Delict - Sahan Sathsara Wegiriya

LAW OF DELICT
EDITED BY SAHAN SATHSARA WEGIRIYA

Sahan Sathsara Wegiriya
Nature of Law of Delict
• Focus on Delictual Liability: The law of delict addresses the liability of individuals for harm
they cause to others due to their fault.
• Roman Dutch Law Perspective: This area of law is categorized under the law of
obligations in Roman Dutch Law, which emphasizes the duty not to cause harm or loss to
others. If harm or loss occurs, it constitutes an infringement of the sufferer's personal
rights or interests, obliging the wrongdoer to remedy the situation.
• Civil Wrong: A delict is considered a civil wrong.
• Boberg's View: According to Boberg, the law of delict is akin to social engineering,
focusing on the balance between individual freedom and collective security.
Delict and Morality
• Moral and Fairness Perspective: Delict is fundamentally tied to notions of morality and
fairness. It involves assessing human conduct based on moral principles to ensure just
outcomes.
• Lord Atkin's View in Donoghue v. Stevenson: Lord Atkin highlighted that delictual liability
stems from a general public sentiment of moral wrongdoing. The principle is that while
morality condemns wrongful acts or omissions, in the practical legal world, this sentiment
is translated into a duty not to harm others. In legal terms, this is expressed as the
obligation to "love your neighbor" by not injuring them.
Defining Delict
When defining "delict," it’s crucial to differentiate it from other branches of law to avoid
confusion. Here are some key points to keep in mind:
• Civil Wrong: Delict is a type of civil wrong, but not all civil wrongs are delicts. For
example, breach of contract and breach of trust are also civil wrongs but fall under
different categories of law.
• Unlawful Conduct: While delict involves unlawful conduct, it is distinct from criminal
law. Crimes are also unlawful, but they involve offenses against the state, while delicts
pertain to private wrongs where individuals are liable to one another.
Thus, delict specifically refers to civil wrongs where harm is caused by unlawful conduct and
involves private legal remedies.
Delict and Crime
Similarities:
• Both involve unlawful conduct.

• Both are considered wrongs and may infringe upon individual rights or property.
Dissimilarities:
• Nature of the Wrong:

o Crime: Considered a wrong against the state and society. It is prosecuted by the
state and falls under public law.
o Delict: Considered a wrong against an individual. It is addressed through private
legal claims between individuals and falls under private law.
• Legal Procedures:
o Crime: Handled through criminal procedure codes, with processes focused on
prosecution by the state.
o Delict: Handled through civil procedure codes, involving private parties seeking
remedies for harm.
• Consequences:
o Crime: Primary penalties include fines, sentences, and imprisonment.
Compensation may be awarded but is secondary.
o Delict: Remedies primarily involve compensation for harm and equitable
remedies, focusing on restitution or remedying the wrong done to the individual.
Delict and Breach of Contract
Similarity:
• Both are considered civil wrongs.

• Both involve a breach of duty or obligation.
Dissimilarity:
• Nature of Duty:
o Delict: Breach involves a duty imposed by law, independent of the parties'
agreement. The duty is to avoid harm and act reasonably towards others, based
on societal standards and legal norms.
o Breach of Contract: Breach involves a duty voluntarily assumed by the parties
through a contractual agreement. The obligations are specifically defined by the
terms of the contract that the parties agreed to.
• Basis of Claim:
o Delict: Claims are based on wrongful conduct that causes harm to another
person or their property, determined by legal standards of reasonableness and
public policy.
o Breach of Contract: Claims are based on a failure to perform as agreed in the
contract, where the remedies focus on fulfilling or compensating for the terms of
the contract.
Defining the term ‘delict
1. Initial Definition:
• "A delict is a civil wrong to an individual for which damages can be claimed as
compensation and for which redress is not usually dependent on a prior contractual
undertaking to refrain from causing harm."
- Burchell J, Principles of Delict, p. 9 -
2. Expanded Definition:
• "A delict is an unlawful, blameworthy (intentional or negligent) act or omission causing

damage to a person or property, for which a civil remedy is available."
- Burchell J, Principles of Delict, p. 10-
Note: The expanded definition excludes non-fault-based liability.
Lack of precise definition for the term ‘delict’
Inherent Imperfection: No definition of delict is perfect, and even if it were, it would likely
become outdated in the dynamic field of delict law.
Legal Scholar Definitions:
• Van der Merwe and Oliver: A delict is a wrongful and culpable act that causes harm or
infringes another’s personality interest.
• Van der Walt and Midgley: A delict is a civil wrong; a narrower definition focuses on
wrongful and blameworthy conduct causing harm to a person.
Donoghue v Stevenson
In Donoghue v Stevenson, the case arose when Mrs. Donoghue consumed ginger beer
purchased by a friend at a café. The drink contained a decomposed snail, which caused
Mrs. Donoghue to suffer severe illness. Since her friend had made the purchase, Mrs.
Donoghue could not sue under contract law due to the lack of a direct contractual
relationship with the manufacturer.
Neighbourhood Principle and Duty of Care
1. Neighbourhood Principle:
• Concept: Formulated by Lord Atkin in Donoghue v. Stevenson (1932), the principle asserts
that one must take reasonable care to avoid acts or omissions that could foreseeably
harm others who are in the "neighbourhood" or "vicinity" of their actions.
• Application: The "neighbourhood" refers to those who might be affected by one’s
actions. This principle emphasizes the duty to avoid causing harm to people who are
directly and closely affected by one's conduct.
2. Relationship with Duty of Care:
• Duty of Care: The neighbourhood principle is foundational to the concept of duty of care
in negligence law. It establishes that individuals owe a duty of care to others who are
closely and directly impacted by their actions.
• Case Example - Donoghue v. Stevenson:
o Facts: Mrs. Donoghue drank a bottle of ginger beer manufactured by Mr.
Stevenson, which contained a decomposed snail. She suffered from
gastroenteritis and sued Stevenson for negligence.
o Principle Application: Lord Atkin’s judgement introduced the neighbourhood
principle, stating that a manufacturer owes a duty of care to the ultimate
consumer, who is in the “neighbourhood” of the product and whom the
manufacturer should reasonably foresee as being harmed by their negligence.
Summary: The neighbourhood principle in Donoghue v. Stevenson laid the groundwork for the
modern concept of duty of care by emphasizing that individuals must consider the potential
impact of their actions on others who are in their immediate sphere of influence.
Rylands v. Fletcher (1868)
Foundational case in English tort law, particularly concerning the doctrine of strict liability. Here
are the facts:
Facts of the Case:
1. Parties Involved:
o Claimant: Rylands
o Defendant: Fletcher
2. Background:
o Fletcher, the defendant, owned a coal mine and decided to construct a reservoir
on his land to store water for his mining operations.
o The reservoir was built by contractors hired by Fletcher. During construction, they
discovered old mine shafts that were connected to Rylands’ property.
3. Incident:
o Despite the presence of these shafts, the contractors did not take proper
measures to secure them.
o When the reservoir was filled with water, it overflowed through the neglected
shafts and flooded Rylands' coal mine.
4. Claim:
o Rylands claimed that Fletcher was liable for the damage caused to his property
due to the flooding.
5. Legal Issue:
o The central question was whether Fletcher could be held liable for the damage
caused by the overflow of water from the reservoir, even though there was no
negligence on his part.
Key Legal Principle Established:
The case established the doctrine of strict liability for non-natural use of land. The key principles
are:
• A person who brings something onto their land that is likely to cause harm if it escapes is
strictly liable for any damage caused by its escape, even if they have taken all reasonable
precautions.
In summary, Rylands v. Fletcher established that a person can be held liable for damages caused
by the escape of dangerous substances from their land, irrespective of fault or negligence.
DELICT IN ITS HISTORICAL CONTEXT
The early Roman law concepts provided foundational ideas for delictual liability:
• Damnum iniuria datum: This concept referred to damage (damnum) caused wrongfully
(iniuria) to another person.
• Damnum: Harm, loss, or damage.
• Iniuria: Invasion of another’s rights or interests.
• Datum: The requirement of a causal link between harm and wrongful conduct.
The Aquilian Act in Roman law covered:
• Killing and injury to slaves and animals.

• Burning, breaking, and damaging objects.
These actions were viewed as direct acts causing injury with intent, though the distinction
between intentional acts and faults wasn't fully developed at this early stage.
In early Roman law, iniuria was initially associated with unlawful intention—deliberate injury or
damage without justification. As the concept of culpa (negligence) evolved, it introduced the
challenge of integrating negligence into the existing framework of Aquilian delicts, which
primarily addressed intentional acts.
Ulpian facilitated this integration by distinguishing between:
• Dolus: Intentional harm.

• Culpa: Blameworthy conduct due to negligence.
He articulated that causing harm in a blameworthy manner (negligence) also constituted iniuria.
This allowed for the coexistence of liability for both intentional and negligent actions in Roman
law.
The evolution of Roman law reflects the growing recognition of different forms of fault and the
integration of these principles into a broader legal framework, which laid the groundwork for
modern legal concepts of fault and liability. These foundational ideas have influenced
contemporary legal systems and the protection of fundamental human rights under
constitutional and international.
In the modern law of delict, delictual liability is classified into two:
1. Fault based liability

2. Non-fault based liability
Fault based liability includes the actions
1. Lex aquilia
2. Germanic remedy
3. Actio iniuriarum
4. Some statutory liability (Motor Traffic Act of Sri Lanka)
Non-fault based liability includes the actions:
1. Vicarious liability
2. Actio de pauperie
3. Actio de pastu
4. Some statutory liability
ESSENTIAL ELEMENTS OF FAULT BASED LIABILITY IN DELICT
1. Conduct
2. Harm
3. Causation
4. Fault
5. Wrongfulness
NON-FAULT BASED LIABILITY
1.Strict Liability: Liability is imposed on the defendant without needing to prove fault (dolus or
culpa) or wrongful behavior.
2.Proof Required: It is sufficient to prove that harm was caused by the defendant’s act.
3.Examples:
• Vicarious Liability: Employers are liable for the acts of their employees performed in the
course of employment.
• Liability in Building Constructions: Builders are liable for defects or harm arising from
their constructions, regardless of fault.
• Liability for Domestic Animals: Owners are liable for harm caused by their animals, even
if they exercised reasonable care.
4.Objective: Ensures compensation for harm caused, regardless of the defendant's intention or
negligence.
PROTECTED INTERESTS UNDER THE LAW OF DELICT
Property:
• Physical Property: Tangible assets like land and goods.

• Intellectual Property: Intangible assets like patents, trademarks, and copyrights.
• Property Rights: Includes current and future profits, goodwill, and inheritances.
Person:
• Bodily Integrity: Involves harm such as death or bodily injury.
Personality:
• Dignity: Respect and personal value.

• Privacy: Protection from intrusion into personal life.
• Reputation: Protection from damage to one's standing or good name.
Psyche:
• Psychological Health: Includes harm to mental health, anxiety, mental distress, and loss
of enjoyment of life due to discomfort, inconvenience, or humiliation.
Fault based liability includes the actions
The Lex Aquilia
Foundational principle in Roman law dealing with delictual (tort) liability. Here's a breakdown of
its key elements:
1. Harm or Loss
• Definition: The Lex Aquilia covers both patrimonial loss (පුද්ගලයෙකුට ය ෝ ඔහුයේ
යද්පළවලට සිදු වන ානිෙ නිසා ඇතිවන මූලය පාඩුව ), which includes physical damage to a
person or property, and purely economic loss (යෙලින් ම සිදුවන්යන් මූලය පාඩුවක් පමණි ).
• Types:
o Physical Damage: Direct damage to property or personal injury.
o Economic Loss: Financial loss that does not necessarily involve physical damage.
2. Conduct
• Types of Conduct:
o Positive Act: An action taken by the defendant that causes harm.
o Omission: A failure to act when there is a duty to prevent harm.
o Statement: False or misleading statements that cause harm, though this is less
commonly covered under Lex Aquilia. ( lex aquilia ෙටයේ ආවරණෙ වීම සීමීතයි )
3. Causation
• Factual Causation: The conduct must be a necessary condition for the harm (conditio sine
qua non). In other words, the harm would not have occurred but for the defendant’s
conduct. ( විේතිෙරුයේ ක්‍රිොව සිදු යනාවූවා නම් ානිෙ සිදු යනායේ )
• Legal Causation: The link between the conduct and the harm must not be too tenuous or
indirect. It should be a direct and foreseeable result of the conduct. ( ානිෙ විේතිෙරුයේ
ක්‍රිොයේ සෘජු ප්‍රතිඵලෙක් වන අතර එෙ පුයරෝෙථනෙ ෙළ ැකි ආොරයේ ානිෙකි )
4. Fault
• Blameworthiness: ( වරදොරීබව ඇේයේ යම් නිසා ෙ )

o Dolus (Intention): The harm must have been caused intentionally, meaning the
defendant acted with purpose or knowledge that their conduct would likely cause
harm.
o Culpa (Negligence): The harm was caused through negligence, meaning the
defendant failed to act with reasonable care.
5. Wrongfulness ( වරද සාධාරණීකරණය කළ න ාහැක එ ම් ක්‍රියාව අනීතිකයි )
• Definition: The conduct must be objectively unreasonable or unjustified.

