The Edinburgh Law School
Law for Engineers
Course Information and Handout
Lecturer: Mr S Miller
The aim of this series of seven introductory lectures to provide a basic understanding of the legal concepts and issues relevant to those wishing to practise as Engineers.
No set text is prescribed. Students may, however, find useful basic textbooks such as Gloag and Henderson, An Introduction to the Law of Scotland 10th edn (1995), or MacMillan and MacFarlane, Scottish Business Law 3rd edn (1997). Other more specialised texts will be mentioned in relation to particular topics. These books are available in the Law Library, Old College.
A one hour class test will take place at 12pm on Wednesday 16 May (Week 5) in a venue to be announced. This will be a closed book test and will take the form of multiple choice questions.
The 7 Lectures will be held in Engineering Sanderson on Wednesdays 12.00 - 2 .00 in Weeks 1-4 (12.00-1.00 in week 4). Handouts for the whole course will be provided at the first lecture.
18 April The Legal System: sources of the law
and the court structure AND
2. 18 April Contract:
formation of a contract, its
validity; contents; breach of
contract; termination and damages
3. 25 April Sale of Goods
4. 25 April Business
Organisations: partnership and companies.
5. 2 May Money and banking: the creation and extinction of debt
6. 2 May Health and Safety at Work: statute and common law(delict).
7. 9 May Contract
and Agency: nature of the agency relationship; duties and
liabilities of an agent.
The course organiser is Mr S Miller. The other members of staff involved in the course are Ms E Reid and Mr M Hogg
THE LEGAL SYSTEM: SOURCES OF LAW AND THE COURT STRUCTURE
Stair Memorial Encyclopaedia of the Laws of Scotland
D M Walker, The Scottish Legal System 8th edn (2001)
C M G Himsworth and C Munro, The Scotland Act 1998 2nd edn (2000)
Whether a rule is regarded as legally enforceable or not depends on where it comes from.
A. SOURCES OF LAW
The law of Scotland consists partly of enacted law, and partly of common law.
1. Enacted law
Acts of Parliament are of primary legislation, e.g. Scotland Act 1998, or the Human Rights Act 1998, or the Road Traffic Reduction Act 1997, (texts all available online at http://www.hmso.gov.uk/ and copy of the 1997 Act below).
Since 1999, statutes may derive either from the UK parliament or from the Scottish parliament. The subject matter reserved to the legislative competence of the UK Parliament includes:
§ the Constitution
§ Foreign affairs
§ the Civil Service
§ Financial and economic matters
§ National security
§ Immigration and nationality
§ Misuse of drugs
§ Trade & industry (e.g. competition, consumer protection)
§ Electricity; coal, oil & gas, nuclear energy
§ Many aspects of transport (e.g. railways)
§ Social security
§ Abortion, genetics, surrogacy, medicines
§ Equal opportunities
The main subject areas devolved to the competence of the Scottish Parliament under the Scotland Act 1998 are:
§ Training policy & lifelong learning
§ Local Government
§ Social Work
§ Economic Development
§ Financial Assistance to Industry
§ Some aspects of transport e.g. The Scottish road network; bus policy; ports and harbours
§ Most aspects of the criminal and civil law
§ Criminal justice and prosecution system
§ Police and Fire Services
§ Natural heritage
§ Built heritage
§ Food Standards
§ The Arts
§ Statistics, public registers and records
Under the Human Rights Act 1998 and the Scotland Act 1998 the laws passed by bother parliaments must also comply with rights enshrined in the European Convention on Human Rights.
For full information on the working of the Scottish Parliament see http://www.scottish.parliament.uk/ See Her Majesty’s Stationery Office’s website for the full text of all Acts of the UK and Scottish Parliaments passed since 1996 http://www.hmso.gov.uk/ (This links with the general UK Government Information Service website, http://www.open.gov.uk)
Proposed legislation is known as a Bill (explained at http://www.scottish.parliament.uk/parl_bus/bills-guide/bg-1.htm) and remains so until it progresses through parliament and finally receives the royal assent. The progress of Scottish Bills, together with explanatory notes, can be tracked through the Scottish Parliament website. Text of Westminster Bills is available at HMSO site.
