Delict

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In its most enlarged sense, it includes all kinds of crimes and misdemeanours; even the injury caused by another, either voluntarily or accidentally without evil intention. However, delicts are more commonly understood as small offences that are punished by a small fine or a short imprisonment.</div> <div> Delicts are either public or private: The public are those, which affect the whole community by their hurtful consequences; the private is that which is directly injurious to a private individual.</div> <bR> <div> A quasi-delict is the act of a person, who without malignity, but with inexcusable imprudence, causes an injury to another.</div> <bR> <div> Torts - Torts are civil wrongs recognized by law as grounds for a lawsuit.      These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms.  The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages. Among the types of damages the injured party may recover are: loss of earnings capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses. </div> <bR> <div> There are numerous specific torts including trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress. Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (causing an accident by failing to obey traffic rules); and strict liability torts (e.g., liability for making and selling defective products.  Intentional torts are those wrongs which the defendant knew or should have known would occur through their actions or inactions. Negligent torts occur when the defendant's actions were unreasonably unsafe. Strict liability wrongs do not depend on the degree of carefulness by the defendant, but are established when a particular action causes damage. </div> <bR> <div> Tort law is state law created through judges (common law) and by legislatures (statutory law). Many judges and states utilize the Restatement of Torts (2nd) as an influential guide.  The Restatement is a publication prepared by the American Law Institute whose aim is to present an orderly statement of the general law of the United States. </div> <bR> <div> <B>Thing to note about liability</B></div> <div> The Sale of Goods Act 1974 provides only for the person with whom the seller contracts </div> <div> Section 14a of the Sale of Goods Act provides that `goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all other relevant circumstances'.</div> <div> Section 14b gives further guidance by stating that the quality of goods includes their state and condition and - in appropriate cases - their:</div> <div> 1 fitness for all purposes for which goods of that kind are commonly supplied</div> <div> 2 appearance and finish</div> <div> 3 freedom from minor defects</div> <div> 4 safety </div> <div> 5 durability</div> <div> <B>Consumer Protection Act 1987</B> part 1 implements the directive on product liability which makes manufacturers liable for damages caused by defects in their products and provides consumers and others with a civil remedy against producers of unsafe goods.  The provision allows consumers to sue producers of the unsafe goods for damages, death, personal injury, or damages to private property (provision 1).  Under this directive the <FONT SIZE="1" COLOR="#333366" FACE="Arial" >Pursuer</FONT> does not have to establish he has a contract with the seller of the goods, but can claim because he was an innocent bystander under the Act.  The claimant only has to show three things:</div> <div> 1 there has been injury or damage.</div> <div> 2 there is a dangerous defect in the product.</div> <div> 3 the defect in the product caused injury or harm.</div> <bR> <div> <B>Lord Aitken</B> set out a neighbour principle - a principle that can be used to decide if a duty of care exists and if so to whom.</div> <div> <I>`The rule that you are to love thy 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 into question'.</I></div> <bR> <div> <B>Home Office Vs Dorset Yacht Co Ltd [1970] 2 All ER 294.  Bourhill Vs Young [1943] SC (HL) 78.  </B></div> <div> In order for the <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer </B></FONT>to prove negligence and bring an action for damages he must first of all establish <B>`burden of proof'</B> and show that there is a falt to exercise <B>due care</B>.  There is a rule of evidence expressed in the maximres <B>ipsa loquitur,</B> the fact that the accident happened in these circumstances raises a <B>prima facie</B> case of fault on the part of the <B>Defender </B><B>,</B> however, before maximres <B>ipsa loquitur</B> can be applied the following conditions are necessary:</div> <div> 1 the offending thing must have been under the control of management of the </div> <div>      offending thing.</div> <div> 2 some accidents do not actually happen when due care is exercised by those in</div> <div>      control.</div> <div> 3 there must be an absence of an explanation.</div> <bR> <div> <B>Bolton Vs Stone [1951] AC 850.  Castle Vs St Augustines Links [1922] 38 TLR 615.  Paris Vs Stepney Borough Council [1951] AC 367.</B></div> <div> In order for <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> to bring as action for negligence in this case, he will have to establish that he was owed a `duty of care' by the golf club, and also that his injury was caused by a breach of a `duty of care' the degree of care required in the circumstances depends on a hypothetical, reasonable person weighing up on the one hand - the probability of injury and how serious the injury could be against how easy it would be in the circumstances - to avoid the risk and how expensive.  The question would be “has anyone ever been hit by a golf ball in the past?” and if so how many times has this happened?  Although <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> teeth were knocked out as a result of being hit by the golf ball, he may have difficulty proving negligence in this case, for while it is reasonably foreseeable that a golf ball could veer out of bounds and hit a passer by, the chances of this happening would seem quite small.  However, if <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> were to successfully pursue an action for damages in the absence of a similar incident having happened before, a president may be set for future cases.</div> <div> <B>Donoghue Vs Stevenson [1932] AC 562.  Bourhill Vs Young [1942] SC (HL) 78.  </B></div> <div> If the <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> is to establish negligence, they will have to determine if they were owed a duty of care and if so, by whom.  Lord Aitkens speech sets out a neighbour principle that can be used to describe if a duty of care exists and if so to whom.  (See above)  In this case , who becomes ill as a result of drinking contaminated ginger beer, it is clear that the manufacturer of the ginger beer did not take reasonable care to guard against a foreseeable kind of harm, neither did they attain the standard of care necessary in the production of the ginger beer.  The Lord Aitken principle therefore can be applied in this case because of the relationship that exists between the manufacturer of the ginger beer and the <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> who is the ultimate consumer.  The <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> is entitled to bring an action for negligence against the manufacturer of the ginger beer and to base their claim on the legal president set by Lord Aitken. </div> <bR> <div> <B>Kirbey Vs NCB [1958] SC 514. </B></div> <div> In order for the <FONT SIZE="1" COLOR="#333366" FACE="Arial" ><B>Pursuer</B></FONT> to bring an action for damages they must first of all establish who is liable for his injuries.  Although the defender was driving his employers van at the time of the accident, he had no authorisation to do so; neither had he obtained permission to borrow the van for his private use.  </div> <bR> <bR> <bR> </td> </tr></table></body>