Aquilian Liability Book Introduction

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ix
Introduction:
The Elements and Structure of Aquilian
Liability
This book is about one of the most important forms of liability created by the South
African law of delict. Because of its historical origin in Roman law, it is usually called
Aquilian liability. Sometimes it is called liability for damnum iniuria datum (or loss
wrongfully caused). As you will learn in the course of this book, there are many rules
determining when a person will be subjected to Aquilian liability. But the most
fundamental of them, which provides the ultimate ground for Aquilian liability in all
ordinary or standard cases, goes as follows:
• If a person committed a legally recognised wrong against another, by
intentionally or negligently causing harm to her person or property in breach of
a legally recognised non-contractual duty owed to her not to do so, and, by
committing such wrong, caused the victim of the wrong to suffer loss which
was not too remote, then he owes the victim of the wrong a legal duty to
compensate her for that loss.
I will call this the ‘basic rule’ of Aquilian liability. It is a complicated rule, particularly
on first acquaintance. To make it a little more comprehensible, I will separate out the
various conditions it imposes in order for a person to be subjected to Aquilian
liability. There are five of them:
(1) The person must have caused harm to the person or property of another.
(2) He must have done what condition (1) specifies by conduct which was either
intended to do so or was negligent.
Copyright © 2020. Juta & Company, Limited. All rights reserved.
(3) He must, by doing what conditions (1) and (2) specify, have committed a
legally recognised wrong against the harmed person because he breached:
(a) a legally recognised non-contractual duty owed to her not to cause
harm by conduct which was intended to do so, or
(b) a legally recognised non-contractual duty owed to her not to cause
harm by conduct which was negligent.
(4) He must, by doing what conditions (1), (2) and (3) specify, have caused the
harmed person to suffer loss.
(5) The loss which he caused, by doing what conditions (1), (2) and (3) specify,
must not have been too remote.
Fagan, Anton. Aquilian Liability in the South African Law of Delict: a Textbook for Students, Juta & Company, Limited, 2020. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/uoct/detail.action?docID=6483135.
Created from uoct on 2022-12-13 11:29:44.
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We can simplify matters even further, by extracting from the basic rule the following
seven ‘elements’ of Aquilian liability:
Harm, conduct, fault (intention or negligence), wrongfulness (or breach of
duty), loss, causation (of the harm and loss), and non-remoteness (of the
loss).
You will be learning a lot more about the elements of Aquilian liability in this book.
Part 1 deals with intention and negligence or, as they are collectively known, fault. It
thus explains the second of the five conditions for Aquilian liability set out above.
Part 2 discusses the element of wrongfulness. Its concern therefore is the two kinds
of breach of duty mentioned in the third condition, namely the breach of a duty not to
cause harm intentionally and the breach of a duty not to cause harm by one’s
negligence. Part 3 looks at two elements. One is causation, which is an aspect of
both the first and fourth conditions. The other is non-remoteness, which features in
the fifth.
I The elements of aquilian liability

It will be useful for you to know a little bit about the various elements of Aquilian
liability right from the start. In this section, I therefore tell you something about intent
and negligence. I briefly discuss causation and remoteness. And I make a few
remarks about wrongfulness (in the course of which I touch briefly on conduct too). I
also provide a short explanation of a distinction which is critical to Aquilian liability
and our understanding of it, but to which this book does not dedicate a part of its
own, namely that between harm and loss.
I am sure that you already have a pretty good understanding of when, for the
purpose of Aquilian liability, a person who caused harm to another can be said to
have intended to do so. For there is a considerable overlap between the concept of
intention employed in the determination of Aquilian liability and the one used in
ordinary speech and thought. However, there are some possible differences. For
example, I intended, in the ordinary sense of that word, to bring something about by
my conduct only if I desired to bring it about by, or understood that it would be an
inevitable side effect of, my conduct. It is often said that, for the purpose of Aquilian
liability, I also intended to bring something about by my conduct if I merely
anticipated or foresaw that my conduct might bring it about. This possible difference
and another one, involving a mental state called ‘consciousness of wrongfulness’,
are explored towards the end of Part 1. But you need not worry about them until
then, and possibly not even thereafter.
It is less likely that you have a good understanding of when, for the purpose of
Aquilian liability, a person who caused harm to another can be said to have done so
negligently. Unlike the concept of intention, the concept of negligence employed in
the determination of Aquilian liability does not correspond very closely to any
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concept in ordinary speech and thought. It is therefore best that I tell you something
right away about the conditions that have to be satisfied before harm-causing
conduct can, for the purpose of Aquilian liability, be said to have been negligent. As
you will learn in the first half of Part 1, which discusses negligence in great detail,
exactly what those conditions are and mean are neither easy nor uncontroversial
questions. For the moment, however, the following statement of those conditions will
do:
• Harm-causing conduct was negligent if and only if a reasonable person in the
position of the harm-causer (1) would have foreseen that it might cause harm
to another and (2) for that reason would have refrained from performing it.
The test above has been phrased in a variety of ways. The first condition is often
expressed by saying that harm, or a possibility thereof, must have been ‘reasonably
foreseeable’, whereas the second condition is on occasion expressed by saying that
harm must have been ‘reasonably preventable’. It is not unusual to find the second
condition split into two sub-conditions, the first being that a reasonable person in
similar circumstances would have taken steps to guard against the foreseeable harm
and the second being that the harm-causer failed to take those steps. More rarely,
the test’s two conditions are rolled into one, requiring simply that the harm-causing
conduct posed a foreseeable and unreasonable risk of harm. In this condensed
condition, the requirement that the conduct posed a foreseeable risk of harm reflects
condition (1) in the test above, while the requirement that the posed risk was
unreasonable reflects condition (2). Finally, note that it is common practice for our
courts to cite the Appellate Division’s judgment in the 1966 case of Kruger v Coetzee
as authority for this test. [1] Consistent with this, the test is frequently referred to
simply as ‘the test in Kruger v Coetzee’.
A comparison of two hypothetical examples may further help you to acquire a
rough and ready understanding of negligence, sufficient to be going on with.

