In Chapter 1 of Introductory Scots Law, the Scottish criminal justice system is discussed.
As of today (29 January 2019), the Scottish Government has published its annual statistics on the number of accused persons who have made an appearance before Scotland’s criminal courts. The statistics cover the period 2017/18.
The figures clearly demonstrate three things:
1. Fewer people in Scotland are being charged with criminal offences (a decrease of 11% from 2016/17);
2. There is a decrease in the number of guilty verdicts being handed down by the Scottish criminal courts (a reduction of 10% from 2016/17); and
3. There has been a significant reduction in the number of community sentences (a decrease of 10% from 2016/17).
These figures are in marked contrast to media grabbing headlines such as the one in The Scottish Daily Express on 12 May 2018 which highlighted the fact that the Renfrewshire and Inverclyde Police Division had the highest murder rate (11 homicides) in the UK for 2017/18!
A link to the Scottish Government’s statistics can be found below:
In Chapter 3 of Introductory Scots Law, I discuss the defences available to parties who have been accused of causing loss or injury by reason of them committing a negligent act.
One of the best known defences to an action for negligence is volenti non fit injuria. I often like to say to my students that, colloquially, this translates as the hell mend you defence! The pursuer has knowingly embarked on a reckless and dangerous course of action and has accepted the consequences of the risk. S/he has only himself to blame for the losses or injuries caused. For the defender in a civil action, volenti is a complete defence – unlike the concept of contributory negligence which is said to be a partial defence.
The case law relating to this defence is well established and it’s probably worth mentioning some of the judgements where volenti has featured prominently:
ICI v Shatwell  AC 656 two brothers were blown up while testing detonators before they had taken refuge in a safety shelter. The Shatwell brothers had acted in complete defiance of their employer’s instructions. The employer was able to rely on the defence of volenti and the claim for negligence was dismissed.
McGlone v British Railways Board (1966) SC (HL) 1 – a 12 year old boy injured while climbing an electricity transformer on the defender’s property should have had the foresight and the presence of mind to know that he was engaging in a highly dangerous activity. The boy’s claim for damages was dismissed.
Titchener v British Railways Board (1984) SLT 192, SC (HL) 34 – a 15 year old girl who was struck by a train while trespassing on the defender’s property could not rely on the defender’s negligence. She was old enough to know better i.e. she knew that the railway was a dangerous place. As in the previous two decisions, the girl’s claim for damages was dismissed.
A recent case before the Sheriff Court’s All Scotland Personal Injury Court and the subsequent appeal to the Sheriff Appeal Court in Edinburgh illustrates whether it will be permitted to advance volenti as a legitimate defence to a breach of a duty of care.
Raybould v T N Gilmartin (Contractors) Ltd  SAC (CIV) 31
Diane Raybould, a 59 year old woman with mobility problems, sustained injuries at her home in West Forth Street, Anstruther on 3 February 2015 while attempting to gain access to the property. The front door of the property led directly on to the pavement which, at the time of the accident, had been dug up by T N Gilmartin (the contractor). Fife Council had engaged the contractor to install street lighting. Mrs Raybould had been attempting to access her property via the front entrance. She was aware of the existence of the pavement works and there were barriers around the excavations. There were, however, no planks or boards laid down by the contractors to afford easier access to the property. In short: “The area was a mess.” The contractor argued that by attempting to navigate such an obviously dangerous obstruction, Mrs Raybould had voluntarily assumed the risk of harm or injury to herself. In other words, the contractor should have benefit from the defence of volenti non fit injuria.
The Hearing before the All Scotland Sheriff Personal Injury Court
At the Hearing in the Sheriff Court, Mrs Raybould’s claim for damages against the contractor was dismissed.
