Abstract

This article examines the role of wrong fulness as a conceptual basis for liability in delict, focusing largely on cases of omissions and pure economic loss. I argue that the wrong fulness enquiry is best understood not as a single undifferentiated policy judgment, but as a structured three-step enquiry. First, the court asks whether the defendant owed the plaintiff a recognised legal duty and whether that duty was breached. If no such duty exists, the enquiry turns to whether the legal convictions of the community justify recognising a new general duty of that kind. Thirdly, and crucially, where such a duty exists and was breached, the court must determine whether those legal convictions warrant the imposition of delictual liability in the circumstances. On this account, breach of duty does not automatically entail wrong fulness: the first and third steps perform distinct tasks and should never be collapsed. I further argue that the content of the duty at step 1 should not be framed as a duty not to cause harm negligently, but rather as a strict duty to refrain from particular harm-causing conduct, leaving questions of fault to be addressed primarily at the stage of imposing liability.