Because the presentation of facts in the two examples (as in hypotheticals generally)
is rather threadbare, it is difficult to make a conclusive judgement about negligence
in respect of either. However, what can be said with complete confidence is that
Daisy is far more likely to have been negligent in the first example than in the
second.
• Daisy drives her motor-boat at high speed across a body of water zoned for
swimmers only. She knows about the zoning. But she is late for a date, and it
is the shorter route home. She is convinced that, it being a freezing winter’s
day, no one could possibly have taken to the water. But she is mistaken.
Philani is in the water. He is struck by Daisy’s boat. The impact breaks several
of Philani’s ribs, his right shoulder, and his left arm. The spinning propeller
lacerates Philani’s face and arms. Philani survives, but requires four
operations.
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He has to interrupt his career as an opera singer for eighteen months. The
operations cost him R500 000. His lost income during the eighteen months is
R2 million.
• The facts are the same as in the example above, except for the following: The
body of water is zoned for motor-boats only. Daisy was driving at a proper
speed and keeping a proper lookout. Philani, who was illegally diving in the
area, popped up to the surface immediately in front of Daisy’s speeding boat
at a distance which made it impossible for Daisy to take evasive action.
We talk about cause and effect, or about one thing resulting from another, all the
time in everyday life – as when we say that ‘her many affairs caused the divorce’ or
that ‘his heart attack was a result of his appalling diet’. So the notion of causation
employed in the determination of Aquilian liability will not be entirely unfamiliar to
you. However, what may be new to you is the particular test that our law uses to
determine causation. It is called the ‘but for’ or ‘conditio sine qua non’ test and,
according to it, causation is to be established as follows:
• Event X was a cause of event Y if and only if, had event X not occurred, event
Y would not have occurred either.
I will be telling you a lot more about the but for test, and the specific kind of
counterfactual reasoning which its application involves, in the first half of Part 3.
However, there is an important point concerning its application in the determination
of Aquilian liability that I wish to draw to your attention right now, because the failure
to bear it in mind can cause a lot of trouble (and did, as you will discover, in the
Constitutional Court case of Lee v Minister of Correctional Services). [2] To the
question whether a person should be subjected to Aquilian liability, what matters is
not whether his conduct, but rather whether his intentional or negligent conduct,
caused another to suffer harm and loss. That is why, in the example below, which we
revisit (in revised form) in Part 3, Duduzane will not be held liable to Palesa for the
loss resulting from her injuries.
• Duduzane drives down a city road at an excessive speed. Palesa steps out
from behind a parked bus and is hit and injured by Duduzane’s car. It was
negligent for Duduzane to have driven at the excessive speed which he did.
However, even if Duduzane had driven at a reasonable and therefore non-
negligent speed, he would still (given the distance that Palesa was ahead of
Duduzane’s car when she stepped into the road) have hit and injured Palesa
(and her injuries would have been identical).
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It sometimes happens that, even though a person intentionally or negligently caused

harm to another, and that harm in turn caused the harmed person to suffer a loss,
the causal chain connecting the harm-doer’s conduct and the harm-sufferer’s loss is
a very long or unusual one. Indeed, the causal chain may be so long or so unusual
that it would be inappropriate for the law to hold the harm-doer liable to compensate
the harm-sufferer for the loss. That may well be the case in the example below:
• While together on a ‘canned’ hunting trip in a remote part of the country, Daan
accidentally but negligently shoots Phil Jr in the arm. A day later, Phil Jr is
admitted to a local hospital. Because of understaffing in the hospital, it is
several days before the gunshot wound is properly attended to. Because of
the delay, the arm turns gangrenous and has to be amputated. Because of a
mix up in the surgical procedure, Phil Jr’s other arm is amputated. Phil Jr
therefore ends up losing both arms. Phil Jr is so depressed by this that, when
back in the USA four months later, he attempts to commit suicide by jumping
from a bridge. The attempt fails, but it causes Phil Jr further injuries and
ultimately leaves him paralysed from the waist down. Phil Jr’s medical
expenses, for the further injuries resulting from his failed suicide attempt,
amount to R1.5 million. He has to acquire an electric wheelchair at a cost of
R200 000 and he suffers a loss of income, during his post-suicide-attempt
convalescence, of R500 000.
To deal with situations like the one above, our law makes it a necessary condition,
for a harm-doer to be subjected to Aquilian liability for loss resulting from his harm-
doing, that the loss was not too remote. You will find out more about this condition in
the second half of Part 3. As I explain there, for many years our law required
remoteness to be determined by application of two tests, one called the ‘direct
consequences test’, the other called the ‘foreseeability test’. More recently, these two
tests have been incorporated into a new one, which supplements them with several
much more open-ended criteria, namely whether it would be fair, just, and
reasonable, and consistent with policy, to hold the harm-doer liable for the loss that
he caused. The combination of the two older tests with these more open-ended
criteria has become known as the ‘flexible test’.
It is not enough, for a person to be subjected to Aquilian liability, that he
intentionally or negligently caused harm to another which resulted in loss that was
not too remote. For liability to be imposed, it is in addition necessary that the
intentional or negligent harm-causing conduct constituted a wrong against, or was
wrongful towards, the person harmed. What is the meaning of this requirement? And
how are we to determine whether it has been met? These questions are as difficult
as they are important. You will find my answers to them – which differ significantly
from the answers you will find in other textbooks on the South African law of delict –
in Part 2. But I am not going to attempt, here in this introduction, to summarize
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(let alone defend) those answers. My aim at present is only to give you a rough-
hewn preliminary understanding of the elements of Aquilian liability. In the case of
wrongfulness, that will be better achieved by telling you about a few of the most
important rules by which wrongfulness is to be determined, and illustrating their
application with some examples.
One of those wrongfulness-determining rules is the rule that it is prima facie
wrongful to cause physical harm to another’s person or property by a negligent
positive act. Another wrongfulness-determining rule, closely related to the first, is the
rule that it is prima facie wrongful to cause physical harm to another’s person or
property by a positive act which is intended to do so. On the basis of the first of
these rules, we can say that Daisy’s negligent injuring of Philani, in the first of the
two examples involving them, and Daan’s negligent injuring of Phil Jr were prima
facie wrongful. On the basis of the second, we can say the same about David’s
intentional damaging of Peter’s car in the example below:
• Peter (an articled clerk at a large law firm) has once again parked in the bay