The Sheriff emphasised a number of issues which had clearly formed the basis of the judgement against Mrs Raybould:
She was perfectly aware that there was no board or plank lying across the pavement excavations to assist her to access her home relatively safely;
2. She could not plausibly claim that she was unaware of the dangers of attempting to access her property via the front door;
3. She admitted that she felt a strong sense of apprehension or anxiety about any attempt to navigate the obstacles at her front door;
4. She had mobility problems and had to use a walking stick; and
5. She knew that pavement barriers had been placed by the contractors to deter people from using the footpath outside her home.
The Sheriff also found it compelling that Mrs Raybould could have chosen to enter her home via the property’s back door. In fact, there was no pressure of time on her to choose the front door and she never said that she was unable to use the back door to the property.
The Sheriff was strongly of the opinion that Mrs Raybould had been unable to demonstrate that the contractor’s acts or omissions had caused her to fall and sustain injury. Therefore, any alleged breach of the duty of care on the part contractor could not be said to be the proximate cause of the accident. If anything, the proximate cause of Mrs Raybould’s injuries was her decision to attempt a dangerous crossing of the pavement to gain access to her front door.
Interestingly, the Sheriff also entertained the possibility that, if the defence of volenti could not be relied upon by the contractor, the partial defence of contributory negligence would be appropriate in that Mrs Raybould would be 80% liable for her injuries.
(We shall return to the issue of contributory negligence later in this Blog when we discuss the findings of the Sheriff Appeal Court).
Taking all these factors into consideration, the Sheriff concluded that the contractor should be allowed to rely on the defence of volenti non fit injuria. Consequently, Mrs Raybould’s action for damages was dismissed and she was ordered to pay the costs of the contractor.
Mrs Raybould was, however, permitted to appeal to the Sheriff Appeal Court in Edinburgh on a point of law.
Sheriff Principal Stephen QC gave the opinion of the court which overturned the Sheriff’s original decision in favour of T N Gilmartin. In no way could it be said that Mrs Raybould had waived or released T N Gilmartin from its duty of care to her. The contractor was, therefore, liable in damages to Mrs Raybould. That said, however, it was clear that Mrs Raybould had contributed equally to the negligence by the contractor and, consequently, any damages payable should be reduced by 50% as per the Law Reform (Contributory Negligence) Act 1945.
The Sheriff had correctly stated that Mrs Raybould’s conduct was in some way to blame for her injuries, but he had also failed to assess the blameworthiness of the contractor (as per the guidelines laid down in the UK Supreme Court’s decision in Jackson v Murray  UKSC 5). In Jackson, the UK Supreme Court stressed the importance of assessing the blameworthiness of all the relevant parties in situations where contributory negligence applied.
Sheriff Principal Stephen QC made the following remarks:
“Volenti, in effect, amounts to a waiver by the pursuer of the defenders’ liability to her in damages. There must be proof that the pursuer knew of the risk (sciens) and also that she accepted the risk or voluntarily assumed the risk (volens). In this case there is no suggestion that the pursuer either implicitly or explicitly gave any such waiver or that the circumstances would allow the court to infer that the pursuer has impliedly consented to take the risk. It is accepted on behalf of the defenders that the pursuer was not asked about “waiver” or whether she was prepared to absolve the contractors of any liability they may have towards her.”
The learned judge went on to observe that:
“It is a common place activity and foreseeable that a householder such as the pursuer [Mrs Raybould] would seek to enter her home by the front door. The pursuer asked for assistance before proceeding. She used her stick to assist her by providing another point of contact with the ground. … The sheriff’s conclusion that volenti applies permeates his reasoning. However, we have found that volenti does not and cannot apply to the facts of this case.”
Interestingly, Sheriff Principal Stephen QC observed that the contractor had not actually advocated the defence of volenti in its pleadings before the Sheriff at the original hearing. In point of fact, it was the Sheriff who took it upon himself to introduce the defence of volenti! This was clearly an example of the Sheriff “innovating”.
