Apart from my slightly scary liking/(obsession?) for crime and criminology, my other great passion in law is ‘Delict’ (otherwise known in other jurisdictions as ‘Tort’). It stems from the Latin ‘delictum’ (literally ‘failure’ – more commonly ‘fault’).

This area of law is comprised of civil wrongs (between individuals) either committed intentionally or negligently and which results in some form of ‘loss’. The wrongdoer must have ‘foreseen’ that their actions would likely cause such loss. By loss we mean ‘loss, injury or damage’ and this would best be illustrated by our old friend and famed maxim ‘damnum injuria datum’ (‘loss wrongfully caused’). The precise meaning tends to vary within systems across the world but it is generally accepted that it stems from the Roman concept of ‘wrongful conduct’.

Case study: Donoghue v. Stevenson (1932)
(If you know, you know 😉)

The ‘damnum’ maxim is important as it forms the basis for a delictual claim in Scots Law – in other words, ‘was a duty of care owed by one party to the other?’ We know this is NOT absolute as demonstrated in Bourhill v Young (1943) AC 92. Equally, in what appears to be a somewhat paradoxical case – McLoughlin v O’Brian (1983) 1 AC 10 – we see that liability can be established even in circumstances where, at first glance, it seems unlikely.

In today’s case analysis, we are looking at yet another celebrated Scottish delictual case that covers negligence, the standard of care and the issue of (reasonable) foreseeability. Classically, when looking at ‘who owes what to whom’, we needn’t go beyond the words of that wily old fox Lord Atkin who, in creating the seismic ‘neighbour principle’, utters the immortal lines…..

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question‘.

Lord Atkin of Aberdovey.jpg
(Lord Atkin)

This remains the classic test for liability in negligence. You will be mightily relieved that any forensic, philosophical analysis as to the rights, wrongs and motives for Atkins’ judgement have already been discussed on these pages and therefore won’t be poured over again today (but hey, you can check my critique again if you wish 😁 – Donoghue v Stevenson – a critique – THE SCOTS LAW BLOG).

In today’s scrutiny of the common law, Eleanor Muir (daughter of the Pursuer) was badly scalded by boiling hot water as she stood in a council-run shop in King’s Park in Glasgow in 1943. She was part of a group that had been enjoying a fun day out when, one might say ‘as ever’ (in these parts), the heavens opened and there was a torrential downpour. The adults in charge of the children (including Eleanor) and who were all at a picnic day out, scurried to find shelter from the elements. As they waited for the rain to subside, they were offered a cup of tea. To facilitate this, an urn was required. One of the adults in charge of the group, a Mr. McDonald, was charged with carrying said urn along with another boy, from the house adjoining the shelter where they initially had gone, back towards the tearoom.

Inexplicably, and it has remained unexplained to this day, McDonald let the urn tilt and slip out of his grasp. The court reports from the time speculated that it may have been ‘a temporary muscular failure’ but no definitive explanation has ever been forthcoming. The resultant drop and spillage caused extensive burn injuries to a number of children, including Eleanor and her father duly sued the local authority.

Week 7: Reporting cases: 2 Case names and citations - OpenLearn - Open  University - WXM151_2

The legal issue was whether there was a ‘duty (of care)’ incumbent upon the manageress of the tearoom facility (vicarious liability resting with her employers Glasgow Corporation (as then was, now effectively Glasgow City Council), if so) or whether there could not have been ‘reasonable foreseeability’ (in the Atkinian sense). The House of Lords held unanimously that she had not been negligent.

The ‘test’ gives us the slightly nebulous theory of that most dreaded of ‘people’….‘the reasonable man’. (Please note that this concept was coined long before the use of gender-neutral language became de rigeur). The question then, as it remains largely so now, is whether a person/persons did or did not act ‘reasonably’ in the circumstances. I suspect many may have an issue with this. On a pouring wet day outside, was it wise (sorry, ‘reasonable’) to foresee that carrying an urn full of scalding hot tea was a good idea? That is was not without inherent risk? The difficulty with the judgement and the ratio given by Lord Macmillan is the difficulty we have (and always will have) in actually locating someone who fits the bill of the ‘reasonable’ man. This fictitious individual who sits in an unenviably calm position somewhere between sound reason and calm judgement.

I’m not convinced they exist at all. Anywhere. The same judge sat in the same year in another delictual classic – that of Bourhill v Young (mentioned above). Here, the principal issue was to determine whether an individual has an ‘absolute’ duty of care to all (which evidently they do not – as that case ultimately determined). The fishwife in that case (Bourhill) claimed that a miscarriage she suffered was as a result of seeing the aftermath of an accident where Mr Young lost his life after being involved in a road traffic collision. It was held that he did not require, in law, to have ‘everyone’ in his contemplation and there was consequently a limitation as to those to whom he owed a duty of care. Mrs Bourhill who did not see the accident but heard it and witnessed the aftermath, was not deservingly close to have been in his ‘reasonable contemplation’. As there was no duty, the first condition of damnum failed and there was no liability. Further reading on this for those interested can be found (other than a detailed look at Bourhill and McLoughlin) in Alcock v Chief Constable of South Yorkshire Police (1991) UKHL 5, (1992) 1 AC 310, a case that stemmed from the tragic events at Hillsborough in 1989 when 95 Liverpool fans lost their lives after a crush within the ground. (*Ultimately 96 fans died when a further supporter passed away some time after the event).

When Is A Tort Duty Owed? Understanding Virginia Negligence Law – KPM Law |  Fairfax, Richmond, Norfolk, Roanoke

To conclude, then, for a valid claim for negligence to succeed:

  1. a duty must be owed by A to B – in the absence of it, there can be no validity to any claim and the process cannot proceed further
  2. there must be a demonstration that, having established a duty, it was breached (so, in Muir the manageress DID owe a duty of care to the children but she did NOT breach it as it was not foreseeable)
  3. there must be a causal link between the breach and any loss, injury or damage


All fascinating stuff, n’est pas??? 😎

Stay safe everyone.

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