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380 Northern Ireland Legal Quarterly [Vol. 50, No. 3]
LIABILITY FOR OMISSION UNDER THE LEX
AQUILIA
Dana Mc Cusker, Postgraduate Student, School of Law, Queen’s University Belfast^ The lex Aquilia , commonly thought to have been enacted in the year 287 BC and one of the most famous statutes of ancient times, provided the statutory basis of the Roman law delict damnum iniuria datum which covered the area of unlawful damage to property.^1 The aim of this article is to examine just how the thorny area of liability for omissions was dealt with under the lex Aquilia. Prior to the lex Aquilia , the only definitive source of law governing damage to property was to be found in the Twelve Tables, dated to the years 451 and 450 BC.^2 Grueber says that in these early times the unlawful damage which the lex Aquilia would refer to as damnum iniuria datum was signified by the words noxia nocita , noxiam nocere , or simply nocere.^3 This notion of nocere within the Twelve Tables comprised not only the violation of another’s property, by destroying or damaging a thing which is owned by him, but also the violation of another’s body by wounding his person.^4 The lex Aquilia , however, was concerned
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(^) I would like to convey my gratitude to Dr. John E. Stannard, who painstakingly reviewed this article and made many very useful suggestions in helping me to complete it. I would also like to thank Professor Geoffrey MacCormack who, during my brief visit to Aberdeen University in the course of researching this article, very generously took the trouble to meet with me and offer valuable guidance. I am also very appreciative of the help given me during this time by Professor Robin Evans-Jones who also took the time to see me and offer his suggestions. Any inaccuracies in this article are, of course, to be attributed solely to the author. (^1) Justinian lists four delicts in his Institutes: furtum (theft); rapina (robbery); iniuria (insult) and damnum iniuria datum (unlawful damage to property). For the purposes of this article, we are concerned only with this last mentioned delict. (^2) Ten of the tables were enacted in 451 BC and the remaining two in the following year. (Grapel, Sources of the Roman Civil Law (1857), pp 17-18.) (^3) Grueber, The Lex Aquilia (1886), p 186. (^4) This can be ascertained from the seven cases outlined by Grueber ( op cit , p 192) as encompassing the term nocere :
- Rumpere membrum ciui (the breaking of another’s limb);
- Frangere os ciui seruoue (the breaking of another’s head or trunk);
- Occidere seruum quadrupedemue pecudem (the killing of another’s four-footed beast or slave);
- Urere aedes aceruumue frumenti iuxta tugurium positum (the setting on fire of a building or a stack of corn near another’s dwelling place);
- Impescere in laetam segetem (the grazing of animals upon another’s crop);
- Succidere arborem (the cutting down of another’s tree); and
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exclusively with damage to property and, as such, excluded injury to freemen not in potestate for, as Nicholas states, no one can be said to be the owner of his own limbs.^5 The impact of the lex Aquilia on the law governing unlawful damage to property was significant. As Ulpian states in the Digest: “Lex Aquilia omnibus legibus, quae ante se de damno iniuria locutae sunt, derogauit: siue duodecim tabulis, siue alia quae fuit: quas leges nunc referre non est necesse.” 6 Ulpian here claims that the lex Aquilia superseded all previous laws dealing with damage to property, whether or not such laws were contained in the Twelve Tables. The accuracy of Ulpian’s statement has been debated. Grueber, for example, says that a primary reason to doubt the statement lies in the fact that the lex Aquilia does not give a definition of damage to property, damnum iniuria datum , but merely attaches liability to particular cases of such damage whereas one would expect that an important piece of legislation implemented in order to repeal a preceding law to newly assert or restate the subject of that law.^7 Furthermore, Daube asserts that certain earlier laws on damage to property remained in force side by side with the lex Aquilia for a time after its enactment and even permanently.^8 Ultimately, however, it is conceded that the lex Aquilia was of such overwhelming practical importance in the area of unlawful damage to property that it swamped most of the previous law on the subject.^9 As has been said, the lex Aquilia provided the statutory basis of the delict damnum iniuria datum. As such, it has many inherently delictal characteristics. An illustration of this is its punitive rather than compensatory evaluation of damages, whereby the defendant had to pay the plaintiff the highest value which the property had had during the previous year^10 or thirty days^11 rather than the actual value of the loss incurred,^12 so that, as Schulz says, “the penalty was the same when a dog
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- Rumpere rem (general liability for damaging another’s property). (^5) Nicholas, Introduction to Roman Law (1962), p 222. However, the lex Aquilia was extended in the time of Justinian to grant an actio utilis where a freeman was injured, but not where he was killed: Nicholas, loc cit. (^6) D.9.2.1: “The lex Aquilia took away the force of all earlier laws which dealt with unlawful damage, the Twelve Tables and others alike, and it is no longer necessary to refer to them.” ( Translation by Mommsen, Krueger and Watson, The Digest of Justinian , Volume One (1985) (henceforth Mommsen ), p 277. ) (^7) Grueber, op cit at note 3, p 185. (^8) Daube, “On the Third Chapter of the Lex Aquilia” (1936) 52 LQR 253-268 at
(^9) Buckland, A Textbook of Roman Law from Augustus to Justinian , (3rd Edition, 1963), p 585. (^10) For loss incurred under Chapter One. (^11) For loss incurred under Chapter Three. (^12) For an interesting discussion on this see Daube, op cit at note 8, and compare it with Jolowicz, “The Original Scope of the Lex Aquilia and the Question of Damages” (1922) 52 LQR 220 - 230. These authors discuss the original meaning of the third chapter of the lex in order to explain the peculiar disposition of damages under the lex. The anomalies of this chapter are well illustrated by the fact that opinion as to this original meaning is very sorely divided, as evidenced by these two commentators.