At both the original trial and the appeal hearing, Thomson* and Stewart* were quoted with approval in relation to volenti. These authorities had made the point that volenti had a “very restricted application” and could provide a complete defence to a breach of a duty of care. In circumstances, where the defence of volenti is applicable, the pursuer must actually be aware of the risk and consent to the consequences of the defender’s breach of duty.
*(Thomson on Delict (Chapter 8); and Stewart: Reparation: Liability for Delict (Chapter 30)).
The Sheriff should not have entertained the issue of volenti in the first place. As Sheriff Principal Stephen QC stated: ” volenti does not and cannot apply to the facts of this case.”
The correct approach to take was that of contributory negligence.
A link to the opinion of the Sheriff Appeal Court can be found below:
Traditionally, vicarious liability in employment law was primarily an issue for parties who had entered a contract of service. For many years, it was the general legal position that an independent contractor i.e. someone engaged under a contract for services who had committed a wrongful act or omission which harmed a third party was personally liable for the consequences of their behaviour. The person hiring the contractor would normally escape any such liability. Vicarious liability, however, is an area of the law which continues to develop – as we are about to see.
Worryingly, for organisations which use independent contractors (people working under a contract for services), an English Court of Appeal decision may mean that they could be liable for delicts and other wrongful acts/omissions e.g. assaults which were carried out by non-employees.
The English Court of Appeal has clearly come to its decision based on the logic of recent decisions of the UK Supreme Court: namely, Mohamud v WM Morrison Supermarkets  (which is discussed in Chapter 6 of Introductory Scots Law). It would seem likely, therefore, that the Scottish courts will follow this decision remains to be seen, but it is not a development which organisations are likely to welcome. A summary of the decision can be seen below:
Barclays Bank PLC v Various Claimants  EWCA Civ 1670
Barclays Bank hired a doctor, Gordon Bates, to carry out medical examinations of members of its staff and applicants for employment at the Bank. These examinations were carried out by Bates at his consulting room located at his private address. The doctor was accused of sexually assaulting 126 people during examinations carried out between 1968 and 1984. These incidents did not come to light until much later. By this time, the doctor had died and there was no question of his professional indemnity insurance or his estate paying out compensation to his victims. Barclays Bank stated that the doctor was not an employee – he was an independent medical practitioner paid by the Bank to carry out a service as and when required. Barclays Bank argued that on these grounds they should not be held liable for the doctor’s wrongful actions. In fact, the victims themselves did not claim that Bates was an employee of Barclays, but significantly they did argue that its relationship with the doctor was “akin to employment” and that the delictual act was sufficiently closely connected to the employment or quasi-employment. Bates was under the control of Barclays Bank; by using the services of Bates, the Bank had created the risk of the victims being exposed to his wrongful acts; The medical examinations were carried out on behalf of the Bank; and the Bank had the resources to compensate the victims who now had no practical means of obtaining damages from Bates.
The case was first heard in the English High Court. The High Court decided that Barclays should be held liable for the doctor’s actions. They were benefiting from the service that he was providing and they had the financial resources to compensate the victims (this for organisations using independent contractors will be the really controversial and worrying part of the judgement).
Barclays appealed to the English Court of Appeal, but the decision of the High Court was upheld. At paragraph 41 of the judgement, Lord Justice Irwin stated:
“The law of vicarious liability has been developed – has been “on the move” – in recent times, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets; and Armes v Nottinghamshire County Council.”
Significantly, Lord Justice Irwin goes on to say (at paragraph 45):
“Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector.”
What are the consequences of the Barclays judgement? The logical conclusion is that any organisation engaging workers or independent contractors under a contract for services will have to be aware of this decision and its implications because it expands the area of vicarious liability considerably. If the English Court of Appeal’s decision is upheld and then followed in Scotland, it will be true to say that vicarious liability is no longer an exclusive feature of the contract of employment (contract of service). Essentially, it will be very difficult for a an organisation to mount a competent defence that it should not incur liability merely because the wrongful act or omission was committed by an independent contractor for services.
