PRAETORIAN DELICTS

By praetorian development, certain other delicts were recognised, although not covered in the Institutional Scheme.

For example, metus was the term used for the situation in which a person subject to threats was compelled to act in a way to his detriment.

Dolus meant fraud or deceit to the detriment of another. Damages for the loss suffered, or restitution of any benefit taken due to the fraud, was the appropriate remedy.

Another example was the corruption of slaves. This action lay when a person had intentionally caused the physical, mental or moral degradation of a slave. An example might be encouraging a slave to steal from his master.

Liability under this action was for double damages, based on the reduction in value of the slave on account of the degradation, and also any loss caused by the slave’s actions on account of the corruption. Thus, if the slave was induced to steal from the master, the value of the property stolen would be included in the measure of the damages payable.

Essential Facts

Roman law did not have a general law of delict. Instead, specific delicts were recognised.

Theft involved the unauthorised handling of goods with fraudu­lent intention. Double damages were payable, except in the case of “manifest theft”, where quadruple damages were payable. Robbery differed from theft in involving violence, and gave rise to quadruple damages.

Iniuria was constituted by intentional insults of many different types. No damages were payable if the insult was unintentional, or justified, or the victim was not upset by the insult.

The first and third sections of the lex Aquilia imposed liability for loss caused by wrongful acts. There were thus three requirements for liability: that one party has suffered loss; that this loss was caused by the other party; and that the act causing the loss was wrongful.

The measure of damages in an action under the lex Aquilia depended on which section applied. The first section applied to killing of slaves and livestock, and based the damages payable on the highest value the property had had in the year preceding the injury. The third section applied to other instances of damage to property, and damages were based on “whatever the damage shall prove to be worth in the next thirty days”. The precise meaning of this is unclear.

Essential Cases

Martin v McGuiness 2003 SLT 1424: the pursuer sought damages from the defender for injuries resulting from a road accident. In prep­aration for the court proceedings, the defender engaged a private detective to carry out surveillance of the pursuer, to determine whether his injuries were of the extent claimed. The pursuer argued that the invasion of privacy resulting from this was actionable as iniuria. The court accepted that such actions might constitute iniuria. Stevens v Yorkhill NHS Trust 2006 SLT 889: the pursuer sought damages for the removal of her daughter’s brain, without the pursuer’s consent, during a postmortem examination. The court held that the unauthorised removal and retention of organs constituted iniuria.

Stewart’s Executrix v London, Midland & Scottish Railway Co 1943 SC (HL) 19: this was an action for the death of Miss Stewart in a railway accident. In the House of Lords, Lord MacMillan discussed iniuria and the lex Aquilia and their relationship to actions for personal injury. He also commented on the role of Roman law in the development of Scots law more generally.

MacDonald v Aberdeenshire Council [2013] CSOH 83, 2013 SLT 2: following a road traffic accident, the pursuer sought damages from the local authority on the basis of an alleged failure to erect ap­propriate signage at the road junction where the accident took place. Two passages taken from the jurist Ulpian were considered by Lord Drummond Young in an exploration of the historical development of the delictual liability of public authorities.

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