reserved for David (a director and head of litigation) in the basement of the
firm’s office block. So, David smashes up Peter’s car with a baseball bat. It
costs R50 000 to repair the damage.
A finding of prima facie wrongfulness based on either of the two rules mentioned
above may be overridden (that is why it is labelled ‘prima facie’). But it will be
overridden only in very exceptional circumstances. Those exceptional circumstances
are identified by the so-called justification grounds. These include the fact that the
harm-causing act was performed with the harmed person’s consent. Where the
harm-causing act was intentional, they include the fact that the act was performed in
self-defence. It is hard to imagine that Daisy could have a justification ground
available to her that would render lawful her negligent injuring of Philani. And there is
nothing in the facts of the example involving Daan to suggest that he does. Nor, as is
smashingly obvious, does David. However, it is not only possible, but probable, that
Didiza in the example immediately below has available to her the justification ground
of self-defence:
• While clipping a hedge in her back garden, Didiza is confronted by her former
boyfriend, Pierre, who let himself into her home with a duplicate key that she
did not know he possessed. He declares his undying love for her and begs her
to resume a relationship with him. When she tells him that she is not
interested, as she is now happily involved with Tariq, he says that he is ‘going
to have my way with you whether you like it or not’ and moves towards her in
a manner that indicates an intention to carry out his threat. In order to ward off
the attack, Didiza stabs Pierre several times with her garden shears.
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You may be wondering why it is merely probable, rather than certain, that Didiza’s
intentional injuring of Pierre would be rendered lawful by the justification ground of
self-defence. But bear in mind that we may not have all the facts before us. Perhaps
Didiza knew that her neighbour, a burly policeman, was having a braai in his garden
next door, and that a single call for help would bring him bounding over the wall. In
that event, Didiza would not be able to rely upon the justification ground of self-
defence, and would have acted wrongfully after all.
Daisy, Daan, David, and Didiza each caused the harm he or she did by
performing a positive act – that is to say, by doing something. But it is also possible
that a person causes harm to another by failing to do something or, as it is usually
referred to, by an omission. For example, I could have failed to prevent you from
being stabbed by a third party: because I did not hide his knife, nor disarmed him,
nor persuaded him that you had not insulted his mother. Or you could have failed to
prevent me from falling into a hole: because you did not fill it in, did not fence it off,
and did not alert me to its presence. Doron, in the example below, likewise causes
harm to Patrick by an omission, rather than by a positive act:
• While on an early morning jog in his neighbourhood, Doron notices that
Patrick, whose mistress lives just around the corner from Doron, has left his
(vintage) Ferrari parked in the street in front of her house with the key still in
the door. Doron considers removing the key and ringing Patrick’s mistress’s
doorbell to return it to him. But Doron is a socialist who believes it a grave
injustice that Patrick owns a car of that kind while many of his fellow citizens
are living below the poverty line. As a matter of principle, Doron therefore
decides not to take any steps to safeguard Patrick’s property. Instead, he jogs
blithely on. A few minutes later, a passing vagrant tries to make off with the
car. But he loses control of it a kilometre down the road and crashes it into an
embankment, where it catches fire and burns out. The Ferrari was valued at
R3.2 million. Also destroyed are a box of champagne and a crate of single
malt whiskey, valued at R150 000, which Patrick had just purchased to
celebrate his latest commodities trading triumph, and which had been in the
Ferrari’s boot.
It is probable that Doron’s failure to intervene, when he saw the key in the door of
Patrick’s car, was negligent. Let us assume that it was. It then follows that Doron
caused harm to Patrick’s property by a negligent omission. Moreover, the harm that
Doron caused to Patrick by his negligent omission in turn caused Patrick to suffer a
loss (of R3.35 million). It is possible that Patrick’s loss was too remote. But let us
assume, this time, that it was not. As you by now know, all this is not yet enough for
liability. For Doron to be held liable for the loss he caused to Patrick, it has to be the
case that Doron’s negligent harm-causing omission was wrongful. And it is not at all
certain that it was.
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Neither of the two prima facie rules mentioned earlier has any relevance to the
question whether Doron wronged Patrick, as they both apply only to positive acts.
However, our law contains another prima facie rule which is relevant to this question.
It goes as follows:
• It is not prima facie wrongful (or is prima facie lawful) for a person to cause
physical harm to another’s person or property by a negligent omission.
So, on the face of it, Doron in our example committed no wrong against Patrick and
therefore cannot be held liable for Patrick’s loss. Once more, however, this is not the
end of the story. A finding of prima facie lawfulness can (more or less by definition)
be overturned. As you will learn in Part 2, our law has identified several further facts
sufficient to render a negligent harm-causing omission wrongful. The best known of
these is the fact that the omission took the form of a failure to guard against a
danger which only existed because of an earlier positive act by the person omitting
to act. But this further fact does not obtain in our example. Nor does any of the other
further facts identified by our law.
Surprisingly, perhaps, this still is not the end of the story. In the middle of the
1970s, in a case called Minister van Polisie v Ewels, our Appellate Division
announced that a negligent harm-causing omission could be declared wrongful by a
court, even though none of the further facts previously identified by the law obtained,
if ‘the legal convictions of the community’ required this. [3] Subsequent judgments
added, to this criterion, the criteria of ‘reasonableness’ and ‘policy’. The effect of this
was that, henceforward, the determination of whether a negligent harm-causing
omission was wrongful would, to a considerable degree, depend on the exercise of
judicial discretion. The implications of this for Doron and Patrick are less clear.
Would it be reasonable, or consistent with policy, or required by the legal convictions
of the community, for Doron to be held liable for Patrick’s loss? I believe not (and not
only because I share Doron’s appraisal of champagne-quaffing, Ferrari-driving
commodity brokers). But it is not impossible that a court might come to the opposite
conclusion.
Our Cook’s tour of Aquilian liability is almost done. Hopefully you now have some
understanding of intent, negligence, causation, remoteness, and wrongfulness. From
the discussion of wrongfulness, you should also have learned something about
conduct, in particular the distinction between positive acts and omissions. That
leaves only two more elements of liability unaccounted for, namely harm and loss.
The words ‘harm’ and ‘loss’ are often treated as synonymous and therefore also as
interchangeable. I, however, do not so treat them in this book. In this book, I use the
word ‘loss’ to refer to a worsening of a person’s economic (or financial) situation.
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I use the word ‘harm’, by contrast, to refer to a worsening of an aspect of a person’s

