THE CONCEPT OF WRONGFULNESS IN AQUILIAN

LIABILITY
BY
A. J. E. lAFFEY, B.A., LL.B. (Cape Town), B.C.L. (Oxon.),
Attorney of the High Court of Rhodesia,
Lecturer in Law at the University College of Rhodesia.

The purpose of this article is to canvass once again the nature

and function of the concept of wrongfulness in Aquilian liability.
The' argument will be that (1) the function of wrongfulness is to keep
within manageable bounds the area within which decisions on
liability depend solely on an enquiry into the reasonableness of the
defEndant's conduct, and consequently (1) that there is and can be
no uniform criterion of wrongfulness,' particular rules of law
prescribe what conduct is wrongful in particular classes of case.
In their analysis of Aquillan liability (and. indeed all delictual
liability) van der Merwe and Olivier1 place much emphasis on the
element of wrongfulness. It is a requirement for liability altogether
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separate from the requirement of fault. McKerron2 also acknowledges the

clement 'of wrongfulness but subsumes it within the requirement of fault:
culpa is :not merely the absence of due care, but conduct which is wrong-
ful as wI:ll as careless; dolus is not merely the intentional, but the inten-
tional and wrongful, infliction of harm. He prefers not to express wrong-
fulness 2LS a separate requirement because, he says, to do so does not
accord with the terminology employed by the courts.
McKerron's approach follows from the ambiguity of the duty of care
concept. Culpa postulates the breach of a duty of care. In any particular
case there may have been no breach of a duty of care because a reasonable
man in the position of the defendant would not have foreseen and
guarded against loss, either at all or to the plaintiff. Or there may have
been no breach of a duty of care, without any enquiry as to what a
reasonable man would have done, because the law imposed on the
defendant no duty to take care. If the use of this ambiguous concept were
avoided one would say that in the first case there was no culpa, in the
second case that the defendant's conduct was not wrongful. The strongest
criticism of the duty of care concept is that it is used for two quite
different purposes: to exclude liability because the reasonable man would
1 Die Om'egmatige Daad ill die Suid-A/rikaanse Reg, 36-70.
2 The Law 0/ Delict (6th ed.) vii-viii, 11-12.
24
 WRONGFULNESS IN AQUILlAN LIABILITY 25

not have foreseen and guarded against loss. and to exclude liability in
certain cases irrespective of whether or not a reasonable man would have
foreseen and guarded against loss. One aspect of the duty of care is to
serve as a synonym for wrongfulness. but because the concept is also
used in relation to culpa the requirement of wrongfulness is confusingly
embraced within the requirement of fault.
It is arguable whether McKerron is correct in stating that his
approach is more in accordance with the terminology employed by the
courts. Undoubtedly duty of care is sometimes used as a substitute for
wrongfulness. An example is Union Government v. Ocean Accident
Guarantee Corp .• Ltd.• 1956 (1) S.A 577 (AD.) where Schreiner I.A
used the concept to exclude liability where the defendant's negligent
driving resulted in financial loss to the employer of the person injured by
the driving.
Nevertheless there are many cases where judges have expressed the
requirement of wrongfulness as a separate element of Aquilian liability.
Thus in Matthews v. Young. 1922 AD. 492. 507 de Villiers I.A said:
" ... there is no onus upon a defendant until the plaintiff has
proved that a legal right of his has been infringed. Under the lex
Aquilia there is only an action for damnum injuria datum-for
pecuniary loss inflicted through a legal injury. and the defendant is
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not called upon to answer the plaintiff's case before the plaintiff has
proved both the pecuniary loss and that it directly results from what
is. in the eye of the law. an injuria".9
It will be seen that here. as in other cases. wrongfulness is identified
with the "injuria" of damnum injuria datum. and is treated as
synonymous with the breach of some right oonferred by the law on the
plaintiff.
Other examples include the judgment of Watermeyer I. in Bredell v.
Pienaar. 1924 C.P.D. 203. 209, where he stated the elements of Aquilian
liability as follows:
"(a) The defendant's act had to be an unlawful one (injuria);
(b) Culpa (which included (dolus) on the part of the defendant had
to be proved; (c) The plaintiff had to prove damnum (some pecuniary
loss suffered by him)."
So also Watermeyer I. in Perlman v. Zoutendyk. 1934 C.P.D. 151. 155:
"In general all damage caused unjustifiably (injuria) is action-
able. whether caused intentionally (dolo) or by negligence (culpa)."
De Villiers C.J. in Cape of Good Hope Bank v. Fischer (1886) 4 S.c.
368.376:
---------------
3 My italics.
 26 THE RHODESIAN LAW JOURNAL

"The action in factum was no longer confined to cases of

damage done to corporeal property. but was extended to every kind
of 1:oss sustained by a person in consequence of the wrongful acts of
another."
Steyn c.J. in Geary & Son (Pty.) Ltd. v. Gove. 1964 (1) S.A. 434. 441:
"I do not propose to attempt a definition of the limits set to
oompetition in trade by Aquilian liability. but whatever those limits
are, it seems clear that interference of the nature indicated is
recognised as an infringement of a trader's rights and therefore as a
delict in our law."'"
In Herschel v. Mrupe, 1954 (3) S.A. 464. 485. 490. van den Heever
J.A. rejected liability because of the absence of wrongfulness:
" ... the act or omission complained of must be an unlawful
incursion into another's economic sphere."
"The Aquilian action in respect of damnum injuria datum can
be instituted by a plaintiff against a defendant only if the latter has
made an invasion of rights recognised by the law as pertaining to the
plaintiff. "
In Regal v. African Superslate (Pty.) Ltd., 1963 (1) S.A. 102. Steyn
c.J. placed emphasis on wrongfulness in relation to liability for an
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omission.
There is therefore considerable authority for the treatment of wrong-
fulness as an element of Aquilian liability quite separate from fault. It is
surely prderable to treat the concepts separately if only because there is
no necessary connection between them.
What is the role of wrongfulness (or duty of care in its wrongfulness
sense) in Aquilian liability? To answer this question we must consider
the natuff: of the fault. and more particularly the culpa, requirement. A
defendant is gUilty of culpa if a reasonable man in his position would have
foreseen and guarded against loss. There cannot be culpa unless loss
was reasonably foreseeable. Even if loss was reasonably foreseeable there
will be no culpa unless a reasonable man would have guarded against it.
On the fac:e of it, it might be suggested that the requirement of culpa is
by itself a sufficient criterion for liability. A defendant should always be
liable for foreseeable loss which he has caused if a reasonable man would
have refrained from causing it. To introduce a further essential for
liability, wrongfulness, it might be argued, is to say that a man may in
certain cireumstances inflict with impunity damage which a reasonable
man would not have inflicted, a position which the law should not
countenanc:e.
4 My italics.
 WRONGFULNESS IN AQUILIAN LIABILITY 27

