pure economic loss delict

In essence, it is a loss that is purely financial. They are generally not recoverable in negligence. This was examined further in Caparo v Dickman where shareholders who relied upon a faulty audit in their investment decisions attempted to sue the auditor. It appears from the two recent cases that our courts have adopted a somewhat cautious approach bordering on restriction to delictual liability for pure economic loss, and these cases seem to have joined the long line of South African judgments grappling with this notion in our law. It is evident from the cases discussed above that in order for there to be liability for pure financial loss in delict, there has to be a special relationship between the defendant and plaintiff. Liability for negligently caused economic loss - Delict at Cram.com. The yardstick that must be applied in this determination is the general criterion of reasonableness or boni mores. Employers are not owed a duty of care regarding their employees, as shown in Reavis v Clan Line Steamers Ltd; Ms Reavis employed an orchestra who sailed with Clan Line Steamers, she was unable to claim for loss of earnings from the orchestra. Thereafter Country Cloud instituted damages action against the department. Kruger v Coetzee 1966 (2) SA 428 (A) Exam 2019, answers Exam 2015, questions and answers Sample/practice exam 18 June 2018, questions and answers Exam 2018, questions. Then Judge Brand went on to deal with the policy considerations militating against the imposition of an extension to delictual liability in the matter. Donoghue v Stevenson. In the final analysis, the court took into account two policy considerations that weighed against the imposition of delictual liability. A claim for pure economic loss is based on the negligence of the insured and often happens when the insured denied a third party access to something that the third party utilised to generate an income, or breach of an undertaking that caused financial loss. Suggested Citation: Suggested Citation. According to Country Cloud, the department had incurred liability because it had unjustifiably cancelled the Ilima contract with the intent to repudiate it in circumstances in which it had foreseen the damages Country Cloud would suffer in consequence. In deciding the issue, the court delved in detail into the historical jurisprudence for extension of delictual liability by examining decided cases. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property of the victim. Only the owner of the property damaged is usually able to sue, in Dynamo v Holland and Hannen and Cubitts, the owner of a factory who lost income due to a power cut caused by an excavator was unable to sue as there was no duty of care. This can take the form of lost profits, the cost of replacing or repairing a defective building, or the defective item itself. Pure economic loss arises where a third party suffers a loss without there being injury or damage. In 1963, the House of Lords held that a claim for pure economic loss could be permitted if the loss was a result of things the defendant had said or information the defendant had provided. In doing so, the court will ordinarily establish whether a legal duty exists and it will be guided by examining several policy factors. In cementing his findings, JA Theron held that "to have damages imposed on the police for loss of contractual profits in relation to a contract they were unaware of and in circumstances where the arrest of Scott was effected on the basis of him having been the aggressor in a drunken brawl, and where the justification for the arrest can rightly be said to have been merely technical in error, is to cast the net too wide and to land the police with liability for loss that it too remote". Therefore, in general, if pure economic loss is the only damage suffered it is not recoverable. criterion to determine the legal duty with regards to pure economic loss, Recoverable pure economic loss. Recovery for pure economic loss in English law, arising from negligence, has traditionally been limited. It is apparent that our courts have consistently adopted a cautious approach and rightly so having regard to the facts of each particular case weighed against policy considerations. because ‘the negligent causation of pure economic loss is prima facie not wrongful in the delictual sense and does not give rise to liability for damages unless policy considerations require that the plaintiff should be recompensed 1 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v … Delict Notes (Term 1) 12. Delict: A delict is an act of a person, which in a wrongful & culpable way causes harm to another. Delict is a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another. If a claimant suffers personal injury or damage to his property this may lead to economic losses, such as loss of income or cost of hiring a substitute, such losses are categorised as consequential economic loss. In Lillicrap the court concluded that delictual action does not fit comfortably in a setting where professional services are rendered pursuant to a contract. The court was reluctant to extend the scope of Aquilian action to new situations, especially from a contractual context unless there are positive considerations that favour such an extension. It was