LAW OF DELICT

AQUILIAN ACTION

K. C. DESHANI THABREW
ASSISTANT LECTURER IN LAW
DEPARTMENT OF LAW
UNIVERSITY OF JAFFNA

LAW OF DELICT
Law of Delict in Sri Lanka governs by RDL
effected with partial changes through judicial
decisions and statutes.
A Delict known as damnum injuria datum
was created by the Lex Aquilia in 287 B.C.
This action has in the modern law become a
general remedy for loss wrongfully caused.
The foundation stones of RDL Delict can be
identified as,
1. Aquilian Action
2. Actio Injuriarum

 Aquilian Action gives a general remedy for

damages of property, physical injury to person
and any other wrongful act causing pecuniary
loss.
Actio Injuriarum gives a general remedy for
wrongful invasions of personal rights in respect of
dignity, reputation or good will made intentionally.
These two actions contain broad principles of
action, in that if a new situation arises, it may be
fitted within the one of two principles.
When compare with English law of tort, it has no
general principles. It has only specific torts, so
that if a novel situation arises, judges by judicial
process create a new tort.

 The modern Aquilian Action has six elements.

1. Voluntary conduct
2. Unlawfulness (wrongful act)
3. Capacity
4. Fault (Dolus & Culpa)
5. Causation
6. Loss
. In order to succeed in recovering damages under
the Aquilian Action Plaintiff has to prove facts in
balance of probability that the Defendants
conduct satisfies each of these elements.

1. Voluntary Conduct
. Conduct of Defendant must be voluntary & must be
controlled by his or her conscious will.
. If the conduct is in the form of automatism, it is
considered as involuntary.
Eg- conduct occurs during sleep, black out, hypnosis,
intoxication, extreme provocation etc.
. Element of voluntariness formulated into a large extent
by criminal law but no compelling reason in principle to
differentiate between two fields. Both criminal law &
Aquilian Action can be equally dealt with the issues.
. This principle requires deliberate intention to commit
the crime.
Eg- where a person deliberately got drunk in order to
commit a crime.

2. Unlawfulness (wrongful act)

Modern Aquilian Action is firmly rooted in Lex Aquilia of Roman Law &
later developed by judicial decisions. Public policy plays a major role in
determining the bounds of delictual liability which come to the fore in
judicial pronouncement.
After 1980 according to South African jurists, unlawfulness became an
important criterion in imposing liability or restricting liability.
Concept of reasonableness as the essence of unlawfulness has served
to draw a clear line between unlawfulness & fault. It has helped South
African law to unravel some of the confusing aspects of duty of care in
EL.
It must be considered whether the particular right or fact in issue has
been accepted as a legal right. This does not cover the rights accepted
by way of tradition or custom & acceptance must be legal.
If a right has been confirmed or recognized by law, compensation can
be claimed over it. This covers,
Rights confirmed by the constitution
Rights confirmed by judicial decisions
Rights obtained legal recognition by accepting some traditions

 It must be also considered whether there is any

obstacle with regard to exercise of such right.
The reasonable test must be used in this regard
which is identified as how ordinary prudent man
understands the issue.
The Legislature grants or refuses the legal
recognition to the conduct of parties & where
Legislature is silent; Judiciary may interpret the
law to check the legal recognition.
The object of unlawfulness is to see whether
particular act or conduct covers legal policy,
obligation, and duty or not.
Refer- Mukhivar vs Raath 1999 3SA1065

 Unlawfulness can be identified in courts as,

Omission
Breach of statutory duty
Unlawful competition
In the comparison between Law of Delict & Law of Tort, Tort of
Negligence can be identified as similar as unlawfulness in
Delict.
Tort of Negligence includes,
Duty of care
Breach of duty of care
Loss
Causation
Refer- Donoghue vs Stevenson 1932 AC 562, Bourhill vs Young
1943 AC 92, Prof. Priyani Soyza vs Rienzie Arsecularatne 2SLR
2933

 Wrong implies the violation of right.