The answer to this is twofold. Firstly of course the law is necessarily

the product of its historical development. Neither the law of Justinian nor
the law of Voet accepted the culpa criterion as the sole determinant of
liability. For example where the defendant's conduct was an omission he
might be immune from liability without any enquiry whether a reasonable
man would or would not have caused the loss.
More important is the point that the question whether or not the
defendant in any particular case has been guilty of culpa is normally
a question of fact. The court decides, as a fact, whether in the particular
circumstances of the case a reasonable man would have foreseen the
possibility of harm and. if so, would have guarded against it. This factual
issue cannot however be the sole determinant of liability in all cases
because there are many situations in which the factual culpa criterion
cannot be practicably or meaningfully applied. There are cases where the
enquiry whether a particular consequence was foreseeable is not capable
of a sensible answer. There are other cases where. although the con-
sequence was admittedly foreseeable, it is undesirable to make liability
depend solely on the court's assessment of whether or not a reasonable
man would have guarded against the harm. This is the position in cases
involving nicely balanced competing interests of the plaintiff and the
defendant, and when arguable issues of policy and morality arise. In such
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cases the court does not wish to be left at large to decide an issue of fact;
it wants the guidance of rules of law to help it grapple with the problems
with which it is faced. The function of wrongfulness, then, is to set
boundaries to the application of the factual culpa test and provide rules
of law for the determination of certain issues of liability.
Where the defendant has caused physical damage to property or
personal injury by a positive physical act, wrongfulness has no function.
To cause such harm in such a way, dolo or culpa, is always wrongful, so
wrongfulness can be left out of account. Within this field there are no
insuperable difficulties in treating the issue of liability as entirely one of
fact. The questions whether the consequence was foreseeable and if so
whether a reasonable man would have guarded against it, though often
difficult, are generally manageable here.
It is in the development of Aquilian liability to cover the infliction
of purely pecuniary loss and to cover loss caused by statements and omis-
sions that the concept of wrongfulness becomes important. In these fields
positive rules of law are needed to lay, down the situations in which in
principle there may be liability, so as not to compel the judge to decide
difficult questions of policy and morality entirely as questions of fact.
On the other hand a multiplicity of rules of law as to what conduct is
wrongful could impede proper development (though this danger is
 28 THE RHODESIAN LAW JOUR"AL

reduced in our system by the flexibility of the doctrine of precedent).

There is sometimes a difference of opinion whether in a particular
field rules of law should determine the circumstances in which liability
is pos~ible. or whether all should depend on the factual culpa criterion.
Take the question of liability for a careless mis-statement on which the
plaintiJI has acted to his detriment. In Perlman \'. Zoutendyk. 1934 C.P.D.
151. Watermeyer I. treated liability as simply a factual question of culpa.
In Herschel v. Mrupe. 1954 (3) S.A. 464. the majority of judges
(CentIivres C.I .• Hoexter I.A. and Fagan I.A.) accepted this approach.
They made no use of the wrongfulness concept. To decide whether the
defendant was liable for the loss suffered by the plaintiff by acting in
reliance on the defendant's false statement they applied only the test of
culpa: would a reasonable man in the position of the defendant have
guarded against such loss as the plaintiff would forseeably suffer if the
statement were false? This was a question of fact. on which the judges
came to different conclusions. van den Heever J.A., on the other hand,
employed the wrongfulness concept to exclude liability (see the passages
quoted above). Schreiner I.A.. though ultimately resting his decision on
the conclusion that in any event a reasonable man would not have
guarded against the foreseeable loss, made it plain that in his view the
factual criterion of culpa was not an adequate criterion of liability in this
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field. He used the duty of care concept. in its wrongfulness sense. to limit
liability. As a broad rule of law prescribing the circumstances in which
there can be a duty to speak carefully he approved the rule formulated by
Andrews I. in International Products Co. v. Erie R.R. Co. (1927) 244
N.Y. 331.

If the approach of Schreiner I.A. is followed. a court faced with a

dispute about liability for a false statement would not be at large to
determine liability simply by deciding whether or not the defendant's
conduct had fallen short of that of a reasonable man. First it would have
to decide whether the statement. if made c~lpa. was wrongful according
to a rule of law. If it was wrongful. the factual issue of culpa would
remain for decision but would be confined within a relatively narrow
ambit. If however the approach of the majollity of the judges in Herschel
is followed. no rule of law will intrude. The court must decide entirely as
a question of fact on the particular circumstances of the case, and without
the guidance of any proposition of law. whether a reasonable man would
have foreseen and guarded against the loss that has occurred. Thus
Fagan .l.A. said at 494:
"This requirement of reasonablen~ss-in respect of which the
court must exercise its judgment as to what the average prudent
person would have done in the circumstances-seems to me to supply
 WRONGFULNESS IN AQUILIAN LIABILITY 29