A link to the English Court of Appeal’s decision can be found below:
In Chapter 2 of Introductory Scots Law, I discussed the remedies for breach of contract. In Chapter 4, I look specifically at the remedy of rescission in relation to a consumer contract for the sale of goods. We have now had the Consumer Rights Act 2015 in place for several years. An interesting case in terms of the legislation has just been heard by the Sheriff Appeal Court in Edinburgh.
In Christina Tenant Johnston & Peter Johnstonv R & J Leather (Scotland) Ltd SAC (Civ) 1 LIV-SG781-17, Sheriff Andrew Cubie decided that Mr and Mrs Johnston (the consumers) had every right to dispose of defective furniture after they had clearly communicated their desire to the trader (R & J Leather Ltd) to reject the defective goods with which they had been supplied under the contract of sale. The consumers were seeking to obtain a refund of the purchase price for the goods in terms of Section 20 of the Consumer Rights Act 2015 i.e. they had clearly expressed their desire to rescind or cancel their contract with the trader. The consumers sent letters to the trader via recorded delivery on a number of occasions in which they stated that they wished to cancel the contract. They even involved their local Member of Parliament in the dispute, but this did nothing to resolve the dispute either. In the letters, the Johnstons asked the trader to arrange uplift of the furniture. The trader failed to retrieve the furniture.
Mrs Johnston raised an action under simple procedure at Livingstone Sheriff Court in order to recover the purchase price of the contract goods. The trader did not defend the action and the Sheriff made a decree in favour of Mrs Johnston for payment of the purchase price of the goods. Mrs Johnston had asked the Sheriff to include in the decree the stipulation that traders should make arrangements to have the goods uplifted from her home. The Sheriff choose not to issue an Order in this regard. At no point after this, did the trader seek to have the goods uplifted from the Johnston family home. The Johnstons then made the decision to give the furniture away to a third party. This was quite an understandable on their part because they honestly believed that the court action had settled the matter conclusively in their favour.
They had something of shock coming because R & J Leather Ltd decided to have the Sheriff’s decree recalled on the grounds that it had been wrongly designed [designated] in Mrs Johnston’s original summons. A new hearing was arranged, this time with the trader correctly designed in the summons and, additionally, Mr Johnston was permitted to join his wife’s action as a co-claimant. After a two day hearing, the Sheriff made a decision in favour of the Johnstons: they had the right to an Order for payment of the purchase price of the goods and they were justified in disposing of the goods by giving them away to a third party because of the trader’s many failures to uplift them.
The trader then appealed to the Sheriff Appeal Court.
Finding in favour of the consumers and rejecting the trader’s appeal, Sheriff Cubie stated that:
“The rejection [by the consumers] was made immediately and unequivocally. The Johnstons made repeated attempts directly and through their MP to make contact. R&J deliberately avoided engagement with them. The suite could not be stored indefinitely. The Johnstons legitimately considered that the court order had brought matters to an end. By their attitude, R&J effectively abandoned their right to seek recovery; there is a limit to the occasions which a party can be expected to remind sellers of the rejection. In ordinary course, the buyer should retain the goods for return; but in this case I consider that the seller’s actions or inactions were in such terms as to entitle the buyer to do as they wished with the goods.”
A link to Sheriff Cubie’s opinion can be found below:
The lesson to be learned for traders from this case is that they will be under a duty in terms of Section 20 of the Consumer Rights Act 2015 to act quickly in order to uplift goods which have been rightly rejected by consumers. The duty on consumers to make the defective goods available for uplift by traders following rejection is not an open ended or indefinite obligation on their part. Traders which take a cavalier or reckless approach by failing to uplift the goods in a timely fashion may well live to regret this.