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The text of the third chapter is provided by Ulpian in D.9.2.27.5: “Ceterarum rerum praeter hominem et pecudem occisos si quis alteri damnum faxit, quod usserit, fregerit, ruperit^20 iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto.” 21 The original meaning of the text of this Chapter has been the subject of much debate.^22 However, it is generally agreed that by the time of the late classical era, it had come to cover all damage not falling under Chapter One, hence the injuring (without killing) of a slave or pecus as well as the damaging of an inanimate object or an animal not pecus , for example, a dog, cat or chicken. With regard to the quantum of damages, it is again generally accepted that, whatever complicated developments the third chapter underwent, the text came in the classical era to mean that the defendant must pay to the plaintiff the highest value which the property had had within the thirty days prior to the damage. This view is supported by the text D.9.2.29.8 in which Ulpian says: “quanti in triginta diebus proximis fuit, etsi non habent plurimi, sic tamen esse accipienda constat.” 23 This text requires that Chapter Three be interpreted, analogous with Chapter One, as referring to the damaged thing itself, so that damages were to be determined upon the basis of the highest value which the thing had had in the previous thirty days. We see from these texts that their operative words are occidere , urere , frangere and rumpere. On their face these words do not permit other than positive action to incur liability. Thus Grueber denies that a mere omission can give rise to an action under the lex on the grounds that occidere seruum quadrupedemue and urere , frangere , rumpere rem are required.^24 These are words which, he says, even according to the extensive interpretation of the Roman Praetors, imply in every case a damnum corpore corpori datum.^25 By this is meant that for direct liability a person
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(^19) Buckland treats the class of pecus as originally pertaining to such animals as feed in herds ( op cit at note 9, p 585) whilst the Institutes provide that all ordinary domestic beasts were to be so treated. The Digest later incorporated tame elephants and camels. (^20) D.9.2.27.13 provides “ Inquit lex ‘ruperit’, rupisse uerbum fere omnes ueteres sic intellexerunt ‘corruperit’. ” This has been translated to mean: “The statute actually says ‘ruperit’ (break or rend asunder); but almost all the early jurists understood the word to mean ‘corruperit’ (spoil).” ( Mommsen , p 285.) (^21) “In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully burning, breaking or spoiling , then he will be condemned to pay to the owner whatever the damage shall prove to be worth in the next thirty days.” ( Mommsen , p 283.) This translation presupposes that the measure of damages originally referred to the following period of time rather than, as in the first chapter, the preceding period of time. Not all commentators agree with this view: see text at notes 22 and 23. (^22) Above at note 12. (^23) “It is settled that the words ‘whatever was the value in the last 30 days’, even though they do not include ‘highest’, must be accepted in that sense.” ( Mommsen , p 287.) (^24) Grueber, op cit at note 3, pp 208-209. (^25) Loc cit.