UK and Scottish statutes follow the same basic style of drafting (although there has been a marked tendency to use more straightforward phraseology in the statutes produced by the Scottish Parliament): short title and long title; sections and subsections; Schedules giving detail are divided into paragraphs and appear at the end.
Cite a provision as Road Traffic Reduction Act 1997, s. 2(5)(a)
Details of when the Act comes into force are found in the commencement section.
How can you tell whether an Act of the UK parliament applies to all or part of the UK?
(If you wish to use the Law Faculty website as gateway to a range of legal sources in the UK and abroad, go to http://www.law.ed.ac.uk/ and look at our “Links” section.)
Road Traffic Reduction Act 1997
1997 Chapter 54
An Act to require local authorities to prepare reports relating to the levels of road traffic in their areas; and for related purposes.
[21st March 1997]
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
In this Act the following terms shall have the following meanings, that is to say-
§ "local road traffic" means traffic consisting of mechanically propelled vehicles on roads for which the Secretary of State is not the traffic authority;
§ "principal council" means any council which is a local traffic authority;
§ "traffic authority" and "local traffic authority" have the meaning given by section 121A of the Road Traffic Regulation Act 1984.
Duty of principal councils to make reports
It shall be the duty of every principal council to prepare, at such time or times as the Secretary of State may direct, a report containing-
§ an assessment of the levels of local road traffic in their area, and
§ a forecast of the growth in those levels.
Subject to subsection (5), the report must also specify targets for-
§ a reduction in the levels of local road traffic in the area, or
§ a reduction in the rate of growth in the levels of such traffic.
The report must also contain any other information or proposals which-
§ relate to levels of local road traffic in the area, and
§ are required by guidance under subsection (6).
§ may specify different targets for different parts of the principal council's area or for different classes of local road traffic, and
§ may specify targets under subsection (2)(a) in relation to certain classes of local road traffic, or in relation to part of the area and under subsection (2)(b) in relation to other classes of local road traffic or in relation to another part of the area.
A principal council are not obliged to specify targets under subsection (2)(a) or (b) in relation to their area, or in relation to any part of their area, if they consider it inappropriate to do so, but in that case the report must state-
§ that they consider it inappropriate to do so, and
§ their reasons for so considering.
The Secretary of State may issue guidance to principal councils in relation to-
§ the preparation and content of reports under this section, and
§ consultation in connection with the preparation of such reports;
§ and a principal council shall have regard to any guidance when preparing a report.
Where a principal council have prepared a report under this section they shall-
§ send the report to the Secretary of State, and
§ publish a copy of the report in such manner as they consider appropriate.
Secretary of State shall lay a copy of every report received by him under
subsection (7)(a) before each House of Parliament.
There shall be paid out of monies provided by Parliament-
§ any expenses incurred by the Secretary of State under or by virtue of this Act, and
§ any increase attributable to this Act in the sums payable out of moneys so provided under any other Act.
Citation, extent and commencement
§ This Act may be cited as the Road Traffic Reduction Act 1997.
§ This Act does not extend to Northern Ireland.
§ This Act shall come into force on such day as may be appointed by order made by statutory instrument by the Secretary of State; and different days may be appointed for different purposes or different areas.
Before making an
order under subsection (3), the Secretary of State shall consult such
associations of local authorities as appear to him to be concerned.
Secondary legislation most often takes the form of statutory instruments enacted by UK or Scottish government Ministers, or departments to whom the power to legislate has been delegated. E.g. Food Protection (Emergency Prohibitions) (Radioactivity in Sheep) Partial Revocation Order 1998 enacted by the then Secretary of State for Scotland under powers granted by the Food and Environment Protection Act 1985.
Other public bodies such as local authorities may also have power to make by-laws etc.
European Community law
The UK is bound by the provisions of the Treaties to which the UK has been a signatory.
Distinguish EC Regulations and Directives. Regulations are directly applicable in the member states. Directives are binding on the member states as to the result to be achieved, e.g. Directive on Product Liability in 1985 implemented by the Consumer Protection Act 1987.
2 Common Law
Principles taken from decisions of judges constitute binding legal rules, e.g. Donoghue v Stevenson 1932 SC (HL) 31, (i.e. “Session Cases”); 1932 SLT 317, (i.e. “Scots Law Times”); 1932 AC 562 (i.e. “Appeal Cases”);  All ER 1 (i.e. “All England Reports”).
