THE AQUILIAN ACTION.
This is one of the foundational aspects of the Roman Dutch law of Delict. It provides a general remedy for
damage caused to property, physical injury and any other wrongful act causing pecuniary loss. The Latin
terminology is: damnum injuria datum (damages for injuries wrongfully caused).
The classification of Lex Aquilia, as indicated by Grotius and Ven Leeuwen are:
1. Wrongs against life.
2. Wrongs against the person.
3. Wrongs against freedom.
4. Wrongs against honour.
5. Wrongs against property.
Motive is not exactly a requisite. Even a good motive maybe irrelevant.
See the case of Bradford Corporation v Pickles (1895) AC 587 – the D sank a well / mine shaft in his land
which discoloured and diminished the water of the town of Bradford. The HOL held that however
improper and evil the motive of the D maybe, he was not liable, because it was not unlawful for an owner
of land to dig up his own ground and drying up his neighbour’s water, even though the motive was not to
benefit himself but to injure his neighbour. A malicious motive per se does not amount to an injuria or legal
wrong.
in order to be liable under the Aquilian action, the following must be present;
a. A wrongful act or omission on the part of the defendant. This must be a violation of a right vested
in the Plaintiff.
b. Pecuniary loss resulting thereby to the Plaintiff. The Plaintiff must prove that the act complained
of caused him damnum – that is patrimonial loss. Damnum means pecuniary loss, which is accrued
or prospective, to the person injured. This can be loss to property, business, or prospective gains.
An exception would be compensation for physical injury, suffered by another through negligence.
c. Fault on the part of the Defendant. The loss must be imputable to the Defendant. The Defendant
must have either intended the loss or had he exercised reasonable care, he could have prevented it.
The Defendant ought to have been acting in excess of his rights. Thus, he must be guilty of either
dolus or culpa. The burden of proving this lies on the Plaintiff.
d. In modern law, the Aquilian action affords a general remedy for every kind of loss which a person
suffers in consequence of the wrongful acts of another.
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What is culpa?
The leading case is Kruger v Coetzee 1966 (2) SA 428A:
A diligens paterfamilias in the position of the defendant –
- Should foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss;
- Would take reasonable steps to guard against such occurrences.
- The D failed to take such steps.
- What these steps ought to be and if they are reasonable, must always depend on the particular
facts of the case.
As per Boberg, there are four requirements:
1. Wrongful act or omission.
2. Fault, which may consist of either intention or negligence.
3. Causation, which must not be too remote
4. Patrimonial loss.
• Please note that under RDL, Omission (omissio) is wrongful when there is a negative duty to avoid
causing injury to others and not a positive duty to shield others from injury.
• Please also see the dicta in the case of Ministry of Safety and Security v Van Duivenboden (2002) (6) SA
431: ‘a negligent omission is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise
to a legal duty to avoid negligently causing harm… where the law recognizes the existence of a legal duty it does not
follow that an omission will necessarily attract liability – it will attract liability only if the omission was also
culpable as determined by the application of the separate test that has consistently been applied by this Court in
Kruger v Coetzee, namely whether a reasonable person in the position of the defendant would not only have foreseen
the harm but would also have acted to avoid it’
Relevant case law:
Union Government v Warneke (1911) AD 657 – the Court held that the dependents of a person unlawfully killed
could be compensated for the loss they suffered as a result, only if the deceased owed them a duty of
support. Thus, if there is no such duty, an action cannot be maintained. It has also been claimed that the
deceased must have been under a legal duty to support, for the dependents to claim.
A.G. v Silva (17 NLR 490) – the D bought a land from the State, which adjoined a public road. He planted
the land with tea. Due to this, water, along with silt and mud flowed to the road, causing it damage. The
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issue was whether the State could claim damages from D. The D’s defence was that his actions were as
lawful as any owner’s. The Court accepted the defence and set aside the action.
Cape Town Municipality v Paine (1923) AD – it was held that the relevant municipality had been negligent as
it had failed to take reasonable steps to ensure the safety of a wooden stand used by spectators. The
municipality had erected a grandstand for spectators. It was the duty of the municipality to ensure that
the stand was in adequate repair. A spectator was injured when he had placed his foot on the stand and
the foot went through the woodwork. The Court held that the municipality was liable, even though there
was no privity of contract between it and the spectator. It was neglig ent and owed a duty to the spectator.
