The liability for nominate delicts arises when deliberate wrongful act or omission causes loss. There has to be a wrongdoer at fault (intentional or unintentional) and a victim with loss or injury to raise legal action. The loss has to be of the kind recognised as attracting legal liability.
1. Assault – a deliberate act that intended to harm the victim physically or raise the state of fear of immediate physical harm without the consent of the victim. The assault may give rise to criminal prosecution, where the standard of prove must be beyond the reasonable doubt. But in delictual claim the stardard of prove will be on balance of probabilities and the pursuer can claim damages to compensate for material loss suffered as well as solatium for physical pain and injury to feelings. Right of action comes from the actio injuriarum of Roman Law. Walker identifies three categories of assault:
1) “actual assault” - the physical harm is the main element, and solatium may be claimed along with damages for loss of earnings and medical expenses. 2) “affronts i.e. notional assault” - no direct violence or contact, but threatening or alarming behaviour which caused the victim to fear the possibility of immediate personal violence (In Ewing v Earl of Mar (1851) 14 D 314, as well as spitting, the defender rode his horse at the pursuer in such a way as to cause alarm and endanger his safety). 3) “indirect assault” - the affront or insult element predominates, occurs where indirect contact between the parties had resulted in “the person being affronted, or put in a state of alarm, or physically hurt”. The pursuer to be successful has to show that he/she has suffered loss (recognised medical condition, material harm) as a result of defender's deliberate act. Defences:
Victim's consent (e.g. sado-masochistic acts);
Contact sport (no assault while rules are adhered to);
Medical treatments (patient singes the consent) Sidaway v Board of governors of the Bethlehem Royal Hospital 1985 AC 871 - “Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed“.
2. Physical Detention raises delictual liability if constitutes a wrongful act or omission that unjustifiably caused an injury to the right of liberty of the pursuer. Europen Convention on Human Rights(ECHR) art. 5(1) states that “everyone has a right to liberty and security of person”. Remedies for infringement of liberty in Scots law were established long ago in the Act “For preventing wrongous Imprisonments and against undue delayes in tryals” 1701.
In modern times most of the cases involving wrongful physical detention are brought against police. There are three situations in which such detention may take place: 1) Arrest with warrant. The police officers may commit wrongful arrest even under the authority of warrant in cases where the lawfulness of the judicial process of issuing the warrant is concerned, e.g. Beaton v Ivory (1887) 14 R.1057, where the local Sheriff acted oppressively by giving oral instructions to police officers to arrest the entire township after a fracas during the Skye clearance. But here is the defence - As Lord President Inglis observed in Beaton v. Ivory, supra (at page 1061): "The presumption in favour of a police officer that he is doing no more than his duty, and doing it honestly and bona fide, is a very strong one, and certainly ought not to be overcome by the simple use of the word 'malice'. I think the duty of the pursuer in a case of this kind is to aver facts and circumstances, from which the court or a jury may legitimately infer that the defender was not acting in the ordinary discharge of his duty, but from an improper or malicious motive". 2) Arrest with reasonable justification. In practice many arrests are made without warrant, and in such situations the onus is upon the police to...
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