life which is not constituted or caused by a worsening of his economic situation.
If you look back at the examples presented in this section, you will see that most
(possibly all) of them involve both harm and loss, as I have defined them. In some of
the examples the harm took the form of injury to person: in other words, bodily injury.
That is the case in the examples involving Daisy and Philani, Duduzane and Palesa,
Daan and Phil Jr, and Didiza and Pierre. In others it took the form of damage to
property. This is the case in the examples involving David and Peter, and Doron and
Patrick. In two of the examples in which the harm took the form of bodily injury,
namely those involving Daisy and Philani, and Daan and Phil Jr, the loss took the
form of medical expenses and a loss of income. While this is not mentioned in the
other two examples in which the harm took the form of bodily injury, namely those
involving Duduzane and Palesa, and Didiza and Pierre, it is likely that loss of one or
both of these two kinds was suffered in these examples too. In the case of the two
examples in which the harm took the form of property damage, the loss took the
form of the cost of repair (to Peter’s car) and the cost of replacement (of Patrick’s
Ferrari, his champagne, and his whiskey).
While harm usually results in loss, as it did in the examples discussed above, it
need not do so. In other words, it is possible for you to suffer harm without also
suffering loss. That is the case in all three of the examples below:
• Upon discovering your infidelity, your lover seizes her hockey stick and beats
you severely. You sustain some spectacular bruises and sprains as a result.
But you neither require nor seek medical attention. And you are currently
unemployed. After a month, all signs of the beating have disappeared.
• An internationally celebrated artist, whose artworks sell for millions, scratches

out an image on the bonnet of your car (and signs it), in the mistaken belief
that the car is his.
• A property developer knocks down your charming but somewhat dilapidated
holiday cottage and replaces it with a five-story condominium, having
confused your property with the property which she had bought for that
purpose half a kilometre down the road.
The beating which your lover gave you has not worsened your economic situation. It
has, however, worsened your life in other respects. You therefore have not suffered
any loss as a result of the beating, but you certainly have suffered harm. The
damage done to your car’s paintwork and the demolition of your holiday cottage
likewise constitute harm done to you. But it is almost certain that neither has caused
you any loss. On the contrary, both are likely to have caused you to make a
substantial gain.
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II The structure of aquilian liability

In so far as it is determined by the basic rule which I set out at the beginning of this
introduction, Aquilian liability has a specific structure. Fundamental to that structure
is the relationship between wrongfulness and loss. For a person to be subjected to
liability in terms of the basic rule, it is necessary that he committed a wrong and that
he caused loss. However, and this is critical, whether or not a person caused loss is
altogether irrelevant to whether or not he committed the kind of wrong which,
according to the basic rule, is necessary for liability. That is to say, while the basic
rule requires both a wrong and loss, the loss is required, not as a constituent or
ingredient of the wrong, but only as its consequence. The required loss is therefore
external, rather than internal, to the required wrong.
This does not mean that whether a person committed the kind of wrong
necessary for him to be held liable in terms of the basic rule does not depend on
what he caused or brought about. It does. But what he needs to have caused or
brought about is not loss. It is harm. Of course, it is not enough, for a person to have
committed the kind of wrong which is required for liability by the basic rule, that he
caused harm. He has to have done so with intent or negligence. And he has to have
done so in breach of a duty. But, as you will learn in Part 1, the intention required by
the basic rule is an intention to cause harm (not loss). And whether a person was
negligent in the sense required by the basic rule depends on whether a reasonable
person would have foreseen harm (not loss) and on whether a reasonable person,
having foreseen harm (not loss), would have acted differently. As for the duties that
have to be breached if a person is to commit the wrong required by the basic rule, as
you will learn in Part 2, they are duties not intentionally or negligently to cause harm
(rather than duties not intentionally or negligently to cause loss).

