Scots tort law
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There is no principle of tort in Scots Law, the appropriate term being delict.
The seminal case to determine parties to tort liablity in the English Common Law is Donoghue v. Stevenson which is a decision of The House of Lords. It determines that any person who could be affected by the actions of an individual has standing to sue in tort. It was determined under Scots Law. Consequently, one of the most important concepts in English Common Law owes its very existence 2 Scots Law.
(it should be noted scots law has accepted the ratio (decisions) of several English cases.)
'The Duty of Care'
donoghue v stevenson, is considered to have defined the concept of duty of care. To whom do we owe a duty of care ? Donoghue says that we owe this duty to our neighbours; in legal terms your neighbour can be defined as
“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, 'Donoghue v Stevenson
'Breach of Duty of Care'
However the idea of delict is not to prevent a persons acts or ommisions from ever causing harm occurring, but is to take reasonable precautions to prevent harm. This is seen in the ratio of 'Muir v Glasgow Corporation 1943 SC(HL) 3'
To be sued successfully under delict it must be proven that, you have breached the duty of care (ie. taken insufficient precautions to prevent harm). In determining what constitutes sufficient precautions several factors apply:
1) Probability of Injury
'Bolton v. Stone [1951] AC 850' - In cricket ball was hit out of the ground, resulting in harm to a passer by. It was decided that despite the fact that the precautions had not been sufficient to prevent this from happening, it was not a breach of the duty of care. This was because over a 20 year period this had only occurred 5 previous times an injusry was possible but not probable.
2) Severity of Injury
'Paris v. Stepney Borough Council [1951] AC 367' - It was decided that a welder was not owed a duty of care to be provided with safety gogles (today this duty would exist), but that due to Mr Paris' unique circumstances (he only had one eye) the severity of his potential (and resulting injury) was so great that he be owed a more comprehensive duty of care.
3) Availability of Precautions
'Roe v. Minister of Health [1954] 2 QB 66' - When the dangers of an act is not known (eg. working with aspestos prior to knowing it was dangerous) or the precations are not known and it is reasonable not to know about them, no duty can exist to provide such precaution
