Burning and causing to be burned
It is convenient to have a recurrent point of reference. The events of Hughes v. Lord Advocate[41] suit well.
Post Office workers had left lighted paraffin lamps to mark an open manhole down which they had been working. The manhole remained open, covered by a small tent. Two young boys, the pursuer and his friend, began to play with the lamps. The pursuer entered the tent and let one of the lamps drop down the hole. The paraffin vaporised and exploded. The pursuer was horribly burned. On these facts a liability based on the proposition that the workmen burned the boy could never have attached. The pursuer was indeed burned, but the question was whether that consequence could be attributed to the defenders at all: could it be said that they had caused him to be burned? The freak explosion was not foreseeable. That children would play with the lamps and burn themselves was foreseeable. The Post Office was held liable. In the words of Lord Pearce: ‘When an accident is of a different type and kind from anything that a defender could have foreseen he is not liable for it. But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable.’[42]In Roman law the Hughes facts would have fallen within the delict of wrongful loss, dominated by the lex Aquilla, but they would have had to be litigated through an actio in factum, not through the statutory action.[43] This would have been true even against the immediate wrongdoers, the negligent workmen. There are two reasons. First, the statutory action lay only to an owner who had suffered loss from wrongful damage to a thing owned.
The young pursuer who was burned was not owned, nor did he own his limbs.[44] [45] For our present purposes, this is not interesting and no more will be said about it. Secondly, the direct action lay only where the injury or damage, here the burning, had been inflicted by bodily force (corpore)? These negligent workers had left behind the lighted lamps. The injury arose because the pursuer himself dropped one down the manhole, so that it broke and exploded. The workers had not, by any stretch of the imagination, burned the pursuer by the application of bodily force. They had not shoved torches in his face or thrown burning coals at him. Nor had they even set fire to the place in which the pursuer was.[46]In the eighteenth century the action of trespass was very similarly restricted. It could only be brought for direct or immediate damage. For injuries and damage brought about indirectly the victim had to have recourse to an action on the case, not for burning but for causing to be burned: why had he ‘so negligently and improvidently kept his fire that (the house had been burned down)’?[47] The choice between the general action and the action on the case was often difficult. In Scott v. Shepherd," the plaintiff had lost the sight of one eye when a firework exploded in his face. He brought an action of trespass, not case, against the defendant, who had tossed the lighted squib into a crowded place. This divided the judges. It is useful to have in full the special case subject to which the verdict was given:
On the evening of the fair-day at Milborne Port, October 28, 1770, the defendant threw a lighted squib, made of gunpowder, etc., from the street into the markethouse, which is a covered building supported by arches and enclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread, etc.
That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates, took up the said lighted squib from off of the said standing and then threw it across the said market-house, where it fell upon another standing there of one Ryal, who sold the same sort of wares, who, instantly, to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and in so throwing it struck the plaintiff, then in the said market-house, in the face therewith, and, the combustible matter then bursting, put out one of the plaintiff’s eyes.No classical Roman jurist would have persuaded himself that the injury to the plaintiff’s eye had been done by the bodily force of the defendant. The plaintiff would indubitably have been driven to an actio in factum. Blackstone, J. thought the same for English law. He held that the plaintiff’s action of trespass must fail. He should have brought an action on the case. ‘He took the settled distinction to be that, where the injury is immediate, an action of trespass will lie; where it is only consequential, it must be an action on the case.’[48] Applying this, he concluded:
The original act was as against Yates a trespass; not as against Ryal or Scott. The tortious act was complete when the squib lay at rest upon Yates’s stall... But Shepherd, I think, is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed upon it and the new direction given it by either Willis or Ryal, who both were free agents and acted upon their own judgment... Here the instrument of mischief was at rest till a new impetus and a new direction were given to it, not once only, but by two successive rational agents... I give no opinion whether Case would lie against Shepherd for the consequential damage, though, as at present advised, I think upon the circumstances that it would.
But I think that in strictness of law, Trespass would lie against Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self-defence and not used sufficient circumspection in removing the danger from themselves.[49] style='text-indent:18.0pt;line-height:normal'>However, Blackstone, J. found himself in a minority of one. Though we dare to assert that no Roman jurist could have aligned himself with them, the majority judgments serve as a reminder that among all lawyers, Roman or English, a test based on words such as ‘immediacy’ or ‘directness’ or ‘bodily force’ will inevitably have elicited disagreements, especially when the merits pulled strongly in one direction. Thus, De Grey, C. J. expressly said, ‘I agree with my Brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case.’[50] And he went on to say that in his view the injury was the immediate product of the force set in motion by Shepherd:I look on all that was done subsequent to the original throwing as a continuation of the first force and first act, which will continue till the squib was spent by bursting... The new direction and new force flow out of the first force, and are not a new trespass... It has been urged that the intervention of a free agent will make a difference: but I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessity for their own safety and self-preser vati on.[51]
Plaintiffs were put in real difficulty by the need to bring the correct form of action. By natural reason causing to be burned includes burning. An action on the case might therefore be thought to lie on all facts. There was, however, a routine obstacle to that simple solution. It consisted in the subsidiarity of actions on the case.
In the fifteenth and sixteenth centuries the structure and stability of the Common law were thought to require that the first-generation general actions be given primacy, so that an action on the case was excluded if a general action lay. This doctrine had largely been given up well before the eighteenth century,[52] but it mustered a late burst of energy in relation to trespass. Natural reason was ultimately allowed to prevail. In Williams v. Holland in 1833 it was held that a plaintiff could bring an action on the case even if the injury had been inflicted directly, so that trespass was also available:[53] ‘where the injury is occasioned by the carelessness and negligence of the defendant, the plaintiff is at liberty to bring an action on the case, notwithstanding the act is immediate, so long as it is not a wilful act’.[54] The rise of the tort of negligence dates from that decision, a century before Donoghue v. Stevenson}[55] Doing damage was displaced by (negligently) causing damage to be done.In Roman law, once the formulary system disappeared in the third century AD, the distinction between the statutory action under the lex Aquilla and the supplementary actions on the case became conceptual, not formal. The plaintiff no longer had to choose a set of words which would tie his claim unequivocally to one or the other, but he would still conceive of his claim as arising either under the statute or in the periphery which would once have been covered by actions on the case. Nothing then prevented the plaintiff from arguing in the alternative, that the defendant was liable either as under the lex or as under the praetorian actions on the case. However, while the formulary system lasted, the plaintiff could not bring a statutory action where his facts would only support an action on the case. If he brought the statutory action, he would have to show that the defendant did the harm corpore suo.
Doing, after all, does not include the other forms of causing to be done. What about the other way around? Did the Romans apply the rule of Williams n. Holland before the abolition of their forms of action, with the effect of allowing a plaintiff to bring an actio in factum even where he might have brought the statutory action? Though it would cost him whatever marginal advantages the statutory action had to offer, an action on the case would relieve the plaintiff of the burden of establishing corporeal causation. In other words, the defendant would be deprived of the opportunity of exploiting the mysteries of direct causation in order to challenge the form of action. The texts do not allow a definite answer, but it seems likely that the Williams v. Holland position was taken.[56] Even in English law successful challenges this way round, to actions on the case rather than to trespass, were extremely rare.[57]