Nominate Delicts
Nominate Delicts
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
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