THE Actio Legis Aquiliae PDF

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THE ACTIO LEGIS AQUILIAE A PRACTICAL GUIDE THROUGH THE CASES 1 Introduction A delict can be defined as an unlawful blameworthy (ie intentional or negligent) act or omission which causes another person damage to person or property or injury to personality and for which a civil remedy for recovery of damages is available. [Burchell The Principles of Delict 1ed Juta & Co 10]

There were two actions available under the Roman-Dutch Law: for the intentional infringement of another’s rights. The actio legis Aquiliae where direct patrimonial loss has been sustained, and the actio injuriarum, to recover sentimental damages. [Matthews and Others v Young 1922 AD 492 504; Minister of Finance and Others v EBN Trading (Pty) Ltd 1998 2 SA 319 (N), where it was found with reference to Matthews v Young, that in an action based on an injuria in which a plaintiff claims special damages the requisites for a claim under the actio legis Aquiliae must be alleged and proved]

1.1 The actio legis Aquiliae 1.1.1 Origin and development The lex Aquilia, enacted by a plebescite circa 286 BC, awarded the actio legis Aquiliae as a delictual and penal remedy for wrongful and negligent damage to property. Originally this legal remedy was available to a freeman who was wrongfully and negligently wounded because he was considered not to have owned his own body. A freeman was not a slave. He was either freeborn or liberated from slavery. The Praetor, however, extended the scope of the actio legis Aquiliae utilis available to freemen who had been bodily injured but not killed. In principle the extension brought about by the actio legis Aquiliae utiles in this regard enabled a freeman to recover compensation for patrimonial loss in respect of bodily injury actually incurred, for example medical expenses and treatment, loss of earnings, as well as compensation for prospective patrimonial loss, such as future loss of earnings. He would, however, not be entitled to recover compensation for non-patrimonial loss, for example pain and suffering, disfigurement etc. The reception in Roman Dutch law of the actio legis Aquilia utiles with its aforementioned extension in regard to patrimonial loss occasioned by bodily injury is well known. The Dutch jurists took a major step forward by allowing an injured person to claim non-patrimonial loss for pain, scars and disfigurement. Finally, in Administrator, Natal v Edouard 1990 3 SA 581 (A) at 595 G – H this Court affirmed that a claim for non-patrimonial loss in respect of bodily injury to a person was an actio sui generis ‘differing from the Aquilian action only insofar as it is not from its inception actively transmissible’. [Guardian National Insurance Co Ltd v Van Gool NO 1992 4 SA 61 (A) 63 – 65; Hoffa No v SA Mutual Fire & General Insurance Co Ltd 1965 2 SA 944 (C)]

1.1.2 Liability The test to be applied in determining liability appears from the following extract from the judgment of Innes CJ in Cape Town Municipality v Paine 1923 AD 207 216 – [Page F – 6] It has repeatedly been laid down in this Court that accountability for unintentioned injury depends upon culpa, – the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman law, – the average prudent person. Every man has a right not to be injured in his person or property by the negligence of another, and that involves a duty to exercise due and reasonable care. The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged. [Discussed and applied in Herschel v Mrupe 1954 3 SA 464 (A)]

The requirements for delictual liability can conveniently be summarised as being:

a duty of care; foreseeable harm; an unlawful incursion into another’s economic sphere. The remedy available is the Aquilian action, which is employed to recover pecuniary loss suffered as a result of injury to person and property by the wrongful act (negligence) of another. Recoverable damages include direct pecuniary loss and damages in respect of pain and suffering, disfigurement and future loss of earnings. 1.2 The actio iniuriarum It is beyond the scope of this volume to deal with the actio iniuriarum, save to state, by way of comparison, the general principles which are applicable. The elements of an injuria are – a wrongful act, committed intentionally and which violates real rights related to the personality of another. [R v Chippo & Others 1953 4 SA 573 (A) 576]

The requirements can be summarised as being: An intention on the part of the offender to produce the effect of his act, ie the animus iniuriandi, together with an overt act which the person doing is not legally competent to do, constituting an aggression upon the right of another, by which the other is aggrieved or which constitutes an impairment of the person, dignity or reputation of another. [Whittaker v Roos and Bateman 1912 AD 92 130 – 131]