• Criteria:
o Objective Unreasonableness: Conduct that fails to meet the standard of what is
considered acceptable or lawful.
o Lack of Justification: Conduct that cannot be legally justified under any
circumstances, such as self-defense or lawful authority.
Example
1. Parties Involved:
o Plaintiff: Bhanuka Adhikari, a local business owner.
o Defendant: Tharaka Liyanage, a contractor hired for renovations.
2. Background:
o Bhanuka owns a boutique clothing store located on Elm Street.
o Tharaka was contracted to renovate the store’s interior, including replacing the
flooring.
3. Incident:
o During the renovation, Tharaka’s workers accidentally caused significant water
damage to the store's inventory and floor due to improper handling of a water
leak.
o The damage resulted in ruined clothing items, a damaged floor, and temporary
closure of the store.
4. Harm or Loss:
o Patrimonial Loss: Bhanuka’s inventory was severely damaged by water, leading
to a loss of $15,000 worth of clothing. Additionally, the water damage ruined the
newly installed floor, which required repairs costing $5,000.
o Economic Loss: The store was closed for two weeks, resulting in a loss of income
estimated at $7,000 due to the inability to serve customers during this period.
5. Conduct:
o Tharaka’s workers acted negligently by failing to properly manage and control
the water leak, leading to the damage.
6. Causation:
o Factual Causation: The water damage to Bhanuka’s inventory and flooring was
directly caused by the negligence of John’s workers.
o Legal Causation: The link between the contractor’s negligence and the damage is
direct and not too remote.
7. Fault:
o Tharaka is alleged to have acted with culpa (negligence) as his workers failed to
exercise reasonable care in managing the water leak.
8. Wrongfulness:
o The conduct of Tharaka’s workers was objectively unreasonable, as they should

have taken precautions to prevent water damage during the renovation.
Germanic Remedy for Pain and Suffering
This deals with compensation for intangible harms ( ස්පර්ශ ෙළ යනා ැකි ) resulting from
personal injuries.
1. Harm or Loss
This refers to the intangible damage suffered by the plaintiff due to the injury. In the Germanic
legal context, this can include:
• Actual Pain: The physical pain experienced as a result of the injury. ( ශරීරෙට සිදු වූ ානි
නිසා ඇතිවන ය ෞතිෙ යේදනා )
• Psychiatric Injury: Emotional or psychological trauma resulting from the injury. ( ශරීර
ානිෙ නිසා ඇති වූ ාවමීෙ එයස් යනාමැති නම් මානසිෙ යේදනා )
• Loss of Amenities of Life: Diminished enjoyment or ability to engage in activities that
were previously part of the plaintiff’s life. ( ානිෙට යපර නිෙැලුණු සාමානය
ක්‍රිොොරෙම්වල නිෙැලීමට ානිෙ නිසා ඇති වී ඇති බාධාවන් නිසා ඇති වන යේදනා )
• Loss of Life Expectancy: The reduction in life quality and lifespan due to the injury. (
ානිෙ නිසා ජීවිතයේ තෘප්තතිමේ බව ා ආයු ොලෙ අඩු වීම )
2. Conduct
The conduct that leads to the harm can be:
• Positive Act: An action taken by the defendant that directly causes harm.
• Omission: A failure to act when there is a duty to do so, leading to harm.
• Statement: Harm caused by false or harmful statements made by the defendant.
3. Causation
To establish a claim, the plaintiff must prove:
• Factual Causation: The defendant's conduct must be a necessary condition for the harm
suffered. This means the harm would not have occurred but for the defendant’s actions.
• Legal Causation: The link between the conduct and the harm must be sufficiently direct
and substantial. It should not be overly remote or tenuous.
4. Fault
Fault involves blameworthiness and can be:
• Dolus (Intention): The defendant acted with a deliberate intention to cause harm.
• Culpa (Negligence): The defendant acted in a careless or unreasonable manner, failing

to meet a standard of care.
5. Wrongfulness
This criterion assesses whether the conduct was:
• Objectively Unreasonable: The conduct must be judged from an external perspective as

being unreasonable or improper.
• Without Lawful Justification: There should be no legal or acceptable reason for the
conduct. The defendant’s actions should not be legally justified.
PROF. PRIYANI SOYZA v. RIENZIE ARSECULARATNE
Facts of the Case:
• Suhani, a four-year-old child, exhibited signs of illness in her leg during an April vacation
with her family. She was taken to Dr. Priyani Soyza, a pediatrician at Nawaloka Hospital.
• Dr. Soyza diagnosed Suhani with Rheumatic Chorea (RC) and treated her accordingly.
However, Suhani's condition did not improve.
• Suhani was then presented to another doctor, who suggested her symptoms were similar
to RC, but Dr. Soyza did not take further action.
• Suhani's parents later consulted another pediatrician who ordered a CT scan. The scan
revealed that Suhani had Brain Stem Glioma (BSG).
• Suhani was advised to undergo Stereotactic Radiotherapy in the UK. Unfortunately, she
passed away after returning to Sri Lanka.
• Suhani’s father, Rienzi Arsecularatne, filed a case against Dr. Soyza, claiming negligence
under the Lex Aquilia of Roman Dutch Law.
Issues Discussed:
1. Negligence in Medical Practice:

o Was Dr. Priyani Soyza negligent in her diagnosis and treatment of Suhani?
o Did she fail to act in accordance with the standards accepted by a responsible body
of medical professionals?
o Was the failure to diagnose BSG and request a CT scan a breach of duty?
2. Causation:
o Did Dr. Soyza’s negligence directly cause or contribute to Suhani’s death?
o Was Suhani’s death an inevitable outcome due to the nature of her disease,
irrespective of the treatment she received?
3. Claims for Damages:
o Could Suhani’s father claim damages for medical expenses, mental distress, and
loss of companionship under Lex Aquilia?
o Does Roman Dutch Law permit claims for non-pecuniary losses, such as emotional
suffering and loss of companionship?
Judgment:
• The case was first heard in the District Court and then in the Court of Appeal, where Dr.
Soyza was the appellant.
• The court evaluated the evidence to determine whether Dr. Soyza was negligent. Points
raised included her failure to diagnose the actual condition (BSG), failure to request a CT
scan, and failure to maintain adequate medical records (Bead Head Ticket).
• Although negligence was established in terms of Dr. Soyza's failure to diagnose and
properly attend to Suhani, the court found that Suhani’s death was not necessarily caused
by this negligence. The disease, Brain Stem Glioma, was determined to be inevitably fatal,
and even with proper diagnosis and treatment, Suhani’s death could not have been
prevented.
• The court also discussed the applicability of Lex Aquilia under Roman Dutch Law,
concluding that it only allows claims for pecuniary loss (physical or material damage)
and does not cover non-pecuniary losses, such as emotional distress or loss of
companionship.
• The court ultimately ruled in favor of Dr. Soyza, stating that while there may have been
negligence, it was not the direct cause of Suhani’s death. As such, Dr. Soyza was not liable
for the plaintiff's claims.
Legal Implications:
• This case highlighted the limitations of Lex Aquilia in Roman Dutch Law concerning claims
for non-pecuniary damages.
• It also emphasized the need for the law to evolve with changing social ethics,
acknowledging that modern Roman Dutch Law should adapt to contemporary societal
standards.
• The case referenced the Recovery for the Death of a Person Act No. 2 of 2019, which
allows claims for non-pecuniary losses, marking a significant shift in how such cases might
be treated in the future.
Justice Dheeraratne ; emphasizes that judges should not fundamentally change Roman Dutch
Law but can make minor adjustments to clarify its application. Significant changes or structural
alterations to the law should be left to the Legislature, not the judiciary.
Conclusion:
The case of Prof. Priyani Soyza v. Rienzi Arsecularatne underscores the complexities of medical
negligence cases, particularly concerning causation and the scope of damages recoverable under
Roman Dutch Law. The court’s decision reflects a conservative approach, rooted in the traditional
application of Lex Aquilia, while also recognizing the need for the law to progress with the times.
ඒ අනුව ගණනෙ ෙළ ැකි ොරණා සම්බන්ධයෙන් වූ ෙරුණුවලට යමහි දී වන්ි ප්‍රදානෙ ෙළ අතර
ගණනෙ ෙළ යනා ැකි වූ යේදනාවන් සම්බන්ධයෙන් වන ොරණාවලට අදාළව වන්ි ප්‍රදානෙ යනාෙරන
ලි. ානිෙ යේදනාවක් වුව ද එෙ ගණනෙ ෙළ ැකි නම් lexaquilia ෙටයේ වන්ි ලබා ගත ැෙ.
Actio iniuriarum
1. Harm or Loss:
o Corpus (Bodily Integrity): This involves physical harm or injury. For instance,
cases of assault or battery fall under this category.
o Dignitas (Dignity): This pertains to harm to a person’s dignity or personal honor.
Examples include insults, humiliations, or unwarranted invasions of privacy.
o Fama (Reputation): This covers damage to a person’s reputation or standing in
the community, often through defamatory statements or actions.
2. Conduct:
o Statements or Positive Conduct: The action or statement causing harm is the
focus here. This could be verbal or physical acts, such as defamation, slander, or
physical assault.
o Omission: While less common, omissions can be relevant if there is a legal duty
to act to prevent harm. For example, failing to intervene when someone’s rights
are being violated could be actionable if there was a duty to act.
3. Causation:
o Normal Practice: In most cases, proving causation is straightforward as there is a
direct link between the conduct and the harm suffered.
o Special Cases: In situations like deprivation of liberty, establishing causation can
be more complex. The plaintiff must demonstrate a clear connection between
the wrongful conduct and the deprivation experienced.
4. Fault:
o Intention (Animus Iniuriandi): Fault is established through the intention to cause
harm. The defendant must have acted with animus iniuriandi, meaning they had
the intent to inflict injury or damage.
5. Wrongfulness:
o Objective Unreasonableness: The conduct in question must be objectively
unreasonable. It should lack lawful justification and be deemed unacceptable by
societal or legal standards.
Example Application:
In a case of defamation (fama), the plaintiff would need to show:

• Harm: That their reputation was damaged.

• Conduct: That the defendant made harmful statements.
• Causation: That the statements directly caused the harm to their reputation.
• Fault: That the defendant intended to harm the plaintiff’s reputation (animus
iniuriandi).
• Wrongfulness: That the statements were objectively unreasonable and unjustifiable.
Specific forms of liability involving patrimonial harm, and pain and suffering
1. Negligent Misstatements
Definition: Liability arising from providing incorrect or misleading information that a party
reasonably relies upon, leading to financial loss.
Forms of Harm:
• Patrimonial Harm: Financial losses resulting from reliance on incorrect information,

such as investment advice or financial predictions.
• Pain and Suffering: Rarely involved, but could include emotional distress if the
misstatement causes significant personal or professional anxiety.
Example: A financial advisor provides inaccurate information about a stock's performance,

leading to substantial financial losses for the client.
2. Pure Economic Loss
Definition: Financial loss that does not arise from physical damage to a person or property, but
from economic or business disruptions.
Forms of Harm:
• Patrimonial Harm: Losses related to business interruptions, financial errors, or

contractual breaches without associated physical harm.
• Pain and Suffering: Generally not applicable, as pure economic loss focuses on financial
damages rather than personal suffering.
Example: A company experiences financial loss due to a supplier's failure to deliver goods,
resulting in business disruptions and lost profits.
3. Unlawful Competition
Definition: Harm resulting from unfair business practices that distort competition, such as false
advertising or misrepresentation.
Forms of Harm:
• Patrimonial Harm: Financial loss suffered by businesses or consumers due to deceptive

practices or unfair competition.
• Pain and Suffering: Typically does not involve personal pain and suffering, but may
affect reputational interests and lead to emotional distress in severe cases.
Example: A company falsely advertises a product’s benefits, harming competitors and

misleading consumers, leading to financial loss and reputational damage.
4. Product Liability
Definition: Liability for harm caused by defective or dangerous products, extending to

manufacturers, distributors, or retailers.
Forms of Harm:
• Patrimonial Harm: Financial losses from property damage, recall costs, or loss of
business due to defective products.
• Pain and Suffering: Claims can be made for physical injuries or emotional distress
resulting from the defect, such as health complications or severe injuries.
Example: A defective car part causes an accident, resulting in injury to the driver and damage
to the vehicle, leading to claims for both financial damages and personal suffering.
5. Professional Liability (e.g., Medical Negligence)
Definition: Liability of professionals for negligence in their services, resulting in harm to clients
or patients.
Forms of Harm:
• Patrimonial Harm: Financial losses from errors or omissions in professional services,

such as incorrect medical treatment or legal advice.
• Pain and Suffering: Claims for physical pain and emotional distress resulting from
professional negligence, such as a misdiagnosed illness causing prolonged suffering.
Example: A doctor’s failure to diagnose a condition correctly leads to worsened health and
additional treatment costs, as well as pain and suffering for the patient.
Non-fault based liability includes the actions

Actio de Pauperie
1. Pauperie (Harm): There must be actual harm or injury caused by the animal.
2. Conduct of the Animal: The harm must be the result of the conduct of a domesticated
animal.
3. Causal Link: There must be a direct causal connection between the animal's conduct and
the harm suffered.
4. Unnatural Conduct (Contra Naturam Sui Generis): The conduct must be unnatural, such
as behavior that is not typical for that species or results from excitement or other
disturbances that society deems actionable.
5. Ownership: The defendant must be the owner of the animal at the time the injury
occurred.
Scenario Example:
Imagine a situation where a neighbor's dog, which is usually calm and friendly, suddenly attacks
and bites a passerby without provocation while the person is walking down the street. The
passerby suffers injuries as a result of the bite.
In this scenario, the passerby could bring an Actio de Pauperie against the dog's owner
because:
1. Pauperie (Harm): The passerby has suffered physical harm from the dog bite.
2. Conduct of the Animal: The harm was directly caused by the dog's aggressive behavior.
3. Causal Link: There is a clear causal connection between the dog's actions (biting) and
the harm (injury).
4. Unnatural Conduct: The dog's attack is considered unnatural behavior (contra naturam
sui generis) because it deviates from the typical conduct expected of a domesticated
animal in normal circumstances.
5. Ownership: The neighbor was the owner of the dog at the time of the attack.
Under Actio de Pauperie, the owner could be held liable for the harm caused by the dog’s
unnatural conduct.
Actio de pastu
This describes the elements necessary for a legal action under a grazing damage claim, typically
brought when a domesticated animal trespasses onto someone's property and causes harm by
grazing on plants, crops, or pastures. The elements that need to be proven are:
1. Harm: There must be actual damage to the plants, crops, or pastures on the plaintiff's
property due to the grazing.
2. Conduct: The domesticated animal must have trespassed onto the plaintiff's property
and engaged in grazing, which led to the damage.
3. Causal Link: There must be a direct causal connection between the animal's grazing and
the harm (damage) to the plants or crops.
4. Volition: The animal must have acted on its own volition, meaning it chose to graze on
the plaintiff's property without being directed to do so by a person. ( යවනේ
යෙයනකුයේ යමය ෙවීයමන් යතාරව සිදු ෙළ යුතු බව )
5. Ownership: The defendant must have been the owner of the animal at the time the
damage occurred.
Vicarious liability
Definition: Vicarious liability arises when an employer is held liable for the wrongful acts (delicts)
committed by an employee during the course of their employment, even if the employer is not
personally at fault.
Key Characteristics:
• Strict Liability: The employer is held liable regardless of their own fault or involvement in
the wrongful act.
Elements to be Proven:
1. A Delict:
o The employee must have committed a delict, meaning that all elements of a delict
(such as harm, conduct, fault, causation, and wrongfulness) are met. ( ිලික්තෙක්
වීමට අවශය ෙරන ධාතු පූර්ණෙ ෙර තිබිෙ යුතුයි )
2. A Relationship:
o There must be an employment relationship between the person who committed
the delict (employee) and the person being held liable (employer).
o This typically involves a master-servant or employer-employee relationship.
3. Course and Scope of Employment:
o The wrongful act must have been committed within the course and scope of the
employee's employment.
o This means the act was performed while carrying out the duties of the job,
following the employer’s instructions, for the employer’s benefit, or within the
risk created by the employment relationship.
Example Scenario: If a delivery driver, employed by a company, negligently causes an accident