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must cause by some physical act of his own an actual damage to the corporeal thing of another, as where a slave is strangled to death. However, extensions of the lex enabled it to embrace a great many other types of damage to property which were not originally actionable. Justinian provides a simplistic division of the actions which came to be available for instances of damnum iniuria datum.^26 According to him, the main action, the actio legis Aquiliae directa , will lie “si quis praecipue corpore suo damnum dederit” , that is, in cases where a person causes loss immediately by his bodily force. On the other hand, he says that an actio utilis (an action based on the policy of the statute) can be brought if the damage is caused in any way other than corpore suo. This means that where damage is done to a thing ( corpori ) but not by the physical act of the delinquent ( corpore ) then the actio utilis applies. An example of this is cited as where one shuts up the slave or animal of another so that it dies of starvation. Finally, an actio in factum (an action on the case) can be brought where damage was done neither corpore nor corpori , that is, where there is neither bodily force by the delinquent nor actual damage done to a thing. Such an instance would be where someone out of pity frees another’s slave from chains and lets him escape. The accuracy of this tri-fold division has been debated.^27 Perhaps Ulpian’s statement in D.9.2.7.6 is more helpful in elucidating the distinction between the classes of action available. It is said that he here attempted to formulate a clarifying principle: “Celsus autem multum interesse dicit, occiderit an mortis causam praestiterit, ut qui mortis causam praestitit, non Aquilia, sed in factum actione teneatur. Unde adfert eum qui venenum pro medicamento dedit et ait causam mortis praestitisse, quemadmodum eum qui furenti gladium porrexit: nam nec hunc lege Aquilia teneri, sed in factum.” 28 The basis of the actio directa is thus occidere ,^29 whilst the basis of the actio in factum is causam mortis praestare - indirect killing or the
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(^26) Institutes 4.3.16. (^27) Justinian founds his classification on a passage given by Gaius in his Institutes (3.219). In this passage Gaius expressly says that the direct action is applicable only “si quis corpore suo damnum dederit”, and that if the damage was done in any other way ( alio modo ), then actiones utiles should be employed. Accordingly, Gaius makes only two divisions. On the other hand, some fragments of the Digest distinguish only between the direct action and the actiones in factum. For example, Paul clearly says that in the case of damage not coming under the statute itself, an actio in factum is applicable: “ in damnis, quae lege Aquilia non tenentur, in factum datur actio ” (D.9.2.33). (^28) “Celsus says that it matters a great deal whether one kills directly or brings about a cause of death, because he who furnishes an indirect cause of death is not liable to an Aquilian action, but to an actio in factum , wherefore he refers to a man who administered poison instead of medicine and says that he thereby brought about a cause of death in the same way as one who holds out a sword to a madman; and such a man is not liable under the lex Aquilia but to an action in factum .” ( Mommsen , p 279.) (^29) This originally meant “beating to death” in the strictest sense of the word, either by one’s hand or by a weapon. Gradually the jurists went beyond this original notion of occidere , and thus Labeo grants the actio directa in the case of poisoning a slave, provided that the wrongdoer actually administered the poison himself (D.9.2.9). Beyond this point the jurists speak not of occidere but of mortis causam praestare.
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damage arising out of even an apparent omission to act, for it is possible to apportion blame even where no discernible act is performed.^36 The nature of the development of the term iniuria also supports the theory that, in determining liability, the jurists were principally concerned to establish blame rather than to identify a specific act or omission. To incur Aquilian liability it is said that the act which causes the damnum (accepted as meaning “loss”) must be committed iniuria. That is, there must be occidere iniuria according to the first chapter and urere, frangere, rumpere iniuria according to the third. Discussing Justinian’s conception of the meaning of the word iniuria^37 Evans-Jones and MacCormack conclude that “at this level it simply expresses the fact that for there to be an Aquilian action the defender must have acted wrongfully”.^38 For Lawson, the effect of the word iniuria was that in order to incur liability the defendant “must not have acted iure , i.e. in pursuance of some right”.^39 MacCormack concurs with this, saying: “at the time of the enactment of the chapters, iniuria was understood in the sense of non iure , without right. Where damnum had been caused, then either the plaintiff had to show that the defendant had not acted in pursuance of a right, or the defendant had to show that he had a right which justified the infliction of the damnum .”^40 However, most scholars agree that by the time of the Principate this regime of strict liability had been replaced by one based on deliberate (dolus) or non-deliberate fault (culpa). 41 Indeed, MacCormack tells us that: “in developed classical law the stage had been reached in which iniuria itself could be explained in terms of dolus and culpa. Ulpian and Paul explain that damnum iniuria datum is to be taken as that which happens dolo or culpa .”^42 So we see that where the determination of iniuria was once objectively based, its interpretation in the classical era in terms of dolus and culpa injected a subjective element. This is because the words dolus and culpa would have had a moral connotation in ordinary Roman usage, and therefore to use such criteria in determining liability suggests that the accused’s role was evaluated in moral terms. Again, this points away from a concern specifically with acts or omissions in imputing liability, revealing instead a preference simply to identify blameworthiness. This is supported by Lawson who suggests that the actual reason for the shift in emphasis from iniuria to culpa and dolus may have been “simply as an
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(^36) This approach can be seen also from the practices of modern English criminal courts whereby a “stretched actus reus doctrine” enables the conviction of a defendant whom the courts consider to be undeserving, but who, because he did not strictly perform an act, technically should not incur liability. Such relaxation of the rules similarly enables the acquittal of a deserving defendant in appropriate circumstances: see Stannard, “Stretching the Actus Reus” (1995) 30 Irish Jurist 20 0 - 220. The modern English law in this respect will be considered more fully at a later stage in this paper. (^37) Justinian, Institutes 4.3.2-8. (^38) Evans-Jones and MacCormack, The Aquilian Act , p 4. (^39) Lawson, op cit at note 34, p 15. (^40) MacCormack, “Aquilian Culpa” in Daube Noster: Essays in Legal History for David Daube (1974) 201-224 at 201. (^41) Evans-Jones and MacCormack, op cit at note 38, p 4. (^42) MacCormack, op cit at note 40, p 201.