The remedy employed is the actio iniuriarum. This is the action given to the person suffering a wilful contumelious injury. It was an actio vindictam spirans, that is, one intended to afford the injured party personal satisfaction and by reason of its penal nature, it was neither actively nor passively transmissible unless litis contestatio had taken place before the death of either party to the suit. [Hoffa NO v SA Mutual Fire & General Insurance Co Ltd 1965 2 SA 944 (C) 950]

It has also been defined as the action for damages open to a person who can show that another has committed an intentional wrongful act, which constitutes an aggression upon his person, dignity or reputation. [O’Keefe v Argus Printing and Publishing (Pty) Ltd 1954 3 SA 247 (C)]

[Page F – 7] The victim is entitled to compensation in money, without proving damages, where there has been an unlawful and deliberate invasion with the intent to injure his rights to dignity, reputation or liberty. These damages are described as sentimental damages. The obvious difference between the two actions is the requirement of negligence as opposed to that of intent, and then of course the damages sought to be recovered. 1.3 Discussion The actio legis Aquiliae is utilised to recover patrimonial damages suffered. Such damages include but need not be limited to actual expenses incurred such as repairs to a motor vehicle, the costs incurred in renting another vehicle where applicable, medical and hospital expenses, loss of income and earning capacity and prospective patrimonial loss and, by virtue of the extension of the action, payment for disfigurement, pain and suffering. Although the examples mentioned readily apply to claims in respect of bodily injuries suffered arising from motor vehicle accidents, the principles obviously apply with equal consistency to all claims arising from wrongful and negligent damage to property and one’s person against all wrongdoers – such as landowners, owners or occupiers of buildings, statutory bodies, local governments, medical practitioners etc. As will be shown, an omission to act will in certain circumstances give rise to a delictual claim, provided it can be shown that a duty of care is cast upon the person who has omitted to act. The availability of the action has been extended to cater for those cases where pure financial loss, unrelated to person or property, has been sustained. It has been held that the action is available in cases of so called negligent misstatement (nalatige wanbewering) as opposed to negligent misrepresentation (nalatige wanvoorstelling), the latter creating the impression of a representation in a contractual context, provided it can be shown that there was a legal duty (a

duty of care) upon the defendant not to have made a misstatement. A negligent misstatement by a party to a contract similarly gives rise to an action where pure financial loss has been suffered. [Administrateur, Natal v Trust Bank van Afrika Beperk 1979 3 SA 824 (A); Kern Trust (Edms) Bpk v Hurter 1981 3 SA 607 (C); Bayer South Africa (Pty) Ltd v Frost 1991 4 SA 559 (A) 566; Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 4 SA 747 (A); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A); Jowell v Bramwell-Jones and Others 1998 1 SA 836 (W); Mukheiber v Raath and Another 1999 3 SA 1065 (SCA)]

Apart from the obvious defence of a denial of the negligent act complained of, a number of defences such as volenti non fit iniuria , contributory negligence, necessity and statutory authority are generally raised. Where a claim arises from the death of a person, the dependants are eligible to claim and where minors are involved, their claims are prosecuted by a parent, guardian or a curator ad litem appointed for that purpose. In respect of claims falling within the ambit of the actio iniuriarum, regard should be had to the fact that what is claimed is not a patrimonial loss and[Page F – 8] damages suffered need not be proved. It has retained its original penal character. The action is employed to redress a wrong committed against one’s person. Examples of such damages are wrongful arrest and detention, defamation, invasion of privacy and impairment of dignity. Defences are usually in the form of a denial of the allegations made, absence of animus iniuriandi, truth and public policy or justification. 2 The actio legis Aquiliae 2.1 Requirements 2.1.1 Duty of care In the absence of a legal duty not to infringe upon the rights of others or a duty to act where it is required, there can be no unlawfulness. [Administrateur, Natal v Trust Bank van Afrika Beperk 1979 3 SA 824 (A) 833, or phrased differently, there can be no unlawfulness in the absence of a legal duty – Osborne Panama SA v Shell & BP South African Petroleum Refineries (Pty) Ltd and Others 1982 4 SA 890 (A) 900; in Joubert v Impala Platinum Ltd 1998 1 SA 463 (BHC) it was held that a duty of care may arise ex contractu; Hamilton v Minister of Safety and Security[2003] 1 All SA 678 (C); Commissioner for the South African Revenue Service and Another v Absa Bank Ltd and Another 2003 2 SA 96 (W]