while delivering goods, the company (employer) can be held vicariously liable for the damages
caused by the driver (employee), even if the company had no direct involvement in the accident.
The accident occurred during the course of the driver’s employment, making the employer liable
for the delict.
Steps in Resolving Delictual Problems
1. Identify the Parties:

o Plaintiff: The individual or entity claiming to have suffered harm.
o Defendant: The individual or entity alleged to have caused the harm.
2. Establishing Fact-Based Elements:
o Harm: Assess if the plaintiff has suffered any harm, whether physical, emotional,
or financial.
o Conduct: Identify the specific actions or omissions by the defendant that
allegedly caused the harm.
o Factual Causation: Determine whether the defendant's conduct directly led to
the harm suffered by the plaintiff.
3. Establishing Normative Elements:
o Legal Causation: Consider if the harm is sufficiently connected to the
defendant’s conduct to hold them legally responsible.
o Fault: Examine whether the defendant acted with intent or negligence.
o Wrongfulness: Determine if the defendant's conduct was legally unacceptable,
without any justification.
4. Determining a Suitable Remedy:
o Assessing Damages: Evaluate the extent of damages suffered by the plaintiff and
determine the appropriate compensation or other legal remedy.
Scenario:
John is driving a delivery truck for his employer, ABC Logistics. While making a delivery, John is
distracted by his phone and runs a red light, crashing into Sarah's car. Sarah suffers a broken arm
and significant damage to her vehicle. Sarah decides to sue for her injuries and the damage to
her car.
Steps to Resolve the Delictual Problem:
1. Identify the Parties:

o Plaintiff: Sarah, who suffered harm in the accident.
o Defendant: John, the driver who caused the accident, and potentially ABC
Logistics, his employer.
2. Establishing Fact-Based Elements:
o Harm: Sarah has sustained physical injury (a broken arm) and financial loss
(damage to her car).
o Conduct: John's negligent driving (running a red light while distracted) is the
conduct in question.
o Factual Causation: John's action of running the red light directly caused the
collision and Sarah's injuries.
3. Establishing Normative Elements:
o Legal Causation: The harm (injury and damage) is closely linked to John's conduct,
making it legally attributable to him.
o Fault: John was negligent, as he failed to exercise the standard of care expected
of a reasonable driver by being distracted while driving.
o Wrongfulness: Running a red light and causing an accident is unlawful and without
legal justification.
4. Determining a Suitable Remedy:
o Assessing Damages: Sarah would likely be entitled to compensation for medical
expenses, repair costs for her car, and possibly compensation for pain and
suffering.
In this scenario, Sarah's claim could be against John personally for his negligence, and she may
also pursue vicarious liability against ABC Logistics since John was acting within the course of his
employment when the accident occurred.
Difference between RDL and EL
1. Delict in Civil Law:

o The term "delict" refers to civil wrongs or offenses under civil law systems.
o Civil law systems have traditionally based their liability on broad principles of fault,
even extending back to ancient times.
2. Law of Torts in Common Law:
o In common law systems, similar concepts are covered under the "law of torts" or
"tort law."
o Common law torts originally consisted of various distinct categories, such as
trespass, negligence, battery, assault, false imprisonment, nuisance, and
defamation.
o These torts were traditionally viewed as separate and independent from each
other.
3. Comparison:
o Civil Law: General provisions of liability for fault are applied broadly.
o Common Law: Focuses on specific torts, each with its own set of rules and
principles, though modern common law has increasingly recognized the
interconnectedness of different torts.
In essence, while both legal systems address wrongful acts and liability, civil law provides a more
unified approach under the concept of delict, whereas common law traditionally categorized
wrongs into distinct torts.
Concept of ‘tort’
Origin and Basis:
• Origin: The concept of tort originated in English law.

• Basis: It is based on the positivist school of thought, which focuses on the codification
and application of laws as they are written.
Definition and Scope:
• Civil Wrong: Tort is a civil wrong that harms an individual or legal entity (such as a
company) and is not a criminal offense.
• Claimant’s Interests: Tort law protects certain interests of the claimant, such as
personal safety, property, and reputation.
• Act or Omission: It involves an act or omission by the defendant that causes damage to
the claimant.
Types of Liability:
• Fault-Based Liability: This requires that the damage must be caused by the defendant's
fault, and the harm must be recognized as legally actionable. For example:
o Neighbour Principle (from Donoghue v. Stevenson): Establishes a duty of care
where harm is foreseeable.
o Two-Tier Test (from Anns v. Merton): Involves a two-step analysis to determine if
a duty of care exists and if it was breached.
• Strict Liability: Liability is imposed regardless of fault, focusing on the nature of the
activity rather than the defendant's intention or negligence. Formulated in Rylands v.
Fletcher, this principle holds a party liable for damages resulting from inherently
dangerous activities.
Notable Principles:
• Neighbour Principle: Originates from Donoghue v. Stevenson, establishing that one

must take reasonable care to avoid acts or omissions that can foreseeably harm others.
• Two-Tier Test: From Anns v. Merton, it assesses the existence of a duty of care and its
breach.
• Strict Liability: From Rylands v. Fletcher, it applies to certain types of hazardous
activities.
Donoghue v. Stevenson [1932] AC 562

Lord Atkin – The rule that you are to love your neighbour becomes in law. You must love your
neighbour. i.e. You must not injure your neighbour. And the lawyer’s question, who is my
neighbour? Receives restricted reply. You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour.
• Duty of Care: You must take reasonable care to avoid causing harm to others who might
be directly affected by your actions.
• Foreseeability: You are liable for harm that is reasonably foreseeable as a result of your
conduct.
• Neighbour: In legal terms, a "neighbour" is anyone who could be affected by your
actions, extending beyond direct contractual relationships.
This principle broadened the scope of negligence law, emphasizing that liability can arise from
foreseeable harm even without a direct relationship or contract between parties.
Objectives of Tort Law
1. Compensation to Victims:
o Purpose: To provide financial redress for individuals who have suffered harm
due to the wrongful actions of others.
o Goal: To restore the victim, as much as possible, to the position they would have
been in had the tort not occurred.
2. Deterrence: ( වැළැක්වීම )
o Purpose: To discourage individuals and entities from engaging in harmful or
negligent conduct.
o Goal: To promote social responsibility by ensuring that those who act carelessly
or recklessly face legal consequences, thus deterring similar behavior in the
future.
In tort law, the protected interests
1. Personal Security: Ensures protection against physical harm and emotional distress.
2. Interest in Property: Safeguards against damage or interference with ownership and
possession of property.
3. Economic Interests: Covers financial loss and damage to business operations resulting
from tortious conduct.
In tort law, the mental element, or the state of mind of the defendant, can impact the success
of a claim:
1. Fault-Based Torts: The claimant must prove not only that the defendant’s conduct
caused harm but also that the defendant had a particular state of mind. This typically
involves proving negligence, recklessness, or intention. For example, in negligence, the
claimant must show that the defendant failed to exercise reasonable care, reflecting a
fault-based approach.
2. Strict Liability Torts: The claimant only needs to prove that the defendant's conduct
caused harm, regardless of the defendant's state of mind. Here, there is no requirement
to show intention or negligence. An example is product liability, where a manufacturer
may be held liable for defects in their products even if they were not negligent.
Mental elements in tort under faultbased
Malice
• Wrongful Act: Intentionally performing an act that is wrongful without any proper
excuse.
• Improper Motive: Acting with an ulterior or wrongful motive.
Intention
• General Definition: The defendant aims to achieve a result that is illegal and persists in
their actions despite knowing the potential consequences.
• Proof: The defendant must intend the act, but not necessarily the harm. In fraud cases,
the defendant must know the statement is false.
Negligence
• Definition: Breach of duty of care leading to harm.

• Standard: Assessed using an objective test of what a reasonable person would have
done in the same situation.
Elements of Fault-Based Liability in Negligence
1. Duty of Care
o The defendant owed a legal duty of care to the claimant. This duty arises if it was
foreseeable that the defendant's conduct could cause harm to the claimant.
2. Breach of Duty
o The defendant breached this duty by failing to meet the standard of care expected of a
reasonable person in similar circumstances.
3. Causation and Damage
o The breach of duty caused damage to the claimant. The damage must be directly linked
to the breach (factual causation) and not too remote (legal causation).
Strict Liability
• Definition: Strict liability involves legal responsibility for harm or damage without the
need to prove fault or intent.
• Historical Context:
o Agricultural Society: Originally applied to cases like trespassing livestock causing
damage to crops.
o Industrial Revolution: The rule from Rylands v. Fletcher (1868) attempted to
address industrial-related damages but was later found to be impractical for
modern industrial issues.
• Key Case:
o Rylands v. Fletcher: Established that a person could be strictly liable for damages
caused by non-natural use of their land, such as dangerous substances.
• Vicarious Liability:
o Employers are held strictly liable for the negligent actions of their employees
performed during employment, even if the employer did not directly cause the
harm.
• Statutory Strict Liability in the UK:
o Consumer Protection Act 1987: Imposes strict liability on producers for defective
products.
o Nuclear Installations Act 1965: Establishes strict liability for damage from nuclear
operations.
o Health and Safety at Work Act 1974: Enforces strict liability for breaches of health
and safety regulations.
Strict liability ensures that certain risks and damages are managed effectively, regardless of the
involved party's intent or fault.
ELEMENTS OF DELICT
✓ HARM
✓ CONDUCT
✓ CAUSATION
✓ FAULT
✓ WRONGFULNESS
HARM
To avoid possible confusion, here use of the term ‘damage’ will be avoided and the terms ‘harm’
and ‘loss’ will be used
Appropriate actions depending on the category of harm
1. Patrimonial Harm:
✓ Compensation: Requires the elements of the Lex Aquilia to be met.

✓ Focus: Financial or material loss.
2. Pain and Suffering:
✓ Compensation: Requires meeting the elements of the Germanic remedy.

✓ Focus: Physical and emotional distress.
3. Violation of Personality Interests:
✓ Compensation: Requires satisfying the elements of the Actio Iniuriarum.

✓ Focus: Bodily integrity, dignity, and reputation.
Germanic Remedial Action in Sri Lanka

In Sri Lanka, there is debate about whether compensation for physical pain and suffering is
treated as a distinct action within the law of delict. In the case of Priyani Soysa, Dheeraratne J
noted that compensation for physical pain due to negligence, recognized by Dutch law, is an
exception to the general rule. This suggests that, historically, the influence of Germanic law on
Roman law may have shaped this position. Professor de Villiers also commented that
compensation for emotional distress, as a natural consequence of physical injury, could be
claimed under the Lex Aquilia.
Recognizing Harm
To determine if harm is actionable in delict, assess if the harm falls within recognized categories:
• Patrimonial Loss: Financial or economic damage, addressed by the Aquilian action.

• Pain and Suffering: Physical or emotional distress, covered under remedies for pain
and suffering.
• Violation of Personality Interests: Harm to personal dignity, reputation, or bodily
integrity, addressed by actions like the actio iniuriarum.
Union Government (Minister of Railways and Harbours) v Warneke
Facts:
• Incident: A woman died in a train accident, leading her husband to sue the Minister of
Railways and Harbours.
• Claims: The husband sought compensation for both patrimonial (financial) and non-
patrimonial (emotional) losses:
o Patrimonial: Loss of financial support and services from his wife.
o Non-patrimonial: Loss of comfort, companionship, and emotional support.
Court Findings:
• Lex Aquilia: The court held that the lex aquilia only covers calculable pecuniary harm. It
does not extend to non-patrimonial damages like comfort and companionship, which
are not quantifiable in monetary terms.
• De Villiers CJ: He stated that the loss of a wife’s comfort and society is profound but
not pecuniary. Such loss, while deeply felt, cannot be calculated in monetary terms for
compensation purposes.
• Innes J: He acknowledged that while non-patrimonial damages are not compensable, a
husband could claim compensation for increased financial expenses directly resulting
from the wife's death. This includes additional costs for child maintenance and care that
the wife had previously provided.
Summary: In this case, the court differentiated between calculable financial losses and emotional
or non-patrimonial losses. While the lex aquilia covered financial losses, compensation for the
emotional impact of losing a spouse was not deemed compensable under the existing legal
framework. However, compensation could be sought for increased financial burdens resulting
from the loss.
The interplay between harm (‘damage’) and the remedy (‘damages’)
In delictual law, understanding whether a delict (civil wrong) has occurred can be complex, but
the elements can be related as follows:
• Factual Aspect: Harm must have been suffered. This establishes that a real and tangible
injury or loss occurred.
• Normative Aspect: The harm suffered must be legally recognized or actionable. This
means that the harm must meet the criteria set by the law to be compensable or
actionable under the legal framework
HARM
PATRIMONIAL NON - PATRIMONIAL
Patrimonial Harm
Patrimonial harm refers to damage affecting a person's financial interests or patrimony. It is

categorized into three broad types:
1. Financial Loss from Personal Injury: Harm affecting an individual's finances due to injury,
such as medical expenses or loss of income.
2. Financial Loss from Property Damage: Harm involving financial loss due to damage to
property, including repair costs or diminished value.
3. Purely Economic Loss: Financial harm not directly tied to personal injury or property
damage, such as lost business opportunities or profits.
Non – Patrimonial
Non-Patrimonial Harm refers to types of harm that cannot be directly quantified in monetary
terms. It encompasses:
• Pain: Physical or emotional suffering caused by the harm.