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answer to the question whether the defendant was ‘to blame’ for the death or damage.”^43 That the jurists came in the classical era to be concerned primarily with the location of blameworthiness finds support also from the evaluation of damages under the third chapter of the lex. As Jolowicz says: “It has always been a stumbling block to commentators that, according to the literal interpretation of the text, even where an object is only injured, not destroyed, the highest value it bore during the preceding thirty days must be paid by way of compensation to the owner.”^44 However, Daube argues that damages under the third chapter of the lex Aquilia were originally assessed upon the interesse principle, with the return to the arbitrary method of fixed damages only taking place in the classical era.^45 This development supports the present contention that the concern of the classical jurists was to locate blameworthiness, for a punitive rather than compensatory assessment of damages would have created a greater concern to penalise only genuinely reprehensible persons. The criterion of culpa illustrates this emphasis on blameworthiness particularly well. MacCormack says that three main approaches have been taken with regard to the interpretation of culpa in the context of the Lex Aquilia , namely: (1) that culpa is negligence , the failure to exercise the care of a bonus paterfamilias , and that it had this meaning both in classical and in later law; (2) that culpa in classical law expresses imputability , that is to say the causal connection between the act of damage and the person who committed it; and (3) that, at any rate in classical and in later law, culpa expresses fault , conduct which can be considered as a matter of reproach on the part of the defendant.^46 Writers on the subject find themselves on either side of the great divide between culpa as negligence and culpa as fault. MacCormack discusses in his various studies the meaning of culpa and states that it is to be treated as fault not negligence.^47 He says that to translate culpa as negligence suggests that a principle of foreseeability operated in Roman law as much as it did in English law, and that the jurists asked in each case ought the defendant to have foreseen that his act or omission would cause damage.^48 This position, he states, could only be maintained through a distortion of the way in which the jurists actually operated. His conclusion is not that culpa is negligence, but that carelessness is a species of culpa so that “among the state of affairs which constitute culpa are lack of skill
( imperitia ) and carelessness ( neglegentia ).”^49 Texts taken by other
commentators to evince culpa generally as negligence, for example
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(^43) Lawson, op cit at note 34, p 37. (^44) Jolowicz, op cit at note 12, p 224. (^45) According to Daube, the compilers of the lex Aquilia wanted to revolutionise the compensation system by aiming to restore only the actual damage sustained in any particular case. This is the interesse principle of compensation. However, when liability under the third chapter came to encompass inanimate objects it became necessary to return to the more rigid evaluation of damages. For a full discussion on this development see Daube, op cit at note 8. (^46) MacCormack, op cit at note 40, p 202. (^47) See particularly: “Aquilian Culpa”, op cit at note 40 ; “Aquilian Studies”, Studia et Documenta (1975) ; and Culpa (1971). (^48) MacCormack, op cit at note 40, p 202. (^49) Ibid.
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the jurists do give an action it is on the grounds that the defendant has been at fault or has behaved reproachfully, and this is the only truly common thread running through the texts, to which we must now turn. First of all, we must refer again to the text D.9.2.8.pr.,^56 in which Gaius says that a surgeon who has operated on a slave successfully, but has afterwards failed to attend to his care, is liable on account of the death of the slave. The compilers of the Digest link this statement with D.9.2.7.8, in which Proculus says that a doctor who operates negligently on a slave will be liable under either the contract for services or under the lex Aquilia. The text D.9.2.8.pr. has been taken to suggest that liability was imputed in cases of pure omission, for in this text the surgeon has omitted to attend to the necessary aftercare and is held liable for the death of the slave. However, it is sometimes sought to explain liability in this text in terms other than omission. For example, Grueber argues that “the omission is doubtless preceded by a commission, that is, the act of incision, which is closely connected with it. We even say: incision and the following non-attendance form together only one whole, namely, the operation upon the slave, and this operation has not been performed as it ought to have been. Accordingly, it is the improper performance of an act to which the death of the slave is due.”^57 The real cause of the death is not merely the non-attendance to the incision, but also includes the incision itself, a positive act to which the damage complained of is partly due. There is also Buckland’s argument that “one who sets a state of things going must take the further steps which it renders necessary”. 58 Buckland and McNair would even say that “in Roman law a surgeon who had operated at once came under an obligation to give or arrange for after-treatment”.^59 The surgeon is placed under a duty to perform the aftercare since he has necessitated this by operating upon the slave. The theories of Grueber on the one hand, and of Buckland and McNair on the other, are comparable with the different judicial approaches taken in the modern English criminal law case of R v Miller.^60 In this case the defendant fell asleep in a derelict house in which he was squatting. He woke up to find that he had accidentally set fire to his mattress with a cigarette, but decided, since he had nothing to put the fire out with, to leave it burning and move to a different room. The fire subsequently spread and caused damage to the house. Miller was charged with arson
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apply rules or make use of generalisations in their reasoning on culpa. This is because some degree of generality was attained in their treatment of the facts of a case; for example, it came to be established that facts of a certain type always constituted culpa , such as imperitia (lack of skill), infirmitas (lack of strength), nimia saevitia (excessive brutality), and neglegentia (carelessness). Accordingly, “the jurists did not ask, were the particular facts which disclosed some element of lack of skill or carelessness sufficient to constitute culpa? They asked, did the facts constitute lack of skill ( imperitia ) or carelessness ( neglegentia ); if so it followed that culpa was present.” ( Culpa, op cit at note 47, p 128.) (^56) Above at note 17. (^57) Grueber, op cit at note 3, p 210. (^58) Buckland, op cit at note 15, p 333. (^59) Buckland and McNair, Roman Law and Common Law (1952), pp 374, 375. (^60) [1982] QB 532 (CA); [1983] 2 AC 161 (HL).