the elasticity required to keep liability for inaccurate statements

within ... reasonable bounds."
If the majority approach correctly reflects our law wrongfulness has
no part to play in determining liability for a statement causing loss to a
person who has acted in reliance on it. The field is assimilated to that of
liability for causing physical damage or personal injury by a positive
physical act. All depends on the factual issue of culpa. It is submitted.
with respect. that situations will arise in this field where both forseeability
and the conduct of the reasonable man will be impracticable criteria to
apply.
Next let us consider Aquilian liability for omissions. On a number
of occasions the Appellate Division held that there could be no liability
for an omission unless it was oonnected with a prior positive act. althougb
in reality liability was never limited to that extent. Taking the proposition
at its face value. however. it meant that as a matter of law no omission
was wrongful in the absence of a prior positive act. If there was no such
act the court would not enter into a factual enquiry as to what a reason-
able man would have done in the circumstances. In Silva's Fishing Cor-
poration (Pty.) Ltd. v. Maweza, 1957 (2) S.A. 256 (AD.) the minority
judges took the more realistic view that there are other circumstances in
which an omission may be wrongful. McKerron5 sets out a number of
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such circumstances.
In Peri-Urban Areas Health Board v. Munarin, 1965 (3) S.A 367,
however, it seemed almost as if the Appellate Division abandoned the
wrongfulness concept for liability for omissions, as the majority judges
had for statements in Herschel. Holmes I.A said at 373:
"Negligence is the breach of a duty of care. In general, the law
allows me to mind my own business. Thus if I happen to see someone
else's child about to drown in a pool, ordinarily I do not owe a legal
duty to anyone to try to save it. But sometimes the law requires me
to be my brother's keeper. This happens, for example, when the
circumstances are such that lowe him a duty of care; and I am
negligent if I breach it. lowe him a duty if a diligens paterfamilias.
that notional epitome of reasonable prudence, in the position In
which I am in, would-
(a) foresee the possibility of harm occurring to him; and
(b) take steps to guard against its occurrence.
Foreseeability of harm to a person, whether he be a specific indi-
vidual or one of a category, is usually not a difficult question, but
when oUght I to guard against it? It depends upon the circumstances
5 Law of Delict (6th ed.), pp. 12-23.
 30 THE RHODESIAN LAW JOURNAL

in each particular case, and it is neither necessary nor desirable to

atcempt a formulation which would cover all cases."
It is clear that the learned judge was using duty of care in its culpa
and not its wrongfulness sense, because he says that a duty of care is
owed when a reasonable man would foresee and guard against harm.
The passage appears to mean that I must be my brother's keeper (i.e. I
am liable for omitting to act) whenever a reasonable man in a position to
avoid foreseeable harm to another would act to prevent that harm. The
sole criterion for liability for an omission is the culpa criterion: what
would a reasonable man have done in the circumstances of the particular
case? (But why then am I not liable when I fail to rescue the drowning
child?)

It is unlikely, however, that the judgment is authority for any such

wide proposition, and no doubt the above passage must be read in the
context of the facts of the case, where there was a close association
between the defendant's activities and the danger to be guarded against.
Certainly the proposition is inoonsistent with both majority and minority
judgments in Silva. It is clear that in the field of liability for omissions
the wrongfulness concept must play an important part. Liability cannot
depend merely on reasonableness. In what circumstances a person will
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go to the assistance of another will often depend on his moral values.

Even in cases where perhaps everyone would agree that there is a moral
duty to act, as in the case of a drowning child who could easily be rescued,
many would say that moral duty should not be made a legal one. The
circumstances in which a man must in law be his brother's keeper must
be a matter of legal policy, not a factual issue to be left to the court in
each case.

Our legal policy seems to be that an omission to act is never action-

able if the person who omitted to act had no association at all with the
danger except that he was in a position to avert it. An omission in such
circumstances is never wrongful, irrespective of what a reasonable man
would have done in the circumstances. What are required then are rules
of law defining the kinds of connection or association with the danger
which render wrongful the failure, dolo or culpa, to prevent the danger.
McKerron has identified five categories of situation in which an omission
may be wrongful. No doubt as the law develops rules establishing other
categories will be added by the courts. It is submitted that rules of law
are m!cessary in this field; the factual culpa criterion is inadequate to
determine liability.

III the field of liability for pure pecuniary loss, also, the concept of
wrongfulness is of great importance. Thus in Union Government v.
 WRONGFULNESS IN AQUILlAN LIABILITY 31

Ocean Accident Guarantee Corporation, Ltd., 1956 (1) S.A. 577.

Schreiner J.A. considered it impracticable to make liability for the pecu-
niary loss suffered by the employer dependent solely on the factual issue
whether a reasonable man would have foreseen and guarded against that
loss.
In this sphere our law has been greatly influenced by English law.
The situations in which it has been held to be wrongful to cause purely
pecuniary loss have largely been modelled on the situations in which there
is liability in English law. Thus. generally speaking. the conduct will not
be wrongful unless the loss was foreseen; dolus is required. not mere
culpa. (Of course intention to cause loss does not necessarily render the
conduct wrongful.) As in English law, provided dolus is present. conduct
causing pecuniary loss by means of interference in a contractual right of
the plaintiff may be wrongful. The English rules of injurious falsehood
and passing off have substantially been accepted as criteria for wrongful-
ness in our law. In the field of trade competition there is little authority.
The rules of the English torts of intimidation and conspiracy have some-
times been referred to. but fortunately not always followed: see Murdoch
v. Bullough, 1923 T.P.D. 495; Dun & Bradstreet (Pty.) Ltd. v. S.A.
Merchants Combined Credit Bureau (Cape) (Pty.) Ltd., 1968 (1) S.A.
209.
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This whole field of liability for purely pecuniary loss is dominated