• Inconvenience: Disruption to one's daily life and routine. ( සාමානය ජීවිතයේ අඛණ්ඩතාව
බිඳ වැටීම )
• Shock: Emotional trauma resulting from an incident.
• Insulting Behaviour: Harm to personal dignity or reputation.
While non-patrimonial harm itself does not reduce the monetary value of a person's estate,
associated expenses, like medical treatment to alleviate pain, are considered patrimonial harm
because they involve actual financial costs.
Jowell v Bramwell -Jones
Facts:
• Jowell ( පුතා ) was a capital beneficiary of a testamentary trust set up by his late father,
Dr. Jowell ( තාේතා ), to provide for Dr. Jowell’s wife ( අම්මා ) , with the capital to go to
the beneficiaries after her death.
• Mrs. Jowell ( අම්මා ) sought financial advice from the defendants (a stockbroker,
chartered accountant, attorney, and financial service supplier).
• The financial scheme implemented reduced the value of Jowell’s vested right by
approximately R10 million.
• Jowell ( පුතා )sued the defendants for this reduction, but the defendants argued that the
claim was for prospective loss.
Issue:
• Whether a plaintiff can sue for prospective loss ( අනාගත පාඩුව ) (potential future loss)
that might occur without having incurred any actual loss by the time the action is brought.
Decision:
• The court determined that since Jowell’s right to the trust assets was contingent upon
Mrs. Jowell’s death, and he had not yet suffered any actual loss, the claim was premature.
• The harm element was not satisfied as no past or accrued loss had occurred at the time
of the lawsuit. The action was thus deemed premature because it was based on potential
future loss rather than actual, present harm.
Pain and suffering
1. Pain and Suffering: This includes both past and future physical and emotional distress. It
covers not only physical pain but also psychological harm, mental anguish, nervous shock,
and distress.
2. Loss of Amenities of Life: This refers to the reduction in the quality of life or the
enjoyment of life’s activities that an individual used to enjoy but can no longer engage in
due to the harm or injury.
Key Points:
• Subjective Experience: Pain and suffering must be felt subjectively. A person cannot claim
for future pain if they have not yet experienced any pain or suffering.
• Comprehensive Coverage: It includes physical pain, psychological effects such as anxiety
and trauma, and loss of enjoyment in life.
Loss of Amenities of Life
Definition: Loss of amenities of life refers to the reduction in a person’s quality of life due to
injury or harm. It involves a decrease in the enjoyment and pleasure derived from everyday
activities and experiences.
Components:
1. General Inconvenience: The disruption of daily routines and activities that were
previously enjoyed or essential. ( යපර නිෙැලුණ ක්‍රිොොරෙම්වල නිරත වීයම් යනා ැකිොව )
2. Discomfort: The physical and emotional discomfort resulting from the injury or harm. (
ශාරීරිෙ ා චිේතයේගී අප සුතාවන් )
3. Loss of Life Expectancy: The potential reduction in the overall length or quality of life
due to the injury. ( ආයු අයප්තක්ෂාව අඩු වීම )
4. Humiliation: The social or personal embarrassment and loss of dignity experienced as a
result of the injury or harm. ( යපෞද්ගලිෙ අේමාභිමානෙ ා යගෞරවෙ නැති වීම )
Example
• Injury Details: Kavinu, a 25-year-old athlete, was injured due to faulty sports
equipment. ( ක්‍රීඩා උපෙරණවල යදෝෂෙක් ය ්තුයවන් )
• Impact: The injury resulted in limited mobility, chronic pain, and embarrassment.
• Loss of Enjoyment: Kavinu's ability to participate in sports and other recreational
activities was significantly reduced.
• Quality of Life: The injury led to a decreased overall quality of life, including social and
psychological impacts.
• Legal Claim: Kavinu seeks compensation for the loss of amenities of life.
• Requirements for Compensation: Kavinu must prove how the injury diminished his daily
enjoyment and life experiences.
• Evidence: Demonstrating the impact on sports participation, general pleasure, and any
psychological effects like humiliation is crucial for the claim.
Administrator-General, South West Africa v Kriel
Hoexter JA defined the "amenities of life" as the essential satisfactions derived from basic
physical and mental abilities. These include the ability to walk, run, sit, stand, read, write, bathe,
dress, feed oneself, and control bodily functions. Loss of these abilities significantly impacts a
person's self-sufficiency, happiness, and dignity, making such a loss a valid basis for a
compensation claim.
Sigournay v Gilbanks (1960)
Facts:
• The plaintiff, a passionate sportsman, suffered severe bodily injuries in an accident.

• His injuries included brain damage, loss of sight in one eye, and multiple bone fractures,
significantly restricting his mobility.
• He was in a coma for a period following the accident.
Legal Issue:
• The key issue was whether the plaintiff had subjectively suffered pain and how it should
be assessed for damages.
• The case distinguished between pain and suffering and the loss of amenities of life.
Court’s Findings:
• The court noted that for pain and suffering, it was irrelevant whether the plaintiff could
later recall the pain; what mattered was that the pain was experienced at the time.
• The court emphasized that loss of amenities of life does not require the plaintiff to have
consciously experienced the loss.
Examples of Loss of Amenities of Life Considered:
• The plaintiff could no longer participate in sports and was limited to watching, which
caused emotional distress.
• The plaintiff's social and emotional life was impacted, including a diminished chance of
marriage and ongoing emotional breakdowns.
• The physical consequences included walking difficulties and the permanent loss of vision
in one eye.
This case is significant for demonstrating how courts assess non-patrimonial harm, particularly
in the context of the loss of amenities of life, where the loss of the ability to enjoy life’s
pleasures is recognized, even if the plaintiff is not continuously aware of it.
Infringement of a personality interest
• Type of Harm: This harm involves the wrongful and intentional or negligent violation of a
person’s personality rights, which include:
✓ Bodily Integrity (Corpus): Physical harm or injury to the body.

✓ Dignity (Dignitas): Harm to a person’s honor or self-respect.
✓ Reputation (Fama): Damage to a person’s reputation or standing in the
community.
• Legal Framework: Such harm is addressed under actio iniuriarum, a legal remedy
available in cases where personal dignity or reputation is unlawfully infringed.
• Evolution of Personality Interests:
✓ Traditionally, personality interests were associated solely with natural persons

(human beings).
✓ From the 20th century onwards, these rights have been extended to juristic
(artificial) persons, such as companies and institutions, recognizing their rights to
privacy and reputation.
This summary highlights the expansion of the concept of personality rights and the legal
protections available under the doctrine of actio iniuriarum.
Bodily Integrity
• Bodily Integrity:
o Also referred to as bodily harm.
o Violations typically include assault, deprivation of liberty (such as arrest or
imprisonment), and even seduction.
• Psychological Integrity:
o The concept of bodily integrity also extends to psychological harm.
o Violations occur when a person experiences psychiatric injury or nervous shock.
• Types of Violations:
o Degradation, insultation, and inhuman treatment are also considered violations
of bodily integrity.
This summary emphasizes that bodily integrity encompasses both physical and psychological
aspects, with legal protections against a wide range of violations.
Dignity
Dignity:
• Narrow Sense: Refers to self-esteem, where the defendant's actions have a degrading
or insulting effect on the plaintiff. ( ආේමාභිමානෙ යෙයලයසන ආොරයේ අවමන් ස ගත
ය ෝ අප ාසාේමෙ බලපෑම් )
• Wider Sense: Historically included privacy and identity. These aspects were originally
part of the concept of dignity under Roman law but have since been separated. (
යපෞද්ගලිෙේවෙට ා අනනයතාවට ඇති වන බලපෑම )
Subjective Nature:
• To prove a violation of dignity, it must be shown that the plaintiff subjectively felt
insulted by the defendant’s behavior. ( ආේමීෙව එයස්ේ යනාමැති නම් ඇේත වශයෙන් ම
ාවමෙ වශයෙන් එම අප ාසෙ විද තිබිෙ යුතු ෙ )
• The test for dignity is subjective, focusing on what the plaintiff actually experienced.
Juristic Persons:
• Juristic persons (like companies) lack the capacity to experience this form of dignity
since they do not have personal feelings. ( ආෙතන වැනි නීතිමෙ පුද්ගලාෙතනවලට ාවමෙ
වශයෙන් අප ාස විදීමක් ෙළ යනා ැෙ )
Privacy
Right to Privacy:
• Every individual has the right to decide what aspects of their life remain private and to
what extent they interact with others. This right is subjectively determined by the
individual.
Reasonableness:
• The reasonableness of one's determination of privacy, particularly in communal or

societal interactions, is evaluated in the context of the wrongfulness element in legal
terms. ( සාමාජීෙ ොරණා ා තේේවෙන් මත යපෞද්ගලිෙේවෙ අයප්තක්ෂා කිරීම සාධාරණ නම්
එෙ උල්ලංඝනෙ කිරීම අනීතිෙයි )
Violation of Privacy:
• Privacy is violated when an individual's personal space and peaceful existence are
disturbed. This usually happens in two ways:
o Intrusion: Unwanted or unauthorized entry into someone's personal space.
o Disclosure: The unauthorized sharing of personal information
Examples of intrusion
✓ Search and Seizures: Law enforcement searching property and taking items as evidence,
usually requiring a warrant.
✓ Entry into Private Premises: Unauthorized access to someone's home or private
property.
✓ Reading Private Documents: Accessing personal documents without consent.
✓ Listening into Conversations: Eavesdropping or recording conversations without
permission.
✓ Monitoring Electronic Mail: Capturing and reading emails without consent.
✓ Uninvited Information Collection: Obtaining personal information or samples, like blood,
without consent.
Examples of disclosure
✓ General Disclosure of Private Facts: Revealing personal information obtained without
consent.
✓ Disclosure of Confidential Facts: Publishing sensitive or confidential information
acquired through unethical means.
✓ Unwanted Publication of Photographs: Sharing photos taken without permission,
particularly in private or sensitive contexts.
O'Keefe v. Argus Printing and Publishing Co Ltd
Facts:
• Plaintiff: O'Keefe, a respected individual known for his integrity and professionalism.
• Defendant: Argus Printing and Publishing Co Ltd, which published an article falsely
accusing O'Keefe of unethical behavior.
• Claims: O'Keefe argued that the false statements in the article caused significant harm
to his reputation and emotional distress, and sought damages for defamation. He
contended that the publication was made negligently without proper fact-checking.
Legal Issues:
1. Negligence: Whether Argus Printing and Publishing Co Ltd exercised reasonable care in
verifying the accuracy of the statements before publication. The court examined the
journalistic standards and duty owed to the plaintiff.
2. Defamation: Whether the statements were defamatory and if O'Keefe could prove that
the statements were made with negligence or actual malice.
3. Damages: The extent of damages O'Keefe could claim for the reputational and
emotional harm caused by the false statements.
Court's Decision:
• Negligence: The court found that the defendant had not taken sufficient steps to verify
the truth of the statements, thus constituting negligence.
• Defamation: The statements were deemed defamatory as they adversely affected
O'Keefe's reputation and caused emotional distress.
• Damages: O'Keefe was awarded damages for the harm suffered, reinforcing the
necessity for responsible journalism and accurate reporting.
Implications:
• Freedom of the Press vs. Protection of Reputations: The case highlights the balance
between media freedom and the protection of individual reputations. It underscores the
importance of journalistic accuracy and the legal consequences of publishing false
information.
• Precedent: This case serves as a precedent in defamation and negligence cases involving
media publications, emphasizing the duty of media outlets to verify the accuracy of their
reports and the potential for legal redress when reputations are unjustly harmed.
Identity
Neethling, Potgieter, and Visser explain identity as the unique set of characteristics that define
each person as a distinct individual. This uniqueness allows each person to be distinguished
from others. In essence, identity encompasses the traits and attributes that make someone
who they are and differentiate them from everyone else.
Right to identity
Right to identity The right to identity is a right to a person’s image and aspects associated with
it.
Grütter v Lombard and Another [2007] ZASCA 2:
• Background: Ernst Grütter and Christoffel Lombard, who previously practiced law
together under "Grütter and Lombard," had a professional split. Grütter left and began
practicing under a new name, but Lombard continued using "Grütter" in his firm’s title.
• Legal Issue: Whether Lombard’s continued use of "Grütter" infringed on Grütter’s rights,
given that Grütter sought to protect his identity and reputation after ending their
professional association.
• Court's Findings:
o Grütter and Lombard were not in a partnership, so Lombard had no right to use
"Grütter" post-dissolution.
o Lombard’s use of the name was seen as an unauthorized appropriation of
Grütter’s identity for commercial gain, violating Grütter’s right to privacy and
dignity.
• Decision: The court ruled in favor of Grütter, recognizing his right to control the use of his
name and protecting his identity from unauthorized commercial use.
Reputation
Principles
1. Violation of Reputation: Reputation is considered violated when one person’s actions or

statements cause others to think less of another person. This diminishes the respect and
esteem that the individual commands in the public eye.
2. Publication Requirement: For harm to be legally actionable, the defamatory material
must be published to a third party—someone other than the plaintiff and defendant.
The publication must be such that it can lower the person’s esteem in the eyes of
reasonable, right-thinking individuals.
3. Effect on Esteem: The publication must have the effect of reducing the individual's
reputation among the general public, impacting how they are perceived and respected
by others.
Examples of Reputation Violation
1. Imputations Against Moral Character: Statements or allegations that suggest a person

