party- and although the same general principle applies( damon injuria datum-there must be harm caused by a legal wrong), an action for negligence, is a little more complex
The pursuer bringing an action for negligence must prove the following;
. The defender is under a legally-recognised duty of care to guard against a foreseeable kind of harm and this duty of care is owed, by the defender, in the circumstances to the pursuer
2. There was a breach of this duty of care, a failure by the defender to attain the standard of care required in the circumstances
3. The breach was the effective cause of some legally-recognised harm to the pursuer
4. Once liability for harm is established, then damages will extend to cover all the natural and direct consequences, or foreseeable consequences, of the defenders conduct and will not extend to those losses which are too remote
The duty of care
The duty of care must be established before any question of the potential liability of the defender can be considered. Regarding negligence, under common law there is only one standard of care and that is to take reasonable care in the circumstances ( cases where the duty is to take exceptional care come under the law regarding "strict liability" ). In many cases, it has been well settled by precedent that a duty of care is owed in certain circumstances. For example , employers owe their employees a duty to take reasonable care for their safety at work. Drivers owe a duty to take reasonable care not to cause unjustifiable harm to other road-users and pedestrians.
Sometimes it is not clear in a particular situation whether a duty of care exists or not. In order to decide, the court will apply the general principle laid down in;
Donoghue v Stevenson 1932. The alleged facts of the case were that Mrs Donoghue and her friend had gone to a café in Paisley for a ginger beer ice-cream soda. Mrs Donoghue'sfriend bought the two drinks . After having drunk some of this concoction, Mrs Donoghue topped up her glass with ginger beer from an opaque bottle when a decomposed snail slid into her glass. As a result, she suffered shock and gastro-enteritis and was off work for some time. Mrs Donoghue could not sue the owner of the café because she had no contract of sale with him. Her only possible remedy was in delict against the manufacturer on the basis of his fault in not taking care in the production of the ginger beer. The House of Lords held that the manufacturer of a product did owe a duty of care because of the relationship between himself and the ultimate consumer. At the end of the day, Mrs Donoghue did not have to prove the facts because the manufacturer settled out of court after the legal point was clarified
The House of Lords held that the case was one which could proceed to a proof before answer(which means that it was sound in law). one thing which should be mentioned first is that at the time the most important thing the case did was to avoid the so called heresy that there could be no delectable liability upon a defender if he had supplied goods under a contract-that in effect he was only liable to the customer
Instead the manufacturer of the product was held to owe a duty to take care because of the relationship between himself and the ultimate consumer-a relationship of proximity or neighbourhood. This principle of liability is sometimes known as the neighbourhood principle after the celebrated passage in Lord Atkins speech. Although not a definition this passage is often considered to express the principle upon which delictual liability for unintentional harm proceeds
The rule that you love your neighbour becomes in law, you must not injure your neighbour ; and the lawyers question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts of omissions which you can reasonable foresee would be likely to injure your neighbour. Who, then, 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 into question
From the speeches of Donoghue and the treatment of it in later cases, it is possible to set out something of a formula for working out whether there may be an action for unintentional harm
4. There must be a duty of care owed by the defender to the pursuer
5. There must be a breach of the duty
6. The breach must cause a loss
Within each of these essential components there are other issues which have to be addressed. In so doing it must be appreciated that there is no such thing as negligence in the air-every case turns on its own facts- and that the categories of negligence are never closed: except in cases where the courts have actually excluded recovery as a matter of policy or precedent, it is always possible to argue that there is a ground of action
From Lord Atkin's dictum, it can be seen that very much depends on whether the defender should reasonably have foreseen that his acts or omissions would cause harm to the pursuer. At this stage it should be made clear that " acts or omissions" is not a phrase devoid of difficulty. Generally there is no liability for a pure omission, That is a failure to prevent harm where there is no duty owed, as where I see you about to walk off the edge of a cliff. What is or is not reasonably foreseeable depends on the foreseeability of the reasonable man. The reasonable man has a place in many area's of the law but certainly now spends most of his time as a legal device for determining whether or not there is a liability for unintentional harm. The reasonable man is not the average man for quite often he is far more rigorous in the conduct of his affairs than is the average man