I want you to consider again the three examples presented at the end of the
previous section: the one in which your lover beat you; the one in which an artist
scratched your car; and the one in which a developer destroyed your cottage. In
none of these examples did you suffer any loss. However, as I pointed out before,
you did in all three of them suffer harm. In the first, the harm was intended. In the
second and third, it is possible that the harm was foreseeable and therefore also that
it was negligently caused. Let us suppose that this was so. It then follows that your
lover, the artist, and the developer all committed wrongs, of the kind required for
liability by the basic rule, against you. They did so because they caused the harm
which you suffered by their positive acts and because, according to our law, harm
caused by an intentional positive act (as in the case of your lover) or by a negligent
positive act (as in the cases of the artist and the developer) is prima facie wrongful.
Of course, this does not mean that you would be able to subject your lover, the artist,
and the developer to Aquilian liability. You would not. For, as stated, none of them
caused you any loss. And loss is a necessary condition for Aquilian liability. But, and
this is the important point, it is a condition for Aquilian liability – at least in so far as it
is
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grounded on the basic rule – independent from, and external to, the requirement of
wrongfulness.
The fact that our law requires Aquilian liability in all ordinary or standard cases to
be determined by the basic rule – a rule which places loss without rather than within
wrongfulness – makes it neither exceptional nor eccentric. The most important rule
concerning delictual liability in German law is s 823(1) of the German Bürgerliches
Gesetzbuch (BGB). It reads as follows:
‘Wer vorsätzlich oder fahrlässig das Leben, den Körper, die Gesundheit, die Freiheit, das Eigentum oder
ein sonstiges Recht eines anderen widerrechtlich verletzt, ist dem anderen zum Ersatz des daraus
enstehenden Schadens verplichtet.’ [4]
As is apparent from its wording, and as is agreed by German delict scholars, this
section distinguishes the ‘Verletzung eines Rechtsguts oder Rechts’ (harm to a legal
object or right), on the one hand, from the ‘Schaden’ (loss) which may or may not
result from it, on the other. As is also agreed by German delict scholars, for
‘Widerrechtlichkeit’ (wrongfulness), this section requires the former (a ‘Verletzung’),
but not the latter (‘Schaden’). And, as is also agreed, in the context of this section
‘Fahrlässigkeit’ (negligence), and indeed ‘Verschulden’ (fault) in general, bear on the
‘Verletzung’ and not the ‘Schaden’. To the extent that ‘Fahrlässigkeit’ depends on
‘Voraussehbarkeit’ (foreseeability), it is thus the ‘Voraussehbarkeit’ of the ‘Verletzung’
and not of the ‘Schaden’ that matters. Consistent with the foregoing analysis of s
823(1), German delict scholars also take it to require two distinct causal connections.
The first is that between the ‘Verhalten’ (the conduct in question) and the ‘Verletzung’
– so called ‘Haftungsbegründende Kausalität’ (liability-founding causation). The
second is that between the ‘Verletzung’ and the ‘Schaden’ – so called
‘Haftungsausfüllende Kausalität’ (liability-fulfilling causation). [5]
The similarities between the basic rule of Aquilian liability in our law and s 823(1)
of the German BGB, and in particular the fact that both locate loss outside of
wrongfulness, are no coincidence. As its name makes apparent, Aquilian liability in
our law traces its origins back to the Roman lex Aquilia. So does s 823(1) of the
[6] [7]
BGB. [6] The first and third chapters of the lex read as follows: [7]
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‘If anyone has wrongfully (iniuria) killed (occiderit) a male or female slave belonging to another or a four-
footed animal, he is to be condemned to give the owner the highest value thereof in that year.’
‘In the case of all things other than slaves or cattle that have been killed, if anyone has caused damage
(damnum) to another, by wrongfully (iniuria) burning (usserit), breaking (fregerit) or spoiling (ruperit), he is
to be condemned to give the owner whatever may be the value thereof in the next thirty days.’
Both chapters make the doing of some kind of harm, distinct from the loss that may
result from it, a necessary condition for liability. In chapter one, the doing of the harm
is the killing of a slave or a four-footed animal. In chapter three, it is the burning,
breaking or spoiling of a thing (probably including slaves and four-footed animals,
but not limited to them). Moreover, in both chapters it is the doing of the harm – that
is, the killing, the burning, the breaking or the spoiling – and not the loss which may
result from it that has to be wrongful. Finally, though there has been some
disagreement about this, it is likely that damage (damnum) in the third chapter
means the loss suffered as a result of a thing being harmed, rather than the harm to
the thing itself. [8] If so, chapter three explicitly identifies, as two distinct conditions for
liability, harm (in the form of burning, breaking or spoiling) and loss (resulting from
that harm).
In any event, to the development of the modern South African and German law
out of the lex Aquilia, it matters less how damnum in chapter three was understood
by Roman lawyers than how later scholars of Roman law and, in the South African
case, also judges took them to have understood it. In respect of South African law,
two scholars appear to be of particular importance. The first is Alfred Pernice, a
German Pandectist whose Zur Lehre von den Sachbeschädigung nach römischem
Rechte appeared in 1867. The second is Erwin Grueber, a German who served for a
spell as reader in Roman law at the University of Oxford and who in 1886 published
a student textbook called The Lex Aquilia: The Roman Law of Damage to Property.
Pernice matters because of his insistence that damnum in the third chapter signified
loss rather than harm to a thing. [9] Grueber matters, first, because he accepted
Pernice’s analysis of damnum – as meaning loss rather than harm – in his

textbook. [10] He matters, secondly, because his textbook seems to have provided a
bridge between Pernice’s analysis and South African law. This is clearly illustrated
by the cases of Union Government (Minister of Railways and Harbours) v Warneke
and Oslo Land Co v
Page xxi
The Union Government. [11] In the former, an Appellate Division case reported in
1911, Innes J (as he then was), having asserted that ‘it was essential to a claim
under the Lex Aquilia that there should have been actual damnum in the sense of
loss’, cited Grueber in support. [12] In the latter, an Appellate Division case of 1938,
the Court stated that ‘in truth damnum, as pointed out by Grueber, is not the injury to
the plaintiff’s property but the loss suffered by the plaintiff arising from the injurious
act’. [13]
In the course of the twentieth century, Aquilian liability in our law underwent an
important development which cannot possibly be ignored by any attempt to explain
its structure. That development was the expansion of Aquilian liability to include
liability for pure economic loss. Pure economic loss is loss caused to a person
without causing physical harm to his person or his property. An example would be
the loss that I suffer because you gave me poor financial advice. Another would be
the loss that you suffer because I bring production at your biscuit factory to a halt for
two days by cutting through an electricity cable belonging, not to you, but to a local
authority. As far back as 1922 our Appellate Division, in the case of Matthews v
Young, accepted that a person could be subjected to Aquilian liability for causing
another pure economic loss if he had acted with intent. [14] In 1979 the Appellate
Division went a step further when, in the case of Administrateur, Natal v Trust Bank
van Afrika, it declared that Aquilian liability was also possible where a person had
caused another pure economic loss by acting negligently. [15]
This development did not have the result that, today, a person is as likely to be
held liable for causing pure economic loss as he is for causing physical harm to
person or property. As you learned earlier on in this introduction, for the purpose of
Aquilian liability, harm-causing omissions are regarded as prima facie lawful rather
than wrongful. The same is true of conduct causing pure economic loss. However,
as in the case of omissions, so also in the case of pure economic loss, our law has
identified certain further facts capable of rendering conduct, which is prima facie
lawful, wrongful. In the case of intentionally caused pure economic loss, those
further facts include the fact that the loss resulted from a fraudulent
misrepresentation, an injurious falsehood, or certain forms of unlawful competition
such as passing off. In the case of negligently caused pure economic loss, they
include the fact that the loss was caused by a misstatement made: in response to a
serious request in a business context, concerning a matter in respect of which the