has poor moral character, which can damage their reputation.
2. Imputations that Arouse Hatred, Contempt, and Ridicule: Comments or publications
that provoke strong negative emotions and disdain towards the individual, affecting
their standing and respect in the community.
3. Impairments Causing Shunning and Avoiding: Actions or statements that lead to the
individual being avoided or shunned by others, which negatively impacts their social and
professional interactions.
4. Impairments of Professional or Business Reputation: Statements or actions that
damage an individual’s professional or business standing, affecting their career and
economic opportunities.
Conduct
Element of Conduct
1.Voluntary Human Conduct: Delictual liability generally arises from actions or omissions that
are voluntarily undertaken by a person. In other words, the person must have acted with intent
or at least with some level of control over their actions.
2.Initiating the Delictual Sequence: It is this conduct that initiates the chain of events leading to
the harm or damage for which liability is sought. ( ානිෙට තුඩු යදන ැසිරීම් දාමෙ ආරම් වන්යන්
යමමගිනි )
3.Overt Behavior Required: The conduct must involve some overt, observable behavior. This
means that mere thoughts, without any corresponding action, do not result in legal liability. (
පැ ැිලි නිරීක්ෂණෙ ෙළ ැකි ැසිරීමක් විෙ යුතු ෙ )
Commission vs. Omission:
• Commission: This involves taking an active step or making a positive action that causes
harm (e.g., damaging someone's property or making a harmful statement).
• Omission: This involves a failure to act when there is a duty to do so, leading to harm
(e.g., not providing assistance in an emergency when you are capable of doing so).
Commission (Positive Acts)
1. Positive Physical Acts: These are deliberate actions that cause harm or damage.
Examples include:
o Driving a vehicle into a neighbor’s wall: This is an intentional act that directly causes
property damage.
2. Positive Statements or Comments: These involve the communication of harmful
information. Examples include:
o Writing a letter: If the letter contains defamatory content, the act of writing and
sending it is the overt behavior.
Omission (Failure to Act)
1. Failure to Act: This occurs when a person has a duty to act but does not, leading to
harm. Examples include:
o Failing to repair a known hazard: If someone is injured because you did not
repair something you were responsible for, this omission could lead to legal
consequences.
Conduct and wrongfulness
1. Impact of Conduct Type on Liability: Courts are generally more inclined to hold
defendants liable for harmful consequences resulting from positive acts than from
omissions or statements. This inclination is guided by policy considerations, as positive
acts are seen as more direct causes of harm.
2. Wrongfulness and Legal Duty: The wrongfulness of the conduct is closely linked to
whether there is a duty in law. If a legal duty exists, then failing to act (omission) or
making a harmful statement could be considered wrongful, leading to liability.
3. Special Circumstances for Omissions and Statements: Courts impose liability for
omissions or statements only in special circumstances where there is a clear duty to
prevent harm. For example, if a person has a responsibility to act but fails to do so, or if a
statement is made with the potential to cause harm, and there is a duty to avoid such
harm, liability may be imposed.
4. Wrongfulness as a Central Question: The existence of a legal duty, whether related to
positive acts, omissions, or statements, is essentially a question of wrongfulness. The
courts assess whether the conduct in question was wrongful based on the presence of a
duty and the specific circumstances of the case.
In summary, the courts carefully consider the nature of the conduct and the presence of a legal
duty when determining whether to hold someone liable for causing harm. Liability for omissions
or statements is less common and usually depends on the existence of special circumstances that
indicate a duty to prevent harm.
Types of Conduct
1. Human Conduct
2. Voluntary Conduct
3. Animals Behaviour
Human Conduct
Human Conduct: Typically, the conduct under scrutiny in a delictual case is that of a natural
person, meaning an individual human being. Most often, defendants in these cases are natural
persons whose actions or omissions are being examined for wrongful behavior.
Juristic Persons: Juristic persons, such as companies, universities, or other legal entities, can
also be held liable in delict. When a juristic person is sued, the actions or omissions of its office
bearers or organs (e.g., executives, managers, or governing bodies) are attributed to the entity
itself.
Liability of Juristic Persons: In these cases, the juristic person is treated as having acted through
its representatives. Therefore, if the conduct of these representatives leads to harm or
wrongful consequences, the juristic person can be held liable in delict, just as a natural person
would be.
Voluntary Conduct
Voluntariness of Conduct: The conduct in question must be voluntary, meaning the person must
have control over their actions. Voluntary conduct is essential for establishing liability, as it
implies that the person acted with intent or awareness.
Types of Conduct:
• Commission (Positive Act): This involves an active, deliberate action, such as driving a car
or making a statement.
• Omission: This involves a failure to act where there is a duty to do so, such as not warning
someone of a danger.
Assessment of Capacity: The person’s ability or capacity to control their actions is examined. This
involves determining whether the individual was capable of directing their muscular movements
or actions towards a particular goal or outcome.
Control Over Actions: The key question is whether the person had the ability to control their
physical actions to achieve a specific end. If the conduct was beyond the person’s control (e.g.,
due to a medical condition or involuntary reflex), it may not be considered voluntary, which could
affect the determination of liability.
Defences
• Automatism: This defense is used when a person’s actions are carried out in a state of
automatism, meaning they were not conscious or aware of their actions. Examples
include actions taken during sleepwalking or under the influence of a seizure.
• Compulsion: This occurs when a person is forced or coerced into acting in a certain way
against their will. If someone is compelled to act under threat or duress, they may not be
held liable for the resulting harm. ( බල කිරීම )
• Reflex Muscular Movements: Actions that occur as an automatic response to a stimulus,
such as sneezing (කිවිසුම්ොම) or flinching, are considered reflexive and involuntary. These
movements are not under conscious control and therefore may not attract liability.
• Unconscious State: If a person is unconscious or in a state where they lack awareness

(such as during fainting or being under general anesthesia), their actions during this time
are considered involuntary. ( සාමානයයෙන් මද නිර්වින්දන අවස්ථා වැනි )
• Involuntary Intoxication: If a person is intoxicated without their knowledge or consent
(e.g., their drink was spiked), any actions they take while in this state may be considered
involuntary, serving as a defense against liability. However, voluntary intoxication is more
complex and may still lead to liability, depending on the circumstances and whether the
intoxication was self-induced.
Inapplicable defences
1. Impulsive (ආනේගශීලී ) or Spontaneous Acts ( ස්වයංසිද්ධ ): Actions taken on impulse or

in the heat of the moment are still considered voluntary and do not provide a defense
against liability. Even if the act was not premeditated ( ෙලින් සැලසුම් යනාෙරන ලද ), it is
still subject to legal consequences if it causes harm.
2. Intentional Prior Acts: Any actions that were done with intention, regardless of how much
time passed between the intention and the act, cannot be defended against. If a person
deliberately engages in harmful behavior, they are liable for the consequences. (
යේතනාව ා ක්‍රිොව අතර ොලෙ සලො යනාබලන බව )
3. Negligent Prior Conduct: If a person’s earlier negligent actions lead to harm, they cannot
use their own negligence as a defense. Negligent conduct, by definition, implies a failure
to exercise reasonable care, and individuals are held accountable for any resulting
damage. ( යනාෙර ැරීම ා ක්‍රිොව අතර ොලෙ සලො යනාබලන බව )
Molefe v Mahaeng
Facts
• Collision Incident: Mr. Molefe sued Mr. Mahaeng for damages after a collision involving
Mahaeng’s car, Molefe’s car, and a police officer's car.
• Defense: Mahaeng claimed the collision was caused by a sudden, unforeseen black-out due to
slipping on a banana peel, which he argued was uncontrollable.
Magistrate's Court Ruling
• Rejection of Automatism Defense: The magistrate found Mahaeng liable, rejecting the defense
of automatism.
• Judgment: The court awarded damages to Molefe based on the agreed amounts and costs.
High Court Appeal
• Reversal of Decision: The High Court overturned the magistrate's decision, concluding that
Mahaeng had suffered a genuine black-out and that the collision was not due to negligence.
Supreme Court of Appeal Ruling
• Dismissal of Appeal: The Supreme Court of Appeal upheld the High Court’s decision, dismissing
Molefe’s appeal.
• Involuntary Act: The court ruled that involuntary acts, such as those caused by a sudden black-
out, do not give rise to delictual liability.
• Burden of Proof: Molefe failed to prove that Mahaeng’s conduct was due to a voluntary act or
negligence.
• Awareness of Risk: The court found no evidence that Mahaeng was aware of the risk of black-out
or that a reasonable person should have foreseen it.
Key Points
• Defense of Automatism: The case highlights that involuntary actions, such as those resulting from
a sudden black-out, do not constitute delictual liability.
• Proof of Negligence: To establish liability, it must be proven that the defendant's actions were
voluntary and negligent.
A person’s capacity to act v A person’s capacity to be at fault
✓ Capacity to Act: This concerns whether a person can physically control their
movements. If someone cannot control their actions (e.g., due to a sudden black-out),
the conduct element of delict is not met, and they may not be liable for any resulting
harm.
✓ Capacity to be at Fault: This relates to a person's ability to understand right from wrong
and to act responsibly. If a person lacks the mental capacity to distinguish between right
and wrong or control their impulses (e.g., due to severe mental illness), they may not be
considered at fault for wrongful conduct.
Animal Behaviour
Actio de Pastu:
• Definition: This action pertains to claims for damages caused by livestock trespassing on
another's property and causing harm or damage to crops or property.
• Application: It is used when an animal grazes on land it is not permitted to, resulting in
damage. The owner of the animal may be held liable for this harm.
Actio de Pauperie:
• Definition: This action addresses damages caused by animals to persons or property. It

specifically relates to claims arising from the behavior of animals under the control of
their owners.
• Application: It is used when an animal, due to its behavior, causes harm or damage to
someone else. The owner can be held liable for the harm caused by the animal, regardless
of whether the owner was negligent.
Causation
Element of Causation
Essential Element: Causation must be proven for delictual liability to exist. Without establishing
causation, there is no basis for holding the defendant liable.
Causal Connection: There must be a clear link between the defendant's conduct and the harm
or loss suffered by the plaintiff. The conduct of the defendant must be shown to have directly
caused the plaintiff's injury or damage.
Requirement: To find a defendant liable in delict, it must be demonstrated that the defendant’s
actions were the cause of the plaintiff’s harm. This means the harm must be a direct result of the
defendant's conduct.
S v Van
S v Van As involved a tragic incident where police officers, including Van As, were responsible for
arresting a man for drunken driving. During this arrest, five young children accompanying the
suspect went missing. Although the police conducted a brief search, they did not find the
children, who were later found dead due to exposure.
Causation Analysis
1. Factual Causation:
o Definition: Whether the defendant's actions (or omissions) were a necessary
condition for the occurrence of the harm.
o Case Analysis: The police officers' failure to conduct a thorough search was a
factual cause of not finding the children sooner. However, it was not proven that
a proper search would have saved their lives.
2. Legal Causation:
o Definition: Whether the defendant should be held legally responsible for the
consequences of their actions.
o Case Analysis: The court found that the State did not prove the officers' omission
was the legal cause of the children's deaths. Although the police should have
continued the search, the direct link between their failure and the children's
deaths was not established.
Conclusion
• The Supreme Court of Appeal reversed the convictions of the police officers. The court
acknowledged the factual causation of the search failure but found insufficient evidence
to establish that this omission legally caused the deaths. The case highlighted the need
for a clear causal link in claims of negligence, especially in criminal liability contexts.
The two-fold enquiry
✓ Facts: The court examines the details of the incident, including what the wrongdoer did
or failed to do and the resulting harm.
✓ Evidence: The court considers the evidence presented, such as testimonies and
documents, to establish the relationship between the conduct and the harm.
✓ Relevant Probability: The court evaluates the probability that the wrongdoer's actions
were a significant cause of the harm, given the circumstances of the case.
Minister v Skosana (1977 (1) SA 31 (A) 34-35)
the Supreme Court of Appeal dealt with causation in a delictual context, focusing on the
negligence of police officials in delaying medical treatment for Timothy Skosana, who died as a
result.
Two-Fold Enquiry into Causation
1. Negligence of Police Officials:

o The court assessed whether the police officials, Davel and Mahela, acted negligently by
failing to promptly summon medical assistance and transport Skosana to the hospital.
This involved determining if their actions fell below the standard expected of reasonable
police officers.
2. Causal Link to the Harm:
o The court examined if the negligent acts or omissions were sufficiently linked to Skosana's
death. It applied the "conditio sine qua non" test to see if Skosana's death would have
occurred but for the police’s negligence.
Findings
• Negligence: The court found the police officials were negligent in their delay in providing medical
treatment, which contributed to Skosana’s deteriorating health.
• Causal Link: Although the delay was a factual cause of Skosana’s death, the court found the link
to legal causation was complex. Skosana’s chances of survival were already severely compromised
by the time he received medical attention, making it difficult to establish a direct causal
connection between the police’s negligence and his death.
Conclusion
The court ruled that while the police’s negligence contributed to the circumstances leading to
Skosana’s death, it was not proven that this negligence was the proximate cause of the death.
The appeal was dismissed, highlighting the need for a clear causal connection in delictual liability
and the distinction between factual and legal causation. The police were not held liable for
Skosana’s death.
Two-Fold Enquiry
1.Factual Causation:
• Problem: Determining whether the negligent act or omission caused or materially

contributed to the harm.
• Assessment: This involves establishing if the harm would have occurred but for the
negligent conduct. If the negligent act did not cause or materially contribute to the
harm, legal liability cannot arise, and the case is resolved at this stage.
2.Legal Causation:
• Problem: Assessing whether the negligent act or omission is linked to the harm closely
enough to justify legal liability or if the harm is too remote.
• Assessment: This involves evaluating if the harm is a foreseeable consequence of the
negligence and if it is sufficiently directly related to the negligent conduct. Legal policy
considerations may influence this assessment to determine if the harm is too distant or
remote for legal liability.
In summary,
✓ Factual Causation: Whether the negligence caused the harm.

✓ Legal Causation: Whether the harm is sufficiently connected to the negligence to
warrant legal responsibility.
The two-fold enquiry in causation in the law of delict involves:
1. Factual Causation (Factual Enquiry):

o Questions:
▪ Did the defendant’s wrongful conduct cause, or materially contribute to,
the harm sustained by the plaintiff?
▪ If the answer is no, the defendant is not liable, and there is no delict.
▪ If the answer is yes, proceed to the next enquiry.
2. Legal Causation (Juridical Enquiry):
o Questions:
▪ Is the factual link between the conduct and the harm strong enough to
establish liability?
▪ Is the harm sufficiently closely connected to the conduct?
▪ Should the law recognize the defendant as having caused the harm, or
should liability be limited due to considerations of legal policy or other
normative issues?
In essence, factual causation determines if the negligence had a direct impact on the harm,
while legal causation assesses if the link between the conduct and the harm is significant
enough to warrant legal responsibility, considering broader legal and policy implications.
Tests for Factual Causation
✓ Conditio sine qua non approach or but for test

✓ Alternative test to conditio sine qua non approach
Conditio sine qua non approach (But-For Test)
1. Definition:
o The defendant’s conduct must be a necessary condition (a conditio sine qua non) for the
plaintiff’s harm to occur.
2. Principle:
o Every event results from multiple conditions or factors that collectively produce or cause
the event. For the defendant’s conduct to have caused the harm, it must have been a
necessary condition for the harmful consequence.
3. Application:
o But-For Test: A defendant’s conduct is considered a necessary condition for the harm if,
but for the defendant’s specific conduct, the harmful consequence would not have
occurred. This is used to establish whether the conduct was directly responsible for the
harm.
4. Burden of Proof:
o The plaintiff bears the burden of proving, on a balance of probabilities, that the
defendant’s conduct indeed caused the harm. This requires showing that, without the
defendant’s conduct, the harm would not have occurred.
In summary, the Conditio sine qua non or "but-for" test is used to determine whether the
defendant's conduct was a necessary factor in causing the plaintiff's harm, with the plaintiff
responsible for proving this causal connection.
✓ In Sri Lankan Courts too, the test is applied primarily

Priyani Soysa v Aresecularatne
The "but for" test is a standard method used in tort law to establish causation. It asks whether
the harm would have occurred "but for" the defendant's negligent actions. In this case, the
court needed to determine:
• Negligence: Whether Professor Soysa's failure to diagnose the brain stem glioma
constituted negligence.
• Causation: Whether the alleged negligence was the direct cause of the child's death.
Specifically, the court examined if the child would have survived had the correct
diagnosis and treatment been provided in a timely manner.
Court's Findings
The Supreme Court ultimately ruled in favor of Professor Soysa, finding that the plaintiff did not
establish causation on a balance of probabilities. The court emphasized that:
• The evidence did not convincingly demonstrate that the failure to diagnose the brain
stem glioma was the direct cause of the child's death.
• The court criticized the lower courts for not adequately considering the evidence
regarding the timing and symptoms of the child's condition, which complicated the
causation analysis.
Conclusion
In conclusion, the Arseculeratne v. Priyani Soysa case illustrates the application of the "but for"
test in establishing causation in medical negligence claims. The Supreme Court's ruling
highlighted the necessity for plaintiffs to provide clear evidence linking the defendant's actions
to the harm suffered, reinforcing the principle that mere negligence does not automatically result
in liability without a proven causal connection.
Application of the test