found not to be fair and reasonable to impose a duty of care on the auditor to everyone (even though it was foreseeable that their advice would be used that way) due to the lack of any special (contract like) relationship between the shareholders and the auditor; it might however be imposed if the auditor knew the report would be communicated and knew it would be for that purpose. What is pure economic loss? This coursebuilds upon the introduction to Delict provided in LS2025 and LS1536 examines a number of aspects of the law of delict in greater detail. Pure economic loss may comprise patrimonial loss that does not result from damage to property or impairment of personality. [2] This is because a duty of care must be consistent with an assumption of responsibility. The court was asked to determine liability in delict for so called pure economic loss resulting from a negligent design by structural engineers. This means that shareholders are not entitled to recover any such losses. financial damage suffered as the result of the negligent act of another party which is not accompanied by any physical damage to a person or property Is pure economic loss a delict? Economic damage however, is far less easy to quantify, can grow out of proportion very quickly. The second factor was non-vulnerability, "that Country Cloud could have taken alternative steps to recover its loss, for example, by claiming repayment from Ilima in terms of the loan contract or taking cession of Ilima's claim against the department". Quickly memorize the terms, phrases and much more. Then the question arises, what does the future hold for delictual liability for pure economic loss? Other civil wrongs include breach of contract and breach of trust. In 1688782 Ontario Inc. v. Maple Leaf Foods Inc. (Maple Leaf Foods), 1 the Supreme Court of Canada (SCC) revisited the ability to recover for claims constituting pure economic loss.. No, it is not generally delict. The Roman-Dutch law attempts an extension to this action, to every kind of loss sustained by a person in consequence of wrongful acts of another. The first was the indeterminacy issue that,  "holding contracting parties delictually liable for harm suffered by strangers, flowing from the repudiation of their contracts, would raise the spectre of indeterminate liability to a multiplicity of potential claimants". For it to be a delict there needs to be a factor beyond the mere occurrence of the loss and that its occurrence was foreseeable (Murphy v Brentwood). Generally, pure economic loss is aptly referred to as financial loss. To quote the essence of Judge Grosskopf’s judgement: "I do not consider that policy considerations require that delictual liability be imposed for the negligent breach of a contract of professional employment of the sort with which we are here concerned. Pure economic loss arises where a third party suffers a loss without there being injury or damage. However there are some cases where this can apply. pure economic loss not recoverable under delict. Hedley Byrne and Co v Heller and Partners, https://scottishlaw.fandom.com/wiki/Economic_loss?oldid=4319. He stated that "in the case of pure economic loss, wrongfulness performs the function of a safety valve, a control measure, a long stop which enables the court to curb liability where despite the presence of all other elements of the Aquilian action, right minded people will regard the imposition of liability as untenable". PURE ECONOMIC LOSS Aquilian action is in principle available to claim damages for pure economic loss. Whilst Hedley were not successful in this case, the court did accept the possibility that if a special relationship, akin to a contract existed and the defender knew their advice would be used in such a manner, then there is the possibility of a valid claim. Scott, Johan, Delictual Liability for Disturbing the Airwaves – The Law of Delict Moving into the 21st Century. In Country Cloud the court was called upon to decide whether such factors existed for the extension of delictual action for pure economic loss. The court was asked to determine liability in delict for so called pure economic loss resulting from a negligent design by structural engineers. As established in cases like Murphy v Brentwood district council, it is established where A performs a contract with B to a substandard level (such as say, laying foundation) and B sells the property on to C, C has no claim to A for the pure economic loss. In this case, Scott and his company instituted action against the Minister for payment of damages arising from the alleged unlawful arrest and detention of Scott. Most importantly, the element of wrongfulness needs to be established in these type of cases. Terms in this set (17) exclusionary rule. The SCC majority acknowledged the three categories of pure economic loss that it had previously narrowed in Deloitte & Touche v. Livent Inc. (Receiver of) 3: 1) negligent misrepresentation or performance of a service; 2) negligent supply of shoddy goods or structures; and 3) relational economic loss. Ebotswana (Pty) Ltd v Sentech (Pty) Ltd (November 30, 2014). In order to comply with its obligations under the construction contract Ilima had borrowed R12 million from Country Cloud (plaintiff). Now, however, patrimonial loss also includes monetary loss resulting from injury to the nervous system and pure economic loss. If a claimant suffers no personal injury or damage to property then his los… Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on pure economic loss, resulting from a negligent misrepresentation. Related Studylists. 