Delict (ordinary) 2021 lecture notes
1. What is Delict?
Friday, 27 August 2021
18:27
NOTE:
Case law in the law of Delict constantly evolving. This means that
relevant judgments may very well be issued by the courts during the
lecture course. Important new authorities will be drawn to the attention
of the class, and noted on Learn.
Cases in this handout which are starred (*) require particular attention.
Cases which are cited for reference as authority for particular points,
and which do not require special study, are marked with the “reference
book” symbol (&).
References to “Thomson” indicate J Thomson, Delictual Liability, 5th
edn (2014), available in the Reserve section of the Law Library.
References to “Giliker” indicate P Giliker, Tort Law 6th edn (2017),
available in the Reserve section of the Law Library.
A. INTRODUCTION: WHAT IS DELICT ABOUT?
Reading
Thomson, pp 1-8
Giliker, paras 1.001–1.033
The law of badness (delict/ reparation of wrong)
Delict is part of private law + part of the law of obligations: c.f. the
Gaian scheme G Inst II.12-14
The civil law tradition divided the law of obligations into contract, delict,
quasi contract and quasi delict: J Inst III.xiii.2 (c.f. G Inst III.88: contract
or delict, Gaius in D.44.7.1: contract, delict or various type of cause).
Various types of cause: quasi-contract or quasi-delict (unintentional
wrongs ?)
Delict=Civil response to wrongful conduct vs criminal law= state
response to wrongful conduct.
Contract: voluntary vs Delict: involuntary
Course concerns possible responses to delict:
Interdict: court tells defender certain conduct is wrong and
defender ought not to do it; clarifies that conduct is wrong.
Involves liability for conduct and contempt of court for breaching
interdict
Damages (i.e. reparation)
, Stair I.iii.2: “[Obligations] may be more appositely divided, according to
the principle or original from whence they flow, in obligations
obediential (according to law; includes delict), and by engagement
(because promise made, entered into contract), or natural and
conventional”
Stair I.iii.4: “Obediential obligations are either by the will of God (natural
irrespective of action or inaction) immediately, or by the mediation of
some fact of ours (arise because of action but not intentional); such are
obligations of delinquency, whereby we become bound by delinquency,
whereby we become bound to reparation and satisfaction of the party
injured.”
Delinquency = commission of a wrong
Wrongful conduct generates second obligation of reparation.
Where is delict ?
Obediential: involuntary; separate from voluntary and promise.
Therefore:
Delict concerns private law’s response to wrongful conduct by
either imposing an obligation to make reparation (typically by
paying damages) OR making a court order not to do the wrongful
act.
conserning two levels of obediential obligations; first order (owed
to one another) and second order (obligation to make reparation).
(1) ESSENTIAL ELEMENTS OF DELICT
(a) Damages; harm already sustained
Damnum iniuria datum: loss wrongfully caused.
,Essential elements for damages in delict (5):
A wrong by defender
A loss to the pursuer
A causal link between the two
Remoteness: Is the loss too remote? ( is there a sufficiently close
connection between the wrong and the loss suffered?)
Defences: Are there any defences which preclude liability?
Law turns to money to compensate the wrong; restores position you
would have been in without suffering loss
(b) Interdict
A wrong being done or reasonably apprehended
Threatens a relevant interest
Court has discretion to award damages instead in exceptional cases
Public interest
Burden imposed on defender out of all proportion to benefit
obtained by remedy; encroachment which occurs when
someone builds across a boundary (instead of destroying the
building, provide financial compensation)
(2) WILL ANY KIND OF WRONG DO? No, must be wrong
against pursuer for both remedies
“The rights of individuals, either to property, or to personal liberty, safety, or
reputation, are not only protected by penal law, but in civil law they furnish,
when invaded, ground of action for reparation.” (Bell, Principles § 543)
“People who claim to have suffered harm or an invasion of their rights often
seek satisfaction – usually money – from the party they suppose responsible”
(T Weir, Introduction to Tort Law 2nd edn (2006) p ix).
The wrong must be an invasion of the pursuer’s rights or, to put it in the
converse, a breach of a duty owed by the defender to the pursuer.
(HOHFELDIAN RIGHTS)
C.f. failure to comply with statutory obligations
CC breached statutory obligation
Question for court: whether wrong done was one which triggered an
obligation to pay damages for harm that flowed from that wrong
X (Minors) v Bedfordshire CC [1995] 2 AC 633 at 731, per Lord Browne-
Wilkinson: “The basic proposition is that in the ordinary case a breach of
statutory duty does not, by itself, give rise to any private law cause of action.
However a private law cause of action will arise if it can be shown, as a matter
, of construction of the statute, that the statutory duty was imposed for the
protection of a limited class of the public and that Parliament intended to
confer on members of that class a private right of action for breach of the
duty.”
Wrong must be a wrong vis-a-vis (in relation to) the rights that the
pursuer holds
Generally dealing with specific, well established, categories of wrong:
All are subcategories of general concept of culpable conduct
Assault
Fraud
Defamation
Negligence
Is there any residual liability for wrongfulness ?
New wrongs can be subsumed under liability for culpable conduct:
Micosta SA v Shetland Islands Council 1986 SLT 193 at 198 per Lord Ross:
“There is no such thing as an exhaustive list of named delicts in the law of
Scotland. If the conduct complained of appears to be wrongful, the law of
Scotland will afford a remedy even if there has not been any previous
instance of a remedy being given in similar circumstances.”
The explanation of what renders conduct wrongful in these circumstances is
not entirely satisfactory.
C.f. Code civil arts 1240:
Translates: “Every act whatever of man that causes damage to another,
obliges him by whose fault it occurred to repair it.”
BGB § 823
Translates:
“(1) A person who, intentionally or negligently, unlawfully injures the life, body,
health, freedom, property or another right of another person is liable to make
compensation to the other party for the damage arising from this.
(2) The same duty is held by a person who commits a breach of a statute that
is intended to protect another person. If, according to the contents of the
statute, it may also be breached without fault, then liability to compensation
only exists in the case of fault.”
(3) HOW BAD MUST THE CONDUCT BE?
It depends on the wrong/duty