by the concept of wrongfulness. by rules of law defining the extent of
liability. It has never been suggested that in this field the criterion of the
reasonable man is adequate to solve the difficult problems which arise.
In the situations so far dealt with the inadequacy of the culpa
criterion as the sole determinant of liability lay in the difficulty of deciding
whether a reasonable man would have guarded against loss which was
foreseeable. There are also situations where it is impracticable to decide
whether the loss was even foreseeable. An example is liability for nervous
shock. Even assuming that a reasonable man will foresee that if he drives
his car carelessly and has an accident another person may suffer nervous
shock. it is surely unreal to enquire what class of person he would foresee
as suffering shock and for what reasons. Would he foresee nervous shock
only as a result of fear for the victim's own personal safety and in no
other circumstances? Or as a result of fear for the safety of a close
relation (and if so, how close?) Would he not foresee shock as a result of
being informed of the death of a relation? Such questions are unanswer-
able; they should not even be posed. The ambit of liability must be defined
by rules of law and there is no advantage in disguising them as questions
of foreseeability (whether as a test for culpa or a test for remoteness).6
6 See Millner in (1957) 74 S.A.L.J. 263, 265.
 32 mB RHODESIAN LAW JOURNAL

Thus the function of wrongfulness is to indicate to the court that

in certain situations it must look for rules of law which prescribe whether
in principle there can be liability, before embarking on a factual enquiry
as to the presence of dolus or culpa.
The next question to be considered is whether wrongfulness is a
concept with any substantive content. Is it merely a signal to look
for rules of law or does it contain within itself a rule of law? Are
the various rules of law which exist in the different fields of Aquilian
liability derived from some common principle which is implicit in
the concept of wrongfulness? Where in Matthews v. Young, 1925
AD. 492, de Villiers J.A says in relation to trade competition,
"All a person can, therefore, claim is the right to exercise his calling
without unlawful interference from others", is there a uniform criterion
which we can apply to determine whether a particular interference is
unlawful. which will be the same criterion which we would apply in
determining whether a particular omission is wrongful or whether a
negligent driver is liable for the pecuniary loss of the insurer of the
vehicle which he damaged?
Against the above background and the question just posed, let us
examine the concept of wrongfulness expounded by van der Merwe and
Olivier, Die Onregmatige Daad in die Suid-Afrikaanse Reg. For them
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it involves a single criterion applicable not only over the whole field of
Aquilian liability but throughout the law of delict:
"Waar die privaatreg de doen het met die afbakemng van die
regsbelange van individue onderling, met die handhawing van 'n
ewewig tussen die belange, volg dit dat 'n versteuring van die ewewig
deur 'n handeling van 'n persoon wat die regsbelange van 'n ander
aantas, onregmatig is. Hieruit blyk dat onregmatigheid in privaat-
regtelike sin noodwendig gelee is in die skending van 'n ander se
subjektiewe reg."7
"Een ding is om te verklaar dat onregmatigheid gelee is in die
krenking van 'n sUbjektiewe reg, geheel iets anders om die grense
van 'n betrokke subjektiewe reg in 'n bepaalde geval aan te dui. 'n
Subjektiewe reg is nou eenmaal nie 'n abstrakte gegewe met 'n
vaste inhoud nie. Die draagwydte van 'n subjektiewe reg wissel
gedurig van geval tot gevaI en teenoor persoon tot persoon.8
"Volgens welke maatstaf moet die omvang van 'n bepaalde
subjektiewe reg in 'n geeigende geval vasgestel word? Die antwoord
is dat steeds gekyk moet word na die redelikheid al dan rue van die
7 At p. 37.
8 At p. 43.
 WRONGFULNESS IN AQUlLlAN LIABILITY 33

dader se optrede in die lig van die benadeling wat die getroffene ly.
Voortdurend moet in die privaatreg 'n belangeafweging tussen per-
sone plaasvind aan die hand van die redelikheid. Die redelikheids-
maatstaf of sosiaaladekwant, soos dit some genoem word, is 'n
objektiewe maatstaf. Hier word eenvoudig met die algemene regs-
gevoel van die gemeenskap gewerk. Sosiaal adekwaat of redelik is
'n handeling gevolglik as dit volgens die regsgevoel van die gemeen-
skap regmatig is. Dadelik moet toegegee word dat die redelikheid as
begrensingsmaatstaf van die subjektiewe reg, met ander woorde as
onregmatigheidskriterium. 'n onvermydelik vae een is. Gelukkig het
in die praktyk reeds sekere riglyne vir die bepaling van wat redelik
al dan nie in 'n bosondere geval is. uitgekristalliseer. Meesal kan
met gebruikmaking van hierdie hulpkriteria vasgestel word of 'n
subjektiewe reg aangetas is sonder om op die algemene redelikheids-
toets terug te val. Of 'n handeling met verwysing na sy verooT1$aakte
gevolg redelik al dan nie is. is wat uitgemaak moet word om vas te
stel of onregmatigheid voor hande is. Omdat redelikheid dus onreg-
matigheidskriterium is. volg dit dat 'n handeling wat met verwysing
na 'n bepaalde gevolg as redelik bestempel kan word, steeds regmatig
is wat daardie gevolg betref en omgekeerd."9
With the greatest respect to all the learned arguments with which
the cause of the subjective right has been advanced it is submitted that
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little is to be gained by asserting that wrongfulness in Aquilian liability

involves the infringement of a right of the plaintiff. Of course whenever
a plaintiff can successfully bring an Aquilian action a right of his has
been infringed. His right which has been infringed is his right not to
have his patrimony diminished by the wrongful act of another. That takes
the matter no further, because whether the plaintiff had a right not to
have his patrimony diminished by the conduct complained of depends
on whether that conduct was wrongful.
The right not to have one's patrimony reduced is however not the
subjective right that the authors have in mind as involved in the concept
of wrongfulness. They maintain in effect that a person has a right not to
have his patrimony diminished where the loss results from the infringe-
ment of some material or immaterial property right or contractual right
or personality right of his.
This approach is unhelpful. Whether or not any such right exists
must often depend precisely on whether the Aquilian action lies for the
recovery of the patrimonial loss in question. The defendant by a
fraudulent misrepresentation induces the plaintiff to pay money which he
would not otherwise have paid. The plaintiff has the Aquilian action to
9 At pp. 43-44.
 34 THE RHODESIAN LAW JOUR.."JAL