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contrary to section 1(1) and (3) of the Criminal Damage Act 1971. His defence was that at the time he started the fire he lacked the necessary mens rea , since he was asleep. The court at first instance, the Court of Appeal, and the House of Lords were all unanimous in rejecting this argument, but their lines of reasoning differed. At Leicester Crown Court, the Recorder analysed Miller’s conduct in terms of a culpable omission to act.^61 The criminal law normally does not impose liability for omissions, but the situation may differ where the defendant was under a duty to act. In this case, it was held that the accused, having by his own act started a fire on the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, came under a duty to take some action to put it out. A distinction had to be drawn here between the case of someone coming across an already existing dangerous state of affairs and doing nothing, in which case the law would not impose any duty to act, and the very different case of someone who, either accidentally or deliberately, was responsible for the dangerous state of affairs yet failed to take steps to deal with it.^62 In the latter case, the court ruled, the criminal law would impose on the person involved a duty to take action. Miller was duly convicted on the basis of this “duty” theory. However, the approach taken by the Court of Appeal^63 in upholding the guilty verdict was different. May LJ held that “an unintentional act followed by an intentional omission to rectify that act or its consequences can be regarded in toto as an intentional act”.^64 Thus, May LJ treated the whole course of conduct of the accused, from the moment of the unintentional commission through the intentional omission until the time the damage was complete, as a single continuous act. This is similar to Grueber's theory, in that it does not separate the omission from the previous commission but instead states the damage to be the result of the improper performance of an act. Buckland and McNair’s theory that the omission incurred liability because it was preceded by an assumption of responsibility is precisely the approach taken by Lord Diplock when the case reached the House of Lords.^65 Lord Diplock referred to the first instance judgment on the case and gave preference to this “duty” theory (which he modified to “responsibility”) over that of the “continuing act”.^66 This is similar to Buckland and McNair’s expression of the approach taken by the Roman jurists, in that Lord Diplock is saying in effect that where someone has by his own act set, as it were, the wheels of damage in motion, upon becoming aware of the potential damage that person has a responsibility to the person to whom the endangered property belongs. Returning to D.9.2.8.pr., which of the suggested theories is to be preferred
- Grueber’s theory of improper performance of a positive act or Buckland and McNair’s duty theory? It is submitted that, although both of these theories are perfectly workable, they involve essentially groundless and basically unnecessary presumptions. It is suggested that MacCormack’s interpretation is the better one. He says that Gaius takes the surgeon’s neglect to be culpa on his part and, although failure to carry out the
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(^61) [1982] QB 532 at 534, 535. (^62) Stannard, op cit at note 36, p 206. (^63) [1982] QB 532. (^64) Ibid at 540. (^65) [1983] 2 AC 161. (^66) Ibid at 179.