Mrs Donoghue was served ginger beer in a café. She found the corpse of a snail in the bottom of the bottle. Was the manufacturer, Stevenson, liable to pay her damages, even though there was no direct contractual relationship between him and Mrs Donoghue? Yes, because of the rule formulated by one of the judges as follows:
Lord Atkin: “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.”
Doctrine of precedent means that a judge is obliged to follow the previous decisions of courts above him in the court hierarchy, provided that the facts and legal issues are the same. Judges may decline to do so if they can distinguish the previous case on its facts.
Works of the institutional writers, e.g. Stair, Bankton, Erskine, and Bell. Growing importance of modern writing, e.g. Stair Memorial Encyclopaedia of the law of Scotland.
B THE COURT SYSTEM
Distinguish criminal and civil cases.
SCOTTISH CRIMINAL COURTS
High Court of Justiciary (Court of Criminal Appeal - ie no appeal to House of Lords)
High Court of Justiciary (trials)
Sheriff Court (solemn - with jury)
Sheriff Court (summary - no jury)
SCOTTISH CIVIL COURTS
House of Lords
Court of Session Inner House (2 Divisions)
Tribunals Court of Session Outer House Sheriff Principal
ENGLISH AND WELSH CIVIL COURTS
House of Lords
Court of Appeal (Civil Division)
Magistrate’s Court County Court High Court
(Queen’s Bench Division Chancery Division
As an alternative to resolving disputes in the normal courts, parties who are in dispute can agree that this will instead be referred to arbitration. This may be provided for in original contract between parties.
Note distinction between the roles of solicitors and advocates.
BASIC PRINCIPLES OF CONTRACT LAW
HL MacQueen and JM Thomson, Contract Law in Scotland (2000)
Where does contract come from?
§ The importance of common law sources
§ The harmonisation of contract law
What is a contract?
A contract is an agreement which gives rise to obligations which are legally enforceable, e.g. contracts of sale, employment contracts, building contracts.
Which agreements are legally enforceable contracts and which are not?
Agreement about social or domestic arrangements are not normally regarded as contracts. The rule is that the parties must intend that their agreement should be legally binding.
In addition, the law refuses to enforce some contracts contrary to public policy.
Scots law does not require consideration in order for there to be a valid contract.
Are unilateral obligations binding?
Scots law recognises promises to be binding, provided that they have been made in writing. Promises made in the course of business do not need to be in writing, however.
How does a contract come into existence?
Contracts may be in writing, expressed orally, or inferred form actings.
Note that certain contracts require to be in formal writing to be legally enforceable, notably those relating to land, and also promises as above, (Requirements of Writing (Scotland) Act 1995 s.1(2)).
When does a contract come into existence?
A contract comes into existence being when the contracting parties reach consensus on its essentials, when a valid offer from A meets with an unqualified acceptance communicated to A by B. If the acceptance in turn imposes new conditions on the contract, this is a new offer.
In the commercial context, commercial organisations commonly use standard form contracts. This can lead to a battle of the forms where two commercial organisations are involved.
Unreasonable terms in consumer contracts are struck at by the Unfair Contract Terms Act 1977, and also the Unfair Terms in Consumer Contracts Regulations 1994, SI 1994 No 3159, which implements for the UK the EC Directive on Unfair Terms in Consumer Contracts.
Express and implied terms.
Not all terms are expressed in the contract. Terms may be implied:
§ as an incident of contracts of a particular class
§ by custom of trade
§ by reference to a previous course of dealing
§ as necessary in the circumstances to give the contract business efficacy.
How are contracts varied?
The rule is the variation must be agreed between the parties and should take the same form as the original contract.
Can you assign contractual rights?
If a contract has been executed, it is readily assignable.
If performance of the contract has yet to take place, contractual rights may be assigned with the consent of the other party, or if there is no element of delectus personae in the contract.
BREACH OF CONTRACT
Breach of contract can arise in various ways.
§ E.g. A has contracted with B that B will provide the air conditioning system for new office premises.
