Lillicrap Wassenaar and Partners v Pilkington Brothers (S.A) (Pty) Ltd. (410/82) [1984] ZASCA 132; [1985] 1 All SA 347 (A) (20 November 1984)

Lillicrap Wassenaar and Partners v Pilkington Brothers (S.A) (Pty) Ltd. (410/82) [1984] ZASCA 132; [1985] 1 All SA 347 (A) (20 November 1984)

The court held that the existence of a contract and a contractual remedy does not exclude Aquilian liability for negligent performance of contractual obligations. The respondent's pleadings disclosed a cause of action in delict for damages suffered both before and after assignment of the contract. The damages claimed, including costs incurred to mitigate loss, are recoverable in delict, provided they represent patrimonial loss caused by the appellant's negligence. The assignment of the contract did not deprive the respondent of its delictual remedy, nor did the arbitration clause bar such claims. The court dismissed the appeal and allowed the cross-appeal, confirming that Aquilian...

Citation
[1984] ZASCA 132
Parties
Appellant: Lillicrap Wassenaar and Partners; Respondent: Pilkington Brothers (South Africa) (Proprietary) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 November 1984
Case Number
410/82
Procedural Posture
Civil Appeal / Appeal From a Decision of the Witwatersrand Local Division on Exception and Application to Strike Out.
Outcome
Appeal dismissed with costs; cross-appeal allowed with costs.
Judges
Kotzé, Cillié, Van Heerden, Smuts, Grosskopf
Legal Topics
Professional Negligence, Aquilian Action, Contract and Delict Overlap, Negligent Misstatement, Damages Calculation, Assignment of Contract
Delict Commercial and Corporate Professional Negligence Aquilian Action Contract and Delict Overlap Negligent Misstatement Damages Calculation Assignment of Contract

Case Brief

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Parties

Lillicrap Wassenaar and Partners

Appellant

Pilkington Brothers (South Africa) (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From a Decision of the Witwatersrand Local Division on Exception and Application to Strike Out.

Legal Issues

  1. 1 Whether a party to a contract may also be liable in delict for negligent performance of contractual obligations.
  2. 2 Whether the existence of a contractual remedy excludes Aquilian liability for the same negligent conduct.
  3. 3 Whether the respondent's pleadings disclose a cause of action in delict for damages suffered before and after assignment of the contract.

Ratio Decidendi

The court held that the existence of a contract and a contractual remedy does not exclude Aquilian liability for negligent performance of contractual obligations. The respondent's pleadings disclosed a cause of action in delict for damages suffered both before and after assignment of the contract. The damages claimed, including costs incurred to mitigate loss, are recoverable in delict, provided they represent patrimonial loss caused by the appellant's negligence. The assignment of the contract did not deprive the respondent of its delictual remedy, nor did the arbitration clause bar such claims. The court dismissed the appeal and allowed the cross-appeal, confirming that Aquilian...

Court Disposition

Appeal dismissed with costs; cross-appeal allowed with costs.

Orders

  • The application to strike out is dismissed with costs.
  • Paragraphs 2 and 4 of the order of the court a quo are deleted and substituted with an order that the defendant-appellant is to pay the costs of the exception and the application to strike out.