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It is suggested that the only conclusion which the text D.9.2.27.9 does permit us to make as to why liability was incurred is that the defendant was considered to be blameworthy. In this connection it is worth referring again to Buckland and McNair’s comparison between the defendant in D.9.2.27.9 and the uninvolved passer-by.^73 The obvious distinction between the two is that the passive bystander is blameless , whilst the person who falls asleep whilst supervising a fire clearly is not. And this conclusion may have been no more than a simple matter of common sense. D.9.2.27.9 raises a question commonly asked by modern lawyers: where the definition of a crime requires proof that the defendant caused a certain result, can D be said to have caused that result by doing nothing? Hogan argues that results cannot be “caused” by omission, and that it therefore ought to follow that no one should be liable for a “result” crime because of a mere omission, for, “if any proposition is self-evident (and, arguably, none is) it is that a person cannot be held to have caused an event which he did not cause”.^74 Given that arson is a result crime, that is, a crime which is not complete until certain consequences take place, Hogan would presumably have denied liability in D.9.2.27.9. However, whilst Hogan concludes that results may never be caused by inaction, he does say that: “On the other hand, a result may be caused by the defendant’s conduct and the totality of the defendant's conduct causing a result may properly include what he has not done as well as done. In such cases I doubt whether it is very, or at all, helpful to analyse each phase of the defendant's conduct as one of omission or commission. The question is simply did the defendant’s conduct cause the result?”^75 This approach is certainly more practical than being unduly preoccupied with questions purely of act or omission. This is because analysing a particular defendant’s actions in isolation may conceal their blameworthiness, for an act or omission taken on its own may well be benign, for example, it can hardly be said to be reprehensible to fall asleep, as the defendant did in D.9.2.27.9. However, to do so whilst ostensibly supervising a fire is indeed blameworthy. Therefore, by analysing the defendant’s conduct in its entirety it is possible to locate blameworthiness and hence to impute liability. On this reasoning Hogan too would have found the defendant in D.9.2.27.9 liable. Analysing the defendant’s guilt in terms of his entire conduct presents problems in modern law from the point of view of the requirement of coincidence of actus reus and mens rea. This was a problem which had to be addressed in Miller , for arson being a “result” crime, the conduct which brought about the relevant result could well have consisted of a wide variety of acts and even omissions taking place over a period of time.^76 This meant that the defendant’s state of mind may have varied during the relevant period making it difficult to find any point of coincidence of actus reus and mens rea. However, as Stannard points out, the courts have been able to circumvent the coincidence problem in this sort of case too, either by adopting the notion of a continuing act, or by analysing the case as one
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(^73) See text above at note 70. (^74) Hogan, “Omissions and the Duty Myth” in Criminal Law Essays in Honour of J. C. Smith (1987) 8 5 - 91 at 85. (^75) Ibid at 88. (Emphasis added.) (^76) Stannard, op cit at note 36, p 205.
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where liability for omission may be imposed.^77 Lord Diplock’s handling of
the Miller case illustrates the flexibility of the courts in this regard:
“if at the time of any particular piece of conduct by the accused that is causative of the result, the state of mind that actuates his conduct falls within the description of one or other of the states of mind that are made a necessary ingredient of the offence of arson by section 1(1) of the Criminal Damage Act 1971... I know of no principle of English criminal law that would prevent his being guilty of the offence created by that subsection. Likewise I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures which lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.”^78 So the problem of coincidence is solved by looking not merely at the result, but at the conduct which led to that result, which may consist of a variety of elements in conjunction.^79 This is Hogan’s point exactly. The Miller case exhibits a certain willingness by the courts to find the particular defendant guilty even though strict application of the law would not have permitted this. That case does not, however, reveal a policy of liability in cases involving omission to act. Rather, it reveals that where common sense, if not technically the law, dictates that the defendant is to blame for the damage incurred and that defendant is held to be undeserving, then liability will result. The case R v Gibbins and Proctor^80 further illustrates the modern court’s willingness to stretch the law to find an undeserving defendant guilty even though liability could well have been avoided. This case again involved an apparent omission to act, this time in circumstances giving rise to death or bodily injury. Stephen viewed the occasions where one is held liable for failing to act in this context as very limited, saying that, “it is not a crime to cause death or bodily injury even intentionally, by any omission.”^81 He provides the following illustration: A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence.^82 However, Stephen does say that an exception to this would be where A is B’s parent. A would be guilty of murder for he has a duty to act here.^83 The facts of R v Gibbins and Proctor were as follows. Walter Gibbins and Edith Proctor were living together. Also living with them were Gibbins’ daughter Nelly who was seven, and other children. These other children were healthy, but Nelly was kept upstairs apart from the others and was starved to death. There was evidence that Proctor hated Nelly; she cursed and hit her. It was said that she had a strong interest in Nelly's death. Gibbins was earning good and regular wages, all of which he gave to Proctor. When the child, Nelly died, Proctor told Gibbins to bury her out of sight, which he did.
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(^77) Ibid. (^78) [1983] 2 AC 161 (HL) at 175, 176. (^79) Stannard, op cit at note 36, p 207. (^80) (1918) 13 Cr App R 134 (CCA). (^81) Stephen, A Digest of the Criminal Law , (4th Edition, 1887), p 154. (^82) Ibid. (^83) Ibid.