The following words of Innes J is instructive:
“It has repeatedly been laid down in this court that accountability on unintentioned injury depends upon culpa - the failure to
observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens
paterfamilias of Roman law - the average prudent man. Every man has a right not to be injured in his person or property by
the negligence of another, and that involves a duty on each to exercise due and reasonable care. The question whether, in any
given situation a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to
be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen
and guarded against by the diligens paterfamilias, the duty to take care is established and it only remains to ascertain whet her
it has been discharged. Now, the English courts have adopted certain hard and fast rules governing enquiries into the existence
of the duty of care and the standard of care required in a particular case. Speaking generally, these rules are based upon
considerations which, under our practice, also would be properly taken into account as affecting the judgment of a reasonable
man; and the cases which embody them are of great assistance and instruction."
A few important concepts relating to the Aquilian action:
Prior Conduct.
This is the creation of a dangerous situation by a defendant, which may bring a risk of harm to other. It can
include an omission.
In S.A. Railways v Estate Saunders (1931) AD 276 – the D had delivered to a consignee, goods on a trailer and
left the trailer on the premises of the consignee to be collected later. The consignee unloaded the trailer
and left it, unlit on the roadside. This was communicated to the D via telephone. A driver of a bus collided
with the trailer, wrecking a towed vehicle belonging to the P. it was held that there was sufficient prior
conduct on the part of the D as to make him responsible for the omission for not removing the trailer inspite
of being informed to do so.
Silvas Fishing Corporation v Maweza (1957) 2 SA 167 - the widow of a deceased fisherman claimed against the
owner (D) of a fishing fleet, alleging that his negligence causes the death of her husband. The facts were
that the engine of the vessel had failed and it drifted in open waters for 9 days until it was wrecked in a
storm and the fisherman drowned. It was stated that the D had been warned by several other skippers of
the state of this particular vessel and yet he had failed to take reasonable steps through negligence. It was
also claimed that he failed to take ordinarily diligent steps to rescue the crew. The Court held that this was
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a profit-making enterprise and the owner had a duty to ensure the safety of the crew, and the safety of
vessels. The D ought to have had the prior duty of ensuring that the ve ssel was seaworthy and the
subsequent duty of duly responding to the distress calls of the crew. There arose a legal duty to respond to
the call. The D’s negligence materially contributed to the tragic result though it was the forces of nature
that resulted in the victim’s drowning.
Rose Lillian Judd v Nelson Mandela Bay Municipality (CA 149 / 2010) the P was an elderly lady in her 70s, and
whilst walking on the pavement knocked against a raised pavement block. This caused her to stumble and
fall, sustaining rather serious injuries. She filed an action against the municipality but her case was first
dismissed by the High Court. In her appeal, she succeeded. It was observed that that tree roots from large
trees adjacent caused the pavement to be raised and t hat municipal council was liable to deal with these
new sources of danger.
Control of dangerous objects/specimens/substances.
This could come about from an omission from failing to control a moveable or immoveable substance, and
failing to keep it under adequate control. If this thing causes an injury to another, liability would arise.
Colman v Dunbar 1933 AD 141 – “if the circumstances are such that a person of common sense who has the custody or control
of a certain thing could recognize that it is likely to be a danger to others, then it is his duty to take reasonable care avoid such
injury.”
At times, there will be specific legislation to prevent such things, such as Part III of the Factories Ordinance
No. 45 of 1942, which speaks of safety for machinery.
Relationship of the parties to one another.
This also has a bearing on liability. In Mtati v Minister of Justice 1958 (1) SA 221 – a gaoler is under a duty to
take precautions that a detainee is not assaulted unlawfully. This would be the equivalen t in Sri Lanka as
well.
This would extend to those who are in public office or in a position of official authority, and are under a
positive duty to prevent injury to others. If an individual sustains injury through the negligence of a person
in such position, damages can be claimed. The duty must be clearly imposed by the law and must be owed
to the public. The damages must be the proximate result of the breach.
David v Abdul Cader 52 NLR 255 – under the Urban Councils Ordinance, the Chairman is personally
responsible for the issuance of licenses and it is not the responsibility of the Council as a body corporate.
The granting or withholding of licenses is his personal responsibility. The only way he can be sued is as an
individual. An applicant of a license is thereby entitled to damages, if such license has been withheld from
him on malicious grounds. The chairman then has misused his statutory powers. An action claiming
damages in delict is available against the Chairman.
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What is damnum / pecuniary loss?
Pecuniary loss may be actual or prospective. The general rule is that only monetary loss is recoverable under
the Aquilian action. There however, can be exemptions:
a. Compensation can be paid for pain and suffering caused by personal injury. Yet, mere mental
distress, wounded feelings or consortium of the deceased without physical injury or illness does
not entitle the plaintiff for compensation under the Aquilian action.
b. Where the action is to establish a right, the rule is that the patrimonial loss n eed not be proved.
