The mouse and the snail : reappraising the significance of Donoghue v Stevenson part III - wrongfulness, blameworthiness and 'loss'

Brown, Jonathan (2022) The mouse and the snail : reappraising the significance of Donoghue v Stevenson part III - wrongfulness, blameworthiness and 'loss'. Scots Law Times, 2022 (37). pp. 247-255. ISSN 0036-908X

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Abstract

Third in a four-part series. Identifies that the twin factors tying together all cases of 'delict' is the need to establish the 'wrongfulness' of the defender's act or omission as well as the 'blameworthiness' of the defender for the wrong. Notes that liability under damnum iniuria (i.e., Aquilian liability) has an additional requirement that is anterior to wrongfulness: the need to prove the occurrence of a legally recognised 'loss'. Suggests that liability under damnum iniuria is principally determined by assessing the 'remoteness' of the pursuer's 'damage' with the law recognising a divide between 'primary' and 'secondary' victims which goes beyond the cases of psychiatric injury in which the bifurcation has hitherto been recognised. Concludes by suggesting that the process of assessing the actionability of blameworthy wrongfulness under the principles of Aquilian liability by reference to 'remoteness of damages' renders the language of 'duty' - particularly the concept of the 'directional duty care' - otiose.

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