person making the
Page xxii
misstatement had special skill or expertise, in the knowledge that the person to
whom it was made would rely upon it. [16]
Because pure economic loss (by definition) is loss not caused by physical harm to
the person or property of the loss-sufferer, liability for it falls outside the ambit of
Aquilian liability – as that is determined by the basic rule. It may be thought that a
necessary implication of this is that our law must have added, to the basic rule, a
second rule dealing specifically with liability for pure economic loss. This additional
rule presumably would resemble the basic rule, except that the requirement that
‘harm to . . . person or property’ was caused would be struck out and be replaced by
a requirement that ‘pure economic loss’ was caused. Furthermore, since the
additional rule would make loss an essential ingredient of the wrong required for
liability, it would be superfluous (even nonsensical) for it also to require that loss was
caused by that wrong. The additional rule might therefore look something as follows:
intentionally or negligently causing purely economic loss to her in breach of a
legally recognised non-contractual duty owed to her not to do so, and that loss
was not too remote, then he owes her a legal duty to compensate her for that
loss.
The German BGB, which was drafted at the end of the nineteenth century, does
something along these lines. While liability for loss resulting from physical harm
caused to person or property is regulated by s 823(1) of the BGB, liability for pure
economic loss is regulated by s 826. As you saw earlier, s 823(1) has much in
common with the basic rule, even if there are a few differences between them.
Section 826, by contrast, has very little in common with the basic rule. But it does
share important features with the rule immediately above – most notably the fact
that, like the rule immediately above, it makes loss (and not harm) the gist of the
wrong:
‘A person who wilfully causes damage to another in a manner contra bonos mores is bound to compensate
the other for the damage.’ [17]
You may have noticed that s 826 does not actually require the loss (called ‘damage’
in the translation above) to be purely economic. However, in practice, this section is
only ever applied in cases of pure economic loss. [18] There are two reasons for this.
One is the section’s requirement that the loss was intended. The other is its
requirement that the loss-causing conduct was contra bonos mores (that is, contrary
to common decency or good practice). The stringency of the first requirement (which
precludes
Page xxiii
liability for negligence) and the vagueness of the second (which makes proof that it
has been met particularly onerous) have had the result that, in all cases where loss
was not purely economic but instead arose from physical harm to person or property,
s 823(1) provides the only, or otherwise the preferred, basis for liability.
In my view, we should not be too quick to assume that, as a result of its extension
to pure economic loss, Aquilian liability in our law has come to mirror sections 823(1)
and 826 of the German civil code. To assume this would be to accept that the
extension of Aquilian liability to pure economic loss did not just shift the boundaries
of Aquilian liability as it already existed outwards some distance, to incorporate a
form of loss hitherto excluded from it, but instead brought about a radical alteration
of its structure. More specifically, it would be to accept that Aquilian liability no longer
is a unitary form of liability, resting on a single foundational rule which puts harm at
the centre of the wrongs it requires for liability. Instead, Aquilian liability would have
become a composite (not a blend!) of two distinct and very different forms of liability,
one resting on a foundational rule which puts harm at the centre of the wrongs it
requires for liability, the other resting on a foundational rule which does not put harm
anywhere at all.
But is it possible that our law managed to keep together what the German civil
code rends asunder? That is to say, is it possible that our law, rather than
supplementing the basic rule with another rule dealing specifically with pure
economic loss, merely adapted or modified the basic rule, so as to make it capable
of dealing both with loss resulting from physical harm to person or property and with
pure economic loss? Furthermore, if this is possible, is it also possible that the
adapted or modified basic rule preserves rather than alters the structure of Aquilian
liability as it previously existed because, just like the original basic rule, it makes
harm a critical constituent of the wrong required for liability and, while requiring loss
for liability, requires it only as a consequence (and not an ingredient) of that wrong?
I believe that all this is possible. To see why, I want you to take a look at the rule
below. You will see that it is very like the basic rule. But there are two small, yet
significant, differences. The first is the addition of the words ‘or in respect of’, so that
‘harm to’ has become ‘harm to or in respect of’. The second is the addition of the
words ‘or freedom or autonomy’, so that ‘person or property’ has become ‘person or
property or freedom or autonomy’. Since the rule set out below modifies the basic
rule only by adding to it, and not by subtracting from it, I will call it the ‘expanded
basic rule’:
intentionally or negligently causing harm to or in respect of her person or
property or freedom or autonomy in breach of a legally recognised non-
contractual duty owed to her not to do so, and, by committing such wrong,
caused the victim of the wrong to suffer loss which was not too remote, then
he owes the victim of the wrong a legal duty to compensate her for that loss.
Page xxiv
Notwithstanding the differences between them, the expanded basic rule remains true
to the spirit of the original one. As in the original rule, so in the expanded one, harm
is a necessary element of the wrong required for liability, while loss is required only
as a consequence of that wrong. All that has changed is that the kinds of harm have
been increased and the form of the harm relaxed. Since the expanded basic rule
does not cut anything out of the original one, it obviously deals satisfactorily with the
determination of Aquilian liability in ordinary or standard cases, cases in which one
person caused loss to another by causing physical harm to his person or property:
as, in the examples discussed in the previous section, did Daisy to Philani,
Duduzane to Palesa, Daan to Phil Jr, David to Peter, Didiza to Pierre, and Doron to
Patrick. The more difficult question is whether the expanded basic rule deals
satisfactorily with the determination of Aquilian liability in the less ordinary cases in
which one person caused another pure economic loss.
For us to conclude that the expanded basic rule deals satisfactorily with the
determination of Aquilian liability for pure economic loss, it is not enough that the rule
would occasionally allow (or require) liability for pure economic loss. The occasions
when the rule would allow (or require) liability for pure economic loss must coincide
(if not perfectly, at least closely) with the occasions when our law would do so. There
is good reason to believe that the expanded basic rule meets this condition. As I
explained earlier, while our law regards conduct causing pure economic loss as
prima facie lawful, it has identified a variety of further facts the presence of which will
or could render the conduct wrongful after all. As you will recall, some of those
further facts apply when the conduct causing the pure economic loss was intentional,
for example the fact that the loss resulted from a fraudulent misrepresentation.
Others apply when the conduct was negligent, for example the fact that the loss was
caused by a misstatement made in the knowledge that the person to whom it was
made would rely upon it. But why do the further facts identified by our law have the
effect they do? Why do they turn loss-causing conduct that would otherwise be
lawful into conduct that is wrongful?
The reason the further facts have the transformative effect they do has not been
explained by any of the many pure economic loss judgments in which they have
been identified or invoked. But it is acknowledged – and clearly so – by the
expanded basic rule. The presence of those further facts, either individually or
cumulatively, entails that the person suffering the pure economic loss did in fact
suffer harm, and that her loss was a result of it. To be sure, the harm she suffered
was not harm to her person or property (if it were, the loss would not be purely
economic). It was, instead, harm to her freedom – not to her physical freedom, of
course, but to her freedom of choice and action – or to her autonomy. Consistent
with this, the intent required for liability in pure economic loss cases is not the
intention to cause loss. It is rather the intention to cause harm of one or both of these
kinds or, more accurately perhaps, to produce the consequences necessary for that
harm to occur, such as, where the loss
Page xxv
resulted from a misrepresentation, the loss-sufferer’s reliance upon it. The same is
true of the negligence required for liability in pure economic loss cases: except that,
for negligence, what matters is the foreseeability of, rather than the intention to bring
about, those kinds of harm (or the consequences necessary for their occurrence).
Much of what is claimed in the previous paragraph requires further justification.
But this is not the place for it. Instead, I want to draw this section to a close by saying
something about the words ‘or in respect of’ in the expanded basic rule. You may
have wondered why the extension of Aquilian liability to pure economic loss required
the insertion of these words. But imagine that, when you are on a cruise from Cape
Town to Durban, a steward drops your Dolce & Gabbana sunglasses overboard.
Since your D&G glasses were neither damaged nor destroyed, as they would have
been if the steward had crushed them underfoot, you suffered no harm to your
property. It follows, not only that your resulting loss is purely economic, but also that
the basic rule – in its original form – would not allow you to hold the steward liable for
that loss. However, it is not only possible, but highly probable, that our law would
hold the steward liable (provided of course that he acted with the requisite intent or
negligence). The point of inserting the words ‘or in respect of’ into the basic rule is to
align it with our law in this respect. And it manages to do exactly that: though the
steward did not cause harm to your property, there is no doubting that he caused
harm in respect of it.
III Miscellaneous matters

