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Obligations Law - Lecture 4 (Part 1) - Defences and Remedies
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Lecture notes for the Obligations 2 (Delict) module. Author achieved a first-class grade for the module.
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Lecture 4 (Part 1) – Defences & RemediesHOW TO REDUCE POTENTIAL LIABILITY
A defender’s ultimate liability may be reduced if:
1. It is limited by statute or contract
2. Partial responsibiility can be allocated to other parties
3. The pursuer can be shown in part to have contributed to his own injuries.
LIMITATION OF LIABILITY
A person whose harmful conduct has caused loss or injury to another may not necessarily be liable for
all the resultant damage. There are ways in which an individual’s liability may be reduced, shared or
even excluded.
1. Limitation of liability by statute
• In some circumstances there may be a statutory provision limiting the extent of a wrong-
doer’s liability.
Examples:
• Railway Fires Acts 1905 and 1923 limited the liability of railway companies for fires caused to
agricultural land by sparks from steam engines to £200.
• Criminal Procedure (Scotland) Act 1995 provides that judges and clerks in the District Court
can only be sued subject to very specific qualifications.
2. Limitation of liability by contract
• Under common law, parties may insert exemption or exclusion clauses into their contracts.
These are an attempt to limit or exclude liability for damages arising either under the contract
and/or in delict.
• Such clauses have never been viewed in a very favourable light by the courts and are often
interpreted contra proferentem (i.e., construed against the party putting them forward and
in favour of the party who suffered the loss because of ambiguity in the meaning). You can
only do this if there is actually doubt around the exact meaning of the words and then can
argue that it should be translated in this way to favour the victim against the wronger.
• They have been restricted by the Unfair Contract Terms Act 1977 as extended by the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1990.
Effect:
– All are deemed void if they purport to exclude or restrict liability in respect of causing
death or personal injury.
– They are also of no legal effect in any other circumstance unless it was ‘fair and
reasonable’ to incorporate them.
, ALLOCATION OF RESPONSIBILITY
• Where more than one person contributed to the injury, either equally or in varying
proportions, they will be jointly or severally liable.
• This means that the injured party can sue both/all the parties or just one of them to recover
damages.
• If one party has paid the full award of damages, he is entitled to recover a contribution from
any other wrong doers according to the proportionate liability attributed by the court.
• Courts will allocate responsibility stating the percentage fault attributed to each defender or
where fault cannot be accurately proportioned, liability will be spread equally.
Drew v Western SMT 1947 SC 222
Drew was a baker’s boy whose job was to take freshly made goods out of the van into the
shops that stocked them. The incident was during the second world war, the events happened
at 8am in December when it would be black outside with partial blackout. The car is parked
outside a shop in the pitch black outside a shop. Unfortunately, the van has a red light at the
back so people can see but when the door is opened the red light is obscured. The bus came
barrelling up the road and slams into the back of the van when drew is unloading the goods.
He is killed the next day but was essentially crushed between the two vehicles. The van did
not have its red light visible, but the bus driver had not been keeping a good lookout and
witnesses seemed to indicate that he had not been paying attention to the roads when he
slammed into the van.
The court decided that there was partial liability, 50/50, each party had to pay 50% of the
damages. The logic was that both sides had been at fault and not possible to ascertain which
party was at fault and where the responsibility should be allocated.
CONTRIBUTORY NEGLIGENCE
• Contributory negligence is carelessness on the part of the pursuer which contributes to the
loss or injury sustained.
• It is therefore a type of defence as the defender alleges that the injury was caused wholly or
partially by the pursuer’s failure to take reasonable care for his own safety.
• Prior to the Law Reform (Contributory Negligence) Act 1945 it provided a complete defence
and a party who had contributed to his own injuries would not be entitled to recover any
damages. It is now a partial defence or more correctly a method by which the defender may
limit or reduce the amount of damages to be paid. The court may attribute fault between the
parties in proportion to their share of the responsibility. The onus is on the defender to
establish the defence.
• It follows the principle of fault-based liability as the loss or injury is partially caused by the
culpa or fault of the pursuer.
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