In Herschel v Mrupe 1954 3 SA 464 (A) 489 H – 490 A, Van den Heever JA explained the principle as follows – Every right to redress implies a corresponding obligation. But the duty of care is owed to the world at large, not directionally to certain persons ascertained after the event. Whatever the scope of the moral duty, not to cause foreseeable harm to others in their persons or estates, may be, in law this duty is restricted in the interests of the individual’s freedom of action and legitimate initiative. After all, law in a community is a means of effecting a compromise between conflicting interests and it seems to me that according to the principles of Roman-Dutch law 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 law as pertaining to the plaintiff. Apart from that, loss lies where it falls.

2.1.2 Enquiry as to the existence of a duty of care The initial enquiry is directed at the question of wrongfulness-unlawfulness, in the context of the existence of a duty of care. [Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 1 SA 577 (A) 585 E – G]

In determining whether such a duty exists, the court is required to exercise a value judgment embracing all relevant facts and involving considerations of policy. In explaining this approach, the court in Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 1 SA 783 (A) 797 relied firstly on the judgment of Rumpff CJ in Administrateur, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833 where the following passage from Millner Negligence in Modern Law (1967) 26 was quoted on the unlawfulness element of the duty of care concept, as distinct from the negligence (reasonable foreseeability) element –

The duty concept, on the contrary, shows abounding vitality. The key to this paradox is the utility of this concept as a device of judicial control over the area of actionable negligence on grounds of policy. Here the ascertainment of liability is linked to the second [Page F – 9] of the two elements of duty of care referred to above. This second element is not at all concerned with reasonable foresight; it is to do with the range of interests which the law sees fit to protect against negligent violation.

A similar approach was adopted by Botha JA in Knop v Johannesburg City Council 1995 2 SA 1 (A) 27, where he prefaced his discussion in regard to the question as to the existence of a duty of care with yet another reference to Millner 230, where it is explained that – The duty concept in negligence operates at two levels. At one level it is fact-based, at another it is policy-based. The fact-based duty of care forms part of the enquiry whether the defendant’s behaviour was negligent in the circumstances. The whole enquiry is governed by the foreseeability test, and ‘duty of care’ in this sense is a convenient but dispensable concept. On the other hand, the policy-based or notional duty of care is an organic part of the tort; it is basic to the development and growth of negligence and determines its scope, that is to say, the range of relationships and interests protected by it. Here is a concept entirely divorced from foreseeability and governed by the policy of the law. ‘Duty’ in this sense is logically antecedent to ‘duty’ in the factdetermined sense. Until the law acknowledges that a particular interest or relationship is capable in principle of supporting a negligence claim, enquiries as to what was reasonably foreseeable are premature.

The judge continued by explaining that – the ‘policy-based or notional duty of care’ is more appropriately expressed as a ‘legal duty’, in consonance with the requirement of wrongfulness as an element of delictual liability and the underlying concept of legal reprehensibility in respect of the causing of pure economic loss. As is evident from the passage quoted from Millner, and from the clear distinction in our law between fault and unlawfulness referred to by Corbett CJ in the Simon’s Town Municipality case supra at 196F, the enquiry into the existence of a legal duty is discrete from the enquiry into negligence. Nor can the mere allegation in the particulars of claim that the Council was under a duty to take steps to prevent loss being caused to the plaintiff carry the day for him. The existence of the legal duty to prevent loss is a conclusion of law depending on a consideration of all the circumstances of the case.

