The Parallel Universes of Baker, Joblin and Julian: Causation and Law

Published date01 January 2013
Date01 January 2013
AuthorBoudewijn Sirks

I first take you to the first half of second century Rome, centre of the world, densely inhabited by Romans and foreigners alike, embellished by temples and monuments, by the houses of the rich and beautiful. But also a city full of slaves, property assets. In one of Rome's many streets we see Julian's slave walking. He turns around the corner and is suddenly in a dark alley. There his destiny awaits him: Aulus hits him and robs his purse. Julian's slave falls on the ground, alive but deadly wounded. Life slowly flows out of him. For Brutus, Aulus’ associate in crime, it does not go quickly enough, better no witness if he is going to die anyway, and he hits Julian's slave again, with immediate result: the poor man is at once dead. Both run away but are caught at the end of the alley. They appear to be slaves of different and well-to-do masters, so Julian sees enough opportunity to recover the value of his asset, his slave. But whom is he going to sue?

At the same time, in another parallel universe – thanks to Stephen Hawking's recent book The Grand Design1

S Hawking and L Mlodinow, The Grand Design (2010).

I know now that this is possible and probable – Mr Baker has a problem. Some time before, he has been hit by a car when crossing a street. It was the driver's fault, but that did not alter the outcome: his left leg was badly hurt, he could as a result of his wounds not work as hard as before and suffered loss of income, while he suffered a persistent pain in his left leg. And now, armed robbers have burgled his business and shot him in the same leg, so that it had to be amputated above the knee. But the pain has stopped. It was a remedy I expect he had never contemplated. Baker sues the car driver for loss of earnings, but this person claims that he should pay up till the moment of amputation, since this has removed the entire effect of his accident. The burglar on the other hand says he only has to pay for the additional loss of earnings. What will Baker receive from each

The Romanists amongst you will already have recognised the first case. It is dealt with in the famous text of the Digest, 9.2.51pr., a fragment of Julian's Digest:

A slave who had been wounded so gravely that he was certain to die of the blow was appointed someone's heir and subsequently died, struck by the blow from another (assailant). The question is whether action under the lex Aquilia lies against both (assailants) for killing him. The answer was given as follows: A person is generally said to have killed if he furnished a cause of death in any way whatever, but a person is as the lex Aquilia is concerned only held liable who furnished a cause of death by some application of force, done as it were by one's own hand, for the meaning of the word derives from ‘to slay’ and ‘manslaughter’. Furthermore, it is not only those who wound so as to deprive at once of life who will be liable for a killing in accordance with the lex but also those who inflict a wound by which somebody will certainly die. Accordingly, if someone wounded a slave mortally and then after a while someone else slew him so, that as a result he died sooner than would otherwise have been the case on account of the first wound, it is clear that both assailants are liable under the lex Aquilia.

The modern lawyers will certainly know the second case, Baker v Willoughby,2

[1970] AC 467.

and I hope that all of you know both. What have they in common? In both cases it seems as if a first cause is overtaken by a second cause. We can apply the “but for” test – the English equivalent of the conditio sine qua non test – and indeed, in both cases the first cause disappears. Is that correct

The lex Aquilia applied to the case of the slave. Wounding fell under chapter 3, killing under chapter 1. It was beyond doubt that B had killed the slave. But A too? Julian's solution was to allow a full claim for killing a slave against both perpetrators, and he argues as follows:3

D 9,2,51 pr.

Furthermore, it is not only those who wound so as to deprive at once of life who will be liable for a killing in accordance with the lex but also those who inflict a wound by which somebody will certainly die.

It is the second part, “a wound by which somebody will certainly die” (ex vulnere certum esset aliquem vita excessurum) which is important. A had deadly wounded the slave, so he had killed him. How could Julian ignore the over-taking cause? Did the slave indeed die from A's wounding? This stuns modern commentators

These questions had already been posed and answered by contemporaries. Thus did Celsus say about the same situation, that only B could be held liable for killing, while A only for wounding:4

D 9,2,11,3.

Celsus writes that if one attacker inflicts a mortal wound on a slave and another person later finishes him off, he who struck the earlier blow will not be liable as is the case if he killed, but as is the case if he wounded, since he [the slave] actually perished as the result of another wound. The later assailant will be held liable because he did the killing. It seems thus to Marcellus and it is the more likely.

Gaius expressed the same opinion, be it for the case that the same person wounds and kills a slave: he is culpable of two delicts under the lex Aquilia, for wounding and for killing:5

D 9,2,32,1.

If the same person wounds and then afterward kills the same slave also, he will be held liable for both a wounding and a killing; for there are two delicts. It is otherwise when one kills by many wounds delivered in the same attack; for then there will be but one action for killing.

Is it possible that Gaius did not think of a deadly wound? Well, in that case the question would likely not have arisen. We see here two more restricted interpretations. A kill is a kill, and by that standard any wound is not a kill

But we are not yet at the end of this story. The fact alone that the question was posed proves that it was not so simple as it seems and that it kept Roman legal minds busy. It may have been instigated by the view on another point. The lex Aquilia stated that repairs for the killing of a slave (or animal) amounted to his (or its) highest value in the year preceding the death. That made it necessary, and important, to agree on the moment of death. If a slave did not die at once but due to a wound, the year would, progressively, comprehend the period of deteriorating health and the parallel decreasing value of the slave. Could something be done? Indeed, Julian offered a solution. In case of a deadly wound (proven deadly by its outcome), the year should be reckoned from the moment of wounding.

That was not to the taste of Celsus who, as I said, did not tamper with death: it was the moment the last breath was exhaled. But the other jurists followed Julian and with good reason:6

D 9, 2, 21 pr.

The lex Aquilia states: to “whatever was the highest value of the slave in this year.” This clause contains the assessment of the damage that has been done. 1. Now the year is reckoned backward from the time when the slave was killed; but if he was mortally wounded and later died after a long interval, we shall reckon the year, according to Julian, from the time he was wounded, though Celsus writes to the contrary.

Although no argument is given, it is easily divined. It could not have been the purpose of the lex Aquilia to saddle up the owner with lower repairs, simply because death came later. But this interpretation must have made the case of the slave twice slain more complicated. How are we to interpret Julian's suggestion? Are we allowed to take the moment of wounding as the moment of death because it is unavoidable that death will enter on account of the wound or is it because later on the wound proved to be deadly indeed, by the death of the slave? I anticipate by framing the question thus the sequel of my paper, as I shall explain later. But in the line of the first text, D. 9.2.51 pr., hi, quorum ex vulnere certum esset aliquem vita excessurum – “who inflict a wound by which somebody will certainly die”, suggests the first, viz. that foreseeability is the criterion for Julian.

Against that goes another text, D. 9,2,15,1, where again Julian is cited, but he has here a different opinion:

If a slave who has been mortally wounded has subsequently his death accelerated by the collapse of a house or by shipwreck or by some other sort of blow, one cannot sue on account of him being killed, but, actually, him being wounded; but if he dies from a wound after he has been freed or alienated, Julian says one can sue on account of him being killed. These situations are so different for this reason: because he was actually killed by you when you were wounding him, which only became apparent...

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