Reasonable foreseeability is partly an objective test-we do not ask; did this defender foresee the harm ; but neither do we assume a completely objective approach and say the reasonable man does or does not foresee x or y. Instead we ask whether a reasonable man in the position of the defender would have contemplated the harm-a technique which might conveniently be described as defender objectivity-we put the reasonable man in the defenders position and ask him what he can see. What is required is the application of reason and not prophesy
Lord Buckmaster
In George v Skivington--- where there was an injury to one person , the wife, and a contract of sale with another person, the husband. The wife was considered to have a good cause for action, and I would adopt the view which the Lord Chief Brown took in that case. He said there was a duty in the vendor to use ordinary care in compounding the article sold, and that this extended to the person for whose use he knew it was purchased, and this duty being violated, and he, having failed to use reasonable care, was liable in an action at the suit of the third person
The dicta of Brett M R in Heaven v Pender are rightly relied on by the appellant. The material passage is as follows; " The proposition which these recognised cases suggest, and which is , therefore, to be deduced from them, is that whenever one person is by circumstance placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger...... Let us apply this proposition to the case of one person supplied goods or machinery, or instruments or utensils, or the like , for the purpose of their being used by another person, but with whom there is no contract as to supply. The proposition will stand thus;
Whenever one person supplies goods, or machinery or the like, for the purpose of their being used by another person under such circumstances that everyone of ordinary sense would, if he thought, recognise at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such a thing. And for neglect of such ordinary care or skill whereby injury happens a legal liability arises to be enforced by an action for negligence. This includes the case of goods, etc., supplied to be used immediately by a particular person or persons or one of a class of persons, where it would be obvious to the person supplying, if he thought , that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care and skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether the would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The case of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under contract, and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which there were no contract between the parties the law would according to the rule above stated imply the duty.
Lord Buckmaster on Donoghue v Stevenson
It has been suggested that the statement of Parke B does not cover the case of negligent construction, but the omission to exercise reasonable care in the discovery of a defect in the manufacture of an article where the duty of examination exists is just as negligent as the negligent construction itself
The general principle of these cases is stated by Lord Sumner in the case of Blacker v Lake, in these terms " The breach of the defendants contract with A. to use care and skill in and about the manufacture or repair of an article does not of itself give any cause of action to B. when he is injured by reason of the article proving to be defective."
From this general rule there are two well known exceptions; (1) In the case of an article dangerous in itself; and (2) where the article not in itself dangerous is in fact dangerous, by reason of some defect or for any other reason, and this is known to the manufacturer. Until the case of George v Skivington I Know of no further modification of the general rule
As to (1), in the case of things dangerous in themselves, there is, in the words of Lord Duneden, " a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity" : Dominion Natural Gas Co v Collins Perkins (1909) and as to (2), this depends on the fact that the knowledge of the danger creates the obligation to warn, and its concealment is in the nature of fraud. In this case no one can suggest that ginger beer was an article dangerous in itself, and the words of Lord Duneden show that the duty attaches only to such articles, for I read the words " a peculiar duty" as meaning a duty peculiar to the special class of subject mentioned
Burden of Proof
What the pursuer must establish in order to succeed in bringing an action for damages for negligence
The onus of proof is on the pursuer, he must show that on the balance of probabilities, the defender has been in breach of a duty of care owed to the pursuer and this breach had caused his injury. This burden of proof can sometimes be very difficult. The accident has happened but the pursuer cannot produce evidence which will show fault on the part of the defender. There is a rule of evidence expressed in the maxim"res ipsa loquitor"( the facts speak for themselves) which can assist the pursuer in certain circumstances.