recover his loss. What right of the plaintiff (other than his right not to
have his patrimony diminished in such circumstances) has been infringed?
Only a right specifically manufactured to explain the fact that the plaintiff
has an action and the content of which would be difficult to formulate.
The defendant by his negligent driving causes personal injury to the
plaintiff's minor child. with the result that the plaintiff is out of pocket
for medical expenses. What subjective right of the plaintiff (other than
his right not to have his patrimony diminished) has been infringed? Are
we to explain the fact that the father has an action by saying that he
has a right not to have his child injured? If we do say this. we say it only
because the father has an action.
The same applies in trade competition cases. The defendant trader
induces customers of the plaintiff trader to cease to deal with him.
without their infringing any contractual rights of the plaintiff but in
circumstances where the law regards the defendant's conduct as wrongful.
What right of the plaintiff has been infringed? One can say. if one wishes.
that the plaintiff's right to trade has been infringed. but the extent of that
right and whether it has been infringed. depends precisely on what kinds
of interference by the defendant are wrongful.
In considering wrongfulness we are concerned with the circumstances
in which a person is entitled to recover patrimonial loss. i.e. the circum-
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stances in which he has a right not to have his patrimony diminished. As

to whether in a particular case the plaintiff had such a right (i.e. whether
the defendant's conduct was wrongful). it may be relevant that his loss
flowed from the infringement of some right which had an existence
independently of the question whether the defendant's conduct was
wrongful. For example. whether the plaintiff can recover purely pecuniary
loss may depend on whether the defendant's conduct brought about an
infringement of a contractual right of the plaintiff. But often the subjective
right. from the infringement of which the loss flowed. can be said to exist
only because the law holds that the loss is recoverable.

It follows that one cannot tell whether. for the purposes of the
Aquilian action. a right existed to be infringed until one has first deter-
mined whether the conduct causing the loss was wrongful. Thus the
frequent statements in the judgments that the Aquilian action lies only
where a right of the plaintiff has been infringed are merely statements that
the defendant's conduct must have been wrongful. The requirement of
the infringement of a subjective right of the plaintiff is tautologous with
the concept of wrongfulness.

This leaves us with "unreasonableness" as van der Merwe and

Olivier's uniform test for wrongfulness. As authority for their view that
 WRONGFULNESS IN AQUILIAN LIABILITY 35

conduct is wrongful if it is unreasonable with reference to its results, they

rely almost entirely on continental and South African academic writings.
The only judicial authority they cite for their view is Regal (supra), in
particular the judgment of Steyn c.J. That case concerned neighbour law
(or nuisance) and the issue was the possible liability to an interdict of an
owner of land who failed to take steps to prevent a dangerous condition,
created on his land by his predecessor, from causing damage to neigh-
bouring land. Any such liability would be for an omission. There could
be no such liability, said the learned Chief Justice, unless the omission
was wrongful. Whether it was wrongful depended on whether there were
reasonably practicable steps available to the owner to prevent the damage
occurring. Certainly he stressed reasonableness, but this was in the
context of neighbour law, where he considered it to be an important
factor in the adjustment of relationships between owners of land. He
said:
'''n Wederregtelike omissio veronderstel die vermoe om doel-
treffend te handel, en soos reeds opgemerk, staan, wat ons buurreg
betref, die redelikheid en billikheid sterk op die voorgrond. "10

Thus reasonableness is the criterion as to whether the omission of

an owner of land to prevent damage, resulting from a condition on his
land not created by him, is wrongful so as to found an action for an
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2011)

interdict. This is no authority for the proposition that for the purposes
of Aquilian liability for damages an omission is wrongful if it is unreason-
able, let alone that reasonableness is the criterion for wrongfulness in all
cases of Aquilian liability. That the learned Chief Justice could not
have meant that is apparent from what he said in Silva:

"The Roman law, as also the Roman-Dutch law, recognises the

principle that, generally speaking, no one is bound to mind the
business of another, even where he can, with no danger or expense
to himself, avert serious harm from the other, and that no liability
is incurred by refraining from doing so, even if the omission should
violate a moral duty."11
Reasonableness, as the criterion for wrongfulness in Aquilian
liability, it is submitted, is inadequate because it does not serve the
purpose for which the concept of wrongfulness exists, i.e. to reduce the
area within which liability depends on the court's judgment of the
reasonableness of the defendant's conduct in the circumstances of the
case. This purpose obviously cannot be served if the reasonableness of
the defendant's conduct is the test for wrongfulness as well as for culpa.
10 1963 (I) S.A. 102 (A.D.), lliF.
tl 1957 (2) S.A. 256 (A.D.), 265A.
 36 THE RHODESIAN LAW JOURNAL

It is true that the authors say:

