[9] By way of a legal fiction, 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the actio injuriarum root of Scots law infuses the [nominate] delict assault as much as any development of the lex Aquilia'[10] and wrongdoing that results in physical harm to a person may give rise to a claim of both damages and solatium.
Hence, there remains scope for the law to protect non-patrimonial interests such as privacy or dignity on grounds that 'the actio iniuriarum is sufficiently wide to cover any deliberate conduct causing affront or offence to the dignity, security or privacy of the individual'[13] although few modern cases have attempted seriously to argue this.
In practice, delictual actions which call before the courts of Scotland are, if not concerned with a particular nominate delict (such as defamation), predicated on a claim that 'loss' has been caused by wrongful conduct (and so based on Aquilian liability rather than on the actio iniuriarum).
The modern Scots law pertaining to reparation for negligent wrongdoing is, as might be expected from the above, based on the lex Aquilia and so affords reparation in instances of damnum injuria datum - literally loss wrongfully caused - with the wrongdoing in such instances generated by the defender's culpa (i.e., fault).
In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make reparation.
If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately caused the loss (damnum) complained of.
The landmark decision on establishing the existence of a duty of care, for Scotland and for the rest of the United Kingdom, is the House of Lords appeal case, Donoghue v. Stevenson[15] The Roman lex Aquilia was originally concerned only with damage directly done to certain types of property - slaves and 'four-footed beasts'.
[18] Since that time, it has been recognised in Scotland that one's physical - and by extension one's mental - health might be 'damnified' for the purposes of an Aquilian action, hence intentional, reckless or negligent invasion of the property, person or psychiatric wellbeing of another will, in principle, generate liability for reparation in delict.
[23] An actio iniuriarum requires that the conduct of the defender be 'contumelious'[24] - that is, it must show such hubristic disregard of the pursuer's recognised personality interest that an intention to affront (animus iniuriandi) might be imputed.
In determining what constitutes sufficient precautions several factors apply: In Bolton v Stone,[30] a cricket ball was hit out of the ground, over a fence 17 feet high, striking and injuring a passer-by.
It was held that despite the fact that the precautions in place were not sufficient to prevent such harm occurring, the defender had not been in breach of his duty of care.
This was because in the past 30 years a ball had only left the grounds over that fence 6 times, making the likelihood of such an injury merely a remote possibility rather than a reasonable probability.
In Hughes v Lord Advocate,[33] two young boys were playing near an unattended manhole surrounded by paraffin lamps.
Held: even although it was unforeseeable that a child would be injured in such a way in such circumstances, considering that an unattended site such as this would be likely to constitute an allurement for young children it was foreseeable that there was a risk of injury by burning.
In these circumstances the doctrine of res ipsa loquitur (the facts speak for themselves) may be of use to the pursuer since it transfers the burden of proof to the defender.