§ B phones up ten days before work is due to start and says that he’s going on holiday and can’t do the job. That is anticipatory breach of contract.
§ B simply fails to turn up on the appointed date. This is failure to perform.
§ B does the job but the system permanently blows out hot air. This is defective performance.
§ B arrives on site on time, but takes six months finally to complete the work. This is failure to perform timeously.
The remedies open to A depend on the materiality of the breach.
The innocent party, A, declares the contract to be at an end and withdraws from it altogether. A may claim damages in addition. This option is available to A only if B has committed a material breach of contract.
Retention and lien
Retention: A can withhold performance of his/her part of the contract.
Lien: A can retain B’s property in his possession until payment is made under the contract, e.g. repairer’s lien.
Caveat: the expense of litigation.
Action for payment
A applies for a court order compelling B to perform his/her obligations under the contract.
If A is attempting to enforce a negative obligation, A applies for interdict forbidding B from taking action in breach of contract.
The award of damages should be sufficient to put A in the same position s/he would have been in had B performed the contract. A must prove
§ that s/he has suffered loss
§ that the breach of contract was a direct cause of the loss suffered
§ that the loss was reasonably foreseeable as a result of the breach.
Mitigation of loss
A is obliged to take whatever reasonable steps are necessary to mitigate his/her loss.
Penalty and liquidate damages
Liquidate damages are specified in the contract itself as an advance estimate of the loss suffered in the event of breach. Liquidate damages are generally enforceable. In contrast, penalty damages, specified in the original contract in order to penalise a party in breach, are in principle not enforceable.
If, after A and B have made their contract, circumstances outwith their control make performance impossible, or radically different from what was originally anticipated, the contract may be deemed to be frustrated. A and B are thus released from their contractual obligations.
The contract will only be deemed to be frustrated if
§ the event which caused frustration could not have been foreseen, and
§ neither party was at fault.
SALE OF GOODS
Regulated by the Sale of Goods Act 1979 (SOGA) as amended by the Sale and Supply of Sale and Supply of Goods Act 1994
s 2(1) SOGA:
A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.
Goods are defined as ‘all corporeal movables except money’ [s61(1)]
§ includes: e.g. machinery, animals, bags of flour and ships
§ doesn’t include: e.g. land, houses, shares or debts
Sale is the transfer or agreement to transfer goods in return for money
Distinguish contracts of sale from:
§ hire, deposit
§ supply services
2. PASSING OF PROPERTY/TRANSFER OF OWNERSHIP
We need to distinguish between two situations here:
§ where the seller is the owner of the goods
§ where the seller is not the owner of the goods
Where the seller is the owner of the goods
General rule is that ownership in the goods passes from the seller to the buyer when the parties intend it to pass [s17(1)]
§ express stipulation
§ inferred from the circumstances
§ otherwise there are rules in the act which aid in the determination of the parties’ intention [s18]
Determining when the ownership passes is important for the following reasons:
§ the seller or the buyer goes bankrupt
§ risk of damage/destruction (because the passing of risk generally follows the passing of ownership)
Where the seller is not the owner of the goods
General rule: nemo dat quod non habet (no-one gives what he does not have) -[s21]
But there are 4 exceptions:
§ owner precluded by his conduct from denying the seller’s authority to sell [s21]
§ sales under voidable title [s23]
§ resale by the seller in possession to third party in good faith and for value [s24]
§ resale by the buyer in possession to third party in good faith and for value [s25(1)]
3. PROTECTION OF THE BUYER: IMPLIED TERMS
The following terms are implied (automatically by law) in to the contract for the sale of goods:
§ that the seller has the right to sell the goods - [s12(1)]
§ where the sale is by description that the goods correspond to the description - [s13(1)]
§ where the seller sells the goods in the course of business that the goods supplied are of satisfactory quality [s14(2)]
‘Goods are of satisfactory if they meet the standard that a reasonable that a reasonable person would regard as satisfactory, taking account of the description of the goods, the price (if relevant) and all other relevant circumstances’
The quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods
§ fitness for all the purposes for which goods of the kind in question are commonly supplied
§ appearance and finish,
§ freedom from minor defects
§ safety, and
4. PROTECTION OF THE BUYER: CONTRACTING OUT
In a consumer contract (one in which the seller is selling in the course of business and the buyer is not) the Unfair Contract Terms Act 1977 prevents the seller contracting out of the implied terms relating to description and satisfactory quality.
5. THE BUYER’S REMEDIES
Buyers remedies in the case of breach of contract are: rejection and/or damages
Rejection: get money back and return goods
§ only for material breaches
§ in consumer contracts: any breach of the implied terms is deemed to be material
§ rejection is excluded where the goods have been accepted by the buyer
(a) where B intimates acceptance of the goods or acts in a way inconsistent with S’s ownership (but not before B has had an opportunity to examine the goods); or
(b) where B retains the goods after the lapse of a reasonable time without intimation of rejection; a reasonable time includes reasonable opportunity of examination.
§ damages can be claimed irrespective of whether the goods are rejected or not
§ damages are calculated as the estimated loss flowing directly and naturally in the ordinary course of events from the seller’s breach
We will look at the three main ways business organisations are structured: sole traders, partnerships and companies
1. SOLE TRADERS
§ business has no separate identity from you
§ all business property belongs to you
There are 3 types of Partnerships:
§ Limited Liability Partnership [Limited Liability Partnership Act 2000]
§ General Partnership [Partnership Act 1890]
§ Limited Partnerships [Limited Partnership Act 1907]
Regulated by the Partnership Act 1890
2.1 Definition - s 1(1) Partnership Act 1890
a relationship which subsists between persons carrying on a business in common with a view to profit
2.2 Legal Nature of Partnerships
partnership a legal entity separate from the partners - S4(2)
§ no formalities required as long as the intention of the parties clearly revealed
§ there are statutory rules exist for determining existence of partnership.
§ generally, maximum of 20, but no limit if approved under the Partnership (Unrestricted Size) Regulations 1968-70 e.g. patent rights, surveyors, consulting engineers, building designers. [Secondary legislation]
business carried on in the firm name
2.4 Carrying on business
authority of each partner to bind the firm is found in s5 Partnership Act 1890
“every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way the business of the kind carried on by the firm of which he is a member, bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner.” (s5).
each partner is jointly and severally liable for partnership debts - (s9)
§ but see Limited Partnership Act 1907
the rights of the parties as between themselves are regulated either expressly by the partnership contract or by the rules in ss 19-31 (e.g. right of partner to participate in management
§ Partner’s death or bankruptcy
§ partner giving notice
§ application to court
regulated by Companies Acts of 1985 and 1989
3.1 The nature of companies
§ separate legal personality: Saloman v Saloman & Co. Ltd  A.C. 22
§ limited liability
3.2 Classification of companies
§ public or private
§ limited by shares
3.3 Formation of companies
§ Minimum number of members (shareholders)
§ Memorandum - governs external dealings of company
§ Articles of Association - governs internal conduct of the company
§ Registration - creates the company
3.4 Features of a public company
§ generally limited by shares (or limited by guarantee)
§ public company is one which expressly states in its memorandum that it is to be a public company
§ the name of a public company must end with the words “public limited company” (PLC)
§ has a share capital - minimum issued capital of £50,000
3.5 Carrying on business
the Act provides detailed rules particularly in connection with:
§ the raising and maintenance of capital
§ the appointment, removal and duties of directors
§ meetings - AGM’s
§ accounts and auditors;
§ liquidation (i.e. winding up of company).
§ the business of a company is carried on by its directors (who are the company’s agents) pursuant to the articles
§ directors duties
e.g. are not allowed to have a conflict of interest or make a secret profit
4. PARTNERSHIPS and COMPANIES COMPARED
Advantages of Partnership as compared with Company
§ less formality and legal control
§ public disclosure not required
§ more flexible arrangements between partners - can vary powers of partners by agreement capital freely alterable by agreement
Advantages of Company as compared with Partnership:
§ separate legal personality
§ limited liability of members to contribute to companies debts
§ transferability of shares
§ easier to raise finance
MONEY AND BANKING
1. THE LEGAL AND ECONOMIC NATURE OF MONEY
1.1 What is money legally speaking?
§ physical money in the legal sense is legal tender
§ legal tender - that which a creditor can demand from a debtor, and that which a debtor can insist that a creditor accept
"No creditor is bound to receive payment of a debt due to him by cheque or otherwise than in the current coin of the realm. A creditor may even refuse to accept Scottish banknotes." (Lord Young in Glasgow Pavilion v Motherwell (1903) 6 F 116.