The general nature of the enquiry appears from the following passage in Flemming The Law of Torts 4ed 136: In short, recognition of a duty of care is the outcome of a value judgment, that the plaintiff’s invaded interest is deemed worthy of legal protection against negligent interference by conduct of the kind alleged against the defendant. In the decision whether or not there is a duty, many factors interplay; the hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas as to where the loss should fall. Hence, the incidence and extent of duties are liable to adjustment in the light of the constant shifts and changes in community attitudes. [Millner Negligence in Modern Law (1967) 26 230; First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 3 SA 556 (A); Knop v Johannesburg City Council 1995 2 SA 1 (A) 27; see also BOE Bank v Reis 2002 2 SA 39 (SCA); Hamilton v Minister of Safety and Security[2003] 1 All SA 678 (C); Commissioner for the South African Revenue Service and Another v Absa Bank Ltd and Another 2003 2 SA 96 (W]

In Administrateur, Natal v Trust Bank van Afrika Bpk supra 833 – 834 A – B it was emphasised that – it is not possible to lay down hard and fast rules as to when a duty of care arises in this or in any other class of case where negligence is alleged. When in the past Judges have attempted to lay down rigid rules or classifications or categories they have later had to be abandoned.

[Page F – 10] To determine whether the act or omission is unlawful, it can be considered whether there has been an infringement of a subjective right of the complainant, or otherwise whether a duty of care which is owed to such complainant has been breached: Those authorities who approach the matter from the point of view of the plaintiff state that any infringement of a subjective right of the plaintiff is unlawful and then proceed to enquire whether the plaintiff had the right in any given case not to be injured in the circumstances of that case. Those authorities who approach the matter from the point of view of the defendant state that a breach of a duty of care owed to the plaintiff is unlawful and then to proceed to enquire in each case whether such a duty existed. Logically these two approaches should arrive at the same criterion for unlawfulness and it seems to me they do. [Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 4 SA 371 (D) 380 A – B; Jowell v Bramwell-Jones and Others 1998 1 SA 836 (W); Tenza v Putco Ltd 1998 2 SA 330 (N)]

Whichever approach is adopted, it remains to be determined whether a right exists in respect whereof a duty of care needs to be exercised. However, by way of general approach it can be said that if one launches a potentially dangerous undertaking involving the foreseeable possibility of

harm to another, the circumstances may be such that one cannot reasonably shrug one’s shoulders in unconcern but has certain responsibilities in the matter – the duty of care. [Peri-Urban Health Board v Munarin 1965 3 SA 367 (A) 373 E – H; Correia v Berwind 1986 4 SA 60 (ZH)]

Having regard to the fact that Roman law considered it desirable that a man should mind his own business and not interfere officiously in that of others, liability arising from a failure to act (an omission) appears to have been limited to those instances [where] the failure to do an act which the person whose conduct is in question, is obliged in the circumstances to do. A person is obliged to act if it is required of him by the positive law, contract, or, when in any activity which is potentially noxious to others by the standard of conduct which is expected of the average reasonable man. [Van den Heever – Aquilian Damages in South African Law]

This statement appears to reflect the general approach adopted by our courts in considering delictual liability in respect of an omission. As will be shown, other considerations also play a part, and given the dynamic nature of the law, delictual liability for omissions has been extended beyond the boundaries set by Roman law. However, the courts have a conservative approach to the extension of delictual liability. [M v Achileus v Thai United Insurance Co Ltd and Others 1992 1 SA 324 (N)]

Briefly stated, the principle applies that, whenever a duty of care (in the policy-based or notional “duty of care” context – a “legal duty”) to another exists together with foreseeable harm (the factbased “duty of care” – the element of negligence) and that duty is breached and a loss suffered, a claim arises. [Page F – 11] Where an attorney innocently submitted a claim to the Road Accident Fund on behalf of a woman who claimed to be the widow of the person who was killed in a car accident, the Fund, in seeking to recover the money paid over in respect of what turned out to be a fraudulent claim, claimed that the attorney was negligent in failing to ascertain the true identity of his client. It was held that an attorney who submits a claim on behalf of his or her client, does not thereby tacitly warrant his or her client’s locus standi to make the claim any more than tacitly warranting the truth of ...