"Gelukkig het in die praktyk reeds sekere riglyne vir die bepaling
van wat redelik al dan nie in 'n besondere geval is, uitgekristalliseer.
Meesal kan met gebruikmaking van hierdie hulpkriteria vasgestel
word of 'n subjektiewe reg aangetas is sonder om op die algemene
redelikheidstoets terug te val. "12
It is clear however that for the authors reasonableness is always the ulti-
mate criterion; they do not seem to regard the "riglyne" as in any sense
binding rules of law which the court is bound to apply to situations
within their anlbit unless the court is in a position, and is willing, to
overrule them. As mere "hulpkriteria" they can presumably be ignored
by a court which finds them unhelpful. Certainly, outside the field of the
recognised defences. the authors accept remarkably few "riglyne" as
being part of the law; many of those which have been adopted by the
courts they firmly reject.
It is also true that the authors emphasize that reasonableness for the
purpose of wrongfulness differs from the standard of conduct of the
reasonable man for the purposes of culpa. They say:
"Selfs al word gewerk met die 'redelike man' -toets vir nalatig-
heid. is die gevaar van verwarring tussen onregmatigheid en skuld,
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meer bepaald nalatigheid, nog buitengewoon groot, omdat die objek-

tiewe redelikheid van 'n gedraging maklik met die optrede van die
redelike man gelykgeskakel kan word. As mens is die redelike man
egter nie 'n perfekte wese rue. Daarom beantwoord sy gedrag beslis
nie altyd aan die standaard van die objektiewe redelike me. Skiet
die dader se gedrag te kort aan die vereistes wat deur die objektiewe
redelikheid gestel word onder omstandighede waar die redelike man
ook sou gefaal het, tref die verwyt van nalatigheid die dader nie,
ten spyte daarvan dat hy onregmatig gehandel het. "13
The distinction seems to be that for the purposes of wrongfulness
reasonableness is judged on the basis of all the circumstances of the
case as known to the court (which we may call for purposes of the present
discussion "reasonableness in the more objective sense"), while in deter-
mining the conduct of the reasonable man for the purposes of culpa
account is taken only of the circumstances as they would have been
appreciated by the reasonable man in the position of the defendant
("reasonableness in the less objective sense"), The distinction was drawn
by Steyn C.J. in Regal. The owner's omission to prevent the damage to
his neighbour would be unreasonable in the more objective sense if,
12 Die Onregmatige Daad at p. 44.
13 Op. cit. at p. 78.
 WRONGFULNESS IN AQUILIAN LIABILITY 37

on all the evidence before the court. reasonably practicable steps were
available to prevent it. The owner would then be liable to an interdict.
It does not follow. however. that he would be guilty of culpa, i.e. that his
conduct was unreasonable in the less Objective sense, because a reason-
able man in his position might not have appreciated that such steps were
available:
"Oit is goed denkbaar dat 'n eienaar met aIle redelikheid inge-
volg deskundige advies meen dat verhindering van 'n gevolg ondoen-
lik is en dat sy mening eers by die verhoor weerle word deur getuienis
van ander deskundiges. In so'n geval sou moeilik staande gehou
kon word dat sy late nalatig was. "14
Thus conduct may be reasonable in the more objective sense without
culpa. but it is scarcely possible to imagine circumstances where conduct
is unreasonable in the less objective sense without its necessarily being
unreasonable in the more objective sense. It follows that where. as is the
case with the Aquilian action. culpa is a requirement for liability.
reasonableness in the more objective sense can have no relevance. What
is the point of asking whether the defendant's conduct was unreasonable
in the more objective sense if nothing depends on the answer? If the
answer is no. then in any event there was no culpa. If the answer is yes.
then one still has to enquire whether there was culpa.
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Reasonableness in the more objective sense and reasonableness in

the less objective sense can logically only be alternative criteria for
liability. not cumulative ones. If culpa is a requirement for liability then
reasonableness in the more objective sense is irrelevant. and cannot be
the criterion for wrongfulness for it adds nothing. But in fields where a
wider liability is desired than is afforded by the culpa criterion reasonable-
ness in the more objective sense may serve as the criterion for liability.
Thus the remedy sought in Regal was an interdict not damages. and for
this (except in the view of Rumpff J.A.) culpa was not a requirement.
In the field of neighbour law. it was held, the requisite for an interdict
was reasonableness in the more objective sense. (It is interesting that
Steyn C.J. apparently did not dismiss the possibility that in neighbour
law an owner may be liable, not merely for an interdict but for damages,
in the absence of culpa, where his conduct was unreasonable in the more
objective sense. 15 That would be similar to the accepted basis of liability
for nuisance in English law. Such liability would of course not be
Aquilian. and on that account is rejected by van der Merwe and Olivier.)
Their adoption of the reasonableness test for wrongfulness inevi-
tably leads van der Merwe and Olivier to reject rules of law which the
14 1963 (1) S.A. 102 (A.D.), 112B.
15 Loc. cit.
 38 THE RHODESIAN LAW 10UR-'1AL

courts have fonnulated with a view to limiting the sphere of operation of

the culpa-reasonableness criterion. The result is that in order to keep
liability in bounds they have to rely on a culpa requirement which is
ineffective for the purpose.

Take the field of liability for purely pecuniary ·loss. The attitude
of the courts has been that conduct causing such loss cannot be wrongful
unless the loss was intended, i.e. there was dolus. Thus, as we have seen,
in Union Government v. Ocean Acddent and Guarantee Corp., Ltd.,
1956 (1) S.A. 577 (A.D.), the Appellate Division refused to recognise
that a negligent driver can be liable for the financial loss suffered by the
employer of the person injured by the negligence, the employer being
contractually bound to pay the employee's salary while he was unable to
work because of his injuries. The law accepts that the intentional causing
of loss by a wilful interference with a contractual right is wrongful. but
the court was not prepared to extend this to cases of mere negligence.