• Positive Conduct: Apply mental elimination. Determine if the harm would have occurred
if the specific positive act or conduct had not taken place. For example, if a driver’s
reckless behavior causes an accident, assess if the accident would have happened without
the reckless driving.
• Omission: Apply hypothetical substitution. Consider what would have happened if the
omitted action had been performed. Evaluate if the harm would have been prevented if
the required intervention or action had been taken. For example, if a lifeguard fails to
rescue a drowning person, determine if the person would have survived with the proper
rescue action.
1. International Shipping Co (Pty) Ltd v Bentley (1989)

In this case, the court found that the auditor, Bentley, had acted negligently by providing
misleading financial statements. The court applied the "but for" test to establish factual
causation, concluding that but for Bentley's negligent report, International Shipping would not
have continued to provide financial support to the Deals Group. However, the court ultimately
determined that the loss was too remote for legal causation, as two years had elapsed between
the report and the liquidation, and International Shipping should have foreseen the potential for
loss given the Group's financial situation. Therefore, while factual causation was established,
legal causation was not, leading to Bentley not being held liable for the loss.
2. S v Van As (1967)
In S v Van As, the court examined whether the police officers' negligence in failing to search for
missing children was causally linked to the children's deaths. The "but for" test was implicitly
applied to assess whether the children would have been found had the officers acted differently.
The court found that while the officers' negligence contributed to the circumstances, the causal
link was not sufficiently established to hold them liable for the deaths, as the children’s survival
was already compromised by other factors.
3. Minister of Police v Skosana (1977)

This case involved the police's failure to provide timely medical assistance to a prisoner. The court
applied the "but for" test to determine whether the delay in medical treatment caused the
prisoner's death. The court found that but for the police's negligence, the prisoner might have
survived. However, it also considered the broader context, including the prisoner's pre-existing
health issues, ultimately concluding that the police's actions were a contributing factor but not
the sole cause of the death, complicating the causation analysis.
4. MCubed International (Pty) Ltd v Singer and Others (2009)

In this case, the court addressed whether the defendants' actions caused the plaintiff's losses.
The "but for" test was utilized to determine if the plaintiff would have suffered the loss but
for the defendants' conduct. The court found that the plaintiff's losses were indeed linked to the
defendants' actions, establishing both factual and legal causation. The court emphasized the
necessity of a clear connection between the wrongful act and the harm suffered.
5. Minister of Safety and Security v Carmichele (2004)

In this landmark case, the court examined whether the police's failure to act on a warning about
a potential threat led to the plaintiff's assault. The "but for" test was crucial in establishing
that but for the police's negligence in failing to arrest the assailant, the assault might have been
prevented. The court held that the police's conduct was a significant contributing factor to the
harm suffered by Carmichele, establishing both factual and legal causation, which ultimately led
to the finding of liability against the police.
Conclusion
Across these cases, the "but for" test serves as a fundamental tool for establishing factual
causation. However, the courts also emphasize the importance of considering additional factors
that may affect legal causation, such as the timing of events, the foreseeability of harm, and the
presence of intervening causes. This nuanced approach underscores the complexity of causation
in delictual claims within South African law.
Critique of the conditio sine qua non test
Clumsy and Circuitous Reasoning:
• The process of determining causation through mental elimination (for positive acts) or
hypothetical substitution (for omissions) is often seen as awkward and indirect. This
approach can be complex and may not always yield a clear or straightforward conclusion,
making it cumbersome in practical application.
Inadequacy with Multiple Causes:
• The test struggles to address situations where multiple causes contribute to the harm.
When several factors are at play, isolating a single cause as the conditio sine qua non can
be challenging and may not reflect the true nature of the causal relationship. This
limitation can lead to difficulties in cases involving complex causal chains.
Not a True Test for Factual Causation:
• Critics argue that the conditio sine qua non test is not a genuine method for determining
factual causation. Instead, it is seen as a way of articulating a causal link that has already
been established through other means. The test does not independently verify causation
but rather describes a relationship that has been inferred or assumed, which can be
misleading or insufficient in some cases.
Alternatives to the conditio sine qua non test
Material Contribution:
• This principle asks whether the defendant’s conduct not only caused but also materially
contributed to the harm suffered by the plaintiff. In other words, the defendant’s actions
must have played a significant role in bringing about the harm. Even if other factors were
involved, if the defendant’s conduct significantly contributed to the damage, they may be
held liable.
Common Sense:
• Courts often rely on common sense to determine causation. This approach involves a
"sensible retrospective analysis" of what would probably have happened without the
defendant’s wrongful conduct. The idea is to use practical judgment to assess whether
it’s likely that the defendant’s actions caused the harm, rather than getting bogged down
in complex hypothetical scenarios. The Portwood v Svamvur case illustrates this
approach, where the court used practical reasoning to decide on the cause of the harm.
Human Experience and Knowledge:
• This principle suggests that factual causation should be determined based on actual, real-
world knowledge and experience, rather than on hypothetical or speculative scenarios.
Courts consider how things generally happen in the world and use that understanding to
decide if the defendant’s actions caused the harm.
Increasing Risk and Creating Opportunities for Harm:
• This principle focuses on whether the defendant’s conduct significantly increased the risk
of harm to the plaintiff or created an opportunity for harm to occur. If the defendant’s
actions made it more likely that the harm would happen, they might be found liable even
if the harm wasn’t directly caused by their conduct.
Legal Causation
• Factual Link Insufficient: Merely establishing a factual connection between the

defendant's conduct and the harm is not enough for legal liability.
• Fairness and Justice: Basing liability solely on factual causation could lead to unfair and
unreasonable outcomes.
• Legal Causation: Limits liability to consequences that are closely or directly linked to the
defendant's conduct.
• Role of Legal Causation: Acts as a filter to ensure that only those consequences that can
be fairly attributed to the defendant lead to liability.
• Policy Considerations: Legal causation involves evaluating various factors and policies to
ensure liability is just and reasonable.
Cases related to the legal causation
International Shipping Co (Pty) Ltd v Bentley (1989):
Bentley's negligent audit reports led International Shipping to finance the Deals Group, resulting in a
R383,492 loss after liquidation.
• Factual Causation: Established through the "but for" test; Bentley's negligent reporting
was a necessary condition for the losses.
• Legal Causation: Losses deemed too remote due to:
o Significant time lapse (two years) between the report and liquidation.
o International Shipping's awareness of financial deterioration but continued
support.
o Multiple intervening factors contributed to the loss.
• Outcome: Factual causation established, but legal causation not; Bentley not held liable.
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd (2009):
A truck accident caused by Fourway Haulage led to a 24-hour road closure and spillage of
asbestos. The SA National Roads Agency sued for lost toll revenue. The court found Fourway's
negligence directly linked to the economic loss.
• Factual Causation: "But for" test confirmed the accident and road closure were directly
linked to Fourway Haulage’s actions.
• Legal Causation: Losses not too remote due to:
o Foreseeability of an accident given the hazardous cargo (asbestos).
o Direct consequence of road closure and economic losses.
• Outcome: Clear causal link established; Fourway Haulage held liable.
Conclusion:
• Comparison: International Shipping Co case—factual causation without legal causation

led to no liability; Fourway Haulage case—both factual and legal causation established,
leading to liability.
• Importance: Emphasizes the necessity of both factual and legal causation in determining
delictual liability.
General Test – The ‘flexible approach’
Tests for Legal Causation Before S v Mokgethi:
1. Direct Consequences Test:

o Focus: Whether the harm was a direct consequence of the defendant's conduct.
o Application: Assess if the defendant’s actions were directly responsible for the harm
without significant intervening factors.
2. Reasonable Foreseeability Test:
o Focus: Whether the harm was a foreseeable consequence of the defendant’s conduct.
o Application: Determine if a reasonable person in the defendant’s position could have
anticipated the harm resulting from their actions.
3. Novus Actus Interveniens (New Act) Concept:

o Focus: Whether an intervening event or act broke the chain of causation.
o Application: Assess if a new, independent act occurred after the defendant’s conduct
that contributed to the harm.
4. Adequate Cause Test: ( විේතිෙරුයේ ක්‍රිොව ානිෙ සඳ ා ප්‍රමාණවේ ද ? )
o Focus: Whether the defendant’s conduct was an adequate cause of the harm.
o Application: Evaluate if the defendant’s actions were a substantial factor in bringing
about the harm, even if other factors were involved.
Shift to Flexible approach
• No Uniform Rule: Judges applied different tests for legal causation without a consistent
rule, leading to varied approaches in case law.
• Normative and Policy Considerations: Judges began exploring the normative nature and
policy implications of legal causation decisions.
Example Case: S v Daniels
• Judge 1: Investigated whether a novus actus interveniens (new intervening act) occurred.
• Judge 2: Investigated whether a novus actus interveniens (new intervening act) occurred
• Judge 3: Applied the adequate cause test.
• Judge 4: Used a common purpose approach.
Introduction of flexible approach

The case of S v Mokgethi is significant in the context of legal causation, as it introduced a flexible
approach that emphasizes reasonableness, fairness, and justice in determining liability. Here are
the key points regarding the introduction of this flexible approach:
Flexible Approach to Legal Causation

1. Policy Considerations: The court developed an elastic or supple test for legal causation
based on policy considerations that prioritize reasonableness, fairness, and justice. This
approach allows courts to assess each case individually rather than applying a rigid
formula.
2. Distinction Between Factual and Legal Causation: The court emphasized the need to
distinguish between factual causation (the direct cause of harm) and legal causation (the
broader question of whether it is fair to hold the defendant liable).
3. No Single Criterion: The court held that there is no single, universally applicable criterion
for legal causation. Instead, the determination should focus on whether a sufficiently
close relationship exists between the defendant's conduct and the resulting harm.
4. Existing Tests as Subsidiary: While the traditional tests for establishing legal causation
remain valid, they can serve as subsidiary tools depending on the circumstances of each
case. This flexibility allows for a more nuanced understanding of causation.
5. Close Nexus Requirement: The central question is whether the connection between the
defendant's actions and the consequences is strong enough to justify liability. Courts are
tasked with evaluating this connection in light of social policies and the specific facts of
the case.
6. Consideration of Circumstances: The court’s conclusions regarding fairness,
reasonableness, and justice are drawn from the circumstances of each case, allowing for
a tailored approach that reflects the complexities of real-life situations.
There are various tests that can be considered to determine the legal cause but in S v Mokgethi
van Heerden JA held the court must take into account one or more of the following factors:
• Proximate cause
• Foreseeability
• Adequate cause
• absence of novus actus interveniens.
PROXIMATE CAUSE / DIRECT CONSEQUENCES TEST
✓ What is the most proximate cause of the deceased’s death?
✓ Consider proximity for time and space
✓ What in terms of value and importance is the most decisive and direct cause of the
unlawful consequence.
The International Shipping Co (Pty) Ltd v Bentley (1990)
Case addresses causation and remoteness of damages in negligence. International Shipping
claimed financial losses due to Bentley's misleading audit reports on the Deals Group. The court
found that while Bentley's negligence was a factual cause of the loss, the loss was too remote
due to factors like a two-year gap, International Shipping's knowledge of the risks, and
intervening fraudulent actions by the Deals Group. Consequently, Bentley was not held liable,
highlighting the importance of distinguishing between factual and legal causation in negligence
cases.
Relationship between flexible approach and subsidiary tests

The Mokgethi case did not abolish the subsidiary tests in determining liability in delictual claims.
Instead, it reinforced the application of these tests, particularly in the context of establishing
causation.
In the case of Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd, the court
clarified the flexible approach to applying these subsidiary tests, especially in situations of
uncertainty regarding the relationship between the flexible criterion and the subsidiary tests. The
ruling emphasized that the criteria for foreseeability and directness should be applied flexibly to
avoid unjust outcomes.The court found that it was reasonably foreseeable that an accident
involving a truck carrying hazardous materials could lead to road closures and subsequent
economic losses for the toll agency. Thus, the loss suffered by the SA National Roads Agency was
not too remote, and Fourway Haulage was held liable for the damages incurred due to the
accident. This case illustrates the balance between applying strict liability principles and ensuring
fairness in the assessment of damages.
Subsidiary Tests
✓ The direct consequences test
✓ The reasonable foreseeability test
✓ The novus actus interveniens concept
✓ The adequate cause test
✓ Tele qualem rule
The direct consequences test
he Direct Consequences Test, also known as the proximate cause test, is a legal principle
used to determine liability in tort law. This test originated from the English case In re Polemis
and Furness, Withy & Co Ltd, which established that a person is liable for all direct
consequences of their actions, regardless of whether those consequences were foreseeable.
Key Aspects of the Direct Consequences Test

1. Definition: Under the Direct Consequences Test, a defendant is held liable for all direct
consequences of their negligent act. This means that even if the specific consequences
were not foreseeable, if they directly resulted from the defendant's actions, liability may
still be imposed.
2. Case Background: In the Polemis case, the defendants were chartering a ship that
contained petrol. Due to negligence, a plank fell and caused sparks that ignited the
petrol, leading to the ship's destruction. The Privy Council ruled that the shipowners
could recover for the loss, emphasizing that the direct consequence of the negligent act
(the fire) was sufficient for liability, irrespective of foreseeability.
3. Comparison with Other Tests: The Direct Consequences Test contrasts with the Test of
Reasonable Foresight, which holds that a defendant is only liable for damages that a
reasonable person could foresee. While the latter test focuses on the foreseeability of
harm, the Direct Consequences Test prioritizes the direct link between the negligent act
and the resulting damage.
4. Legal Evolution: Although the Direct Consequences Test was initially favored, its
application has evolved. In contemporary legal contexts, courts often adopt a more
flexible approach, considering both foreseeability and directness to ensure fair
outcomes. This is evident in cases like Fourway Haulage SA (Pty) Ltd v SA National
Roads Agency Ltd, where the court applied both tests to assess liability
comprehensively.
In summary, the Direct Consequences Test plays a crucial role in tort law by establishing liability
based on the direct outcomes of negligent actions, highlighting the balance between strict liability
and fairness in legal judgments.
• A person is liable for all direct consequences of their conduct if they should have
reasonably foreseen that harm could occur.
• Liability is not limited to foreseeable consequences; as long as the harm directly results
from the conduct, the defendant may be held responsible.
• If a new intervening cause (novus actus interveniens) breaks the causal link, there is no
legal causation or liability.
• The test is criticized for potentially imposing overly harsh liability on the defendant, as it
can lead to wide liability.
Reasonable Foreseeability Test
• The test asks whether the defendant should have reasonably foreseen the
consequences of their conduct.
• It was adopted in the English case Overseas Tankship (UK) Ltd v Morts and Docks
Engineering Co Ltd, known as The Wagon Mound Case.
• Judge Viscount Simonds highlighted that the test does not require foreseeing all the
harm, its full extent, or specific harm.
• The key requirement is foreseeing the general type of harm that occurred.
Adequate Cause Test
• The Adequate Cause Test originated in the Netherlands and Germany.