In his judgement (at paragraphs 28 & 29), Sheriff Cubie clearly lays out the respective duties of the parties following rejection of the goods:
 “It is clear that when a consumer exercises a right to reject faulty goods, there is no duty to return the goods to the seller. All the consumer needs to do is make the goods available to the seller. That imposes an onus on the seller to come and collect the goods if they wish to.
 “The duty to make the goods available cannot be without limit of time or unqualified. In considering the nature and extent of the duty to retain goods which have been rejected, the court is entitled to take into account a number of factors, including but not restricted to –
1. the timescale within which rejection was intimated; 2. the nature of the goods; 3. the practicality of providing storage; 4. the nature, extent and frequency of communications sent by the consumers to the seller; 5. any response, or lack of response, from the sellers; 6. the length of time for which goods were retained; and 7. whether proceedings have been raised.”
Unlike religious beliefs, which tend to be more easily recognised under the Equality Act 2010, a person’s philosophical beliefs can be something of a grey area This means that it can be very difficult for employers and service providers to identify when someone has a genuine belief which is protected by law.
Section 4 of the Equality Act 2010 recognises that a person can be subjectedto unlawful, less favourable treatment (discrimination) owing to certainbeliefs which they possess.
Section 10 of the Equality Act defines religion and beliefs:
(1) Religion means any religion and a reference to religion includes areference to a lack of religion.
(2) Belief means any religious or philosophical belief and a referenceto belief includes a reference to a lack of belief. (3) In relation to the protected characteristic of religion or belief—
(a) a reference to a person who has a particular protectedcharacteristic is a reference to a person of a particular religion or belief;
(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.
In Lisk v Shield Guardian Co Ltd and others ET/3300873/11, anemployee was told that he was not permitted to wear a poppy while at work. Theemployee, an ex-serviceman, argued that by wearing the poppy he wascommemorating the sacrifices of those killed in armed conflicts. The EmploymentTribunal disagreed with the employee’s argument that his decision to wear apoppy while at work was a legitimate philosophical belief.
Yet, in earlier decision: Grainger plc v Nicholson (2010) IRLR 4the Employment Appeal Tribunal established that Nicholson’s belief in climate changecould constitute discrimination on the grounds of a philosophical belief.
Similarly, in Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/2009 a prominent animal rights activist (Joe Hashman) was deemed to have been dismissed unfairly by his employer by reason of his philosophical beliefs i.e. his belief in the sanctity of all life, both human and animal.
Recently, some interesting cases have come before Employment Tribunalsdealing with the issue of philosophical beliefs.
In one case, Christopher McEleny an SNP Councillor won a pre-Hearing Review which established that a belief in Scottish independence could constitute a protected characteristic in terms of the Equality Act 2010.
Please see a link to the judgement of the Employment Tribunal:
In the second case, Jordi Casamitjana, has taken his former employer, the League Against Cruel Sports to an Employment Tribunal alleging that he had been subjected to discrimination on the grounds that he is a vegan. He alleged that he had been dismissed from his job because he had revealed that his employer had allegedly invested pension funds in organisations which carried out animal testing. At the time of writing (January 22, 2019), it remains to be seen whether Mr Casamitjana will be successful in his legal action.
Veganism, as a belief system which should be recognised and protected by law has divided opinion as the final BBC report demonstrates.
Chapter 7 of Introductory Scots Law primarily focuses on the Equality Act 2010. Section 4 of the Act lists a number of protected characteristics:
marriage and civil partnership;
pregnancy and maternity;
religion or belief;
To treat someone less favourably as a result of their possessing any of the above characteristics could be an act of unlawful discrimination. The exception to this would be where the less favourable treatment might be objectively justified e.g. on the grounds of national security or health and safety.
