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In June 2017, Hermand Academy (HA) organised an end of term sports day. Families of all the pupils who attend the school were invited to attend the event. One of the events was the boys’ 400 metres Race. Ian (aged 16) soon established a commanding lead in the race. As Ian approached the finishing line, Matthew (aged 4), who is a brother of a pupil at HA, ran away from his father Derek, who was watching the race with him. Matthew entered the running track, and ran in front of Ian. In order to avoid colliding with Matthew, Ian swerved into the spectators. Ian then collided with Angie (aged 13) who is a pupil at the school. As a result, Angie broke her arm. Ian then collided with a stall, from were hot drinks were being served. The stall over-turned. A large tea urn on the stall then fell to the ground. On impact with the ground, the lid of the urn dis-lodged. Hot tea ejected from the urn and scalded Simon (aged 15) a pupil at HA, who was standing at the top of the queue for the stall, waiting to be served. Karen (aged 16), who is also a pupil at HA, was standing behind Simon. She witnessed Simon being scalded and sustained post-traumatic stress disorder (PTSD). Paramedics treated Simon at the scene and took him to hospital. At the same time Brian, Headmaster of HA, phoned Simon’s mother, who was at home, to inform her that Simon is in hospital. On hearing this news, she also sustained nervous shock.

Discuss the above in terms of the law of delict.
 

Legal Concept of Delict

The area under the Scots law, dealing with the legal wrongs is delict. Even though at times it is deemed as being similar to negligence, the reality is that the scope of delict is quite broad in comparison to delict. This area is largely led by common law in terms of the cases and the courts. As a result of this, greater flexibility is provided to this area of law and changes based on the changes in the society. The law of delict is the responsibility of making reparation based on the contravention of obligation of care and represents the duty of refrain from indulging in such contraventions. In the following parts, the given case study is analysed in detail, in context of the law of delict as is applicable under the Scots law. This would help in gaining an insight on the possible claims which can be raised on the basis of the facts of the given case study and the chances of success of such claims.

Based on the given facts of the case, the main issue of this case revolves around the possibility of law of delict being applicable against Ian, Matthew or Matthew’s father for the injuries caused to Angie, Simon, Karen and Simon’s mother.

Delict revolves around the concept of loss wrongful caused, based on the terms damnum injuria datum. When a person P suffers wrongful loss at person D’s hands, particularly where D had been negligent, D comes under the legal obligation of making reparation. It basically relates to righting of the legal wrong based on the principle of liability for loss which was caused as a result of the breach of duty of care, be it accidental or deliberate. It broadly is based on the same grounds as tort law and even goes beyond it. For delict, the harm does not have to be physical only and can be economic, emotional, reputational damage, privacy infringement or other legal rights. 


The first step in law of delict, for making the relevant party liable, there is a need to show that a duty of care had been owed by one party to other. In this regard, the case of Donoghue v Stevenson is of assistance. In this case, Donoghue had consumed ginger beer from the bottle which was manufactured by Stevenson. This bottle had a decomposing snail in it. The contents of the bottle could not be seen till the bottle was empty. As a result of this consumption, Donoghue fell sick with major gastric issues. This resulted in Donoghue making a case against Stevenson. In this case, the court stated that there was a rule of loving your neighbours and of not injuring them. The court upheld presence of duty of care in this case based on presence of proximity between the parties and the direct causation due to acts of Stevenson causing sickness of Donoghue.

Requirements for Liability

Once duty of care is established, there is a need to show that this duty had been breached. The key theme in delict, based on the ratio given in case of Muir v Glasgow Corporation, is not to prevent the omissions or acts of a person from causing harm to another but on taking the reasonable precautions to prevent harm in situation which was present. In order to raise a case in delict, there is a need to prove that a duty of care was owed, which was breached, and it is just, reasonable and fair to impose duty of care in situations and that there had been a causal link between the loss suffered by the individual in question and the wrong done. In taking into consideration what constituted as ample precautions, a number of factors apply. These include the probability of harm, in terms of the harm being a reasonable and foreseeable possibility. The next is to show the severity of injury, where it has to be established that the injury which had been caused was a major one and that a more comprehensive duty of care was owed by the defendant towards the plaintiff. A leading example of this is the matter of Paris v Stepney, where blindness of Paris due to lack of safety goggles being provided by the defendant was seen as a breach of duty of care.

There is also a need to show that there was availability of precautions against the injury, and where there is a lack of precaution, the duty cannot exist. The chances of injury happening, in terms of foreseeability of injury has to be present. In Hughes v Lord Advocate, two of the boys had been playing near the manhole which was unattended and was surrounded by paraffin lamps. Upon falling inside the manhole, there was explosion off lamp, which resulted in burns. In this matter, it was upheld that even though it could not be foreseen that a child would get injured in such situations in that manner, but due to the site being left unattended it became an attraction for young children, making it foreseeable that there had been a risk of burning related injury. As this is what actually happened, the damage was held as reasonably foreseeable resulting in the boy winning his case.

