Delict is part of the Law of Obligations. When studying delict, we find that the law imposes an obligation on each one of us not to cause unjustifiable harm to other persons or their protected interests. The main function of this area of civil law is to define the circumstances in which an individual or a corporate body, on finding that is interests are, or have been, harmed by another's harmful act, may seek a remedy. The wrongful act is described as a civil wrong or a delict and the remedies available are either an interdict to stop the wrong recurring or compensation, sometimes called reparation
Delicts or Civil Wrongs do not lead to the criminal prosecution of the wrongdoer, but to civil proceedings in the form of an action for damages against the wrongdoer in a civil court. If the action is successful , a sum of money, which is called ,damages, or compensation, or reparation, will be paid to the injured party. The distinction between crimes and delicts does not depend on the kind of wrongful act itself. The conduct will be regarded as a crime if it is not only harmful to the victim but to the public at large. Such conduct must be suppressed and discouraged by the state.
Therefore, the state takes action and the wrongdoer is prosecuted by public action. If the conduct is regarded as a wrong to only the individual, then the state does not interfere, and the wronged individual's remedy is to bring an action in a civil court for damages. The distinction between crimes and delicts is rendered slightly difficult because there is sometimes an area of overlap. For example, assault is a crime for which the wrongdoer will be prosecuted in a criminal court and perhaps punished by way of imprisonment or fine.
However, assault is also a delict and the injured victim, sue his attacker for damages in a separate action in a civil court. To make matters more confusing, it is possible for a compensation order to be made by criminal court. However, in practice, this is only done where the injuries are minor. Finally, if the victim of a crime cannot find the wrongdoer or if the wrongdoer has no assets and is not worth suing, a claim may be made under the Criminal Injuries Compensation Scheme The General principles of delictual Liability
The law does not provide a remedy and compensation for all those who suffer some misfortune or loss. The rule is that for delictual liability (i. e. for the defender to pay compensation) there must be a harm caused by a legal wrong and the legal wrong must be caused by culpa (fault) on the part of the wrongdoer. Culpa means that the person liable is responsible because in a legal sense he is to blame for what happened, and he directly or indirectly caused or permitted the harm complained of.
Culpa generally indicates the presence of morally reprehensible conduct. To explain this another way, some delicts can be committed intentionally (for example a deliberate fraud) but most are committed unintentionally or negligently (for example, negligent driving where someone is injured because the driver has failed to take reasonable care in driving his vehicle). In both situations, there will be fault or culpa on the part of the wrongdoer. This is one of the general principles of delict-there can be no delictual liability without fault.
However, there are some exceptions to this rule in cases of vicarious liability where the defender is liable for the actions of another person and in cases of strict liability where the defenders liability can arise again without fault on his part. In fact, he could have tried his best to prevent the wrong happening at all Damnum injuria datum This is the main principle for delictual liability in that there must be harm caused by a legal wrong. This is expressed neatly in the above Latin maxim.
All three elements of this maxim must be present before an action is brought. There must be; 1. wrongful conduct (intentionally or negligently done) 2. there must be loss or injury suffered by the pursuer 3. there must be causation- i. e. , a link between 1 and 2. Definition of a Delict A delict is voluntary conduct, by act or omission, by a person in breach of a duty, imposed on him by law, not to cause unjustifiable harm to other persons or their legally-protected interests. This conduct may be intentional or unintentional.
Who is liable for committing the delict Under scots law the general principle is Culpa tenet suos auctores, which simply means he who does the wrong is responsible and liable for it. Another interpretation could be, no-one is responsible for the delict of another person. For example, a husband or wife is not liable for the wrongs of their spouses "The rule that you are to love your neighbour becomes in Law, you must not injure your neighbour" and the lawyers 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 From the speeches of Donoghue and the treatment of it in later cases, it is possible to set out something of a formula for working out whether there may be an action for unintentional harm
1. There must be a duty of care owed by the defender to the pursuer 2. There must be a breach of the duty 3. The breach must cause a loss Within each of these essential components there are other issues which have to be addressed. In so doing it must be appreciated that there is no such thing as negligence in the air-every case turns on its own facts- and that the categories of negligence are never closed: except in cases where the courts have actually excluded recovery as a matter of policy or precedent, it is always possible to argue that there is a ground of action
Duty of Care From Lord Atkin's dictum, it can be seen that very much depends on whether the defender should reasonably have foreseen that his acts or omissions would cause harm to the pursuer. At this stage it should be made clear that " acts or omissions" is not a phrase devoid of difficulty. Generally there is no liability for a pure omission, That is a failure to prevent harm where there is no duty owed, as where I see you about to walk off the edge of a cliff. What is or is not reasonably foreseeable depends on the foreseeability of the reasonable man.
The reasonable man has a place in many area's of the law but certainly now spends most of his time as a legal device for determining whether or not there is a liability for unintentional harm. The reasonable man is not the average man for quite often he is far more rigorous in the conduct of his affairs than is the average man Reasonable foreseeability is partly an objective test-we do not ask; did this defender foresee the harm ; but neither do we assume a completely objective approach and say the reasonable man does or does not foresee x or y.
Instead we ask whether a reasonable man in the position of the defender would have contemplated the harm-a technique which might conveniently be described as defender objectivity-we put the reasonable man in the defenders position and ask him what he can see. What is required is the application of reason and not prophesy Professional Liability (a difficult topic) There are two main reasons why it is appropriate to treat professional liability separately. The first is that the existence of a duty of care in certain professional areas has been the subject of decision.
The second is that the standard of care differs-the reasonable man, although he might be prepared to give it a try will not make a very successful attempt at brain surgery. One thing which has to be made clear immediately is that the word "profession" is used here as a matter of convenience. The legal considerations do not depend upon the defender being the member of a professional body as opposed to , say, a trade association; " if I engage a man to exercise his expertise on my behalf… it matters not whether he is to prepare a conveyance of land or to drive a straight furrow across it.