Please read my post before making an insulting comment like this.
At no time did I "suggest that there is no concept of civil wrongs in Scotland". I am fully aware of the concept of delict. I said "the Law of Tort, which is purely an English concept and doesn't exist north of the border." Obviously a Court in one jurisdiction (eg Scotland) can take cognisance of judgments from another jurisdiction, and this could include rulings on delict based upon interpretations of Tort in an English Court. But that does not mean that "tort" means anything in Scots Law.
The reality of life in the United Kingdom, where one legal jursidiction (England) is much larger than the others is that most Scottish practitioners of law have to have at least some understanding of the Law of England, but my experience has been that the reverse is seldom true, and I have to say your recent legal pronouncements appear to bear this out.
I think it is incumbent on anyone stating a legal principle (where the readership is drawn from several legal jursidictions) to make it clear that their opinion is based only on their understanding of a specific legal system, and may not apply to the reader's situation.
In particular, where an internet forum is based in, run from and named "Scotland" it seems (to me at least) that you should extend us the courtesy of at least a caveat to the effect that your interpretation is based on English Law and may not apply in Scotland or other legal jurisdictions.
Further insulting comments to someone who dares to disagree with you, in this case stewart38.
The problem may stem from your usual difficulties in posting clearly.
s.2 Limitation Act 1980 sets out that there is a 6 year time limit for actions based on negligence, etc, of another party. So if someone hits your garden wall with a tractor and it falls over four years later, you can claim against them.
s.11 Limitation Act restricts actions for “damages claimed by the plaintiff for the negligence, nuisance or breach of duty” etc, where all or part of the claim is for personal injuries, to 3 years.
There is a further distinction between s.2 and s.11 in that s.2 refers only to the date on which the cause of action accrues – the tractor collides with the wall – whereas s.11 also refers (s.11(4)(b) to the date on which the claimant became aware of the cause of action. So, suppose the wall falls down and injures someone: arguably, the cause of action was the wall falling down; but more likely the cause of action was the original collision. However, in this instance the injury means that the clock is reset and the claimant has three years to bring a claim.
[Note that for anyone who is not yet 18 (or who suffers from a mental illness preventing them from instructing lawyers) time does not begin to run until they turn 18 (or recover).]
An additional difficulty stems from sections 32 and 33.
s.32 applies when there has been concealment. So if your surgeon leaves the forceps in the patient and she doesn’t discover that for 8 years, then if he or the hospital knew, or can be taken to have known, and didn’t tell her, then that’s concealment and she gets a further three years. If he and the hospital didn’t know, and can reasonably show that, then there wasn’t any concealment and she’s too late to bring a claim.
s.33 is what the recent case was all about. It gives the court a discretion – “if it appears to the court that it is equitable” – to disallow the limitation period of section 11 but not section 2.
Now previously (in Stubbings v Webb, 1993 – see my post on case precedents), the Lords had decided that assaults – physical and sexual – did not fall under section 11 because they don’t fall within the definition of “damages claimed by the plaintiff for the negligence, nuisance or breach of duty”. Therefore, they fell under s.2 – six year limit with no discretion to extend.
This meant that the claimants in A v Hoare (most of whom were complaining of childhood sexual abuse and were aged more than 24 when they started their claim) were busted.
The Lords have now said, however, that they were wrong in Stubbings v Webb and that claims of victims of sexual assaults fall under s.11 and they can, therefore, ask the court to exercise a discretion to extend those three years under s.33.
The problem, John, is that tort is not an english concept, what's english about it is only the word. Since you wrote that it is 'purely an english concept', rather than something that would have been more correct, such as 'there is no law of tort as such in scotland but we call it something else', I still think you are wrong.
Boring (and off-topic).
End of.
What's the relevance of hundreds of live cases?
My post was about HL not being bound by previous cases; I used a recent case to illustrate that; you came back with a post including the assertion "The courts have always had discretion over the limitation act". That's not correct; some sections of the Act are not susceptible to discretion, and this is why Mrs A failed at her first attempt to claim damages from Iorwath Hoare - she was arguing that her case ought to come under one of the sections which are susceptible to discretion. Or do you suppose she was appealing to the Judicial Committee despite having already got her way in the lower courts?
Sheesh.
Sorry I wasnt specific I meant some sections of the act
Barry your orginal comment was fairly vague and referred to ‘claims of this type’ .
What rape , personal injury lottery winners ??
..... and a ‘previous case’ , what case the Law Lords have heard a few
Now you have clarified what you mean and made it less 'wooly', your interpretation is fine
I think it's about time some of you learned that there is little point engaging in a 'BS' debate - because that's exactly what it is. He has his soap box and if you disagree with him he either puts you on ignore, or just throws insults around in a way that makes Al Fayed look like a Sunday school teacher. More fool you for entertaining him - I've given up bothering to get involved as it seems he has more time on his hands than good sense...
Hello Rocky, old chap: how the devil are you? In the pink? Excellent.
A small point, old bean, the teeniest meeniest frightfully tichy inaccuracy in your post.
Entre nous, as we say, you are the only chap I have on ignore. Dreadfully rude of me, I expect, no opportunity for you to vent your spleen, and such, but can't be helped.
And we both know that you aren't on ignore because you disagreed with me - I'm sure you recall why. We know that it was because you were gratuitously insulting and nasty.
Don't we?
A small point old bean, I think you'll find I AM on your ignore list because I constantly disagree with you and make you look stupid (not that you actually need much help in that department). That rubbish about the limp was just you doing your intimidator/victim thang that was, I'm afraid rather transparent.
Gratuitously insulting.... from the man who is probably on more ignore lists than anyone else...
And as for posting to someone who you have on ignore... either you're ignoring what they say or not. Make your mind up Barry, or is that a little difficult to get your head around?
Last edited by Rocky; 21st-February-2008 at 04:17 PM.
On the subject of time...maybe someone's asked before, but does Franck ever wake up in the night, sweating in horror at the prospect of how much Barry the lawyer is going to charge the Forum for this wordiness ?Originally Posted by Rocky
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