§ England: coins and banknotes
§ Scotland: coins only
QUESTION: If Scottish notes are not legal tender, what are they?
1.2 Why physical money is not that important?
§ economically, most money in today’s world is actually debt
§ claims, in specie, to physical money (stolen bank notes) are uncommon
§ we are more concerned with claims to intangible money
2. THE LEGAL NATURE OF DEBT
§ a person who is owed a debt (the creditor) has the right to demand payment of money at a stipulated time from another (the debtor) who is under a correlative obligation to make payment
§ from a creditors standpoint, a debt is incorporeal movable property
3. THE CREATION AND EXTINCTION OF DEBT
3.1 The creation of debt
The principal sources of the obligation to pay money are:
3.2 The extinction of debt
` Methods of Payment that serve to discharge the debt/monetary obligation
§ Legal Tender
§ Scottish banknotes
§ Bank Giro Credits
§ Credit Cards
§ s 83(1) and s 84(1) of the Consumer Credit Act 1974
§ s 75 of the Consumer Credit Act 1974
a) the purchase price of the goods is greater than £100 and less than £30, 000 and
b) the credit card agreement is used to finance a particular transaction between a debtor (card holder) and a supplier (merchant) and
c) the credit card purchase is made under pre-existing arrangements, or in contemplation of future arrangements, between the card issuer and the merchant.
§ Charge Cards
Re Charge Card Services Ltd  3 All ER 702
§ The EFTPOS system: debit cards e.g. Switch Cards
4.12 and 4.14 The Banking Code, (1998 revised edition)
§ Smart Cards e.g. Mondex
4.1. Term Loans
§ repayable at a stated date
§ generally no right to repay the capital amount at an earlier date unless
§ agreement so provides
§ the loan is subject to the Consumer Credit Act 1974
§ loan may specify that capital is to be repaid in instalments or in a lump sum at the end of the loan period (a balloon payment
§ interest usually to be paid periodically and not ‘rolled up’
§ frequently provides for acceleration of repayment on default of contractual obligation
§ loan usually given in lump sum but in big commercial loans common for the loan to be ‘drawn down’ in ‘tranches’
4.2 On-Demand Loans
§ repayable when the creditor demands repayment e.g. an overdraft
§ loans presumed to be on-demand unless contract provides otherwise
5. THE BANK/CUSTOMER RELATIONSHIP
§ generally a contractual relationship
§ as mentioned above deposits placed with the banker have the effect of making the bank a debtor to its customers (creditors)
§ the reverse is true when the bank extends overdraft/makes a loan to its customers
§ the customer has the right to repayment of money deposited with the banker as follows
(a) current account - on demand
(b) deposit account - when time period of deposit expired
§ there is no general duty on the bank to advise its customers on the prudence of a transaction but if it does, it must might be liable for negligence for wrongful advice
§ the bank is under a duty of confidentiality
-implied term in the contract between bank and customer that the bank will not disclose details of customer's account or any details relating to the customers transactions
4 exceptions: see Tournier v National Provincial and Union Bank of England  1 KB 461 per Bankes L.J.
§ Where disclosure under compulsion of law
§ Public duty to disclose
§ Interests of bank require disclosure
§ Where disclosure made with the express or implied consent of the customer.
HEALTH AND SAFETY AT WORK
1. INTRODUCTION: TWO REGIMES
We are concerned here with the liability of employers generally to their employees but also in respect of the relevant safety authorities
1.1 Common law - delict
1.2 Statute - criminal liability under statute
There are also some statutes which if contravened allow the injured party a delictual action for breach of a statutory duty: e.g. Factories Act 1961 and other EC Directives
2. COMMON LAW: DELICT (Tort in English law)
Delict is the area of law which makes certain legally disapproved of conduct by a defender actionable by a pursuer (who has generally suffered a loss/injury as a result of the defenders act or omission)
If the defender commits a delict he/she will be obliged to pay compensation/damages (known as reparation in Scots law) to the pursuer
More specifically we are concerned here with a damages claim made by an employee against an employer for the latter’s negligence.