This duty is negative.
Eg- abstention of wrong doing than a
positive duty to prevent injury to
others.
Voet says, only commissions &
commissions coupled with omissions
are actionable under the Aquilian
action never a mere omission, unless
there has been a prior positive act.

 Instance of omissions interpreted as commissions.

1. Prior conduct
. When a person by his conduct has created a situation which is
capable of bringing into being a risk of harm to others, any
omission subsequent to that prior conduct is blameworthy and
liability may arise from such an omission.
. Refer- Silvas Fishing Corporation vs. Maweza 1957 2SA 167,
Joffe & Co. Ltd vs. Hoskins 1941 AD 431

2. Control of dangerous thing

. 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 to avoid such injury.
. Refer- Union Government vs. Matthee 1917 AD 688

3. Positive law
Statutory obligations may be imposed on persons to guard against
danger to another.
Eg- section 18 of the Factories Ordinance of Sri Lanka
4. Relationship of the parties
The kind of connection one has to another & the way in which one
stands to another, may give rise to a situation where one is placed
under a positive duty to prevent injury to the other.
Refer- Mtati vs Minister of Justice 1958 1 SA 221
5. Public office
Persons in certain positions, because of the nature of their office, are
under a positive duty to prevent injury to the other.
Refer- Cape of Good Hope Bank vs. Fischer 1886 4 SA 386, Carmichele
vs Minister of Safety & Security 2001

 In Clarke vs Hurst 7803/91 (DCLD), the issue was

the lawfulness of withholding artificial life support
measures from a patient in a persistent vegetative
state. Thirion J held that if the wife was to authorize
the withholding of artificial life sustaining measures,
she would not be acting unlawfully. Decision given
on the best interest of patient taking into account
the severely impaired quality of life.
In Administrator, Natal vs Edouard 1989 2SA368,
where unlawfulness was extended by Thirion J to the
situation of failure to perform an agreed sterilization
operation, which resulted a birth of healthy but
unwanted child & awarded the plaintiff damages to
cover the maintenance of the child.

 Courts later arrived at a decision that judges have to try to achieve

a balance between conflicting interests by focusing on legal duty.
But smooth administration of justice do not open flood gates of
litigation.
All the harm caused intentionally or negligently is not necessarily
actionable & the conduct must satisfy the element of unlawfulness.
Unlawfulness need not to be specially pleaded, facts sufficient to
support the conclusion of unlawfulness have to be pleaded.
Crystallized defences are available to the defendant which exclude
delictual actions against him such as,
Consent which includes voluntary assumption of risk
Private defence
Necessity
Impossibility
Disciplinary chastisement

3. Capacity
Adult, sane, sober persons are presumed to have
the capacity to appreciate the wrongfulness of their
conduct.
Eg-1. Child between ages 7 to 14 may lack such
capacity & escapes liability. Weber vs Santam 1983
1SA 381
Eg-2. Person suffering from mental illness or defect
may lack such capacity.
Eg-3. Intoxicated persons
It must be considered here whether the alleged
conduct can be done by the particular person
voluntarily.

4. Fault
Fault element under Aquilian Action can be identified as either Dolus
(intention) or Culpa (negligence).
Most instances of liability under Actio Injuriarum are based on intention
& negligence is not sufficient for liability.
I. Intention
The test for determining intention is subjective & so relates to the state
of mind of the Defendant including knowledge of unlawfulness.
Intention can be identified in various forms.
Dolus directus- where the Defendants aim & object was to bring harm
Dolus indirectus- although Defendants aim & object was not to bring
harm, he foresaw the causing of harm
Dolus eventualis- Defendant does not mean to bring harm but foresee
the possibility of the harm occurring & proceeds with his conduct
Motive is not equivalent to intention. It may be important factor if it
affects the lawfulness.

