Unintentional Delicts

Unintentional Delicts arise as a part of the Civil law of Delict. It forces a wrongful party to make reparations for injuries caused by a wrongful act or omission even where this was not intended to cause harm.

The obligation to put something right when wrong has been caused, even unintentionally, arises obedientially, that is to say as a matter of law, and is opposed to through Convention where it arises through agreement (such as with Contracts).

This obligation to make reparations only applies when there is a loss, and the loss is caused wrongfully (Damnum Injuria datum). It cannot be invoked where there is a loss but no wrongful conduct (Damum absque injuria).

This loss can be caused by deliberate conduct or unintentionally careless conduct (Negligence)

Showing Liability

 * The Pursuer must show


 * The Defender had a duty of care to the persuer
 * Neighbour Principle
 * Caparo Tripartite Test (Forseeable, Proximate, Fair, Just and reasonable)


 * The Defender has breached that duty of care
 * Was the act or omission a voluntary one?
 * Was the harm foreseeable?
 * Was there negligence (Calculus of Risk)?


 * The breach of the case was the cause of the loss
 * Factual Causation - the but for test
 * Legal Causation - is there a novas actus interveniens


 * The loss must not have been too remote.
 * Any proposed defence does not apply.

Defences

 * Volenti
 * Contributory Negligence
 * Joint Fault/Joint and several liability
 * Duty of care discharged