The term “Delict” used in the Roman-Dutch law denotes a wrongful act by one person in the society against another in breach of the legal rights of the latter. This wrong would give rise to a civil action for damages against the wrongdoer.
Burchelldefined delict as an unlawful, blameworthy (i.e. intentional or negligent) act or omission which causes another person damage to person or property or injury to personality and for which a civil remedy for recovery of damages is available.
The word “Tort” is the corresponding term uses in the English and common law jurisdictions. According to the Oxford Dictionary of Law, Tort means a wrongful act or omission for which damages can be obtained in a civil court by the person wronged.
The Law of Delict in Sri Lanka mainly consists of principles drawn from Roman-Dutch law and English common law jurisdictions. Also, there are recent statutes passed by the parliament of Sri Lanka.
S M Goldstein & Co (Pty) Ltd. v Cathkin Park Hotel (Pty) and Another (513/98)  ZASCA37; 2000 (4) SA 1019 (SCA);  All SA 407 (A) (8 September 2000)
The defendant-appellant, a building contractor, was responsible for the construction of a hotel. The building owner was the first plaintiff-respondent. The lessee and operator of the hotel was the second plaintiff-respondent. During the operation of the hotel, a fire that had its source in the fireplace in the lobby of the hotel destroyed part of the complex.
The plaintiff-respondents, claiming in delict and alleging negligence, sued against the architect, the interior decorator, the project manager, and the defendant-appellant (the contractor), in an action for damages. The case against the others has been settled or withdrawn in a lower court. Also, the lower court held the defendant-appellant liable to compensate the plaintiff-respondents for any damages suffered as a result of the fire. The defendant-appellant filed this case against the above judgment. Now the court has to find out whether he is liable or not.
The area where the hotel is located tends to be cold in winter. Therefore, a fireplace in the lobby was an important design feature. The architect and the interior decorator issued drawings and instructions to build a fireplace using Jetmaster firebox suitable for an open fire.
(Jetmaster is a trade name of a company that supplies fireplaces).
A railway sleeper, impregnated with bitumen, was rested on the top of the firebox. Above that, an ornamental structure consisting of a sheet of chipboard with decorative log ends were fixed.
Jetmaster issues with every component they sold following instructions; “IMPORTANT: Combustible materials should not be fitted within 450 mm above the firebox unless adequate provision is made to insulate such materials”. The defendant-appellant, sometimes using nominated sub-contractors, constructed the hotel in general accordance with the architect’s plans. But when constructing the fireplace, he failed to adhere to Jetmaster’s instructions.
The fireplace was in constant use. The railway sleeper was on the fireplace. This area of the fireplace was the hottest part. Besides, the sleeper was impregnated with bitumen. As a result of all these and the heat caused the sleeper to ignite. From there fire spread into the roof void via a flue that was constructed using chipboard and masonry. The fire finally destroyed part of the hotel.
The Court had to ascertain;
1. Whether the defendant-appellant was negligent in constructing the hotel?
2. To establish whether the reasonable builder would have taken reasonable steps to guard against such occurrence?
3. Were the damages recoverable in law?
To establish liability under the Aquilian action the conduct of the defendant-appellant must be legally wrongful as regards the plaintiff–respondents. In other words, the law protects the plaintiff–respondents’ interests and a breach of this duty will render the defendant-appellant legally liable.
While it is obvious that positive wrongful conduct will give rise to liability if the relevant conditions are satisfied, it is uncertain whether omission to act will also give rise to such liability. Mckerron cites some instances in which legal liability may be incurred by an omission to act;
1. Where by the prior conduct of the defendant, a potentially dangerous state of affairs was created.
2. Where a person is in control of a thing which may cause injury to others if due care is not taken.
3. Where a person is under a duty to act because of the office he is occupying.
4. Where, a duty to act imposes by the statute.
The facts of the case establish a prima facie case of negligence. It is clear that the design and construction of the fireplace were unsafe. Sometimes, the architect and the interior decorator might have given drawings and instructions on how to construct the fireplace. In that case, they may also have been negligent or in dereliction of their duties. But during the construction, as an experienced contractor, the defendant-appellant should notice that there is a possibility of igniting the railway sleeper with highly inflammable bitumen when it is hot. He should consider that possibility before fixing it directly over the firebox without adequate insulation.
This is as highlighted in Kruger v Coetzee, whether a diligence paterfamilias in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another in his person or property and causing him a patrimonial loss. The other thing, although the contractor was bound by the conditions of the contract to carry out instructions given by the architect, as a sole controller of a worksite he has to take due care and get the responsibility for what he constructed. If there was any conflict with the architect’s instructions and the manufacturer’s requirements, he should notify the architect before carrying out the work. National Building Regulations, which is a statute, also specify the safety requirements of this type of construction. Therefore, the defendant-appellant failed to carry out legal duties imposed by statute.
Standard of Care
One of the questions to decide was whether the defendant-appellant had any duty of care towards plaintiff-respondents. It is not very difficult to conclude that the defendant-appellant as a qualified contractor, to whom the responsibility of construction was entrusted to, owed a duty to the plaintiff-respondent. The duty was to construct the hotel, exercising reasonable care and skill as a professional contractor, without causing patrimonial loss to him. In this construction, it seems that any reasonable contractor would refrain from something unsafe. He should follow the manufacturer’s installation instructions, especially when they relate to safety. Here, the manufacturer’s instructions are so simple. The only thing necessary was to increase the gap between the railway sleeper and the firebox. Or else, to add proper insulation to the railway sleeper. Since the defendant-appellant failed to do so confirm his negligence.