The purpose of this post is to highlight potential age discrimination. Discrimination on the grounds of a person’s age became unlawful in 2006 when the UK Goverment passed the Employment Equality (Age) Regulations 2006. This measure implemented the European Union’s Equal Treatment Framework Directive (Council Directive 2000/78/EC). The relevant law is now, of course, to be found in the Equality Act 2010. Brexit aficionados might like to note that this EU inspired piece of legislation will survive the UK’s exit from the organisation until such time as the Westminster Parliament decides to amend or repeal the Equality Act 2010. This is just one example of how EU legislation is hardwired into the domestic legal framework of the United Kingdom and demonstrates how difficult it could be to disentangle ourselves from the European Union.
Anyway, legal technicalities aside: we often think of age discrimination being an issue which affects older people in society. An interesting example of how the issue can affect younger people was reported by the BBC on Saturday 19 January 2019.
The story concerns Xander McDade (aged 25) who was elected as a Councillor in the Perth and Kinross local authority. McDade claims that he has suffered persistent age discrimination from some of his colleagues on the Council. The Chief Executive of Perth and Kinross Council has publicly stated that the Council does not tolerate discrimination and anyone who thinks that they have been less favourably treated should come forward to make their concerns known.
I thought that I would begin by drawing readers to an employment law story. Those of you who are familiar with Introductory Scots Law will already know that Chapter 6 covers Employment Law. In this chapter, the topic of a person’s employment status is discussed. It’s often a difficult area for both lawyers and lay people to get their heads around. The key question can often be reduced to this: does the individual have a contract of service or a contract for services?
If you have a contract of service (or employment), you are often in much a stronger position legally speaking because you either have employment rights or the potential to access employment rights as you build up your continuity of service. Significantly, employees have the right (potentially) to claim unfair dismissal; claim a redundancy payment; be consulted about changes which their employer is going to make; access maternity and paternity rights. People working under more casual arrangements, for example, zero hours contracts or the genuinely self-employed will not be entitled to such employment rights.
The story which I wish to focus on concerns Jess Varnish, the ex-Team GB cyclist. Ms Varnish wished to pursue an Employment Tribunal claim for wrongful dismissal and sex discrimination against British Cycling and UK Sport. The legal action by Varnish has been dismissed by the Employment Tribunal on the basis that she was not an employee or even a worker of British Cycling or UK Sport. This decision, in common with many other cases over the years, demonstrates the ability of a person to claim certain legal rights depends very much on her employment status. Quite simply, Jess Varnish was never an employee and that is why her claim failed.
Please see below the link to the story on the BBC website:
In two of my previous blogs (Life should mean Life?published on 22 March 2019and Commit the crime, do the time?published on 4 March 2019), I discussed the sentencing process in relation to individuals who have been convicted of criminal offences in the Scottish Courts.
InLife should mean life?, I looked at the sentencing of the teenage murderer, Aaron Campbell by Lord Matthews in the High Court of Justiciary in Glasgow. Campbell was convicted of the murder of 6 year old Alesha MacPhail. Lord Matthews imposed a prison sentence of 27 years on Campbell. This is the minimum term which Campbell must serve before he is eligible to apply for parole. It does not mean that he will be released at the end of this term.
We learned today (4 April 2019), that Campbell‘s legal team has lodged a note of appeal against his sentence. He is not appealing against his conviction.
It will be interesting to see whether the Criminal Appeal Court of the High Court of Justiciary upholds the original prison term. There is always a risk for appellants like Campbell that the Criminal Appeal Court may increase his prison term.
A link to a BBC article discussing Campbell’s appeal can be found below:
Aaron Campbell, 16, is challenging the 27-year jail term he received for the murder of six-year-old Alesha MacPhail.
On Tuesday 10 September 2019, Aaron Campbell successfully appealed against the length of the life sentence (27 years) that Lord Matthews had imposed on him following his trial and conviction for murder at the High Court of Justiciary in Glasgow. His prison sentence was reduced by 3 years. This decision was made by 3 senior Scottish judges sitting in the Appeal Court of the High Court of Justiciary in Edinburgh
Please see the link below to an article on the BBC website about the story: