No physician who performs a legitimate medical operation on a patient commits a criminal offence or a delict. This is so in spite of the fact that to infringe the bodily integrity of another person is plainly both a crime and a civil wrong. Notwithstanding the fact that the patient may desire the operation, the 'defence' of consent cannot possibly justify the serious injuries intentionally inflicted in the course of, (say) an amputation, since this procedure is highly invasive and effects irr...
Second in a four-part series. Presents a conceptual 'map' of the so-called 'intellectual superstructure' of the Scots law of delict, identifying the topic of 'delict' itself as a taxonomical 'family' under which can be found four distinct 'genera': liability based on damnum injuria, liability based on iniuria, liability for wrongful interference with property, and liability for the commission of nominate 'delicticles' which have in common only the fact that they involve mechanisms for determi...
First in a four-part series. Questions the extent to which Scots lawyers should 'revel' in the fame of the case of Donoghue v Stevenson 1932 SC (HL) 31 in light of the fact that Scotland is not itself a Common law jurisdiction. Discusses the difficulties with the idea - taken as an article of faith in the case itself - that 'there [was] no speciality of Scots law involved and that the case [could] safely be decided on principles common to both systems [i.e., Scots and English law]' and consid...
Third in a four-part series. Identifies that the twin factors tying together all cases of 'delict' is the need to establish the 'wrongfulness' of the defender's act or omission as well as the 'blameworthiness' of the defender for the wrong. Notes that liability under damnum iniuria (i.e., Aquilian liability) has an additional requirement that is anterior to wrongfulness: the need to prove the occurrence of a legally recognised 'loss'. Suggests that liability under damnum iniuria is principall...
Final article in a four-part series. Argues that notwithstanding the fact that the case of Donoghue v Stevenson 1932 SC (HL) 71 is celebrated in Scotland, the 'duty of care' concept which it cemented in Scots law is in fact nugatory. Contends that the principle of 'remoteness of damages' - still used in practice today, with the law pertaining to such clarified by Simmons v British Steel Plc 2004 SC (HL) 94 - in fact serves to properly limit the actionability of claims for wrongfully caused lo...
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