‘Negligence’ does not mean ‘carelessness’
Negligence exits when a person (the employer) allows harm to occur in circumstances in which he ought to have taken precautions to prevent its occurrence
The requirements for a successful ‘negligence’ claim are as follows:
§ act or omission
§ defender owed the pursuer a duty of care
§ breach of duty - the defender fell below the required standard of care
§ the pursuer suffered damage (loss)
§ that was not too remote
2.1 Duty of Care
§ injury was reasonably foreseeable;
§ sufficient proximity between parties (ie close and direct relationship);
§ fair, just and reasonable, in all the circumstances to impose liability.
2.2 Breach of Duty (Standard of Care)
Once it is established that the defender owed the pursuer a duty then it must be shown that the duty has been breached
The test can be formulated as follows:
§ what would or would not the reasonable man have done had he been in the defender’s position to eliminate the risk which in the exercise of his reasonable foreseeability he had identified
§ if the defender failed to take such steps then he/she is in breach of his duty
Calculus of risk approach - taking various factors into account
§ degree of probability
§ magnitude of the harm
§ the value of the activity
§ knowledge of, availability of, or expense involved in taking precautions
§ the breach of duty must have been the real predominant or effective cause of the occurrence which resulted in the pursuer’s loss, injury or damage
§ the factual (but for test) and the legal cause (value judgement)
§ novus actus interveniens
Loss suffered by the pursuer
§ patrimonial (financial) loss
§ personal injury - solatuim
2.5 Remoteness of Damage
Two tests are used :
§ direct and natural consequences
§ reasonable foreseeability
3. STATUTE: HEALTH AND SAFETY AT WORK ACT 1974
3.1 Aims of the Act
§ to secure the health, safety and welfare of persons at work;
§ to protect persons, other than persons at work, against risks to health or safety connected with the activities of persons at work;
§ control the keeping and use of explosives or highly flammable or dangerous substances; and
§ control the emission of noxious or offensive substances from places of work
§ allows for regulations to be made under it e.g. Manufacturing of Health and Safety at Work Regulations 1992
§ administrative and criminal sanctions for contravention
§ no civil (delictual) liability under the Act
§ need to bring a separate delictual action to recover for your injuries
§ but the existence of the statute or EC directive will often be strong evidence of negligence
§ shows that while the common law aims to compensate for loss/injury the act aims to prevent the injuries from occurring
3.3 Scope of the Act
The Act is primarily concerned with the work situation
“work” means work as an employee or as a self employed person
§ an employee is at work throughout the time when he is in the course of his employment, but not otherwise;
§ a self-employed person is at work throughout such time as he devotes to work as a self-employed person
3.4. General Duties of Employers and other Persons
General Duties of Employers to their Employees
§ every employer is under a duty to ensure, the health, safety and welfare at work of all his employees.
§ the provision and maintenance of plant and systems of work that are safe and without risk to health;
§ arrangements for ensuring the safety and absence of risks to health;
§ in connection with the use, handling, storage and transport of articles and substances
§ the provision of such information, instruction, training and supervision as is necessary to ensure, the health and safety at work of his employees.
§ the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
General Duties of Employers and Self-Employed to Persons other than their Employees.
§ every employer has a duty to conduct his undertaking in such a way as to ensure that persons not in his employment, who may be affected by it, are not exposed to risks to their health and safety.
General Duties of Persons Concerned with Premises to Persons other than their Employees
§ there is a duty on persons having control to any extent of premises, etc in connection with the carrying on of a trade, business or other undertaking (whether for profit or not) to take such measures as it is reasonable to ensure that the premises, any means of access to or from them and any plant or substance in the premises are safe and without risks to health (ie domestic owners excluded).
General Duties of Manufacturers etc as regards articles and substances for use at work (i.e. duties imposed on persons not as employers or self employed persons)
Any persons who designs, manufacturers, imports or supplies any article for use at work is under a duty
§ to ensure that the article is so designed and constructed as to be safe and without risks to health when properly used;
§ to carry out such testing and examination as may be necessary for the performance of the duty imposed on him;
§ to ensure that there is adequate information about the use of an article and about any conditions necessary to ensure that, when put to that use, it will be safe and without risk to health.
