Establishing Delictual Liability for Professional Services Rendered Under Contract

Sep 27, 2023 | , , , , , | News

In a landmark judgment delivered by the Supreme Court of South Africa (Appellate Division), the case of Lillicrap Wassenaar and Partners v. Pilkington Brothers (South Africa) (Proprietary) Limited has established a significant legal precedent. The judgment, handed down on November 20, 1984, by SMUTS AJA, addresses the question of whether a firm of consulting and structural engineers can be held liable in delict (tort) for the negligent performance of a duty contractually undertaken by them in their professional capacity or for negligent misstatements made in the course of performing their contractual obligations.

Contract

The case revolves around the contractual relationship between Lillicrap Wassenaar and Partners (the appellant), a firm of consulting and structural engineers, and Pilkington Brothers (South Africa) (Proprietary) Limited (the respondent). The issue at hand was whether the appellant could be held liable in delict for its allegedly negligent performance of a duty under the contract or for any negligent misstatements made while carrying out its contractual obligations.

 

Delictual Liability and Contractual Obligations

The central point of contention was whether Aquilian liability (liability for unintentional harm caused by negligence) extends to cases where there is a breach of an express or implied contractual obligation. The appellant argued that the detailed contractual duties outlined in the agreement between the parties implied that liability should be limited to breach of contract. However, SMUTS AJA disagreed with this interpretation, highlighting the absence of an explicit stipulation in the contract excluding delictual liability. 

The court referred to previous legal precedents that supported the view that Aquilian liability can arise alongside contractual obligations. It emphasized that Aquilian liability is not restricted to cases where liability for damages in delict would exist independently of the contractual relationship. Rather, as long as the negligent acts or omissions giving rise to a claim in delict also constitute a breach of a contractual obligation, Aquilian liability can be invoked.

 

Policy Considerations and Damages

SMUTS AJA also addressed policy considerations and the calculation of damages in delict versus contract. The court rejected the argument that recognizing delictual liability for professional services rendered under a contract would lead to unmanageable situations or indeterminate liability. Furthermore, it emphasized that damages in delict aim to restore the loss suffered by the claimant due to wrongful conduct. 

The court found that the damages claimed by the respondent, including the cost of work done and yet to be done, were not necessarily contractual in nature. Instead, they sought to restore the respondent to the position it occupied before the loss occurred. SMUTS AJA clarified that if the work performed by the appellant resulted in a diminished value of the respondent’s property, the difference between the pre-loss and post-loss values could be claimed as damages in delict. This approach aimed to compensate the respondent for the loss caused by the appellant’s negligence.

 

The judgment in Lillicrap Wassenaar and Partners v. Pilkington Brothers (South Africa) (Proprietary) Limited sets a significant precedent by recognizing delictual liability for professional services rendered under a contract. It establishes that a firm of consulting and structural engineers can be held liable in delict for negligent performance or negligent misstatements made in the course of their professional duties. The court’s decision highlights the importance of exercising reasonable care in contractual obligations and affirms that a contractual relationship does not automatically preclude liability in delict. This ruling provides a significant legal safeguard for individuals or entities harmed by professional negligence, even when a contractual relationship exists.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:
Reynhard Carelse

Reynhard Carelse

Reynhard is a founding member of CK, and established the firm during 2005.

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