The fact that the accident happened in those circumstances raises a prima facie case of fault on the part of the defender. If res ipsa loquitor applies, the burden of proof shifts to the defender-he has to rebut the inference that he has been negligent. For example, the defender parked his car at the top of the hill, the car slips its brakes and runs down the hill causing damage to the pursuers wall. Res ipsa Loquitor applies- the inference is that the owner of the car was at fault.
Three conditions are necessary before res ipsa loquitor applies
. The offending thing must have been under the control or management of the defender or his employees
2. Such accidents do not usually happen when due care is exercised by those in control. For example, bags of sugar do not fall out a warehouse window if they have been stacked carefully
3. There must be an absence of an explanation for this accident
In Scott v London and St Katherine Dock Co(1861) Scott, a custom house officer, was walking past a warehouse when he was hit by six bags of sugar. The bags were being lowered to the ground by a crane from the upper part of the warehouse. There was no warning and the area had not been fenced off. The rule of res ipsa loquitur operated to assist Scott as the sugar was in control of the dock company or their servants. An accident like the above does not happen if those in control use proper care. In the absence of an explanation, the presumption is that the accident arose from lack of care by the defendant
In Devine v Colvilles 1969 there was an explosion at Colvilles, Devine, a workman, was 15 feet above the ground on a platform. When the explosion occurred he jumped off and hurt himself. The explosion occurred in a hose and the probable cause was that rust had got into the hose and this should have been excluded by a filter. The defenders argued that they were not at fault. The principle of res ipsa loquitor was
Applied. The thing, the exploding hose, was under the control or management of the defender. Such explosions do not occur if due care is exercised. No-one knew the exact cause of the explosion. However, the defenders explanation of what happened did not clearly establish that they were not negligent
Lord Buckmaster
In George v Skivington--- where there was an injury to one person , the wife, and a contract of sale with another person, the husband. The wife was considered to have a good cause for action, and I would adopt the view which the Lord Chief Brown took in that case. He said there was a duty in the vendor to use ordinary care in compounding the article sold, and that this extended to the person for whose use he knew it was purchased, and this duty being violated, and he, having failed to use reasonable care, was liable in an action at the suit of the third person
Reasonable foreseeability is partly an objective test-we do not ask; did this defender foresee the harm ; but neither do we assume a completely objective approach and say the reasonable man does or does not foresee x or y. Instead we ask whether a reasonable man in the position of the defender would have contemplated the harm-a technique which might conveniently be described as defender objectivity-we put the reasonable man in the defenders position and ask him what he can see. What is required is the application of reason and not prophesy
The pursuer bringing an action for negligence must prove the following;
5. The defender is under a legally-recognised duty of care to guard against a foreseeable kind of harm and this duty of care is owed, by the defender, in the circumstances to the pursuer
6. There was a breach of this duty of care, a failure by the defender to attain the standard of care required in the circumstances
7. The breach was the effective cause of some legally-recognised harm to the pursuer
8. Once liability for harm is established, then damages will extend to cover all the natural and direct consequences, or foreseeable consequences, of the defenders conduct and will not extend to those losses which are too remote
Sometimes it is not clear in a particular situation whether a duty of care exists or not. In order to decide, the court will apply the general principle laid down in;
Donoghue v Stevenson 1932. The alleged facts of the case were that Mrs Donoghue and her friend had gone to a café in Paisley for a ginger beer ice-cream soda. Mrs Donoghue'sfriend bought the two drinks . After having drunk some of this concoction, Mrs Donoghue topped up her glass with ginger beer from an opaque bottle when a decomposed snail slid into her glass. As a result, she suffered shock and gastro-enteritis and was off work for some time. Mrs Donoghue could not sue the owner of the café because she had no contract of sale with him. Her only possible remedy was in delict against the manufacturer on the basis of his fault in not taking care in the production of the ginger beer. The House of Lords held that the manufacturer of a product did owe a duty of care because of the relationship between himself and the ultimate consumer. At the end of the day, Mrs Donoghue did not have to prove the facts because the manufacturer settled out of court after the legal point was clarified
The House of Lords held that the case was one which could proceed to a proof before answer(which means that it was sound in law). one thing which should be mentioned first is that at the time the most important thing the case did was to avoid the so called heresy that there could be no delectable liability upon a defender if he had supplied goods under a contract-that in effect he was only liable to the customer
Instead the manufacturer of the product was held to owe a duty to take care because of the relationship between himself and the ultimate consumer-a relationship of proximity or neighbourhood. This principle of liability is sometimes known as the neighbourhood principle after the celebrated passage in Lord Atkins speech. Although not a definition this passage is often considered to express the principle upon which delictual liability for unintentional harm proceeds
Unsafe Goods
The Consumer Protection Act 1987 Part 1 provides consumers and others with a civil remedy against producers of unsafe products. The provision of Part 1 allow consumers to sue the producers of unsafe goods for damages for death, personal injury or damage to private property.
