Damnum is where one starts from? : Questions to be asked in determining liability for negligence in Scots law

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Brown, Jonathan (2024) Damnum is where one starts from? : Questions to be asked in determining liability for negligence in Scots law. Juridical Review, 2024 (3). pp. 119-141. ISSN 0022-6785

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Abstract

Scots law does not possess either a "law of tort" or a "tort of negligence". Instead, drawing on its institutional connection to Civil law, Scotland possesses a law of delict which forms a part of a broader "law of obligations". This has, or ought to have, consequences for any analysis of liability for civil wrongdoing in this jurisdiction. Rather than predicating liability on a "pigeonholed system of nominate wrongs", Scots law recognises general principles which may justify remedy for wrongdoing, provided that a pursuer juridically demonstrates that the defender can be legitimately blamed for the wrong. The most commonly litigated type of wrong in Scotland today is damnum injuria datum [loss caused by wrongful conduct], with culpa [fault—encompassing intentional, reckless and negligent conduct] serving as the trigger for "blame" where damnum injuria datum is established between sufficiently proximate pursuers/defenders. Despite the prevalence of actions predicated on alleged "negligence", however, damnum injuria datum is not the sole species of generalised wrongdoing known to the law of Scotland, and concepts other than culpa are required in order to explain liability under other headings within Scots delict. This article consequently considers the general principles of "delict" which can be observed within Scots law and—noting that the concept of "duty" is of less conceptual use and significance within the law than has hitherto been thought—suggests a framework for determining liability for purported "negligence" in this jurisdiction which is not predicated on the demonstration of a directional, or particular, "duty of care".

ORCID iDs

Brown, Jonathan ORCID logoORCID: https://orcid.org/0000-0002-9198-9672;
  • Item type:Article
    ID code:89493
    Dates:
    Date
    Event
    30 September 2024
    Published
    1 May 2024
    Accepted
    Notes:This is a pre-copyedited, author-produced version of an article accepted for publication in Juridical Review following peer review. The definitive published version (Brown, J 2024, 'Damnum is where one starts from? Questions to be asked in determining liability for negligence in Scots law', Juridical Review, vol. 2024, no. 3, pp. 119-141) is available online on Westlaw UK.
    Subjects:Law > Law of the United Kingdom and Ireland > Scotland
    Department:Faculty of Humanities and Social Sciences (HaSS) > Strathclyde Law School > Law
    Depositing user: Pure Administrator
    Date deposited:07 Jun 2024 08:48
    Last modified:11 Nov 2024 14:20
    Related URLs:
    URI:https://strathprints.strath.ac.uk/id/eprint/89493
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