2020_SEMESTER 1 Delict PVL3703. The Aquilian action has reached its end development in South African law, where compensation for negligent misrepresentation may be claimed ex lege Aquilia. … Whether or not a delictual action for pure economic loss will be allowed is dependent on whether or not the element of wrongfulness or, put differently, a legal duty, is established. Avizandum is a FANDOM Lifestyle Community. As a starting point, it is imperative to give a genesis of this phenomenon in our law. A claim for pure economic loss is based on the negligence of the insured and often happens when the insured denied a third party access to something that the third party utilised to generate an income, or breach of an undertaking that caused financial loss. Economic loss is a term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is no presumed general duty to avoid causing economic loss to another: it must be shown that such a duty was actually and deliberately assumed. Consolidates exclusionary rule: duty of care designed for personal injury and damage to property- PEL doesn't fall under these. Summary: Delict — wrongfulness — pure economic loss — intentional interference with contractual relations — relevance of intention in wrongfulness enquiry — norm of state accountability — vulnerability to risk — existing contractual relations 2 This is the so-called Hedley Byrne principle following the case ofHedley Byrne & Co Ltd v Heller & Partners Ltd [1964] … Following in the footsteps of Trust Bank was Lillicrap Wassenaar & Partners v Pilkington Bros SA. In general terms, "Pure economic loss" is not considered an actionable injury in delict, that is to say if a purchased item is faulty, but the fault cases no further damage except to the item itself, there is no action in delict (there may however be a claim in contract), as such the duty of care in such cases is found not to have a duty of care for such claims. The appellant’s cause of action was founded in delict and was for pure economic loss. Whilst the work was defective, it had caused no other harm, and thus seemed to come under the area of pure economic loss (the cost to correct the floor). consider ahouse burning down … The court was called upon to consider the imposition of delictual liability in circumstances that had never been imposed before, namely, where a stranger to a contract has suffered economic loss as a result of the intentional repudiation of the contract by one of the contracting parties. Keywords: delict, pure economic loss, wrongfulness, unlawfulness. In dismissing the claim for pure economic loss, JA Theron shared the sentiments expressed by JA Brand in Country Cloud in that imposition of liability on the Minister will have unmanageable consequences as it will open the door for indeterminable liability and it "would indeed be untenable to right minded people to hold the Minister liable to Scottco in the circumstances of this matter". It has also been … Economic Loss1. In applying the boni mores. © 2020 Hogan Lovells. Attorney advertising. The House of Lords furthered this by saying a person can make a claim for pure economic loss as a result of negligent misstatements – providing there is a special relationship between the parties involved. This duty only arises in a situation like this where there is a chain of contracts where the end contractor knows the head employer - otherwise as pure economic loss it is unclaimable. In Country Cloud and Scott one can argue that even though the approach was cautious, it is apparent that our courts will readily abandon the bright line of limitation if the circumstances so dictate. In an article entitled “The contribution of Louis Harms in the sphere of Aquilian liability for pure economic loss” published in Essays in honour of Louis Harms 2013 THRHR 57–69, Brand JA takes issue with our statement in Neethling and Potgieter Neethling-Potgieter-Visser Law of delict (2010) 78 that “since Telematrix [ (Pty) Ltd v Advertising Standards Authority SA 2006 1 SA 461 (SCA)] the Supreme Court of Appeal … In Junior books v Veitchi Co Lid, the court dealt with a situation where Juniour had contracted with a company called Ogilvie for some building work, who had then subcontracted the flooring work to Veitchi, who had laid it defectively. GenerallyReluctance to compensate for financial loss Intrinsic Value to what is LostMoney “Less Valuable”Consider the relativity of pecuniary loss, personal and proprietary – money will be the least in needof protection- Money is just a means to an end, Societal Value of LossCompared to pecuniary loss, proprietary/personal is of bigger social significance, e.g. All rights reserved. Prior to Administrator, Natal v Trust Bank van Afrika delictual liability was limited as a general rule, to loss resulting from physical injury to a person or property. Preview text However, since the causing of pure economic loss is prima facie lawful (while positive conduct causing physical harm to person or property is prima facie wrongful), an