The Lex Aquilia and Modern Law

The specific rules of the lex Aquilia were never directly received into the ius· com­mune.^[2452] For example, the rules for assessing damages contained in the first and third chapters were never received into later law, nor was there any rule of dou­ble damages where liability was denied.

The influence of those developments was also felt in Scotland. The law of Scot­land in this area was by no means fully developed in the time of the institutional writers.^[2454] However, it certainly had a foundation on which a principled modern sys­tem could be built. Erskine, for example, gives this statement of general principle:

Alterum non laedere is one of the three general precepts laid down byJustinian, which it has been the chief purpose of all civil enactments to enforce. In consequence of this rule, every one who has the exercise of reason, and so can distinguish between right and wrong, is naturally obliged to make up the damage befalling his neighbour from a wrong committed by himself. Wherefore every fraudulent contrivance, or unwarrantable act, by which another suffers damage, or runs the hazard of it, subjects the delinquent to reparation.^{[2455] [2456]}

The case of Donoghue v Stevenson" is seen as the foundation of the modern law in this area. In that case, the pursuer had gone with a friend to the Wellmeadow Cafe in Paisley. The friend bought her a bottle of ginger beer that had been manufactured by the defender. When the pursuer had drunk part of the contents of the bottle, a decomposing snail was allegedly discovered in it.

Stated like this, it is not obvious why the case is so important, why it was nec­essary to fight it all the way to the House of Lords, or why the pursuer was only successful by such a narrow margin. It seems unlikely on the basis of what has been said above that Stair or Erskine would have been altogether surprised by the pursuer's success, and certainly the general principle of liability for injuries caused by fault, based on the principles of the lex Aquilia, was well established by the end of the 1700s.^[2459] What, after all, could be more in accordance with prin­ciple than to hold a supplier of goods, whose negligence has introduced a defect into those goods, responsible for injury resulting from that defect?

The answer lies in developments between the 1700s and 1932, when Donoghue was decided. During that period, the general principles of liability for loss caused by fault, on which the institutional writers drew in their accounts, had become obscured by the adoption from English law of different special rules for specific situations. If what follows contains criticisms of the English law, these should not be taken to imply criticism of the English system as a whole. Instead, they should be taken as arising from a Scots lawyer's frustration that, at a time when Scots law had the tools to allow it to cope better with these issues, these tools were need­lessly cast away in favour of English rules that were — to say the least — no better.

For example, it has long been settled law that an employer is liable to victims of injury caused by the negligence of employees in the course of their employ­ment. In English law, however, a rule developed that this did not apply where the victim was a co-worker of the negligent employee. This was known as the doctrine of common employment. The justification for this doctrine was that, by taking up employment, a person voluntarily accepted the risk that some other person employed, now or in the future, to work over, under or alongside him, might negligently injure him.^{[2460] [2461] This justification can only be described as fanci­ful, but it was happily no part of the law of Scotland, which was able to decide such cases in accordance with general principles.}

but if such be the law of England, on what ground can it be argued not to be the law of Scotland? The law, as established in England, is founded on principles of universal application, not on any peculiarities of Englishjurisprudence; and unless, therefore, there has been a settled course of decision in Scotland to the contrary, I think it would be most inexpedient to sanction a different rule to the north of the Tweed from that which prevails to the south.^[2463]

Reduced to its essentials, the reasoning here is this: if English law has adopted a rule, then the English rule is presumptively the law of all civilised countries, and so is to be applied unless there is unequivocal authority to the contrary. It would be hard to conceive of a more insular and parochial approach. It took another ninety years for the obvious, that the rule is contrary tojustice, principle and common sense, to be realised sufficiently for the rule to be abolished (for both Scotland and England).^[2464]

Another example is the law of occupiers’ liability. In Scots law, where a per­son was injured while on another’s land, the same general principle of liability for fault applied as in other cases. This afforded Scots law the flexibility to deal with each case on its own merits, as justice demanded. Whether a person was a trespasser, for example, would be relevant to questions such as whether it was foreseeable that they would be present, but it would not by itself be conclusive. Sometimes justice would demand reparation for an injury, even when the injured party was a trespasser.^[2465] In English law, by contrast, it was necessary to catego­rise injured parties according to a rigid classification into licensees, invitees and trespassers.

A third example, closer to Donoghue v Stevenson, is in the area of product liability. In Mullen v Barr & Co; McGowan v Barr & Co,^[2468] on facts indistinguishable from those in Donoghue v Stevenson,^[2469] it was held on the basis of English authority that a manufacturer of goods owed no duty to consumers of the goods, unless he knew the goods to be dangerous and concealed the fact, or else he was a dealer in goods (such as explosives) that were dangerous in nature. In other words, it was held that a manufacturer of soft drinks had no duty to take care not to poison his customers.

By the time Donoghue v Stevenson was decided, therefore, the law of negligence was a patchwork of specific rules, with little reference to general principle. The importance of the case, then, lies in the attempt to distil from all of the different special rules a single general principle, by which a person could be held liable for the consequences of his or her fault.

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.^[2470]

In formulating this doctrine, Lord Atkin relied exclusively on English and American authorities. This is a curiosity in what is, after all, a Scottish case. The outcome could have been reached on the basis of Scots authorities. Indeed, there is preserved a judgment by one of the Scottish judges in the majority of the House of Lords, Lord Macmillan, which did exactly that.^[2471] These were largely dropped from the judgment that he actually delivered, possibly at the instigation of Lord Atkin, who wanted to use the case to settle the point for English law.^[2472]

Even so, it does appear that there is a hidden debt here to Roman law. It has been suggested that the neighbour principle was in fact drawn from Erskine,^[2473] and it is possible that the foreseeability requirement was taken from the passage of Paul, referred to earlier, in which a pruner was held liable on the basis of foreseeability.^[2474] The argument has been summarised in the following terms:

The ‘neighbourhood’ principle is now universally regarded as his own [i.e. Lord Atkin’s] creation. But that is not the case. There can be no doubt that the prin­ciple was drawn from the civilian tradition, in particular from the teachings of the natural lawyers. On the other hand, the restrictions placed upon it by Lord Atkin appear to have been drawn from the humanist tradition, and perhaps specifically from Donellus.

The Roman writings on the lex Aquilia remain a fruitful source of ideas today, not by direct application of the lex Aquilia but on account of the discussion and ideas that those writings contain. For example, in Macdonald v Aberdeenshire Council,^[2476] reference to Ulpian was made in discussing local authority liability in relation to road maintenance.^[2477] Another case (in fact, an English one) is Fairchild v Glenhaven Funeral Services Ltd.^[2478] In that case, the claimants were individuals who had developed mesothelioma from workplace exposure to asbestos. As they had been exposed to asbestos with more than one employer, no one employer’s neg­ligence could be conclusively proved to have caused the damage. It was held to be enough that the defendants’ negligence had materially increased the risk. In support of this conclusion, Lord Rodger of Earlsferry considered^[2479] the Roman texts (discussed above) on injuries caused by more than one attacker, and found that the jurists considered a departure from strict rules of causation to be justi­fied in some cases.