Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Kotzé JA, Cillié JA, Van Heerden JA, Smuts AJA and Grosskopf AJA
• Judgment Date: 20 November 1984
• Hearing Date: 15 May 1984
• Court: Appellate Division

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475 (A)

1985 (1) SA p475

Citation	1985 (1) SA 475 (A)
Court	Appellate Division
Judge	Kotzé JA, Cillié JA, Van Heerden JA, Smuts AJA and Grosskopf AJA
Heard	May 15, 1984
Judgment	November 20, 1984

Flynote : Sleutelwoorde

Negligence — Action for damages — Breach of contractual duty to perform professional work with due H diligence — Such breach not per se a wrongful act for purposes of Aquilian liability — Examples of a concursus actionum in our law limited to cases where requirements of contractual and Aquilian actions were independently satisfied — Exception raised I against delictual claim for damages upheld where the wrongful act was alleged to be a breach of a contractual under-taking by a firm of engineers — Firm initially contracting directly with claimant owner for performance of professional duties, but contract thereafter assigned to third party, with engineers continuing to perform services as subcontractors — Such assignment held

1985 (1) SA p476

A not to affect issue — Same arguments which militate against a delictual duty where the parties are in a direct relationship apply to tripartite relationships — Delictual remedy unnecessary and parties should not be denied their reasonable expectation that their rights and obligations would be governed by their contractual arrangements. B

Headnote : Kopnota

There would appear to be no authority in our law for the proposition that a breach of a contractual duty to perform specific professional work with due diligence is per se a wrongful act for the purposes of Aquilian liability (with the corollary that, if the breach were accompanied by culpa, damages could be claimed ex delicto ). The examples in our common law of a concursus actionum are all cases where the C defendant satisfied the independent requirements of both a contractual and an Aquilian action. In general, contracting parties contemplate that their contract should lay down the ambit of their reciprocal rights and obligations. If the Aquilian action were generally available for defective performance of contractual obligations, a party's performance would presumably have to be tested not only against the D definition of his duties in the contract, but also by applying the standard of the bonus paterfamilias, with untenable results. If it were, on the one hand, to be argued that the bonus paterfamilias would always comply with the standards laid down by the contract to which he is a party, one would in effect be saying that the law of delict can be invoked to reinforce the law of contract, and there is no policy consideration which would justify such a conclusion. If, on the other hand, the standard imposed by law differed in theory from E the contractual one, the result must be that the parties agreed to be bound by a particular standard of care and thereby excluded any standard other than the contractual one.

The appellant, a firm of consulting and structural engineers, undertook to perform professional services in connection with the planning and construction of a glass plant for the respondent. After such services had been performed in part, the parties agreed that the agreement was to be assigned to a third F party, the assignment having the consequence that the appellant's status changed from that of a contractor to a subcontractor vis-à-vis the respondent. In an action for damages arising from alleged deficiencies in the siting, design and construction of the plant, the respondent contended that the appellant had owed it a duty of care, both before and after the assignment of the contract, to carry out properly and with professional skill and care the various tasks which it G purported to perform. However, so the respondent alleged, the appellant, in breach of the said duty of care, failed to carry out these tasks properly and with the necessary professional skill and care, thereby causing respondent damages. It was common cause that the respondent's case was based on delict and, more particularly, the (extended) actio legis Aquiliae. Before the Court a quo, the appellant unsuccessfully excepted to respondent's particulars of claim as, inter alia, not H disclosing that appellant's conduct was wrongful for the purposes of Aquilian liability, particularly in view of the contract between the parties and the subsequent assignment thereof.

Held, in the light of the consideration outlined above (per GROSSKOPF AJA; KOTZÉ, CILLIÉ and VAN HEERDEN JJA concurring, SMUTS AJA dissenting), that it would be undesirable to extend the Aquilian action to the duties subsisting between the parties to a contract of professional service like the one in issue.

I Held, further, that these considerations did not fall away in view of the assignment of the contract: the same arguments which militated against a delictual duty where the parties were in a direct contractual relationship, applied where the relationship was tripartite, namely that a delictual remedy was unnecessary and that the parties should not be denied their reasonable expectation that their reciprocal rights and obligations would be regulated by their contractual arrangements and would not be circumvented

1985 (1) SA p477

by the law of delict.