This decision the authors regard as wrong. 16 On their approach the

conduct of the defendant was wrongful, because clearly in relation to
the loss suffered by the employer it was unreasonable. The defendant
therefore must be liable for that loss if he was guilty of culpa. It is at this
point, however, that this approach breaks down. The defendant would
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be guilty of culpa in relation to the plaintiff if (a) as a reasonable man he

should have foreseen the possibility that if he drove carelessly a person
injured thereby might be employed by another contractually bound to
remunerate him while he was unable to perfonn his duties. and if (b)
on that account (having regard to how likely that possibility was to occur
and how serious the loss was likely to be if it did occur) a reasonable man
would have refrained from driving carelessly (quite apart from the ques-
tion whether a reasonable man would have refrained from driving
carelessly for more obvious reasons). Moreover, van der Merwe and
Olivier would probably wish to extend enquiry (a) to ask whether it was
foreseeable that the employer might continue to pay the employee without
being contractually bound to do so, because they disapprove of the rule
that the employee should be able to recover even if his employer has
paid himI7-one or other surely must be entitled to recover. It is sub-
mitted that it is precisely these sorts of questions which must be avoided.
The possibilities referred to are simply not adverted to by a reasonable
man when deciding how to govern his conduct. The consequences which
he foresees as likely to result if he drives carelessly go no further than
that someone may be killed or injured or something may be damaged. It is
to avoid the impossible application of the culpa criterion that a definite
16 Die Onregmatige Daad, at pp. 212-215.
17 At p. 106.
 WRONGFULNESS IN AQUILIAN LIABILITY 39

rule of law is required providing either that the driver who negligently
injures the employee is liable to the employer or is not liable to him.
The Appellate Division considered it better legal policy that he should
not be liable. Hence the defendant's conduct in relation to the employer's
loss is not wrongful. The same would apply to the possible liability of a
negligent driver to his victim's insurer. The same can also reasonably be
applied to all situations where a person has caused loss to another by
unintentional interference with his contractual relationships. The culpa
test cannot usefully be applied-to what extent, if any, does the reasonable
man govern his conduct so as to avoid interfering with contracts which
others might have but of which he is unaware?

Let us consider next the dependants' action for loss of support against
a defendant who has negligently caused the death of their breadwinner.
The courts have described this action as anomalous, because it is founded
on the breach of a duty of care owed not to the dependants but to the
deceased. To the extent that this means that the wrongfulness of the
defendant's conduct relates to the deceased and not to the dependants
the authors are, with respect, right in rejecting the proposition.1s But
surely the proposition that the duty of care is owed to the deceased. not
the dependants. is also meant to indicate that the culpa criterion is to be
applied only in relation to the deceased and not in relation to the
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dependants. It is only the possibility of his death which must have been
so foreseeable as to be guarded against by the reasonable man. Once that
is established the ability of the dependants to recover is determined purely
by rules of law defining wrongfulness and not at all by the culpa concept.
Rules of law prescribe that any dependant with a legal right to support
(other than a contractual right, it seems)19 who was in fact receiving or
would have received support can recover. Such a dependant can recover
whether or not his loss was as a matter of fact foreseeable by the
defendant and whether or not a reasonable man would have guarded
against it. A dependant who had no legal right, or only a contractual
right. to support cannot recover. Here, as elsewhere. rules of wrongfulness
have to be applied because the factual culpa criterion is unhelpful.
Assuming that a reasonable man would apply his mind to the matter at
all. would he foresee that the 10 year old child who may dash across the
road in front of his car helps in his father's shop after school? Or the
possibility that a person whom he may kill if he drives carelessly has a
mistress whom he is contractually bound to support?

Van der Merwe and Olivier concede that the defendant can only be

1R At pp. 199-200.
19 Nkabinde v. SA. MoTor lind Generallnsllrallce Co., LTd., 1961 (I) S.A. 302 (N).
 40 THE RHODESIAN LAW JOURNAL

liable to a dependant who had a legal right to support from the deceased.20
but argue that the infringement of a purely contractual right to support.
as well as a common law right. should be sufficient to make the defen-
dant's conduct wrongful. This follows from their criterion of wrong-
fulness. because the defendant's conduct is clearly unreasonable in rela-
tion to the loss suffered by the dependant. Thus they criticise the decision
in Nkabinde v. S.A. Motor and General Insurance Co .• Ltd., 1961 (1) S.A
302 (N). which denied an action to a dependant with only a contractual
right to support.
It is submitted that the authors' treatment of this question illustrates
the inadequacy of the reasonableness criterion for wrongfulness. A
contractual right to support is after all no more than a contractual right
to receive payments in money or kind for a particular period. H a person
with a contractual right to support has an action, then so should any
person who loses a contractual benefit as a result of the defendant's
negligently causing the death of the other party to the contract. That is of
course a proposition which the authors are willing to accept, as we have
seen in relation to their criticism of Union Government v. Ocean Acci-
dent and Guarantee Corp.• Ltd., 1956 (1) S.A 577 (AD.). They seek to
limit the potentially wide liability in such cases by the use of the culpa
concept-the defendant will be liable for the loss of the plaintiff's
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contractual benefit only if a reasonable man would have foreseen and

guarded against it. This test however cannot sensibly be applied in the
case of a dependant any more than in the case of an employer or an
insurer. Does a reasonable man foresee that if by driving carelessly he
kills someone another person may be deprived of a contractual right of
support? H the answer is no. then why should the authors quarrel with
the decision in Nkabinde? H the answer is in some circumstances yes and
other circumstances no, what are the circumstances which could possibly
determine the issue? They are not readily apparent. H the answer is that
a reasonable man must in all cases be deemed to foresee that if by
driving carelessly he kills someone he may cause loss to a dependant who
has a right of support. and it makes no difference whether it is a common
law or contractual right. then the culpa requirement has become a fiction.
Liability is determined solely by wrongfulness in relation to the dependant.
not at all by culpa in relation to him.
20 Die Ontef(matige Daad, at pp. 194-5. It is hard to see on what principle they
accept this limitation. They say that where the dependant had no right to
support the defendant's conduct cannot have been wrongful in relation to him.
As shown above conduct can be wrongful even in the absence of the infringe-
ment of a right which existed independently of the question whether the
defendant's conduct was wrongful. If the law thought it politic to give the
Aquilian action to a de facto dependant and one insisted on asserting that
wrongfulness involves the infringement of a right, one would simply say that
the de facto dependant has a right not to have his de facto support terminated
by the negligent ki11ing of his breadwinner.
 WRONGFULNESS IN AQUIUAN LIABILITY 41