The purpose of the action is to establish a right disputed by the defendant.
The case of Sriyani Soyza v Arsecularatne [2001] SC decision speaks of this issue quite excellently. According
to Justice Dheeraratne, the delict of damnum injuria datum, which is created by the Lex Aquilia, has
become a general remedy for loss wrongfully caused to another, under RDL. (In English law, this is a
specific tort of negligence). Damages claimed for mental shock is also recoverable under these, if the test
of reasonable foreseeability is satisfied. To claim under lex aquilia, there must be actual damnum – loss to
the property of the plaintiff. The plaintiff’s attachment or affection for the property must be excluded. The
compensation recoverable is only for patrimonial loss, that is – loss in respect of property, business or
prospective gains. Thus, if there is physical injury and there are injured feelings arising naturally out of
such injury – damages are recoverable. However, damages for purely injured feelings, mental distress which
have no physical injury, are not recoverable. Damages cannot be given for loss of care or companionship .
This is a reiteration of the principles enunciated in Gaffoor v Wilson [1990].
What is fault?
This would consist of both dolus and culpa.
Fault means that the loss must be imputable to the defendant. Thus, the D must have either intended the
loss or else that by the exercise of reasonable care, he would have prevented it. Thus, he must have been
guilty of either dolus or culpa.
a. Dolus.
Dolus is wrongful intention. For some delicts, the presence of dolus is essential, such as for injuriae
(defamation, assault, etc.) These are extensions of the actio injuriarum. It is wilful and conscious
wrongdoing. Three elements are present:
a. An intentional act.
b. Knowledge that the act will cause harm to the other party.
c. A duty to refrain from committing such act.
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b. Culpa
Culpa is fault entailing liability, and mainly negligence, involving an unreasonable risk of harm to others.
If a person fails under given circumstances, to exercise the requisite degree of care, she will be liable for
damages in delict. As stated above, negligence is where there is an act which, in the circumstances, a
reasonable man would not have done or the failure to do something which in the circumstances, a
reasonable man would not have done.’
For an action based on Lex Aquilia, it is not necessary to consider whether or not there was intention.
Culpa is sufficient to found the action. Culpa could further be defined as the failure to foresee consequences
which a reasonable man would have foreseen and guarded against.
Lord Villiers, in Lennon Ltd v British SA Co (1914) AD 1, ‘Neither an error of judgement nor an unwise decision would
necessarily be proof of want of ordinary care amounting to culpa unless accompanied by conduct which is in some degree
blameworthy.’
Thus, in brief, culpa is:
- A failure to exercise due care
- It is a type of care which the law considers should have been shown towards a particular
individual.
- The care required is that of a reasonable man
- The care required is that which is reasonable under the circumstances.
THE ACTIO INJURIARUM
Injuria can be used to include damage to reputation, honour, good name. The appropriate action for such
is the actio injuriarum.
Animus injuriandi is a species of dolus or wrongful intent. Some opine that this is the equivalent of malice i n
English law, but in RDL there can be animus injuriandi without express malice.
What it ultimately means is that a person does not always have to be actuated by malice or ill will but that
he deliberately intended that the operation of his wrongful act should have the effect upon the plaintiff.
To this end, see the case of Whittaker v Roos (1912) AD 92, which dealt with gaolers and their treatment of
the prisoners who were the plaintiffs. It was stated by Innes J that even prisoners were entitled to all th eir
personal rights and dignity which were not temporarily taken away by the law and could claim immunity
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from illegal punishment, or infringement of their liberty not warranted by regulations or law. Any such
excess punishment would amount to an injuria. Their claim would not be limited to actual pecuniary loss.
Whilst earlier this was available only to assault, it was later extended to other forms of insulting treatment,
aggressions upon the moral as well as the physical person. As time went on, injuria c ame to be regarded
equivalent to contumelia, that is any act committed in contempt of the personality of another and the actio
injuriarum came to be regarded as a general remedy by which an aggrieved individual could claim redress,
for any wrongful invasion on his personal rights, regarding his physical integrity, his dignity and
reputation.
What are the requisites to prove liability under the actio injuriarum?
1. The necessity for aggression on the person, dignity and reputation of the plaintiff.
2. Such act must be unlawful.
3. The defendant must be shown to have acted with animus injuriandi.
It is not absolutely necessary for the plaintiff to prove that he has suffered actual damage. What has to be
proven is that there was an act constituting an infringement of the plaintiff’s personality, along with dolus.
Dolus necessarily implies that the damage was due to a deliberate act – dolus, of the defendant, or due to
his negligence – culpa.