II. Negligence
Negligence assessed objectively whether the Defendant complied
with the standard of the reasonable person.
If reasonable person would have taken steps to prevent harm, the
Defendant is negligent if he did not take the required reasonable
steps.
Negligence is a conduct which involves an unreasonable risk of harm
to others. The concept of negligence as a delict is expressed in the
well known definition of Lord Anderson in Blyth vs Brimingham
Waterworks Company 1856 11 Exch 781 negligence is the
omission to do something which a reasonable man would do
or doing something which a reasonable man would not do.
Negligence involves two elements,
Duty of care
Breach of duty of care
If Defendant proves on balance of probability that Plaintiff also in
negligent in causing him loss, then defence of contributory
negligence will be successful & damages for Plaintiff may be reduced.

 It must be noted that there are common law instances of nonfault liability. (strict liability)

Eg- 1. Actio de pauperie- liability of owner of domestic animal for

damages caused by it
Eg- 2. Actio de paslu- liability of owner of cattle for damages done
by grazing of anothers land
Eg- 3. Actio de effusis vel deiectis- liability for occupier of
building into public thoroughfare
Eg- 4. Actio positi vel suspensi- liability of occupier of a building
from which something is suspected which is dangerous
It is important to satisfy the element of lawfulness although the
issue comes under fault based liability or non-fault based liability.

5. Causation
Aquilian Action requires not only Defendant perpetrate unlawful
conduct but also unlawful conduct cause harm.
Element of causation traditionally divided into two parts as,
Factual causation
Legal causation
Sine qua non approach is important with regard to factual causation
which is used in South Africa. Merely, this approach focus on the harm
occurred by Defendants conduct or not. The criticism against this
approach is, it doesnt establish a test but rather describes a line of
reasoning which helps court to reach a conclusion on a matter of
causation. This does not cater every type of initial casual inquiry.
Although Plaintiff succeeds in proving that Defendants conduct is the
factual cause of unlawful consequence, by invoking Sine qua non
approach, it is not sufficient to a legal liability.
Therefore, Defendants conduct must constitute legal cause of harm &
harm must not be too remote to the legal liability.

 Various tests have been adapted to determine whether consequence are too
remote to create legal liability such as,
The forseeability test.
The direct consequences test
The adequate cause test
The forseeability test involves whether a reasonable person would
reasonably foresee the general nature of harm & general manner of harm
occurs.
If reasonable person would have foreseen some harm to the Plaintiff, then the
forseeability test of remoteness of damages is simply an extension of this test
with regard to determination of negligence. (the abstract theory of negligence)
First inquiry would be abstract theory of negligence & secondly remoteness of
damages. Both are being based on the reasonable forseeability.
The direct consequences test of remoteness of damages aims to
determine whether there is a direct link between the Defendants negligence &
the ultimate harm.
The essence of this formulation is whether any new act or event intervened
between Defendants negligent conduct & ultimate harm.

6. Patrimonial Loss (Damnum)

There is a difference between the loss suffered by the
Plaintiff & the monetary award made by the court to
compensate someone who has suffered a legally
compensable loss.
One of the ingredients that make up liability in the
Aquilian Action is that the Plaintiff must prove that the
act complained of caused him loss due to Defendants
voluntary, negligent & unlawful conduct.
Pecuniary loss may be actual or prospective & must
be assessable in money terms.
Refer- Gaffoor vs Wilson & Another 1990 1 SLR 142
Plaintiff is entitled to recover damages for destruction
of property under Aquilian Action.

 There are some exceptions to the general rule that only

monetary loss is recoverable under Aquilian Action.
1. Compensation for pain & suffering caused by personal injury
Refer- Chintha Devi vs. Glacio Ltd 1985 1 SLR 265
. However mere mental distress or wounded feelings without
physical injury or illness does not entitle the Plaintiff for
compensation under the Aquilian Action but under Actio
Injuriarum.
Refer- Union Government vs Warneke 1911 AD 657
2. Where the action is to establish a right
. Where the action is to establish a right, the rule that
patrimonial loss must be proved is ignored. The purpose of
this action is to establish a right disputed by the Defendant.

Reference
1. Principles of Delict by Jonathan Burchell
2. Law of Delict by R. G. Mckerron
3. Law of Tort by J. Cooke
4. www.lawteacher.net
5. www.lawresources.com
6. www.bailii.org
7. www.commonlii.org