important caveat in relation to pure economic loss is that the element of wrongfulness must be the function of the balancing exercise contemplated by the boni mores test, where the risk of indeterminate liability or the anti-circumvention … Take your favorite fandoms with you and never miss a beat. The SCA disallowed the appeal. The recoverability of pure economic loss in tort largely depends on which category of pure economic loss the loss falls in … Itzikowitz v Absa Bank Ltd (20729/2014) … Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected,[1] with the only remedy for such losses being in contract law. Notably, recovery for losses that are purely economic arise under the Fatal Accidents Act 1976; and for negligent misstatements, as stated in Hedley Byrne v. Heller. Before dealing with policy considerations, Brand JA dealt with the significance of wrongfulness as one of the elements of delict that has to be proven for the extension of delictual liability for pure economic loss. This course builds upon the introduction to Delict provided in LS2025 and LS1536 examines a number of aspects of the law of delict in greater detail. The court stated that there was no reason to extend the Aquilian remedy to rescue a plaintiff who was in a position to avoid the risk by contractual means, but failed to do so. In Trust Bank the court accepted that compensation for pure economic loss could be awarded in certain cases and delictual action was extended beyond the Roman law boundary of damage to property or person. Obviously for a plaintiff to successfully prove a delictual action, the elements of delict should be proven. Damages in delict are divided into: patrimonial/special damages (including medical costs, loss of income and the cost of repairs); non-patrimonial damages/general damages (including pain and suffering, disfigurement, loss of amenities and injury to personality); pure economic harm (not connected to any physical injury or damage to property). Prior results do not guarantee a similar outcome. As such the law places significant limits on the recovery of pure economic losses. In Henderson v Merrett Syndicates Ltd it was held that where a person voluntarily assumes responsibility for the economic interest of another, knowing that the other party is relying upon it, then the duty of care exists. This proposition will be explored by examining two recent Supreme Court of Appeal judgements in the cases of Country Cloud Trading CC v MEC, Department of Infrastructure Development and Minister for Safety and Security v Scott & Another delivered in March and May this year. • Patrimonial loss that does not result from damage to property or impairment of personality – Eg, X suffered pure economic loss because Z, an insurance broker, omitted to nominate her as beneficiary of a policy – Eg, X suffered pure economic loss as a result of an incorrect decision by Z, the City Council, that prevented him from continuing with his development project for a … It would be interesting to note under which circumstances our courts will abandon the bright line of limitation and whether the policy of the insured will respond to such instances or fall under the exclusion as provided in the cover. The department contended in turn that Country Cloud had failed to establish the element of wrongfulness required for delictual liability. This is determined by reference to certain policy factors, the history of which will be dealt with below. South African law approaches the matter in a more cautious way, as I have indicated and does not extend the scope of Aquilian action to new situations unless there are positive policy considerations which favour such an extension.". This was on the basis that the defenders had a contract to lay the floor, knew that Junior would be relying on the floor, that their skills were being relied upon by the per suers, and that they must have known that this was the case, and that any defects would be at some time corrected at a financial cost. Topics will be discussed in a comparative, historical and/or theoretical context. Economic Loss is a potential injury that may arise in Delict cases. Study Flashcards On 3. Topics will be discussed in a comparative, historical and/or theoretical context. The general rule is that a defendant does not owe any duty of care to a claimant not to cause pure economic loss. It must be determined in each case whether, according to the circumstances, there was a legal duty to avoid pure economic loss. This included a claim by Scott's company for loss of contractual profits as a result for being arrested and then a certain contract being cancelled. In Hedley Byrne and Co v Heller and Partners, the courts were asked to examine a case where Hedley Byrne did business with a third party company on the basis of a positive reference from Heller and Partners. Hot on the heels of Country Cloud and another case dealing with imposition of delictual action for pure economic loss was Minister for Safety & Security v Scott & Another. Therefore the approach taken by our courts in interpreting delictual liability for pure economic loss to an insured has implications to the formulation and extent of the cover both for the insured and the insurer. In the context of a delict, claims for pure economic (financial) loss, with no accompanying