1. Delict is from the Latin ‘delictum; meaning an offence or ‘wrong’. It can be defined as a situation where the defender voluntarily commits an act or fails to act when the law imposes a duty of care and this failure to implement the legally required standard care causes the pursuer to suffer a personal injury or loss or damage. Negligence is harm which is caused unintentionally. Negligence claims arise because the defender owes what is known as a duty of care to the pursuer and, unfortunately, a breach of this duty occurs and as a result the defender suffers loss, injury or damage. In order to succeed when bringing negligence claim before the courts, the pursuer must show that the defender owed him a duty of care, and that the defender was in a position to cause harm and failed to prevent this from occurring.
2. Danny and Campbell’s garage could avoid liability if delictual action is taken out against them. Danny could be held liable on a personal basis. However, he could argue that he did in fact take reasonable care. The case study states that Danny spent 45 minutes working on the brakes in order to try and resolve the problem and after carrying out various basic tests the brakes seemed to be fixed. Tom, the garage owner, reassured Danny that he had carried out everything that could be expected. Whereas, in the case study it indicates that he failed to act ‘reasonably’ by saying that ‘Danny he rushed away from the garage’ suggesting that he never in fact acted reasonably under the circumstances. Danny is also considered an employee who is working under a contract of service in the garage. This could then result in vicarious liability falling upon the garage owner, Tom. This contract could possibly bind tom into legal responsibility for any loss or damages to Mrs McGregor as long as the employee was acting within the ‘Scope of employment’. However, Mrs McGregor could succeed if she decides to bring a negligence claim before the courts. She...
Please join StudyMode to read the full document