Aquilian liability for negligence and proximity considerations

• Jurisdiction: South Africa
• Citation: 2019 Acta Juridica 315
• Published date: 24 December 2019
• Date: 24 December 2019
• Author: Price, P.
• Pages: 315-344

315

Aquilian liability for negligence and

proximity considerations

ALISTAIR PRICE*

This essay defends the importance of proximity considerations

under the Aquilian action for negligence. These concern the type of

relationship between the parties, and their respective undertakings,

roles and previous interactions. Proximity considerations should be, and

to an extent already are, taken into account by the courts under the

rubric of wrongfulness, alongside well-known legal and public policy

considerations (eg the oodgates concern) and constitutional norms

(eg accountability). Wrongfulness under the Aquilian action has a dual

function: rst, to provide an initial justication for the imposition of

liability; and second, as a mechanism to keep that liability in check.

Proximity considerations are crucial to the rst of these two functions,

as they contribute to the justication of primary legal duties not to

harm negligently and thus to the imposition of liability when justied

by corrective justice.

I INTRODUCTION

Where a defendant injures or kills the plainti or damages or destroys

her property by way of a positive negligent act, wrongfulness in an

Aquilian action is presumed and seldom contentious.1 But where

harm is caused by way of a negligent omission or the defendant

suers negligently inicted purely economic loss, wrongfulness is

not presumed. The conduct in question is prima facie not wrongful.

The plainti must instead establish that the defendant owed her

a legal duty in delict to avoid negligently causing harm in the

circumstances.2 In the absence of a binding precedent establishing a

* BBusSci LLB (Cape Town) BCL (Oxford) PhD (Cambridge); Associate

Professor in Law, University of Cape Town; Advocate of the High Court of South

Africa; Member of the Cape Bar. This work is based on research supported by the

National Research Foundation of South Africa.

1 The defendant might rebut the presumption of wrongfulness by raising a

defence, say, of consent, statutory authority, or – in circumscribed circumstances – a

contractual exclusion of delictual liability.

2 Minister of Safety and Secur ity v Van Duivenboden 2002 (6) SA 431 (SCA) para 12.

2019 ACTA 315

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316 PRIVATE LAW IN A CHANGING WORLD

duty,3 our courts have held that ‘policy considerations must dictate that

the plainti should be entitled to be recompensed by the defendant

for the loss suered’4 and that ‘conduct is wrongful if public policy

considerations demand that in the circumstances the plainti has to

be compensated for the loss caused by the negligent act or omission

of the defendant.’5 South African law ‘does not extend the scope

of the Aquilian action to new situations unless there are positive

policy considerations which favour such an extension’.6 In this essay,

I defend the idea that among the ‘positive policy considerations’

needed to justify a novel extension of Aquilian liability under the

rubric of wrongfulness, an important role should be (and to some

extent already is) played by ‘proximity considerations’ alongside

existing and well-known public and legal policy arguments.

This may strike some readers as controversial, because the notion

of ‘proximity’ derives from the English tort of negligence and,

more particularly, the varying ‘tests’ or ‘frameworks’ for establishing

whether a given defendant owed a claimant a ‘duty of care’ of a

given content and scope. Our courts have repeatedly stressed the

need to distinguish the English (and Commonwealth) concept of a

duty of care from our concept of wrongfulness and have decried the

confusions that may follow if the two are conated.7 Even English

3 Although, as was held in Perlman v Zoutendyk 1934 CPD 151 at 155, we

approach a new problem in the Continental rather than the English way, a legal

duty in delict may nonetheless be established by a binding precedent deciding an

earlier case with indistinguishable facts. For example, Indac Electronics (Pty) Ltd v

Volkskas Bank Ltd 1992 (1) SA 783 (A) established that a collecting bank owes a

legal duty in delict to the owner of the cheque. It is therefore clear that collecting

banks act wrongfully in delict if they negligently pay out to a third party and thus

cause purely nancial loss to the owner.

4 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority

SA 2006 (1) SA 461 (SCA) para 13; Lillicrap, Wassenaar & Partners v Pilkington

Brothers (Pty) Ltd 1985 (1) SA 475 (A) 501G–H.

5 Telematrix (n 4) para 13.

6 Lillicrap (n 4) 504F. See also Trustees, Two Oceans Aquarium Trust v Kantley &

Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para 12 per Brand JA:

‘When a court is requested, in the present context, to accept the existence of

a ‘legal duty’, in the absence of any precedent, it is in reality asked to extend

delictual liability to a situation where none existed before. The crucial question in

that event is whether there are any considerations of public or legal policy which require

that extension.’ [Emphasis added.]

7 At least since Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA

824 (A), our courts have decried and resisted the confusion and conation of the

two ideas.

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