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

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

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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’.

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