• It imputes liability to a defendant if the consequence is adequately connected to their
conduct.
• A consequence is considered adequately connected if, according to human experience, it
would typically follow the conduct in the normal course of events.
• The test also considers whether the conduct has a natural tendency to bring about the
consequence.
The Talem qualem rule
• The rule is also known as the "thin-skull" or "egg-skull" rule.

• It applies when a victim suffers more serious harm than the perpetrator intended, due to
a preexisting weakness of the victim.
• The weakness could be physical, psychological, or financial.
• The rule holds that perpetrators must take their victims as they find them, meaning they
are liable for the full extent of the harm, even if it exceeds what would normally be
expected due to the victim's preexisting condition.
Smith v Leach Brain and Co Ltd
The plaintiff's husband was struck on the lip by a piece of metal, causing a burn. Three years later,
the burn became cancerous, leading to his death. Medical evidence showed that the husband
had a preexisting condition making him susceptible to cancer. The court applied the "thin-skull"
rule, holding that the employer, who failed to provide protective clothing, was liable for the full
extent of the harm, including the death, despite the preexisting condition. The widow was
awarded damages.
Novus actus interveniens
A novus actus interveniens refers to an independent, unconnected, and unforeseen event that
actively contributes to the occurrence of harm after the defendant's original conduct. This
intervening event breaks the causal link between the defendant's actions and the harm suffered
by the plaintiff. The intervening cause could be the conduct of the victim, another person, or
other factors. When such an event occurs, it can relieve the defendant of liability for the harm.
Mafesa v Parity Versekeringsmaatskappy Bpk
Facts
The plaintiff, Mafesa, was involved in an accident that resulted in injuries. Following the
accident, he was provided with crutches by the hospital. However, due to a defect in the
crutches, Mafesa suffered further injuries when the crutch broke while he was using it. He
subsequently claimed damages from Parity Versekeringsmaatskappy, the insurer of the
hospital.
Legal Issues
The key legal question was whether the injuries sustained by Mafesa from the defective crutch
were a direct consequence of the hospital's negligence in providing safe equipment. The court
had to consider whether the hospital's actions were sufficiently connected to the injuries to
establish liability.
Court Findings
1. Causation: The court examined the relationship between the initial negligence (the
accident and subsequent provision of crutches) and the injuries caused by the defective
crutch. It ruled that the hospital's negligence in providing safe crutches was a direct
cause of the injuries sustained by Mafesa.
2. Novus Actus Interveniens: The court also considered whether the defect in the crutch
constituted a novus actus interveniens, which could potentially break the chain of
causation. However, it found that the defect was a foreseeable consequence of the
hospital's negligence, thus maintaining the hospital's liability.
3. Proximate Cause: The court emphasized the importance of the proximate cause test,
which assesses whether the harm suffered was a direct result of the defendant's
actions. The ruling reinforced that defendants could be held liable for injuries resulting
from their negligence, even if those injuries were not the direct result of the initial
negligent act.
Conclusion
The Mafesa case is significant in South African law as it illustrates the application of causation
principles in delictual claims, particularly in the context of medical negligence and the
responsibilities of healthcare providers. The decision affirmed that liability could extend to
consequences that are reasonably foreseeable from negligent actions, thereby upholding the
principles of fairness and justice in tort law.
Final remarks
• Purpose: Limits liability by ensuring that harm factually linked to a perpetrator’s conduct
is not automatically imputed if the causal link is not strong enough in law.
Key Points:
• Factual vs. Legal Causation: Establishing that conduct was a sine qua non (factual cause)
of the loss is insufficient. Legal causation must also be demonstrated to ensure the loss
is not too remote.
• Flexible Test: Courts use a flexible test for legal causation, guided by policy
considerations such as reasonableness, fairness, and justice.
• Integration of Previous Tests: The flexible test does not abolish previous tests (like
direct consequences, reasonable foreseeability, etc.) but incorporates them into a
broader framework to assess causation.
Fault
• Fault in Delictual Liability: Requires proving that the defendant is blameworthy for the
harm caused.
• Culpability: The question is whether the defendant's conduct is deserving of blame or
responsibility.
Forms of fault
Fault generally takes two forms:

✓ ntention (dolus)
✓ Negligence (culpa)
The components of fault element
• Accountability: The person must have had the capacity to be at fault at the time of
causing the harm.
• Culpability: The person must be blameworthy, having acted either intentionally or
negligently.
Accountability / culpa capax
• Definition: Refers to a person's capacity to distinguish between right and wrong and to
act according to that distinction.
• Requirement: Essential for finding someone blameworthy or at fault. Without legal
accountability, blame cannot be imputed, and the fault element is not met.
( ක්‍රිොව කිරීමට පුද්ගලයෙකුට ඇති ැකිොව එන රි යද් කුමක් ද වැරි යද් කුමක් ද ෙන්න වට ා ගැනීමට
ඇති ශෙයතාව යමහිදී මැන බැයල් )
Assessment of Accountability
Questions to Consider:
1. Mental Capacity: Did the defendant have the mental capacity to distinguish between
right and wrong and understand the difference?
2. Maturity ( පරිණතබව ): Did the defendant have sufficient maturity to act in accordance
with this understanding?
Note: These questions are subjective. Accountability is assessed based on the defendant’s
capacity at the time the delict was committed.
Persons to be considered for accountability
• Minor
• Mental illness
• Intoxication or inducement by drug
• Provocation
Minor
South African Age of Minority and Legal Accountability:

• Under 7 Years: Children in this group are always considered legally incapable of
accountability.
• 7 to 14 Years: Children are presumed to be culpa incapax (incapable of fault). They are
legally regarded as incapable of being blamed unless proven otherwise.
• 14 to 18 Years: Children are presumed to be culpa capax (capable of fault). They are
legally accountable and liable for wrongful conduct unless proven otherwise.
Minor in Sri Lanka
Ceylon Penal Code Age of Minority and Legal Accountability:
• Under 8 Years: Children in this group are excluded from liability.

• 8 to 12 Years: Excluded from liability if the child has not attained sufficient maturity to
understand the nature and consequences of their conduct.
• 12 to 18 Years: Subject to liability unless proven otherwise.
Forms of fault
• Intention (dolus)
• Negligence (culpa)
Intention
• Definition: A person is at fault if they intend to cause harm to another, knowing it is
wrong.
• Legal Disapproval: Courts view intention as reflecting a reprehensible ( යදෝෂායරෝපණෙ
ෙළ ැකි ) state of mind.
• Subjective Test: Determined based on what the defendant actually intended at the time
of the delict.
Forms of intention
✓ Dolus directus – direct intention
✓ Dolus indirectus – indirect intention
✓ Dolus eventualis – intention by acceptance of foreseen result
Dolus directus
• Also Known As: Direct intention.
• Requirement: The person must have aimed to achieve a specific result or been willing to
produce or accept the consequences of their actions.
Dolus indirectus
Definition: A form of intention where the wrongdoer foresees that the wrongful consequence is a certain
or inevitable result of their actions while pursuing a desired outcome.
Example of Dolus Indirectus
A man sets fire to his neighbor’s warehouse, knowing it could spread and damage nearby
homes. His main aim is to destroy the warehouse, but he accepts the risk of harming others as
an inevitable consequence. This reflects dolus indirectus—where harm is foreseen but not the
primary intention.
Dolus eventualis
Definition: A form of intent where a person foresees the possibility of a harmful outcome but
recklessly disregards it, accepting the risk of that harm occurring.
Example: A person fires a gun into a crowd, knowing there’s a chance of hitting someone but not
specifically aiming at anyone. The harm that results is considered to have been brought about by
dolus eventualis—the person was aware of the risk and accepted it.
Components of intention
There are two components:
• Direction of will
• Consciousness of wrongfulness
Defences for dolus
Once intention is established, the defendant can use the following defenses to escape liability:
• No Intent to Harm: Argue that the defendant did not aim to cause the specific harm.
• Lack of Knowledge: Claim that the defendant was unaware that their conduct was
wrongful.
• Combination of Both: Assert that the defendant neither intended the harm nor knew
the conduct was wrongful.
List of defences for intention
✓ Mistake
✓ Jest
✓ Intoxication
✓ Provocation
Mistake
• Mistake Test: The test for mistake involves determining if the wrongdoer genuinely
believed their conduct was lawful.
• Types of Mistake: It does not matter if the mistake is one of fact or law, or if it is
reasonable or unreasonable.
• Media Defendants: For defamation or privacy infringement cases, only a reasonable
mistake is considered.
Example of Mistake:
• A person mistakenly takes a neighbor’s package, believing it to be their own. If proven,

this mistake of fact could be a defense against theft charges. In defamation, a reasonable
mistake about facts may be considered in defense, but not an unreasonable one.
Jest
A defendant can use the jest defense by proving their conduct was genuinely intended as a joke
and not meant to cause harm.
For example, if someone playfully grabs a friend's hat and hides it, intending only to tease, they
may argue that their actions were not meant seriously.
Provocation
If someone is provoked and reacts in a way that causes harm, they may still be held responsible
if they intended to injure the provoker. However, if the provoked person did not realize that
their reaction was wrongful, the court might exclude the finding of intention.
For example, if someone is insulted and retaliates violently, they may claim they did not
understand their response was wrongful due to the extreme provocation.
Emotional distress
In cases where severe emotional distress overwhelms a defendant, making it impossible for them
to form or act on an intention to cause harm, the court may exclude the finding of intention.
For example, if a person, after experiencing extreme emotional trauma, reacts violently without
the capacity to form a deliberate intent to injure, the court might consider the emotional state
when determining liability.
Fault – Culpa
Concept of negligence
Reasonableness in Negligence
• Concept: Evaluates a defendant’s conduct based on societal standards.

• Standard: Assessed with reference to a "reasonable person," representing society’s
expectations.
• Evaluation: Determines negligence by asking what a reasonable person in the same
situation would have done.
• Outcome: Conduct deviating from this standard is deemed blameworthy, establishing
fault in law.
Characteristics of a reasonable person
• Definition: Requires acting appropriately in the circumstances, mirroring how a

reasonable person would behave.
• Societal Expectations: Reflects what society expects from its members in everyday life.
• Adaptability: The standard evolves with societal expectations and norms.
• Consistency: Demands adequate care and consideration across various skills, intellect,
and ages
Test for negligence
• Core Question: What would a reasonable person have done in the same circumstances
as the defendant?
• Guidelines: Courts use developed tests for negligence as guidelines or approaches,
rather than strict rules.
Kruger v Coetzee (1966)
• Facts:
o In August 1964, the plaintiff's husband collided with a horse on a dark road.
o The horse had escaped from Coetzee’s farm due to an unsecured gate.
o The plaintiff sued Coetzee for negligence, alleging failure to secure the gate.
• Legal Principles:
o Foreseeability: The defendant must foresee the reasonable possibility of harm.
o Failure to Act: The defendant must take reasonable steps to prevent foreseeable
harm.
• Court's Reasoning:
o The court considered the specific circumstances and actions taken by Coetzee.
o Coetzee had informed local authorities about the gate; the gate was left open by
the authorities.
o The plaintiff did not prove additional reasonable steps Coetzee could have taken.
• Outcome:
o The appeal was allowed, overturning the initial judgment.
o Coetzee was not found negligent, and the case set a precedent in South African
negligence law.
The test adopted in the case is
• Positioning: Place a reasonable person in the same position as the defendant.

• Foreseeability: Evaluate if a reasonable person in the defendant’s position would foresee
the possibility of harm. If not, no negligence.
• Prevention: Determine if a reasonable person would have taken steps to prevent the
harm. If not, move to the next question.
• Comparison: Compare the defendant’s conduct with what a reasonable person would
have done. If the defendant's actions were sub-standard, it indicates negligence.
Two tier test of negligence
✓ Foreseeability of harm
✓ Preventability of harm
Foreseeability of harm
• Abstract or Absolute Approach: Assesses whether the type of harm could be foreseen as
a general principle, regardless of the specific circumstances.
• Concrete or Relative Approach: Considers whether the particular harm was foreseeable
in the specific context and circumstances of the case.
In both approaches, establishing negligence requires proving that the harm arising from the
defendant’s conduct was reasonably foreseeable.
Abstract or absolute approach
• Focus: Foreseeability is determined based on whether, in general, harm could occur

from the defendant’s conduct.
• Relevance: The specific type or extent of harm is not considered.
• Principle: The test is whether harm of any kind could be anticipated, without delving into
the precise nature or scale of the potential damage.
Relative Approach
• Focus: Foreseeability is based on whether the specific harmful consequences that

actually occurred were reasonably foreseeable.
• Relevance: The exact type and extent of the harm are considered.
• Principle: Negligence is assessed by evaluating whether the specific harm that resulted
was predictable, taking into account the particular circumstances of the case.
Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson

In this case, the defendant's servants ignited bales of stover stacked against a silo during welding
operations, causing a fire. The court held that although the risk of fire was not great under the
circumstances, the servants were negligent because the damage likely to result from the fire would
have been reasonably extensive and a reasonable person would have taken steps to prevent such
an occurrence. The court emphasized that with regard to foreseeability, it is not expected of the
bonus paterfamilias (reasonable person) to foresee the probability of the relevant result
materializing, but only the real possibility of such occurrences.
Stratton v Spoornet
The question arose whether the defendant ought to have taken reasonable steps to prevent
passengers from being pushed out of a moving train with open doors. The court held that even
though the cost of effective security measures was very high, it was not so astronomical that,
especially in light of the serious danger posed by open doors, one cannot expect a plaintiff to
incur it.
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
The court stated that "the true criterion for determining negligence is whether in the particular
circumstances the conduct complained of falls short of the standard of the reasonable person." It
further emphasized that the Kruger v Coetzee test, or any modification thereof, has been
relegated to a formula or guide that does not require strict adherence. The focus has shifted to
the actual standard of conduct associated with a reasonable person in the particular
circumstances.
Preventability of harm
In determining negligence, after establishing that harm was reasonably foreseeable, the next
step is to assess whether the harm was reasonably preventable:
1. Foreseeability of Harm: Confirm that the harm was a real possibility that a reasonable
person in the defendant's position would have anticipated.
2. Preventability of Harm: Determine whether a reasonable person would have taken steps
to prevent the harm, given the specific circumstances of the case. This involves evaluating
whether preventative measures were feasible and reasonable under the circumstances.
The assessment of preventability is based on:
• The nature and severity of the potential harm.