Any person who undertakes the design or manufacture of an article for use at work is under a duty to carry out any necessary research to discover, and, eliminate or minimise any risks to health or safety to which the design or article may give rise.
All of the above four duties are subject to the qualification of “so far as is reasonably practicable”.
But some areas governed by statutory regulation have strict liability on the employer (strict liability is liability without fault) while others say ‘suitable and sufficient’ level which implies a higher standard than merely reasonably practicable
General Duties of Employees at Work
Every employee whilst at work is under the following duties:-
§ to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and
§ to co-operate with his employer or any other person under a statutory duty so far as is necessary, to enable that duty to be performed or complied with.
3.5 Enforcement of the Act
Health and Safety Commission is the governing body and they provide Inspectors
3.6. Administrative Sanctions
§ Improvement Notices: require remedy within set period
§ Prohibition Notices - where an inspector is of the opinion that, activities carried on, or about to be carried on in a place of work involve, or will involve, a risk or serious personal injury, the inspector may serve a prohibition notice prohibiting the activities.
§ can also seize or render things harmless
§ appeals against improvement or prohibition notices within 21 days.
It is an offence for a person to, amongst other things:
§ fail to discharge the duties, referred to above, which he is subject to;
§ contravene any health and safety regulations or any requirements or prohibition imposed under any such regulations;
§ to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice (including any such notice as modified on appeal).
§ unlimited fine and/or two years in prison
“Agency is the relationship that exists between two persons when one, called the agent, is considered in law to represent the other, called the principal, in such a way as to be able to affect the principal’s legal position in respect of strangers to the relationship by the making of contracts or the disposition of property.”
Fridman, Law of Agency (6th edn) p 9
agent third party
Contract of agency (1) whereby agent may form contracts between principal and third party (2). In some cases agent may incur responsibilities to third party (3) see V (c) below.
Different kinds of agent
Authority to act for principal in all matters, or in all matters falling within the scope of her profession - e.g. solicitors, auctioneers, mercantile agent.
Authority limited to one particular transaction, or to one particular act.
Are employees agents? Some dispute about this. One respected academic’s view: employees are not strictly a category of agent (see Fridman, op.cit., pp 27-32), However, because employees often have power to bind their employers to contracts with third parties, can consider them agents in that respect.
Authority of agent
§ Expressly conferred
§ Implied authority
- anything usual in trade or profession
- customary authority
Apparent or ostensible authority
Authority implied by the actings of the principal: principal “holding out” agent as having authority.
Duties of agent/Rights of principal
§ Agent must follow instructions given;
§ Agent must not delegate;
§ Agent must act with the skill and care reasonably expected of a competent member of her profession;
§ Agent must keep accounts and make good any deficiency;
§ Principal is entitled to relief from agent if agent exceeds her authority;
§ Fiduciary duties: agent must act in best interests of principal; agent must not let her interests and those of her principal conflict; agent must not make a secret profit for herself;
§ Agent must treat information received from her principal as confidential.
Duties of principal/Rights of agent
§ Agent has right to receive remuneration;
§ Agent is entitled to damages if the principal fails to complete the contract;
§ Agent has right to be reimbursed for properly incurred expenses.
Relationship of third party to agent and principal
§ Where agent acts expressly on behalf of named principal.
Generally, principal can sue and be sued by third party; agent is not a party to the contract.
§ Where agent acts expressly as an agent, but does not identify his principal. As above.
§ Where agent acts on behalf of undisclosed principal.
Generally, both the agent and the “hidden” principal are liable on the contract and are entitled to sue upon it. But alternative liability - third party has right of election and election is final.
Termination of agency
§ By completion of the transaction
§ By mutual agreement of agent and principal
§ By notice of revocation by other party
§ Death/bankruptcy of the agent or principal
§ Material breach by either party
§ Principal ceasing business
Consequences of termination:
§ Compensation or indemnity (under Regulations - see below)
§ Principal must give notice or ostensible agency may continue.
The Commercial Agents (Council Directive) Regulations 1993 SI 1993, No. 3053
Effects: (i) right of the agent to remuneration; (ii) rights of the agent on termination.