Having decided on the requirements of attracting liability under Aquilian action, the next is to be decided whether there is a causal link between the damage and the act or omission. Evidence placed above shows, the negligence of the defendant-appellant caused or materially contributed to the damages to the hotel and thereby caused patrimonial loss to the plaintiff-respondent.
In a case of tortious liability, the burden of proof lies on the plaintiff. To establish a prima facie case, the plaintiff must prove all the elements of negligence. Those are as follows. He should prove the defendant owed him a duty of care. And, by his negligence, he broke that duty of care. Also, his conduct was the cause of the harm.
Then the burden of proof will transfer to the defendant. It is to rebut it. If he can rebut one of the elements of negligence, that would be enough to absolve him from liability. If not, as an alternative, there are other alternatives. Those are proof of contributory negligence or voluntary assumption of risk on the part of the plaintiff.
In this case, one of the defenses of the defendant-appellant was the effect on the scope of his legal duty due to the employment of an architect, safety consultant, use of nominated subcontractors by the plaintiff-respondent as the owner of the project. But the court said that it only indicates more than one party had a legal duty towards the plaintiff-respondent with the safety of the work.
Contributory negligence as a defense
The other defense was on contributory negligence of the first plaintiff-respondent approving the design and the choice of materials for the fireplace. But the court rejected that on the ground there were several independent experts to design, construct and manage the construction of the hotel. It was not the practice of the first plaintiff-respondent as the owner of the project to check independently whether everyone doing his work properly. Besides, the owner has an entitlement to rely on persons who gets payments for those works.
This case is a prime example where the liability of tort supersedes the contractual obligations. The contractor is legally bound by the conditions in a contract. But, if act negligently he will be liable under tort for the damages.
Law of Tort – English Law
The English law concept similar to the Law of Delict is the Law of Tort. The aim of the English law of tort is to grant compensation and redress to victims of injury and loss. When we consider the primary object of a delictual action, it is to grant damages for harm done. The damages usually being in the form of monetary compensation. Principally, both are the same.
The basic principle the English law uses to find whether a person is liable or not under the tort is the ‘fault principle’. Here the plaintiff has to prove there is a duty of care, the defendant has breached that duty of care, the link between the damage and the breach of duty, and the loss occurred.
Under the delict, to prove the liability the plaintiff has to prove unlawfulness, fault, causation, and damage. Although these two actions are principally the same, there are some differences when building a case. For example, in a delictual case when proving the unlawfulness the only test uses is reasonableness. That means what is good and what is bad. That is a universal principle.
But the English law uses multiple tests and principles, such as the neighbor principle (two-stage test, current test). Lord Atkin enunciated the “neighbor principle” under which if it was reasonably foreseeable that one’s failure to take care would cause injury to another, and then one owed that other a duty to take the requisite care, breach of which would give rise to liability in damages. Now the Consumer Protection Act undertakes the establishment of a duty of care between the manufacturer of a product and the ultimate customer.
Mixed practices in Sri Lanka
To the field of delict in Sri Lanka, the principles of the English law of torts also have infiltrated. The most probable reason for this might be that English judges who are unfamiliar with the Roman-Dutch law of delict have turned to decide cases surfaced before them. In earlier cases such as Lakeman v Bain (1855) and Kandasamy v Municipal Council (1905), English judges meticulously applied Roman-Dutch principles. But in later cases, such as Van Cuylanbury v Capper (1909), Corea v Peries (1910), and Sabapathy v Huntley (1937), they increasingly relied on English law.
Principles such as the doctrine of strict liability as enunciated in Rylands v Fletcher (1868), which are unknown in the Roman-Dutch law, have also been introduced into our law. The result is that the law in our country is neither pure Roman-Dutch law nor English law. It is a combination of both systems peculiar to Sri Lanka.
Other Systems of Compensations
One of the primary functions of the law of delict is to grant compensation for those who have suffered loss or injury to their person or property. However, the important condition is establishing that the loss or injury of the plaintiff is due to the unlawfulness of the defendant.
However, this method is not always effective due to several factors, especially in countries like Sri Lanka. Some of those factors are poverty, ignorance of one’s rights under the law, victim’s lack of interest, and delays in litigation. Poverty or ignorance may prevent a victim from obtaining a remedy in law. Even having obtained it, the defendant may not able to pay compensation granted by the court. Then it may result in the plaintiff to shoulder the burden of his injury or loss. Litigation is an expensive and time-consuming process. The hardship caused by the delays of the law often reverses any relief which might grant to a victim. This discourages many people from having recourse to the law to obtain compensation from injuries.
Practice in other countries
Many countries in recent times have introduced more effective ways to ensure granting compensation to victims. For example, in both France and West Germany, there is a ‘no-fault’ work accident insurance scheme. For these, employers have to contribute a pre-assessed amount. Therefore, the employee gets an assurance of obtaining compensation for sickness and injury which suffer in the course of employment, irrespective of the fault of the employer. In New Zealand, the protection covers under the Accident Compensation Act of 1972. There, the accident victims can obtain compensation without proof of fault.
Practice in Sri Lanka
In Sri Lanka, under Workmen’s Compensation Ordinance, an employee can obtain compensation for personal injuries arising out of and in the course of their employment, irrespective of the negligence of the employer. Also, in Sri Lanka, we have a fairly developed system of insurance. It ensures that victims of industrial injury and motor accidents receive compensation.
 Burchell, J., Principles of Delict, Juta, 1993, p 09
 Oxford University Press, Oxford Dictionary of Law, 5th Ed, p 500
 Mckerron R.G., The law of Delict, 4th Ed, (1952), p 25.
 Kruger v Coetzee 1966 (2) SA 428 (A)
Donoghue v Stevenson 1932 SC (HL) 31; 1932 SLT 317;  AC 562