If the culpa criterion cannot be used to limit the cases in which there
is liability, then clearly the criterion for wrongfulness cannot be the
reasonableness of the defendant's conduct in relation to the person who
suffers the loss, because that also will not limit the area of liability: in all
cases the defendant's conduct is unreasonable in relation to the dependant
who suffers loss; and if it is unreasonable in relation to a person who loses
the benefit of a contractual right of support it is equally so in relation to
a person who loses any other kind of contractual benefit. If the area of
liability is to be limited it can only be by definite rules of law. What these
rules of law should be is not our present concern. It may be that the
only practicable rule is the one adopted by the courts in Union Govern-
ment v. Ocean and Nkabinde-that it is never wrongful unintentionally
to cause the loss of a contractual benefit; it may be that an attempt should
be made to distinguish between different kinds of contractual benefits.
It is clear however that rules of law there must be. The criterion of
reasonableness will not serve.

The inadequacy of the reasonableness criterion for wrongfulness is

again brought out by the authors' discussion whether the defence of
volenti non fit injuria is available against a dependant21 a question
which is unsettled. The effect of such a defence, as the authors rightly
say, is to negative wrongfulness. Apart from the breadwinner's voluntary
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assumption of the risk, the conduct of a defendant who kills the bread-
winner is obviously unreasonable in relation to a dependant. Does the
fact that the deceased voluntarily accepted the risk mean that the
defendant's conduct ceases to be unreasonable in relation to the depen-
dant? For the authors. on the answer to that question depends whether
the defence is available against the dependant. They do not however find
it necessary to give a general answer to the question. On their approach
it must be answered by the court in relation to the facts of each case.
In particular circumstances the deceased's consent might mean that the
defendant's conduct was reasonable in relation to the dependant, in
others unreasonable. The defence would be available or not available
accordingly. It is submitted that what is needed is a rule of law one way
or the other which is applicable in every case; either it is wrongful to
cause loss to the dependants notwithstanding the deceased's consent or
it is not. Which it should be is of course a question of policy; it is not
a matter of whether the defendant's conduct in a particular case is to be
adjudged reasonable or unreasonable (if indeed the question is susceptible
to such a judgment) but which approach in the majority of cases is on
balance better calculated to achieve justice as between negligent defen-
dants and dependants.

21 Die Ollregmatige Daad. at p. 202.

 42 THE RHODESIAN LAW JOURNAL

If for the reasons discussed above unreasonableness as the criterion

for wrongfulness is inadequate, is there any uniform criterion which will
cover the whole field of Aquilian liability? It is submitted that it is idle
to search for any such criterion. The position must be accepted that. out-
side the area where conduct is necessarily wrongful if there is dolus or
culpa. there are various rules of law prescribing what conduct is wrongful
and what is not. Thus it is not wrongful to cause purely pecuniary loss
unintentionally (except where it was suffered as a result of reliance on
an incorrect statement). It is wrongful to cause purely pecuniary loss
intentionally if this is brought about by wilful interference with a con-
tractual right of the plaintiff's and in some other circumstances. 22 It is
not wrongful to cause loss to a dependant by causing the death of his
breadwinner if the dependant had no legal right or only a contractual
right to support. It is not wrongful to cause nervous shock unless it was
suffered as a result of the victim's fear for his own safety. And so on.

It is not for a moment suggested that all these rules are satisfactory.
For example the one last mentioned is surely not. In the nonnal process
of the development of the law unsatisfactory rules, one hopes, will be
discarded by courts which have authority to do so and the operation of
other rules will be extended or restricted. It is however not reasonable-
ness but these rules as they are for the time being which make up the
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content of wrongfulness in Aquilian liability.

Of course a great part of the field is not yet adequately covered by

rules of law. This applies for example to trade competition and, it has
been submitted. to liability for omissions. In such spheres, it may be
asked. must we not after all fall back on the concept of the reasonable-
ness of the defendant's conduct in relation to its consequences? When a
court has to deal with a point of law on which there is no authority,
reasonableness is, in a sense, relevant. But the sense in which it is relevant
is whether it is reasonable that in a situation of the nature in question
the law should give a remedy. That is a much wider question than the
question whether in the circumstances of the particular case the defen-
dant's conduct was unreasonable in relation to the plaintiff. The court has
to make a policy decision, and many factors must be taken into account23 :
the existing principles and concepts of law, the community's sense of
justice, the consequences for future cases of admitting or excluding
liability in the present case, the question whether if wrongfulness is
admitted in principle the culpa criterion will be a practicable means of

22 e.g. fraud, injurious falsehood, passing off, procuring a boycott (Murdoch v.

Rullough, 1923 T.P.D. 495).
23 See e.g. Schreiner I.A. in Union GO\'emmel1l 1'. Ocean Accident, 1956 (1) S.A.
at 584~.
 WRONGFULNESS IN AQUILIAN LIABILITY 43

determining liability in particular cases, and other factors varying from

case to case.
It is evident from the discussion that the requirement of wrongful-
ness is of fundamental importance in Aquilian liability, because questions
of liability cannot always be left to be solved by the culpa criterion.
There is however no a priori ground on the basis of which any given
conduct can be judged wrongful or not wrongful. Whether conduct is
wrongful must be determined by the rules of law applicable to the
situation in question. These may be already established rules, or new
ones formulated by the court as the occasion arises by the processes by
which courts customarily formulate new rules. If this means that the
principles of Aquilian liability are not as generalised as some would
wish-indeed that we must accept the existence of a number of separate
sub-delicts-that is not a cause for undue distress. A desire for conceptual
consistency cannot alter the fact that in the nature of things there is no
one formula to cover all cases.
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Before I misled you into going to steal, how were you making your
living?
I was a thief.