• The cost and practicality of implementing preventative measures.
• The context and specific facts of the case, including any constraints or conditions that
might affect what actions a reasonable person would have taken.
Fundamental factor of nature or magnitude of the risk
Stratton v Spoornet
Facts of the Case:
• The plaintiff, Stratton, was injured when he fell from a moving train due to the doors
being open. The train was operated by Spoornet, and the plaintiff argued that the
company was negligent for allowing the doors to remain open while the train was in
motion.
• The court examined the nature of the risk associated with having open doors on a
moving train, recognizing that the risk of passengers falling out was significant,
particularly given the speed of the train and the potential for serious injury.
Legal Principles:
• Nature and Magnitude of the Risk: The court concluded that the risk of serious injury
from falling out of an open door was substantial. A reasonable person would foresee this
risk and would take necessary precautions.
• Preventability: The court emphasized that the utility of keeping the doors open did not
outweigh the potential risk of harm. The defendant had a duty to ensure the safety of
passengers by implementing reasonable measures, such as ensuring that doors were
closed when the train was in motion.
• The court found that the failure to take these precautions amounted to negligence, as
the risk was both foreseeable and preventable.
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
Facts of the Case:
• In this case, Sea Harvest Corporation claimed damages from Duncan Dock Cold Storage
due to spoilage of fish that occurred because of inadequate refrigeration facilities. The
fish were stored in a cold storage facility operated by Duncan Dock.
• The plaintiff argued that the defendant failed to maintain proper refrigeration, leading to
significant financial loss due to spoilage.
Legal Principles:
• Nature and Magnitude of the Risk: The court acknowledged that the risk of spoilage of
perishable goods like fish was inherently significant. The consequences of spoilage could
lead to substantial economic loss and potential public health issues.
• Preventability: The court highlighted that the defendant had a duty to ensure that
proper refrigeration measures were in place to mitigate the risk of spoilage. The failure
to maintain adequate refrigeration systems was viewed as a significant lapse in duty of
care.
• The court ruled that the nature and magnitude of the risk warranted a high standard of
care, and the defendant's failure to act accordingly constituted negligence.
Cases
City of Salisbury v King
• Facts: King slipped on a cabbage leaf in a busy market operated by the City of Salisbury.
• Legal Principles: The court found that the presence of vegetable matter on the market floor did
not automatically indicate negligence. It was deemed unreasonable to expect the immediate
removal of every hazard in such a dynamic environment. The City had taken reasonable steps to
manage the risk, and the slipping hazard was seen as a common occurrence in such a setting.
Ngubane v South African Transport Services
• Facts: Ngubane was injured while attempting to disembark from a moving train.
• Legal Principles: The court determined that the transport service had a duty to ensure that trains
stopped safely at platforms. The risk to passengers was significant, and the service’s failure to
prevent such risks by ensuring safe stops constituted negligence. The court emphasized the
importance of reasonable precautions in situations where the potential for harm is serious.
Cape Metropolitan Council v Graham
• Facts: Graham fell into an open, unattended trench during municipal works.
• Legal Principles: The court highlighted the high risk posed by an open trench in a public area. The
failure to secure the trench or provide adequate warnings was found to be negligent. The Council
had a duty to protect the public from foreseeable hazards, and their lack of appropriate safety
measures breached that duty
Assessing preventability of harm ( හානිය වැළක්වීනම් හැකියාව )
1.The Degree or Extent of the Risk Created by the Actor’s Conduct:
• This involves evaluating how likely it was that harm could occur as a result of the
defendant's actions. If the risk was high, the need for preventative measures would also
be higher. ( අවදානම වැඩි නම් වැළැක්වීයම් පිෙවරවල අවශයතාව ද වැඩි යේ )
2.The Gravity of the Possible Consequences if the Risk of Harm Materialises:
• The severity of potential harm plays a crucial role. If the possible consequences of the risk
are serious (e.g., significant injury or death), then stronger preventative actions are
expected. ( අවදානයමන් ඇති විෙ ැකි ප්‍රතිඵල බරපතල නම් වැළැක්වීම ද ශක්තිමේ විෙ යුතු ෙ
)
3.The Utility of the Actor’s Conduct:
• The usefulness or social value of the defendant's conduct is considered. If the conduct
served an important function or benefit to society, this might justify a certain level of risk.
However, if the conduct had little or no utility, then any risk associated with it might be
deemed unreasonable. ( ක්‍රිොව නිසා සමාජෙට සිදුවන ප්‍රතිඵලෙ සාධනීෙ නම් එෙ
සාධාරණීෙරණෙ කිරීයම් ැකිොවක් පවතී )
4.The Burden of Eliminating the Risk of Harm:
• This refers to the effort, cost, or inconvenience involved in taking steps to prevent the
risk. If the burden of taking precautions is minimal compared to the risk, then failure to
do so could be considered negligent. Conversely, if eliminating the risk would have
required excessive or impractical measures, the defendant might not be held liable for
not preventing the harm. ( අවදානමට සායප්තක්ෂව පූර්වාරක්ෂාව ගැනීයම් බර අවම නම්, එයස්
කිරීමට අයපාය ාසේ වීම යනාසැලකිලිමේෙමක් යලස සැලකිෙ ැකිෙ. )
Standard of Care
• The standard of care is the level of caution a reasonable person would exercise in
similar circumstances.
• Preventability of harm requires proving that the defendant did not meet this standard
by failing to take reasonable steps to avoid foreseeable harm.
• If the defendant's actions fall short of what a reasonable person would do, they can be
considered negligent
Standard of care depending on the factors

• General Practice: The standard of care may align with established practices or
customs within a particular industry or profession.
• Legitimate Assumption of Reasonable Conduct of Others: Individuals may assume
that others will act reasonably; however, if they fail to account for foreseeable
unreasonable actions, negligence may be found.
• Sudden Emergency and Error of Judgment: In emergencies, a person’s immediate
response may not be held to the usual standard of care if it was a reasonable reaction
under the circumstances.
• Breach of Statutory Duty: Violating a law or regulation designed to protect others
may constitute negligence, as the law sets a clear standard of care.
• Handling Inherently Dangerous Things: Higher standards of care are required when
dealing with dangerous substances, activities, or situations to prevent harm.
• Special Care for Children, Incapable Persons, and Disabilities: Additional care must
be taken when dealing with vulnerable individuals, as they may not be able to protect
themselves adequately.
Defending factors for standard of care
1. Beginners: A beginner or novice is generally held to the same standard of care as a more
experienced person in the same activity. However, the courts may consider the level of
experience when determining what a reasonable person in the beginner’s position would
have done.
2. Experts: Experts are held to a higher standard of care within their field of expertise. They
are expected to demonstrate the skill and knowledge typical of professionals in their
industry and may be liable if they fail to meet this higher standard.
3. Children: The standard of care for children is adjusted based on their age, intelligence,
and experience. A child is expected to act with the level of care that a reasonable child of
similar age and capacity would exercise in similar circumstances.
Wrongfulness
Wrongfulness or unlawfulness
• Definition: Conduct is considered wrongful or unlawful if it is objectively

unreasonable and lacks lawful justification.
• Key Point: The assessment of wrongfulness involves determining whether the
conduct in question violates the legal norms or duties owed to others, making it
blameworthy in the eyes of the law.
Wrongfulness in South Africa
• Necessity for Delictual Liability: Wrongfulness is an essential element required to

establish delictual liability.
• Test for Wrongfulness: The standard used to determine wrongfulness is based on the
boni mores or the legal convictions of the community. This reflects what society
considers to be morally and legally acceptable.
The test
• Reasonableness Test: It evaluates whether the harm was caused in a legally

reprehensible manner.
• Boni Mores: The test is rooted in the legal convictions of the community, which are
underpinned by constitutional values.
General criteria for determining wrongfulness
• Reasonableness: Assessing whether the conduct was reasonable in the

circumstances.
• Legal Convictions: Considering the prevailing legal convictions within the
community.
• Society’s Boni Mores: Reflecting society's moral and ethical standards.
• Policy Considerations: Evaluating broader policy implications to ensure justice and
fairness.
Wrongfulness: Infringement of right or breach or duty
• Infringement of a Right: Assessing whether the defendant's conduct violated a legal

right of the plaintiff.
• Breach of a Duty: Evaluating whether the defendant failed to fulfill a legal duty owed
to the plaintiff, even if no specific right was infringed.
Rights involved under infringement of right

• Real Rights: Pertaining to ownership or interest in movable or immovable property.
• Personal Rights: Related to obligations or performances owed by another, such as
debt repayment.
• Personality Rights: Covering aspects of personal dignity, bodily integrity, or
reputation.
• Intellectual Property Rights: Involving protections against unfair competition and
infringement of intellectual property.
• Right to Information: Concerning the entitlement to access certain information.
• Rights of Privacy, Identity, or Goodwill: Protecting personal privacy, identity, and
business goodwill from unauthorized use or harm.
Instances of infringement of rights
• Damaging or Appropriating Property: Harm to or unauthorized use of another

person’s movable or immovable property.
• Inducing Breach of Contract: Influencing someone to break a contract, such as by

not fulfilling a debt owed.
• Causing Breach of Privacy or Damage to Reputation: Violating someone's privacy or
damaging their reputation through unauthorized disclosure or defamation.
• Appropriating Patented Processes or Trademarks: Unauthorized use of patented
inventions or trademarks, constituting intellectual property infringement.
Breach of duty
• Omission: The defendant is held accountable for failing to act or prevent harm to
another person.
• Financial Loss: The defendant is responsible for causing financial harm through
misstatements or unsound advice.
• Statutory Duty: The defendant breaches a duty imposed by law, such as safety
regulations or other statutory obligations.
Typical claims under breach of duty
• Local Authority: Claims by residents for failure to repair public facilities or warn of
dangers.
• Police: Claims by the public for failure to provide adequate protection.
• Bank: Claims by customers for providing incorrect information or making errors in
payments.
• Financial Advisor: Claims by clients for mishandling investments due to negligence.
• Doctor: Claims by patients for inadequate or substandard professional services.
The concept of legal duty
• Duty Not to Cause Harm: The obligation to avoid actions that would directly harm others.
• Duty to Prevent Harm: The responsibility to take reasonable steps to prevent foreseeable
harm.
• Duty to Act Reasonably: The requirement to act in a manner that aligns with what a
reasonable person would do in similar circumstances.
The concept links to negligence, requiring that the duty be performed without negligence. This
involves applying the test of reasonableness to both the elements of fault and wrongfulness
simultaneously.
Policy Considerations
Policy Considerations in determining liability in delict involve evaluating whether it is reasonable

for the law to shift the burden of harm from the plaintiff to the defendant. Courts consider several
factors:
• Social or Economic Consequences: Assessing the impact of imposing liability, such as the
risk of creating indeterminate liability or opening the floodgates to excessive claims.
• Availability of Alternative Remedies: Considering whether there are other legal avenues
for the plaintiff to seek redress.
• Accountability of Public Bodies or Officials: Evaluating the need to hold public entities or
officials accountable for their actions.
• Constitutional Rights: Ensuring that decisions align with constitutional protections and
rights.
• Nature of the Defendant’s Conduct: Analyzing whether the defendant’s conduct
warrants liability based on its nature and context.

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LAW OF DELICT

EDITED BY SAHAN SATHSARA WEGIRIYA

Nature of Law of Delict

Delict and Morality

Delict and Crime

• Both involve unlawful conduct.

• Nature of the Wrong:

Delict and Breach of Contract

• Both are considered civil wrongs.

Defining the term ‘delict

- Burchell J, Principles of Delict, p. 9 -

• "A delict is an unlawful, blameworthy (intentional or negligent) act or omission causing

- Burchell J, Principles of Delict, p. 10-

Note: The expanded definition excludes non-fault-based liability.

Lack of precise definition for the term ‘delict’

Legal Scholar Definitions:

Neighbourhood Principle and Duty of Care

2. Relationship with Duty of Care:

Rylands v. Fletcher (1868)

Facts of the Case:

Key Legal Principle Established:

DELICT IN ITS HISTORICAL CONTEXT

The Aquilian Act in Roman law covered:

• Killing and injury to slaves and animals.

Ulpian facilitated this integration by distinguishing between:

• Dolus: Intentional harm.

In the modern law of delict, delictual liability is classified into two:

1. Fault based liability

Fault based liability includes the actions

Non-fault based liability includes the actions:

ESSENTIAL ELEMENTS OF FAULT BASED LIABILITY IN DELICT

NON-FAULT BASED LIABILITY

PROTECTED INTERESTS UNDER THE LAW OF DELICT

• Physical Property: Tangible assets like land and goods.

• Bodily Integrity: Involves harm such as death or bodily injury.

• Dignity: Respect and personal value.

Fault based liability includes the actions

The Lex Aquilia

• Blameworthiness: ( වරදොරීබව ඇේයේ යම් නිසා ෙ )

5. Wrongfulness ( වරද සාධාරණීකරණය කළ න ාහැක එ ම් ක්‍රියාව අනීතිකයි )

• Definition: The conduct must be objectively unreasonable or unjustified.

o The conduct of Tharaka’s workers was objectively unreasonable, as they should

Germanic Remedy for Pain and Suffering

The conduct that leads to the harm can be:

To establish a claim, the plaintiff must prove:

Fault involves blameworthiness and can be:

• Culpa (Negligence): The defendant acted in a careless or unreasonable manner, failing

This criterion assesses whether the conduct was:

• Objectively Unreasonable: The conduct must be judged from an external perspective as

PROF. PRIYANI SOYZA v. RIENZIE ARSECULARATNE

Facts of the Case:

1. Negligence in Medical Practice:

In a case of defamation (fama), the plaintiff would need to show:

• Harm: That their reputation was damaged.

• Patrimonial Harm: Financial losses resulting from reliance on incorrect information,

Example: A financial advisor provides inaccurate information about a stock's performance,

2. Pure Economic Loss

• Patrimonial Harm: Losses related to business interruptions, financial errors, or

• Patrimonial Harm: Financial loss suffered by businesses or consumers due to deceptive

Example: A company falsely advertises a product’s benefits, harming competitors and