The CPA Part 2 imposes a general safety requirement on consume goods and makes breach of this requirement a criminal offence. Part 2 of the Act replaces the earlier Consumer Protection Acts and Consumer Safety Acts which applied to certain goods. The CPA Part 2 applies to all consumer goods which are defined as those intended for private use or consumption. However, there are a number of exceptions where some product are covered by other legislation like the Food Safety Act 1990. Thus Part 2 does not apply to growing crops , food, water, feeding stuffs, fertilizers, gas, aircraft, motor vehicles, drugs, tobacco, goods that are not new and goods which are for export
Section 10(1) of the CPA states that a person will be guilty of a criminal offence if he;
(a) supplies any consumer goods which fail to comply with the general safety requirement;
(b) offers to agree to supply such goods; or
(c) exposes or possesses any such goods for supply.
Thus manufacturers and retailers could be prosecuted under the Act.
Section 10(2) explains the general safety requirement; consumer goods must be reasonably safe, which means that the risk of death or personal injury must be reduced to a minimum, having regard to all the circumstances
The circumstances which a court would have to consider include the following;
(a) How the goods are marketed. This will include the way the goods are advertised, any warnings and instructions supplied with the goods, the group of people targeted, like children or the elderly, and also the intended use of the goods.
(b) Any relevant published safety standards. It is a rebuttable presumption and not an absolute defence that the general safety requirement has been met if the goods comply with statutary standards drawn up by various national and European bodies. Goods meeting these standards could be those that carry the CE mark, the BSI Safety mark, the BSI Kitemark or the BEAB mark for electrical goods.
(c) Whether there were any reasonable ways in which the goods could have been made safer.
Enforcement of the CPA Part 2
The local trading standards officer can issue suspension notices to stop suppliers selling goods when he reasonably suspects that there has been a breach of the general safety requirement. The Act provides a right of appeal against the imposition of a suspension notice and a right for a supplier to claim compensation should the trading standards officer issue suc a notice without justification.
Alternatively, the trading standards officer can apply to the procurator fiscal for a forfeiture order which gives him the right to seize the goods.
The Secretary of State for Trade and Industry has powers under the Act to issue a Prohibition Notice to stop suppliers selling unsafe goods without his consent. The Secretary can also issue a warning notice requiring a trader at his own expense to publish a warning about goods the Secretary of State considers unsafe.
