Prepared by: Clayton Mutseneki

For Delict Class of 2023

AQUILIAN ACTION

This action is the cornerstone of our law of delict. Most of the delictual actions that are

brought are Aquilian actions.

Requirements

The requirements for this action are–

There must have been some conduct on D’s part (i.e. an act or omission) that the law of
delict recognises as being wrongful or unlawful (the wrongfulness requirement);

The conduct must have led either to physical harm to person or property and, thereby, to
financial loss, or have caused purely financial loss which does not stem from any physical
harm to person or property. (The so-called patrimonial loss requirement, a person’s patrimony
being his or her property and finances);

D must have inflicted the patrimonial loss intentionally or negligently (the fault

requirement); and

There must be a causal link between D’s conduct and the loss (the causation requirement).

1.Tort and the requirement of fault

In addition to proving that the defendant has committed the relevant act or omission (and,
where necessary, that damage has been caused as a result), it is sometimes necessary to
prove a particular state of mind on the part of the defendant. This is described as a tort
requiring an element of fault, and depending on the tort in question, the required state of
mind may be intention, negligence or malice. Most torts require some element of fault; the
few that do not are described as torts of strict liability.

●Intention

‘Intention’ has various meanings depending on the context, but it essentially involves
deliberate, knowing behaviour. So for example, if I throw a ball at a window
deliberately,knowing the glass will probably break, I can be said to intend to break the
window. If on the other hand, I threw the ball at a wall, unaware that there was a window in
the wall,then I would not be said to intend to break the window. Trespass is an example of a
tort in which the required state of mind is intention.

Fraud is a delictual wrong that is based upon intentional action, namely, the intention to
defraud. In Industrial Equity v Walker 1996 (1) ZLR 269 (H) D was guilty of fraud when he
had sold shares sent to him in error. D knew he had no right to the shares and had sold the
shares knowing that he had no right to do so. He was held liable on the basis of unjust
enrichment.

Rape is also a delictual wrong based upon intentional wrongdoing. See Nkosi NO v Moyo HB-
43-91 in which a fifteen-year-old girl was awarded damages for rape. See also M v N 1981
(1) SA 136 (Tk) and N v T 1994 (1) SA 862 (C).

●Negligence

As a state of mind, negligence essentially means carelessness – doing something without

The tort of negligence has three main elements:

● the defendant must owe the claimant a duty of care;

● the defendant must breach that duty of care;

● that failure must cause damage to the claimant.

The neighbour principle

The branch of law that we now know as negligence has its origins in one case: Donoghue v
Stevenson (1932).

The facts of Donoghue v Stevenson began when Mrs Donoghue and a friend went into a café
for a drink. Mrs Donoghue asked for a ginger beer, which her friend bought. It was supplied,
as was customary at the time, in an opaque bottle. Mrs Donoghue poured out and drank some
of the ginger beer, and then poured out the rest. At that point, the remains of a decomposing
snail fell out of the bottle. Mrs Donoghue became ill and sued the manufacturer. Up until this
time, the usual remedy for damage caused by a defective product would be an action in
contract, but this was unavailable to Mrs Donoghue because the contract for the sale of the
drink was between her friend and the café. Mrs Donoghue sued the manufacturer, and the
House of Lords agreed that manufacturers owed a duty of care to the end consumer of their
products. The ginger beer manufacturers had breached that duty, causing harm to Mrs
Donoghue, and she was entitled to claim damages.

For the benefit of future cases, their Lordships attempted to lay down general criteria for when
a duty of care would exist. Lord Atkin stated that the principle was that ‘You must take
reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour.’ This is sometimes known as the neighbour
principle. By ‘neighbour’, Lord Atkin did not mean the person who lives next door, but ‘persons
who are so closely and directly affected by my act that I ought to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called
in question’. The test of foreseeability is objective; the court asks not what the defendant
actually foresaw, but what a reasonable person could have been expected to foresee.

The claimant does not have to be individually identifiable for the defendant to be expected to
foresee the risk of harming them. In many cases, it will be sufficient if the claimant falls within
a category of people to whom a risk of harm was foreseeable – for example, the end user of
a product, as in Donoghue v Stevenson. The ginger beer manufacturers did not have to know
that Mrs Donoghue would drink their product, only that someone would.

●Malice

In tort, to act maliciously means acting with a bad motive. Normally, malice – and motive in
general – is irrelevant in tort law. If what you do is lawful, it remains lawful whatever your
reason for doing it. Similarly, if your act is unlawful, doing it with a good motive will not usually
make it lawful. This was the approach taken by the House of Lords in the leading case of
Bradford Corporation v Pickles (1895). The Bradford Corporation owned a reservoir on
property adjoining Pickles’s land. Water naturally flowed under Pickles’s land and into the
reservoir. Pickles wanted to force the corporation to buy his land at a high price. With this aim
in mind, he dug up some of his land, in order to stop the natural flow into the reservoir. It
was already settled law that it was not a tort for a landowner to interfere with the flow of
underground water, but the corporation argued that although Pickles’s action would normally
have been lawful, his malice made it unlawful. The House of Lords rejected this argument.
However, there are a few torts for which malice is relevant. In defamation, certain
defences will be unavailable if the defendant has acted maliciously, and in
nuisance, malice can render what would have been a reasonable act an
unreasonable one. For example, in Hollywood Silver Fox Farm Ltd v Emmett (1936)
the defendant and claimant owned farms near each other. After a dispute between them, the
defendant arranged for guns to be fired on a part of his own land which was near the
claimant’s land, with the intention of interfering with the breeding of the claimant’s foxes. The
firing did have this effect, and so the claimant sued for nuisance. The action was successful,
because of the malicious motive with which the defendant acted. Malice may also be
relevant to the calculation of damages, making them higher than they would be if the same
act was committed without malice.

2. Patrimonial loss

There must be some quantifiable financial loss stemming from D’s conduct. This financial

loss usually arises out of damage or destruction of property or physical injury to a person or

the causing of the death of a breadwinner. Sometimes, however, the loss is purely financial

not flowing from harm to person or property. Loss includes prospective loss, e.g. loss of

profits. Frequently, in an Aquilian action for personal injury, damages are also claimed for

pain and suffering.

3. Wrongfulness (unlawfulness)

This requirement operates as a device for controlling the scope of actionable negligence.

It has two main roles, namely–

to decide whether there is any liability at all for that type of conduct.

to restrict the ambit of liability where liability is recognised.

In Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H), the court stated that
in order to determine the wrongfulness or reasonableness of any given conduct the court is
enjoined to make a value judgment based on, among other things, contemporary boni
mores, in the sense of the convictions of the community as to what is fair, just and equitable.
In this case, the police used automatic weapons to quell a riot, injuring an innocent passerby.
The court found that it does not conduce to harmonious community relations for the police
force to unleash its members onto an urban shopping centre located in the centre of a densely
populated suburban residential area armed with FN rifles. While they were entitled to use
firearms to disperse the rioters, it was unreasonable to use FN rifles and so they were liable
to P.