Assault test
1) Did D’s conduct amount to an assault on P?
2) Did D act with the necessary state of mind?
3) Does D have a valid defence?
Fraud test
M3T Test
Misrepresentation (fraudulent) by D’s positive acts.
3 accepted forms of mens rea
Truth - no liability if statement was true
Passing off test
GML Test
Goodwill - P’s goods, services or personality have acquired market goodwill and are known by some distinguishable mark.
Misrepresentation - The defender has used (or threatened to) their product in a way that would make the public believe that D’s goods are P’s, or related to P, and thus amounting to a misrepresentation by the defendant (whether intentional or not).
Loss - P must suffer loss
Inducing a breach of contract test
BKIPJ Test
Breach of contract
Knowledge that D’s actions would breach the contract
Intention of D must be to breach the contract
Positive acts of persuasion, encouragement or assistance must be used by D
Justification may be a defence
Causing loss by unlawful means test
UIL Test (OBG ltd v Allan):
Unlawful means must be used by D to interfere with a third party, X, who P has an economic interest with
Intention must be for this to harm P
Loss must be caused to P
Unlawful means conspiracy test
CIL Test (Comissioners v Total Network)
Combination of multiple parties where at least one undertakes to injure P
Intention to injure P
Loss must be caused to P
(Comissioners v Total Network)
Lawful means conspiracy test
CPL Test
Combination of multiple parties where at least one undertakes to injure P
Predominant intention must be to injure P
Loss must be caused to P
Breach of Confidence test
NCUL (PTP) Test - Coco v AN Clark
1) Does the information have the “necessary quality of confidence”?
2) Was it imparted in circumstances importing an obligation of confidence?
3) Is there an unauthorised use (can just be threatened) of the information?
4) Has the obligation of confidence already been limited?
a) Is it already in public domain?
b) Is it too trivial to be protected?
c) Is disclosure justified by public interest?
Misuse of Private Information Test
1) Did P have a reasonable expectation of privacy regarding the information?
2) Is D’s right of freedom of expression outweighed by P’s right to privacy?
Campbell v MGN 2004
Defamation Test
Defamation and Malicious Publications (Scotland) Act
Section 1:
1) What is the meaning of the statement?
2) Is that meaning defamatory of P? (consensus test)
3) Did the statement cause harm to P’s reputation? (serious harm test)
4) Is the statement identifiably about P?
5) Was the statement communicated to a third party?
6) Are there any valid defences? (sections 5-19)
Harassment test
Protection from Harassment Act 1997 section 8:
1) Did D embark on a course of conduct?
2) Did that course of conduct have the effect of harassing P?
3) Did D intend for that course of conduct to harass the pursuer, or was it objectively harassing?
4 Does D have a valid defence?
5) What remedy should P claim?
Unjustified detention test
1) Was P’s freedom of movement constrained by D?
2) Did D have proper justification for their acts?
Product Liability Test
Consumer Protection Act 1987:
1) Does the harm qualify as damage under the act? s5
2) Does the item qualify as a product? s1
3) Does D fall into one of the liable categories? s2
4) Was there a defect in the product? s3
5) Is there a causal link between the defect and the loss? X
6) Is there a valid defence? s4
Occupier’s Liability Test
Occupier’s Liability (Scotland) Act 1960:
1) Does the incident location qualify as a premise? (s1)
2) Does D count as an occupier? (s1)
3) Is P owed a duty of care? (s1)
4) What standard of care was P owed? (s2) Was it breached?
Conduct of a reasonable employer test
Stokes v Guest criteria (PRKGW):
- positive thought for worker’s safety
- should follow the recognised and general practice
- must keep abreast of developing knowledge
- if he has knowledge of greater than average risk, must take more than the standard precautions
- must weigh risk in terms of injury likelihood and potential consequences it it does, which must be balanced against the probable effectiveness of precautions
Unsafe Machinery Criteria
Employers Liability (Defective Equipment) Act 1969 s1:
1) If an employee suffers personal injury in the course of his employment
2) because of a defect in the equipment provided by the employer for their business
3) and the defect is attributable wholly or partly to a third party’s fault
4) then the injury will be also attributable to the negligence of the employer.
Vicarious Liability test
First, D2’s conduct to the pursuer must have amounted to a delict.
Stage 1- the relationship between D1 and D2 must be that of employment, or ‘akin to employment’.
Stage 2 - D2’s wrongful conduct must be sufficiently closely connected to their authorised acts, that it can be fairly treated as done in the course of their employment.
Professional negligence test
Hunter v Hanley:
1) That there is a usual and normal practice
2) That the defender did not adopt this practice
3) That the course which the defender adopted was one no professional man of ordinary skill would have taken if he was acting with ordinary care.
Foundational negligence test
1) Did D owe P a duty of care?
2) Did D breach that duty?
3) Did D’s breach cause P’s loss?
4) Does D have a valid defence?
5) Is P’s loss legally recognised and within the scope of D’s duty?
Psychiatric injury test
1) Infliction of a recognised mental injury
2) If P was a primary victim, D will owe a duty if any personal injury to P was reasonably foreseeable.
3) If P was a secondary victim, D will owe a duty only if:
a) P was of a normal standard of susceptibility
b) P had a close tie of love and affection with the primary victim
c) P directly witnessed the incident or its immediate aftermath, which must have been sufficiently shocking.
Alcock v Chief Constable of South Yorkshire 1992
Economic Loss
1) What type of economic loss has been suffered?
2) For derivative, if loss is caused by breach of an established duty (e.g. physical injury), a duty is easily established. Any resulting economic loss is prima facie recoverable, if foreseeable and not too remote.
3) For secondary, P will not be able to recover such economic losses.
4) For pure, P will generally not recover unless shown that D assumed responsibility for P’s interests and that P had reasonably relied upon this.
Public Authority Liability test
1) No special principles for determining when a PA will owe a duty of care.
2) If a PA creates danger, or exacerbates existing danger, it will owe a duty.
3) If a PA fails to act or confer a benefit on P, generally no duty of care is owed.
4) Exceptionally a duty to confer a benefit will be owed where the PA has:
a) assumed responsibility for P’s welfare or
b) a close level of control over the source of danger.
Novel situation test
1) By identifying significant features of the case, and of previous ones, is it a novel situation?
a) If no, the court should decide the case in accordance with established principles, with no Caparo.
b) If yes, the court must consider which previous case gives the closest analogy.
2) Having done this, they must decide whether to extend the duty of care to this novel situation, with reference to Caparo.
Robinson v Chief Constable of West Yorkshire 2018
Breach of Duty Test
1) Voluntariness of D’s actions
2) Calculus of risk
a) likelihood of injury
b) seriousness of injury
c) practicality of precautions
d) value of activity undertaken
e) compliance with common practice
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Tests28
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Delict7
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Duty of Care9
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Breach of Duty12
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Physical Injury2
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Psychiatric Injury15
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Economic Loss11
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Public Authorities16
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Novel Situations3
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Defences12
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Causation8
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Product Liability17
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Occupier's Liability12
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Employer's Liability17
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Professional Liability11
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Vicarious Liability14
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Assault13
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Unjustified Detention7
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Harassment8
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Reputation18
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Privacy13
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Economic Delicts18
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Conspiracy9
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P, L and D2
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Statutes11
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Quotes3