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such conduct would amount to a positive act or a mere omission. Stannard clarifies the importance of the distinction in this instance, saying: “if it was an act, the legal position was clear: neither the medical team nor anybody else was entitled to take active steps to shorten B’s life. But if it was an omission, the question became a much wider one, namely, whether the doctors were under a duty to continue the treatment despite being of the view that this was neither worthwhile nor in B’s best interests.”^88 The traditional distinction between acts and omissions is based on Austin’s conception of a “willed muscular movement” whereby acts “properly so called” are movements of the muscles accompanied by some degree of volition on the part of the actor.^89 Stannard points out that on this traditional analysis there seems to be “no escaping the conclusion that the proposed course of conduct, insofar as it involved the movement of the muscles in the course of removing B’s feeding tubes, was a positive act, and therefore no more permissible in the circumstances than a lethal injection would have been.”^90 However, in the House of Lords Lord Goff endorsed the view taken by Glanville Williams that what the doctor does when he switches off a life support machine “is in substance not an act but an omission to struggle”,^91 and that this omission “is not a breach of duty by the doctor, because he is not obliged to continue in a hopeless case”.^92 Lord Goff explained his reasoning in the following terms: “I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example, where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place...”^93 Stannard argues that the court here is applying the “stretched actus reus doctrine” to convert what would otherwise be classified as a positive act into a mere omission, so that in this way the doctrine can be used to exculpate as well as to condemn.^94 This is done because it would hardly be a reasonable and just usage of the law to convict a doctor in such circumstances even though it would legally be possible to do so. The doctor is not blameable, not undeserving, and so we feel that liability should not be visited upon him. It is, therefore, possible to identify a common theme running through the modern cases which involve apparent omissions to act, and this theme is similar to that presently advanced with regard to the Roman texts. That is, English law in general is not “in fact, ...particularly interested in whether an act is primarily positive or negative: its attention is focused rather on the question whether the conduct of the defendant is legally blameworthy. All that can be said
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(^88) Stannard, op cit at note 36, p 213. (^89) Austin, Lectures on Jurisprudence , (5th edition, 1885), pp 411-412. (^90) Stannard, op cit at note 36, p 214. (^91) [1993] AC 789 at 814. (^92) Ibid. (^93) Ibid. (^94) Stannard, op cit at note 36, p 215.
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regarding a differentiation between ‘commission’ and ‘omission’ is that there will be no liability for failing to act in circumstances where it is considered that a reasonable man would not have acted.”^95 With this in mind, we may return to the Roman texts. The proposition presently advanced, namely, that the Roman jurists assessed liability in terms of blameworthiness, thereby readily allowing liability for omissions, is revealed also by their apparent tendency to impute liability only insofar as the defendant was actually culpable. A number of texts are relevant here. For instance, in D.9.2.30.4 Paul says that if a slave is wounded, but not mortally, and he dies of neglect, the action will be for wounding, not for killing.^96 The culprit’s actual act of wounding is taken to be a completed act, for he is not considered to be liable for anything other than wounding. But the slave has died and who is responsible for his death if not the person who inflicted the wound, for presumably if he had not been wounded he would have lived until his life ended naturally? However, the jurists did not treat the case in this way and the obvious inference to draw from their handling of D.9.2.30.4 is that the owner was considered to have been responsible for the death of his slave by failing to attend to him. Of course, this is not to say that the owner is liable for the death since one cannot be held liable for damaging one’s own property. However, if we imagine that the wounded slave had fallen into the hands of someone other than his owner, who then neglected him so that he died, then we can presume from D.9.2.30.4 that this person is liable for the death of the slave. In this way, there does seem to be liability for pure omission to act for the neglect itself is seen as causing the death? At any rate, the party who wounded the slave is held liable only for injuring him and not for killing him. D.9.2.30.4 is comparable to the case of the doctor who omits the aftercare of the slave on whom he has successfully operated, so that the slave dies.^97 However, there the surgeon is made liable for the death of the slave. What is the difference? The surgeon has made the incision and strictly speaking it is this which lets in the operation of natural forces. This seems analogous to the wound inflicted by the defendant in D.9.2.30.4 for which liability was only for wounding. Grueber proffers that the difference lies in the fact that in D.9.2.30.4 the wound is not mortal: “[S]trictly speaking, an actio de occiso seruo seems to be excluded, not because there is contributory negligence of the injured party but because the act of damage does not constitute an occidere in the eye of the law, for this notion implies that death necessarily results from a certain act, whether at once or not till after some time; it is accordingly only a mortal wound which can entail liability under the first chapter of the Lex Aquilia .”^98 We are not told of the nature of the wound created by the surgeon in the course of the operation, but evidently it was capable of leading to death. Is this the sense in which the word “mortal” is used by Grueber? If this is
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(^95) Price, “Aquilian Liability for Acts of Omission”, Acta Juridica (1962), p 77. (^96) On the other hand, Alfenus says that if a slave were to die as the result of an assault and without any contributory factor like neglect on the part of his owner or lack of professional skill in a doctor, an action may properly be brought for killing him wrongfully (D.9.2.52). (^97) D.9.2.7.8 (above at note 17). (^98) Grueber, op cit at note 3, p 230.