Important elements:
a) Impairment of the Plaintiff’s personality:
Intentional or negligent violation of any right constitutes an injuria. These will include the unjustifiable
restriction of another’s liberty, the use of insulting and defamatory words, false and malicious legal
proceedings another, etc.
Tiffen v Cilliers 1935 O.P.D, 23 – it is an injuria to expel or exclude a student from an educational institute
without a lawful justification.
Jokie v Meyar 1945 A.D. 345 – it is injuria to refuse a person to remain in a hotel in which he has duly reserved
a place.
R v Schonken 1929 A.D. 36 – it is an injuria to enter another person’s house or to trespass upon his land,
against his will.
O’Keefe v Argus Printing and Publishing Co. Ltd 1954 (3) SA 244 – the plaintiff claimed damages on the grounds
that the defendants had published her name and photograph in the newspaper for advertising purposes
and without her consent. The Court held with the plaintiff.
Sievers v Bonthuys (1911) E.D.I. 525, ‘A mere impertinence does not need, and in my opinion, should not win
the attention of the Courts.’
Injuria per consequentias is where when persons stood in certain close relationships to one another, an injuria
affecting one party would be regarded as affecting the other (parent – child / husband – wife etc.) Thus, an
injury to a husband might be construed as an injury to the wife.
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Jacobs v McDonald (1909) T.S. 442 – a husband was entitled to sue on his own behalf regarding a gross
slander concerning his wife. The defendant had stated that the wife was a nothing but a prostitute and the
Court held that the husband had a cause of action. The words were held to have impaired his dignitas by
necessary implication.
Consider the case of Appuhamy v Kirihamy (1895) 1 NLR 83 – the plaintiffs were father and daughter who
were Kandyan Sinhalese of an ‘upper’ caste. The daughter was married out in diga to one Kiri Banda. At a
particular dinner in the house of one Punchirala, where several persons were present, the defendants stated
that the daughter ran away with a man of a ‘lower’ caste. It was alleged that the first plaintiff was disgraced
by this statement and that the second plaintiff was made to sound guilty of adultery, immora lity,
incontinence and as having disgraced herself with a ‘low caste’ man. The two plaintiffs alleged that the
father was not allowed to sit down to dinner to eat with the others and associate with the guests and that
the daughter was thrown out of the house by the husband; that they had suffered losses amounting to Rs.
500. The defendants stated that their words were not malicious and were uttered in the mindset that it
was true. The Court held that a father cannot sue for damages for slander of his daught er although he might
have been pained by the words.
In Bank v Ayres (1889) 9 Natal L.R. 34 – the defendant made improper overtures to the wife of the plaintiff
through letters. It was held that the plaintiff husband was entitled, even after the death of t he wife, to sue
the defendant for damages. He recovered damages for the injuria inflicted on him.
In Sri Lanka, the action for injuria has been recognized as far as the marital relationship is concerned.
Look at the case of Sudu Banda v Punchirala (52 NLR 512) the defendant stated in a petition, addressed to the
department of education that a particular Bandara Menika, the wife of the plaintiff, was living in adultery
with one T.M. Banda, an assistant teacher. The plaintiff claimed damage to her reputation, whilst her
husband also claimed for injuries caused to him by reason of his wife’s honour and chastity having been
defamed by the defendant. In appeal the Court held that under the law of Sri Lanka, a defamatory statement
about the honour of the wife is an injury to the husband, and gives him a cause for action. Dias S.P.J
distinguished the case of Appuhamy v Kirihamy and stated, ‘whether the value of the judgement in Appuhamy v
Kirihamy may have as an authority for the propostion that under the law of Ceylon, a father has no cause of action for the
defamation of his daughter, it is not authority either for or against the proposition that under the Roman Dutch law a husban d
has a cause of action for injury caused to himself against the defamer of his wife’s honour and chastity.’
In Nadaraja v Obeysekera (76 NLR 268) the plaintiff sued the defendant – a medical doctor for the humiliation
and pain of mind caused by the D having sexual intercourse with the P’s wife, in the consultation room of
the D. in order to succeed, it must be proved that the intercourse was forcible, or there was an attempt at
forcible intercourse. In law, it was held that a husband could claim injuria from his wife’s ravisher. The
present case was dismissed because it could not be proved that forcible intercourse was had.
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No specific rules are laid down as to how exactly damages could be assessed and there is room for judicial
discretion. The judge can obtain guidance from precedents, the social and economic status of the parties,
and the pecuniary loss (if any) sustained by the P.
Sometimes the P brings an action not to merely gain money but to vindicate himself or his reputation.
Injuria is in a way, an action to recover damages for sentimental loss.