In general, the onus of proof is on the plaintiff to show that a standard of care had not been upheld by the defendant. Though, this becomes difficult in cases where the cause of accident cannot be discovered. When such happens, there is a need to apply the doctrine of res ipsa loquitur, which denotes that the facts speak for themselves. On the applicability of this doctrine, the onus of proof shifts on the defendant as the presumption under this doctrine is that the defendant had been negligent and the defendant than has to give plausible explanation for the injury being inconsistent with their negligence. For using this doctrine, there is a need to show that the offending thing had been under the exclusive/sole control of the defendant; and that such an incident would not have taken place in the normal course of events where the ones in control had been negligent.   

Application of Law of Delict in Case Study

In the present instance, there is first a need to decide on the defendant of the case. If the entire scenario is carefully analysed, it can be seen that the root cause of things incident is the negligent behaviour of the father of Matthew. This is because his negligent behaviour initiated a ripple effect which led to Ian changing his path of run, hitting people and objects, causing injury in both physical and mental terms to many.

In order to establish a case against Mathew’s father under the law of delict, there is a need to show the presence of elements covered under the rules segment. The first requirement is to show that a duty of care was owed by Matthew’s father to all the injured people, including Matthew and Ian. In this regard, there is a need to make use of criteria laid down under Donoghue v Stevenson. Based on this, Matthew’s father had to take care of the neighbours around her. In this regard, he had to take care of his child Matthew in terms of ensuring that he did not cause any disturbance in the race. Here, the neighbours of Matthew’s father were Matthew, Ian, Angie, Simon and Karen. Simon’s mother had been informed on phone at her home of the injuries caused to Simon. As there was no direct proximity between Matthew’s father and Simon’s mother as she was not a neighbour, a duty of care was not owed to her by Matthew’s father. 


The next step is to show that a duty of care had been breached by Matthew’s father. Here, there is no need to show that he omitted in preventing the harm caused to the different individuals, but to show that he failed in taking reasonable precautions to prevent the harm, based on Muir v Glasgow Corporation. Here, it is very clear that by not taking care of Matthew properly, he allowed him to escape to the runners’ field, causing a chain effect of injuries. In the present instance, it is fair, just and reasonable to impose a duty of care on Matthew’s father. Further, there had been a causal link between the wrong done by Matthew’s father by not controlling Matthew and between the injuries caused to Ian, Angie, Simon and Karen. Even though injuries of Ian have not been explicitly mentioned in the case study, they are taken to be present due to his collision with Angie and stall.

Doctrine of Res Ipsa Loquitur

There is also a need to analyse the precautions undertaken by Matthew’s father. Here, the possibility of harm was clear as a child can easily steer off where left alone and the parents are reasonably expected to care for them. The injuries suffered by the four parties were serious, based on Paris v Stepney, as Ian was injured, Angie broke her arm, Simon was scalded and Karen sustained PTSD. The precaution available in this case with Matthew’s father was to take care of Matthew properly and keep him near him at all times. This was not just to protect others but also to protect Matthew. This proves to be particularly true based on Hughes v Lord Advocate as Matthew was a young child who would reasonably be attracted towards new things like the race he witnessed.  Based on these issues, the conditions required to make a claim for damages under law of delict have been successfully established against Matthew’s father, which would allow Ian, Angie and Simon to claim monetary compensation for their injuries, to Karen for the PTSD she sustained which is a mental injury, and again towards Ian in terms of the lost winning amount of the race he was about to win. This doctrine can be applied by showing that the cause of Matthew leaving his father and running towards the field, resulting in the chain events, could not be discovered. This would require Matthew’s father to show that he had taken the requisite level of care towards Matthew. The reason for using this doctrine is that Matthew was under exclusive control of his father and that in normal course such an instance would not have taken place. This would again make Matthew’s father liable under the law of delict. 


Conversely, the doctrine of res ipsa loquitur can also be made use of in this case, where one contends that the duty of care established above is not sufficiently proved.

Conclusion

Thus, from the aforementioned discussion, it can be concluded that Matthew’s father would be liable under the law of delict and would have to compensate Ian, Angie and Simon to claim monetary compensation for their injuries, to Karen for the PTSD she sustained which is a mental injury, and again towards Ian in terms of the lost winning amount of the race he was about to win. Though, due to the lack of duty of care being owed by Matthew’s father to Simon’s mother, Matthew’s father cannot be made liable for the nervous shock sustained by Simon’s mother.

Donoghue v Stevenson [1932] S.C. (HL) 31

Hughes v Lord Advocate [1963] A.C. 837

Muir v Glasgow Corporation [1943] SC (HL) 3

Paris v Stepney [1951] AC 367

Crossan S, Introductory Scots Law: Theory and Practice (3rd edn, Hachette UK 2017)

Harpwood V, Modern Tort Law (6th edn, Psychology Press 2005)

Martín-Casals M and Papayannis DM, Uncertain Causation in Tort Law (Cambridge University Press 2015)

Strong SI and Williams L, Complete Tort Law: Text, Cases, & Materials (2nd ed, Oxford University Press, 2011)

Twerski AD, Henderson Jr. JA, and Wendel WBB, Torts: Cases and Materials (4th edn, Wolters Kluwer Law & Business 2017)

Visser D, Private Law and Human Rights (Edinburgh University Press 2013)

Walston-Dunham B, Introduction to Law (5th edn, Cengage Learning 2008)

Unlock the Law, ‘Delict & Tort’ (03 October 2014) <https://www.unlockthelaw.co.uk/delict-tort.html> accessed 24 March 2018
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