Held, accordingly, allowing the appeal, that the exception had A to be allowed with costs, respondent being given leave to amend its particulars of claim.

The decision in the Witwatersrand Local Division in Pilkington Brothers (SA) (Pty) Ltd v Lillicrap, Wassenaar and Partners 1983 (2) SA 157 (W) reversed.

Case Information

Appeal and cross-appeal from a decision of the Witwatersrand B Local Division (MARGO J) dismissing an exception to plaintiff's (respondent's) amplified particulars of claim. The nature of the pleadings appears from the judgment of GROSSKOPF AJA and that of the Court a quo reported at 1983 (2) SA 157 (W).

S Kentridge SC (with him M Tselentis ) for the appellant: The C respondent, in couching its claim in delict, alleges that the appellant failed to carry out properly and with the necessary professional care and skill the site and subsoil investigation and/or analysis of the results thereof, the design of the works and the supervision of the construction of the works. These duties are co-extensive with the appellant's contractual D obligations under the agreements concluded between it and the respondent. The standard of care alleged by the respondent, namely the obligation to carry out the work undertaken "... properly and with professional skill and care" is also the measure of a consulting engineer's contractual obligations to his contractual employer. Skippon v De Witt (1904) 21 SC at E 511. De Wet v Steynsrust Municipality 1925 OPD at 157-158; Greaves & Co (Contractors) Ltd v Baynham Meikle and Partners [1975] 1 WLR at 1101E. Halsbury's Laws of England 4th ed vol 4 para 1330 at 680. Randaree and Others v W H Dixon & Associates 1983 (2) SA at 3E and 4D - H. This duty was expressly stated in the contract. The first issue which arises is whether the appellant, as a consulting engineer, had a non-contractual duty F of care to the owner, by whom he was employed, namely the respondent, during the period July 1974 to March 1976, the breach of which rendered it liable in delict for damages for economic loss as claimed by the respondent, and which duty was co-extensive with his contractual duties to the owner. If this G issue is decided in favour of the appellant, the particulars of claim do not disclose a cause of action in respect of any acts of the appellant which are alleged to have taken place prior to the assignment of March 1976. The second issue is whether the appellant is liable in delict to the respondent for the negligence which is alleged to have taken place after the H assignment of March 1976, when there was no longer a contractual relationship between the parties. With reference to both these issues, the following submissions are apposite. Although the lex Aquilia was originally limited to cases of bodily injury or physical damage to corporeal things, both in Roman and Roman-Dutch law it was extended by the actio in factum to certain instances of purely economic loss. See Van I der Walt "Delict" in Joubert Law of South Africa vol 8 paras 13, 24. However, in Roman-Dutch law there is no general principle of liability for economic loss negligently caused. The broad touchstone of delictual liability stated in Cape Town Municipality v Paine 1923 AD at 216 - 217, namely whether a reasonable man would have foreseen harm and guarded against it, is not applicable

1985 (1) SA p478

A where the damage is merely economic or where the negligence is in words, not deeds. In such cases the Courts will, case by case, examine the alleged duty situation and the allegedly unlawful conduct in order to determine whether the Aquilian remedy should be extended to the particular economic loss situation. Herschel v Mrupe 1954 (3) SA at 477D - G, 478C B - G, 484B - 485C, 488B, 490G - H; Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA at 585F - 586A; Administrator, Natal v Trust Bank van Afrika Bpk 1979 (3) SA at 832 in fine - 833; Alliance Building Society v Deretitch 1941 TPD at 206. In particular, while an action undoubtedly exists for negligent verbal conduct in particular C circumstances, actionability in particular cases depends on considerations of need, justice and public policy. Administrateur, Natal v Trust Bank van Afrika Bpk (supra at 833 - 834). Suid-Afrikaanse Bantoetrust v Ross and Jacobsz 1977 (3) SA at 187E - G. One of the factors to be taken into account is whether recognition of the remedy in the case of pure economic loss would entail "indeterminate liability" to a D multiplicity of plaintiffs. But this is not the only test...