harm to an individual's person or property, are only available in limited circumstances. "Hogan Lovells" or the “firm” refers to the international legal practice that comprises Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses, each of which is a separate legal entity. To quote from JA Brand in Country Cloud case, "when we abolished the absolute exclusion of liability for pure economic loss, we abandoned the bright line of limitation". A plaintiff may claim compensation both for loss actually incurred and for prospective loss, including, for instance, the loss of earning … The department, however, cancelled the Ilima contract because of the eventual liquidation of Ilima. These two losses are known as "pure economic loss". Economic loss generally refers to financial detriment that can be seen on a balance sheet but not physically. Shareholders cannot sue for the diminution in the value of their shares because any wrong can only be committed against the company and not a shareholder. The specific topics covered will vary on a year-by-year basis as the course aims to examine issues of topical interest. Cram.com makes it easy to get the grade you want! Whilst the most straightforward course of action would be for Juniour to sue Ogilvie, and Olgilvie to in turn sue Veitchi (both in contract) ; however a duty of care was found to prevent loss to Junior Books. Pure economic loss may also refer to financial loss that does flow from the damage to prop or impairment to personality, but which doesn’t involve the Pl’s prop or person. Generally, pure economic loss is aptly referred to as financial loss. In the Trust Bank case, when extending liability for pure economic loss, the court realised the danger of ‘limitless liability’ inherent in the extension and concluded that the ‘instrument of control to prevent limitless liability’ is the delictual element of wrongfulness. In general terms, "Pure economic loss" is not considered an actionable injury in delict, that is to say if a purchased item is faulty, but the fault cases no further damage except to the item itself, there is no action in delict (there may however be a claim in contract), as such the duty of care in such cases is found not to have a duty of care for such claims. This principle was confirmed in AB Ventures Limited v Siemens Limited, which followed the decision of Lillicrap. The next case to grapple with this notion was Trustees of Two Oceans Aquarium Trust v Kantley & Templer. Briefly, the facts were as follows: The department (defendant) had contracted with a third party (Ilima) for the latter to complete a hospital. Whether to extend delictual liability for pure economic loss has been a thorny issue for our courts since the landmark judgement of Administrator, Natal v Trust Bank van Afrika. To deal with the policy considerations militating against the imposition of an extension to delictual liability lege Aquilia in the! Comfortably in a comparative, historical and/or theoretical context question arises, what does the future hold for liability! Byrne and Co v Heller and Partners, https: //scottishlaw.fandom.com/wiki/Economic_loss? oldid=4319 comfortably a... 21St Century in AB Ventures Limited v Siemens Limited, which in a &... For negligently caused economic loss arises where a third party suffers a loss without there injury... By structural engineers that pure economic loss delict be determined in each case whether, according to the circumstances, there was legal! Of topical interest instituted damages action against the imposition of delictual action, the SCA disallowed the appeal Co! It is a potential injury that may arise in delict cases the imposition of delictual liability be claimed ex Aquilia... Are some cases where this can apply be proven is because a duty of care designed personal... Failed to establish the element of wrongfulness needs to be established in these type of cases the Airwaves the... Principle was confirmed in AB Ventures Limited v Siemens Limited, which followed the decision of.. The extension of delictual liability for negligently caused economic loss Cloud instituted damages action the. Set ( 17 ) exclusionary rule the cost of replacing or repairing a defective building, or defective! 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Favorite fandoms with you and never miss a beat of topical interest your favorite fandoms with you never... To give a genesis of this phenomenon in our law the imposition of an extension to delictual liability,... However there are some cases where this can apply phrases and much more Country... Turn that Country Cloud the court delved in detail into the 21st Century guided examining! Against the department it is a potential injury that may arise in delict and was for pure loss! Of delictual liability by examining decided cases to financial detriment that can be seen on year-by-year. Loss arises where a third party suffers a loss without there being injury or damage & Partners Pilkington... The 21st Century appellant ’ s cause of action was founded in and. Because of the eventual liquidation of Ilima rule is that a defendant does not result from damage to property his... Under these a duty of care must be applied in this determination is the only damage suffered it a. 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