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implied since we are told that there were no other factors contributing to the slave’s death. This text implies that negligence on the part of the owner or lack of professional skill in a doctor could have an impact on the disposition of liability. Buckland explains this by saying that if I wound a slave and he is treated by a doctor who treats him unskilfully so that he dies, I have not killed; no doubt the wounding caused the doctor’s intervention, but it did not cause his negligence.^103 He adds that where this might today be thought of as a question of remoteness of damage, the Romans thought of it in terms of an intervening independent cause. The notion seems to be that one is not responsible for the harm if it would not have occurred but for someone else’s contemporary or supervening negligence.^104 Similarly, a master’s failure to attend to his slave is to be treated as an intervening independent cause. However, in order to accord with this article’s suggestion that liability is for blameworthiness and only insofar as one is blameable, these intervening occurrences or non- occurrences could only be considered to be independent causes if the wound inflicted was not of a mortal nature. This is because if the wound was mortal in nature the slave would have died whether or not his master enlisted the help of a surgeon and the owner should not be considered to have contributed to his slave’s death, thereby enabling the culprit to escape with reduced liability, for having failed to attend to his slave in a situation where that attention would have been in vain. These last mentioned texts are indeed difficult and lead to much complexity, but a significant feature is that the jurists seemed concerned to impose liability only insofar as the defendant was actually culpable. This is illustrated by the textual references to whether or not the particular wound was mortal in nature,^105 and also by the inferences that an apparent omission to act, for example neglect of a wounded slave, could prevent an action for killing, thus attributing to that omission a degree of culpability^106 and simultaneously restricting the liability of the defendant. Significantly, the question of whether to impose liability for killing or for mere wounding bore little practical value since determining which chapter of the lex the loss in question came under was relevant only to the calculation of damages, and an inherent anomaly of Aquilian liability was that full damages were generally possible even for mere wounding.^107 However, this concern to correctly classify an offence as coming under either chapter one or two despite the lack of practical value of this, illustrates precisely the point that blameworthiness was the primary concern. That is, the jurists were reluctant to impose greater moral blame than was actually merited, whether or not the amount of damages was affected. It remains to consider texts D.9.2.28.pr. and D.9.2.31.pr. In D.9.2.28.pr., Paul says that people who dig pits to catch bears and deer are liable under the lex Aquilia if they dig pits in a public place and something falls in and is damaged, but there is no such liability for pits made elsewhere, where it is usual to make them. D.9.2.28.1 says that this action is only allowed if
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(^103) Buckland, op cit at note 15, p 334. Compare Jordan (1956) 40 Cr App R 152. (^104) Ibid. (^105) However, it does not seem unreasonable to consider all wounds which result in death (whether or not death could have been avoided thereafter, for example, by providing medical care) as mortal in nature for presumably the life in question would not have ended when it did had it not been interfered with. (^106) This is not, of course, to say that such an omission by an owner could incur liability, for no one could be held liable under the Lex Aquilia for damaging his own property. (^107) See text above at note 23.
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no warning was given and the plaintiff did not know of the danger, nor could have foreseen it. This may be taken with D.9.2.31.pr. where Paul says that if a pruner throws down a branch from a tree and kills someone passing underneath, he is liable only if it falls down in a public place and he had failed to shout a warning so that the accident could have been avoided. There will be similar liability if the pruner was working on private land which had a pathway. Common to both cases is that liability ensues if no warning of the imminent danger is given. Do these cases therefore involve liability for omission? Smith and Hogan discuss a similar scenario in which D, a cleaner, puts polish on a floor and then, in breach of his duty, omits to display the notice with which he has been provided warning users of the building of the dangerous state of the floor. P slips on the polish and falls. Smith and Hogan ask whether this is a mere omission.^108 They note that the Criminal Law Revision Committee treated it as such. But one member of that Committee, Glanville Williams, said that: “in such circumstances of act/omission the total conduct could and should be regarded as an act, so the cleaner could be guilty of the offence of causing injury recklessly...” Smith and Hogan discuss an alternative scenario where it was the duty, not of the cleaner, but of the janitor, to place the notice on polishing day.^109 Here it could not be said that the janitor had caused the injury by an act, for he did no act whatever. Williams would presumably hold the cleaner liable in the original case, but not the janitor in the alternative version. Smith and Hogan ask if there is a causation problem in this case: spreading the polish was a cause, but the janitor did not spread the polish and the question is whether the omission to display the notice was also a cause. Would the injury not have occurred but for that failure? If the person who fell was blind and would not have seen the notice anyway, the omission to display it was not a cause. The answer could depend on the presence or absence of a duty. The janitor would not be responsible for the blind plaintiff who slipped and was injured, so long as he had put out a sign and provided that this was all that was required of him. With regard to the Roman law texts, Grueber says that: “such an act as throwing down branches or anything else in a place of public resort requires that precautionary measures be previously taken in order to avoid damage to others; otherwise such acts are not performed as they ought to be, and therefore the doer is in culpa .”^110 According to Grueber then, the pruner had a duty to call out a warning, and this duty was brought about by the nature of the task he undertook. So according to him the case does not involve a bare omission. Grueber says that it is evident that the damage is not due to the omission of the warning, but to the subsequent act of throwing down the branch, for even if the warning had been given, the damage might have happened anyway, for example, if the passer-by had been deaf.^111 However, here no liability would attach to the act of throwing down the branch, for the man who threw it down would have done what a careful man - a diligens
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(^108) Smith and Hogan, Criminal Law Cases and Materials , (6th edition, 1996), p
(^109) Ibid. (^110) Grueber, op cit at note 3, p 212. (^111) Ibid.