Finally, a manufacturer or retailer could face prosecution in the criminal courts for breach of the general safety requirement or for failing to comply with a notice
The defences available to a manufacturer or a retailer
. That the manufacturer or retailer took all reasonable precautions and exercised all due diligence to avoid the commission of an offence
2. That the offence was due to the fault of another person or due to reliance on information supplied by the other person. If relying on this defence the person charged must identify the other person. Thus an employee could be charged with an offence where his actions have caused the commission of an offence by his employer
3. It is a defence for a retailer ( not the manufacturer) to show that he did not know or had no reason for suspecting that the goods failed to comply with the general safety requirement
The General Product Safety Regulations 1994 came into force in October 1994. These Regulations implemented the EC General Product Safety Directive. They revoke the Approval of Safety Standards Regulations 1987 and the CPA s10(3)(b)(ii) but do not repeal the rest of the CPA Part 2. The Regulations complement/supplement the provisions of the CPA Part 2 regarding product safety and the Food Act 1990 which covers the safety of food. The result is very confusing. The regulations do not have the same exceptions and cover some goods not covered by Part 2 of the CPA. For example food, motor vehicles, second hand goods and tobacco are covered by the Regulations but not by the CPA Part 2. so second- hand car dealers beware! However, the new Regulations adopt the enforcement provisions in the Act and both must be read together. Where both apply, the general safety requirement in Regulation 7 takes precedence over the general safety requirement in the CPA s 10. The 1994 Regulations impose requirements concerning the safety of products intended for consumers or likely to be used by consumers if such products are to be placed on the market by producers or supplied by distributers. The Regulations apply to second-hand products ( but not antiques). They do not apply to products supplied for repair or reconditioning before use provided the supplier clearly informs the person to whom he supplies the product that it could be unsafe. Also not covered is any product which is already covered by specific Community law rules regarding safety of that product. However, there is a presumption ( unless the contrary is proved) that a product is a safe product if it complies with the specific rules of the law of the UK laying down the health and safety requirements which the product must satisfy in order to be marketed.
Producers and to a lesser extent distributors have duties under the Regulations. A producer is defined as a manufacturer of the product or an own brander. When the manufacturer is outwith the community and he does not have a representative in the community then the producer will be the importer into the European Economic Area. Producers can also be other professionals in the supply chain insofar as their activities may effect the safety of the product. A distributor means any professional in the supply chain whose activity does not effect the safety properties of a product
Regulation 7 ( the general safety requirement) states that " no producer shall place a product on the market unless the product is a safe product". A safe product is defined as any product which under normal or reasonable foreseeable conditions of use, including duration, does not present any risk or only the minimum risks compatible with the product's use, considered as acceptable and consistent with a high level of protection for the safety and health of persons, taking into account in particular
(a) The characteristics of the product, including its composition, packing and instructions for assembly and maintenance;
(b) the effect on other products where it is reasonably foreseeable that it will be used with other products
(c) the categories of consumers at risk when using the product, in particular children
Regulation 8 requires producers to supply consumers with the relevant information to enable them to access risks inherent in a product throughout the normal and reasonably foreseeable period of it's use and to make precautions against these risks. The producer must also adopt measures commensurate with the characteristics of the products which he supplies to enable him to be informed of the risks which these products might present and take appropriate action, including if necessary withdrawing the product from the market
Regulation 9 requires a distributor to act with due care in order to help ensure compliance with the requirements of regulation 7 and in particular he shall not supply products to any person which he knows or should have presumed on the basis of his information to know are dangerous products and he shall participate in monitoring the safety of products placed on the market and pass on information on this product risks.
Any person who contravenes Regulation 7 or 9 commits a criminal offence. In addition it is a criminal offence for a producer or distributor to offer or agree to place on the market any dangerous product or expose any such product for placing on the market or to offer or agree to supply any dangerous product or expose or possess any such product for supply. This is subject to the due diligence defence- That the person charged took all reasonable steps and exercised all due diligence to avoid committing the offence and if the person alleges that the offence was due to the act or default of another or to reliance on information given by another, he must identify the other person.
Advice to Sophia Olivetti
I would advise her that she might be able to sue the vender under Lord Buckmaster's ruling in the George v Skivington case and that she could sue the manufacturer under the House of Lords ruling in the Donoghue v Stevens case. If successful she would be fully recompensed for all the natural and direct consequences, or foreseeable consequences of the defenders conduct
Under the CPA Part 1 she can sue the producer in the civil court for damages as long as the damages exceed £275 . She does not need to prove fault. She can only sue the producer for damages caused by the defective product and not the product itself. Delict provides a remedy for the actual product
As the microwave caused pure economic loss she will have no claim under the CPA part 1 or the common law of negligence where the onus is on the pursuer to prove culpa
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