This is a book about Aquilian liability: only. However, what you learn in it about
Aquilian liability will help you to understand four other forms of liability which are of
great practical importance and which, though distinct from Aquilian liability, are
nonetheless in various ways connected with it. They are:
(1) the vicarious liability of an employer for loss caused to another by an
employee acting in the course and scope of her employment;
(2) the liability of a person for loss suffered by a dependant of a person whom he
has killed;
(3) the liability of a person for the pain and suffering of a person to whom he has
caused bodily injury; and

(4) the liability of the South African Road Accident Fund for loss suffered by a
person as a result of bodily injury to him, or the death of or bodily injury to
another person, caused by the driving of a motor vehicle (by someone other
than the injured or killed person).
There are many cases which are discussed in this book, because some or other
aspect of Aquilian liability was developed or is illuminated by them, which also
involved one
Page xxvi
(or even two) of the above four forms of liability. Partly so as to avoid unnecessary
confusion down the line, this section takes a cursory look at each of them.
According to our law, an employer can in certain circumstances be held liable for
a delict committed against another by his employee. This is called vicarious liability.
In the Aquilian context it means that, if I was employed by you, and I caused harm
and loss to another for which, in terms of the expanded basic rule, I could be held
liable, you – as my employer – could be held liable too. However, you will only be
held liable if I committed the delict in question while acting within the ‘course and
scope’ of my employment. For many years, our courts took the view that, for an
employee’s delict to satisfy the course and scope condition, it had to have been
committed while the employee was discharging a duty imposed upon him by his
employer and defining his employment. [19] More recently, our courts have held that
this condition will also be satisfied if the employee’s delict was ‘sufficiently closely
connected’ to his employment to justify the imposition of liability on his employer
(and it is assumed that an employee’s delict will not be insufficiently closely
connected whenever it was committed with the intention of furthering only the
employee’s interests). [20] Now consider the following example:
• When a small band of students marches into my lecture (about, as it happens,
vicarious liability), waving posters saying ‘Decolonise Delict’ and ‘More Ubuntu
Less Aristotle’, I hit one of them over the head with my laptop, causing him to
require extensive surgery.
There is little doubt that, in this example, I would be liable to the injured student for
the loss I caused him (even if on the basis of a form of liability which he purportedly
does not believe in). But what about my employer, the University of Cape Town?
Could it be held vicariously liable? That will depend on whether I committed my delict
while acting in the course and scope of my employment. I certainly did not commit
my delict in order to discharge any duty imposed on me by UCT (and may in fact
have breached several such duties by committing the delict). And it would require an
ingenious argument to show that I committed the delict with any intention of
promoting UCT’s interests. However, given just how vague the sufficiently close
connection criterion is, it is very possible that a court might find that it was satisfied in
my case, and thus also that UCT could be held vicariously liable. But imagine that
the facts had been a little different:
• I did not hit the student in question at my lecture. However, I did bump into him
two days later at the Mount Nelson’s Planet Bar. And I did, when a heated
argument about the content of my delict course boiled over, stab him in the
eye with his cocktail skewer.
Page xxvii
You may think that no court would ever conclude that there was, in this new
scenario, a sufficiently close connection for UCT to be held vicariously liable for my
delict. But I am not so sure about that. In the case of F v Minister of Safety and
Security, the Constitutional Court found that a rape committed by a policeman who
was out of uniform and off-duty at the time was nonetheless sufficiently closely
connected to his employment for the Minister to be held vicariously liable for it. [21]
Among the reasons moving the Court to this conclusion were the fact that the
policeman, though off-duty, was on standby, and the fact that the rape had been
facilitated by his possession of a police vehicle (even if it was not marked as
such). [22] Admittedly, I was not on standby when I stabbed my student. And the
skewer I used had not been made available to me by UCT. But an eminent professor
of comparative private law once told me that ‘in Germany, we believe that a
professor is at work, even when he is pruning his roses’. And there is something in
that.
Imagine that Daisy, in the first example provided in section 1 of this introduction,
did not merely injure Philani. She killed him. And she did so instantly. In this event,
Daisy obviously would have caused harm to Philani. For reasons previously
discussed, she also would have acted negligently and wrongfully towards him. But
she would not have caused him any loss. However, it may be that Philani had one or
more dependants, people who relied upon his income to support them: an
unemployed spouse or partner, two school-going children, and an indigent
grandparent, perhaps. These people most definitely would have suffered a loss.
Provided certain further conditions are met, most notably that Philani had owed each
of these people a duty of support, our law would hold Daisy liable to compensate
them for their loss.
Of course, the loss suffered by Philani’s dependants is purely economic, as none
of them suffered any physical harm to his or her person or property. You might
therefore have assumed that the ground upon which our law would hold Daisy liable
to Philani’s dependants must be the expanded basic rule. But that is not so. Had it
been so, it would have been necessary for each of Philani’s dependants to prove
that Daisy had committed a wrong against him or her. That is to say, each would
have to prove that he or she had been harmed, negligently (in this case), and in
breach of a duty, by Daisy. But our law does not require this. According to our law it
is enough that: (1) Daisy, when she killed Philani, committed a wrong against him;
(2) this wrong caused Philani’s dependants to suffer loss; and (3) certain further
conditions, to do exclusively with the relationship between Philani and his
dependants, were met. [23] It follows that, while the liability which our law would (or
might) impose on Daisy towards Philani’s dependants has much in common with
Aquilian liability (as determined by the basic or expanded basic rule), it is not in fact
a form of Aquilian
Page xxviii
liability. Thus it is that the action or remedy granted to a dependant in this kind of
situation is not infrequently described as ‘anomalous’ or ‘sui generis’. [24]
It is certain that, if Daisy had not killed Philani, but – as in the original example –
had merely injured him, he would have suffered a great deal of pain and discomfort.
He might also have been permanently disfigured (by the lacerations to his face). And
it is possible that his ability to participate in his favourite sport may have been forever
compromised (by the injuries to his shoulder and arm). According to our law, Philani
would be able to hold Daisy liable for all of these consequences. He would be able to
hold her liable for them because they were the result of a wrong she committed
against him by negligently causing bodily injury to him in breach of a duty not to do
so (an intention to cause those bodily injuries would also have sufficed). Here again
we have a form of liability – usually called liability for pain and suffering – which has
much in common with Aquilian liability, but nonetheless is distinct from it. Shared by
the two forms of liability is the required wrong: at least in the sense that, if a person
commits a wrong of the kind required for him to be liable for pain and suffering, he
necessarily also commits a wrong of the kind required for Aquilian liability.
Distinguishing the two forms of liability are the consequences for which liability is
imposed in each case: loss (as it is defined in this book) in the one, pain and
suffering (which is understood to include discomfort, disfigurement and so-called
‘loss of the amenities of life’) in the other. [25]
Of the four forms of liability listed at the beginning of this section, only one
remains for me to deal with, namely the liability of the Road Accident Fund for loss
suffered by a person as a result of a bodily injury caused by a road traffic injury.
Unlike Aquilian liability, and unlike the three alternative forms of liability already
discussed, this form of liability was created by a statute, namely the Road Accident
Fund Act 56 of 1996. For present purposes, the most important provisions are s
17(1) and s 21(1), which respectively say the following:
‘The Fund . . . shall . . . be obliged to compensate any person (the third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any
bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at
any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the
driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s
duties as employee’.
Page xxix
‘No claim for compensation in respect of loss or damage resulting from bodily injury to or the death of
any person caused by or arising from the driving of a motor vehicle shall lie . . . against the owner or driver
of a motor vehicle or . . . against the employer of the driver.’
The effect of the first of these sections is that the Fund will be held liable for loss
resulting from bodily injury caused by the driving of a motor vehicle only if the driver,
the owner, or the owner’s employee satisfies all the conditions for him to be
subjected to Aquilian liability on the ground of the basic rule (in its original or
expanded form). That is to say, the driver, the owner, or the employee must have
caused the bodily injury intentionally or negligently, and must have committed a
wrong by doing so. However, the effect of the second of these sections is that a
driver or owner who satisfies these conditions – that is, the conditions for Aquilian
liability – will not (indeed cannot) be subjected to Aquilian liability. At least, he cannot
be subjected to it for loss resulting from the bodily injuries he caused – but he could
be subjected to it for loss resulting from any property damage that he may
simultaneously have caused.
When, a couple of years ago, I tried to explain the form of liability created by our
Road Accident Fund Act to the members of the World Tort Law Society, many of
them shook their heads in wonder. [26] And it is in some ways a curious beast. Its
most peculiar feature is the fact that it makes it a necessary condition for the Fund to
be liable that the driver, owner, or employee was at fault (in the form of either intent
or negligence), rather than makes the Fund ‘strictly’ liable (meaning that the Fund
would be liable regardless of whether the driver, owner, or employee had been at
fault or not). The reason for this peculiarity is an unhappy compromise between
vision and reality. The vision, as a former Minister of Transport explained to the
Constitutional Court in the case of Law Society of South Africa v Minister for
Transport, is to have a system of compensation for road accident victims which is
‘integrated into a comprehensive social security system that offers life, disability and
health insurance cover for all accidents and diseases’. [27] According to the Minister,
‘a fault-based . . . system of compensation for road accident victims would be at
odds with a comprehensive social security model’. [28] The intention was ‘therefore to
replace the [existing] system of compensation with a set of limited no-fault benefits
which would form part of a broader social security net’. [29] The reality, however, is
that ‘the Fund . . . was doing business whilst technically insolvent’. [30] Fault was
therefore retained
Page xxx
as a requirement for liability because it serves as a convenient claims-inhibitor and

consequently helps to keep the Fund financially viable. As the Court put it:
‘It seems that the constraint imposed by the fault requirement suppresses the quantum of compensation to
accident victims. Its temporary retention serves an obvious role of lowering the Fund’s liability to
compensate victims.’ [31]
There are two more matters which I wish to discuss before bringing this introduction
to an end. One concerns a topic which could be included in a book about Aquilian
liability, but is not in this one, namely the determination of damages. By ‘damages’ is
meant neither harm nor loss, as this book understands them. What is meant,
instead, is the amount of money which a court obliges a person whom it has
subjected to delictual – and thus also Aquilian – liability to pay to the person against
whom the delict was committed. When a court subjects a person to Aquilian liability,
the damages it requires him to pay to the victim of the wrong which he committed
may be less – even considerably so – than the loss which the victim suffered as a
result of the wrong. Of particular relevance in this regard is s 1(1)(a) of the
Apportionment of Damages Act 34 of 1956, which says the following:
‘Where any person suffers damage which is caused partly by his own fault and partly by the fault of any
other person . . . the damages recoverable in respect thereof shall be reduced by the court to such extent
as the court may deem just and equitable having regard to the degree in which the claimant was at fault in
relation to the damage.’
Prior to this Act, a person who had committed a wrong by negligently causing harm
in breach of a duty not to do so could avoid liability for any loss which the victim of
the wrong had suffered as a result by showing that the harm had also been caused
by the victim’s negligence. Contributory negligence, as this is called, therefore
constituted a complete defence. [32] The Act abolished this defence. In its place it
introduced the principle of apportionment formulated by the passage above. How
this principle works is demonstrated by the following example:
• Two cyclists, Delicia and Patricia, collide at a four-way stop because: neither
is looking where she is going; neither stops for or tries to avoid the other; both
are travelling at high speed. As luck would have it, Delicia emerges from the
collision unscathed, whereas Patricia sustains a serious head injury. Because
of her head injury, Patricia incurs medical expenses of R250 000 and a loss of
earnings of R750 000.
Page xxxi
Now imagine that, in a case subsequently brought by Patricia against Delicia, the
court finds that Delicia was cycling negligently at the time and, therefore, that she
committed a wrong against Patricia, of the kind required for her to be subjected to
Aquilian liability for the loss which Patricia suffered as a result of her head injury.
Imagine, further, that the court finds that Patricia too was cycling negligently at the
time: and just as much so as Delicia. Before the Apportionment of Damages Act, this
would have been enough to get Delicia off the hook – entirely! [33] However, because
of the Act, Delicia will not be able to avoid liability (at least not on this basis). But the
damages payable by Delicia to Patricia will be reduced, in all probability by half, so
that Patricia will end up being awarded only R500 000 rather than R1 million. (Were
it to turn out that Patricia had also failed to buckle up the chin-strap of her cycling
helmet, with the result that it had flown off before her head struck the tarmac, the
damages awarded to her would in all probability be reduced even further.)
The final matter which I will discuss in this introduction is the Constitution. [34] You
may wonder why I have left it so late. Do we not, almost uniquely in the world, have
a bill of rights with not only ‘indirectly horizontal’, but also ‘directly horizontal’, effect?
And does that not mean that our Constitution has radically transformed all of our
private law, including the rules determining Aquilian liability? Well, yes and no. Yes,
because the Constitutional Court has interpreted s 39(2) of the Constitution to mean
that a court must develop our private law, in so far as it is judge-made (which most of
it is), whenever that would promote the ‘spirit, purport and objects’ of our Bill of
Rights. [35] And yes, because s 8 of the Constitution requires that a court must
develop our private law, in so far as it is judge-made, if that is necessary in order to
give effect to a right in the Bill of Rights which binds private persons. But no,
because, with only one exception, none of the rules by which Aquilian liability is at
present determined has in fact been developed on these grounds.
Let me start with the exception. You will remember that, in section I of this
introduction, I mentioned that negligent harm-causing omissions are prima facie
lawful, but that our law has identified certain further facts which are capable of
rendering them wrongful. I mentioned one such further fact, namely prior positive
conduct on the part of the person who omitted to act which introduced a new danger.
In 2002, in the case of Minister of Safety and Security v Van Duivenboden, the
Supreme Court of Appeal added a new further fact to the few which had already
been identified by our law, namely that the omission had caused a public body to
Page xxxii
breach a duty which it owed to the harmed person, for which breach the public body
would be held accountable only if the omission were judged wrongful. [36] To justify
the addition of this new further fact, the Court invoked s 39(2), as well as s 2 and s 7,
of the Constitution. [37]
So far as the impact of the Constitution on Aquilian liability is concerned, that is
pretty much the sum of it. The Constitution has not caused any alterations to be
made to the basic rule by which Aquilian liability is determined. Nor, therefore, has it
wrought any change in the structure of Aquilian liability. As for the elements of
Aquilian liability, the Constitution has not led any court to adopt a new understanding
of intent or to re-think the test for negligence. Nor has it caused any court to
abandon or modify the but for test for causation or the flexible test for
remoteness. [38] In the case of wrongfulness, the Constitution did produce the change
already mentioned, namely the addition of the so-called ‘norm of public
accountability’ to the other reasons to judge a negligent omission wrongful already
recognised by our law. However, as you would have gathered even from the brief
discussion of wrongfulness in this introduction, whether conduct was wrongful for the
purpose of Aquilian liability depends on many legal rules and reasons other than just
the norm of public accountability. On these other rules and reasons, the Constitution
has to date had no impact at all.
[1] Kruger v Coetzee 1966 (2) SA 428 (A).
[2] Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).
[3] Minister van Polisie v Ewels 1975 (3) SA 590 (A).
[4] ‘A person who wilfully or negligently injures the life, body, health, freedom, property, or other right of
another contrary to law is bound to compensate him for any damage arising therefrom.’ (Translation by Basil S
Markesinis & Hannes Unberath The German Law of Torts 4 ed (2002) 14.)
[5] This discussion of s 823(1) and the way it is understood by German delict scholars is based on Karl
Larenz & Claus-Wilhelm Canaris Lehrbuch des Schuldrechts, Band II, Besonderer Teil, Halbband 2 13 ed
(1994) 353, 360-3, 379; Erwin Deutsch & Hans-Jürgen Ahrens Deliktsrecht 4 ed (2002) 5-9, 23-4, 196; Hein
Kötz & Gerhard Wagner Deliktsrecht 11 ed (2010) 53, 60-62, 73, 82, 89-92.
[6] See Reinhard Zimmermann The Law of Obligations: Roman Foundations of the Civilian Tradition (1990)
1036; Reinhard Zimmermann Roman Law, Contemporary Law, European Law: The Civilian Tradition Today
(2001) 58-9.
[7] The translations are based on those in Alan Watson (ed) The Digest of Justinian (1985) and MH Crawford
(ed) Roman Statutes (1996) 725.
[8] See David Daube ‘On the Use of the Term Damnum’ in David Cohen & Dieter Simon (eds) David Daube:
Collected Studies in Roman Law (1991) 279. See also Zimmermann The Law of Obligations op cit (n 6) 986 n
232.
[9] Alfred Pernice Zur Lehre von den Sachbeschädigung nach römischem Rechte (1867) 93-101.
[10] Erwin Grueber The Lex Aquilia: The Roman Law of Damage to Property (1886) 233-5.
[11] Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657; Oslo Land Co v The
Union Government 1938 AD 584. See also Bredell v Pienaar 1924 CPD 203 at 209-10.
[12] Union Government (Minister of Railways and Harbours) v Warneke supra (n 11) at 665.
[13] Oslo Land Co v The Union Government supra (n 11) at 593 (page reference omitted) and 590.
[14] Matthews v Young 1922 AD 492.
[15] Administrateur, Natal v Trust Bank van Afrika 1979 (3) SA 824 (A). For a detailed historical account of
the extension of Aquilian liability to negligently caused pure economic loss, see Anton Fagan Undoing Delict:
The South African Law of Delict under the Constitution (2018) 183-97.
[16] Do not worry if some of these further facts make little sense to you. They are discussed in detail in parts
1 and 2 of this book.
[17] This translation is taken from Markesinis & Unberath op cit (n 4) 15.
[18] On this, and the reasons for it, see Kötz & Wagner op cit (n 5) 103-4.
[19] On this condition, see Fagan op cit (n 15) 63-75.
[20] Fagan op cit (n 15) 93-103.
[21] F v Minister of Safety and Security 2012 (1) SA 536 (CC).
[22] Supra (n 21) at 556.
[23] See Evins v Shield Insurance Co 1980 (2) SA 814 (A) at 837E-838C, 839A-C.
[24] Supra (n 23) at 837H. See also Brooks v Minister of Safety and Security 2009 (2) SA 94 (SCA) at 97I-J;
Paixão v Road Accident Fund 2012 (6) SA 377 (SCA) at 381A.
[25] For a clear exposition of the relationship between Aquilian liability and liability for pain and suffering, see
Stoffberg v Elliott 1923 CPD 148 at 151-2.
[26] In England, the USA, Canada, Australia, India, and many other countries, delicts are called ‘torts’ and
delictual liability is called ‘tortious liability’.
[27] Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC) at 419G-H.
[28] Supra (n 27) at 419H-I.
[29] Supra (n 27) at 419I.
[30] Supra (n 27) at 418E-F.
[31] Supra (n 27) at 421F-H.
[32] Note that this defence did not avoid liability, as a justification ground does, by showing that negligent
harm-causing conduct was not, after all, wrongful. Nor did it avoid liability by showing that harm-causing
conduct was not, after all, negligent. Instead, it avoided liability by cancelling the duty to compensate that
otherwise would have arisen from negligent and wrongful harm-causing conduct.
[33] There was in fact a further condition that also needed to be satisfied in order for contributory negligence
to constitute a defence, namely that the defendant had not had the ‘last opportunity’ to prevent the plaintiff’s
harm from occurring. But this condition almost certainly is satisfied in our example.
[34] Constitution of the Republic of South Africa, 1996.
[35] In Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). On this interpretation, see Fagan
op cit (n 15) 106-20.
[36] Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).
[37] Supra (n 36) at 445A-B, 446A-B.
[38] As you will discover in Part 3, though the Constitutional Court in Lee v Minister of Correctional Services
supra (n 2) employed a modified test for causation, it explicitly did so on the basis that the existing law already
allowed for that test, and therefore that its employment did not require any development of the existing law.
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I The elements of aquilian liability

rough and ready understanding of negligence, sufficient to be going on with.

It sometimes happens that, even though a person intentionally or negligently caused

I use the word ‘harm’, by contrast, to refer to a worsening of an aspect of a person’s

• An internationally celebrated artist, whose artworks sell for millions, scratches

II The structure of aquilian liability

(rather than duties not intentionally or negligently to cause loss).

Pernice’s analysis of damnum – as meaning loss rather than harm – in his

serious request in a business context, concerning a matter in respect of which the

III Miscellaneous matters

caused bodily injury; and

as a requirement for liability because it serves as a convenient claims-inhibitor and

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