Disclaimer
The information contained in this article is provided for general educational purposes only and reflects the perspective of an insurance liability investigator and loss adjuster. It is not intended as legal advice and should not be relied upon as such. The Liability Mann and Ken Mann Loss Adjusters are not attorneys and do not provide legal opinions. Where legal advice is required, readers should consult a suitably qualified legal practitioner.
Introduction
When people hear the phrase “law of delict,” they often imagine complicated legal arguments or courtroom proceedings. In reality, the fundamental principles of delict provide a practical framework that guides the investigation of many liability claims.
As liability investigators, we are not responsible for deciding legal disputes. Our role is to establish the facts objectively, preserve evidence, analyse the circumstances surrounding an incident and provide insurers with an independent report that assists them in evaluating liability.
One of the most useful ways of approaching any liability investigation is to consider the five essential elements that generally underpin a delictual claim.
These are:
- Conduct
- Wrongfulness
- Fault
- Causation
- Damages
If any one of these elements cannot ultimately be established, legal liability may not arise.
For a loss adjuster, these elements are not merely legal concepts—they form a practical checklist that helps direct the investigation.
Looking Beyond the Damage
One of the most common mistakes people make after an accident is focusing immediately on the damage.
A building has burned down.
A customer has been injured.
A vehicle has been damaged.
Livestock have escaped.
The natural question becomes:
“Who’s going to pay?”
However, from an investigative perspective, this is often the last question that should be answered.
Before liability can be considered, we first need to understand how the incident occurred and whether the facts support the necessary elements of delict.
Element One: Conduct
Every liability investigation begins with conduct.
Simply put, conduct refers to something that someone did, or failed to do, that may have contributed to the incident.
Conduct can be:
- A positive action.
- A failure to act.
- An omission where there was a legal duty to act.
Examples include:
- A contractor leaving an excavation unsecured.
- A farmer lighting a controlled burn.
- A shopping centre failing to repair a broken handrail.
- An employer neglecting required safety procedures.
- A driver ignoring a stop sign.
One of the first questions we ask during any investigation is:
“What actually happened?”
This sounds obvious, yet establishing the sequence of events often requires interviews, photographs, documentation and physical evidence.
Without understanding the conduct involved, the investigation cannot progress.
Element Two: Wrongfulness
Not every act that results in damage is legally wrongful.
This is an important distinction.
The law recognises that people sometimes suffer loss even though nobody acted unlawfully.
For example:
- Lightning destroys neighbouring property.
- An unavoidable medical emergency causes a vehicle accident.
- A healthy tree falls during an exceptionally severe storm.
Although damage occurred, the surrounding circumstances may indicate that no legally wrongful conduct took place.
From an investigative perspective, we therefore consider questions such as:
- Was there a legal duty?
- Was that duty breached?
- Were accepted standards followed?
- Did legislation or regulations impose specific responsibilities?
In agricultural investigations, this may include examining statutory firebreak obligations, environmental requirements or contractual responsibilities between neighbouring landowners.
Element Three: Fault
Perhaps the best-known element of delict is fault.
Fault generally takes one of two forms:
- Intentional conduct.
- Negligence.
In insurance liability investigations, negligence is by far the more common issue.
Negligence does not simply mean someone made a mistake.
Instead, investigators ask questions such as:
- Could the risk reasonably have been foreseen?
- Would a reasonable person have acted differently?
- Were reasonable precautions available?
- Were known hazards ignored?
Consider two examples.
A warehouse owner knows that roof sheeting has become loose but postpones repairs for several months despite repeated warnings.
Alternatively, a severe tornado unexpectedly damages a perfectly maintained roof.
Both situations involve damage.
Only one necessarily raises questions regarding negligence.
This illustrates why investigators focus on the surrounding circumstances rather than the outcome alone.
Element Four: Causation
Even where negligent conduct is identified, liability does not automatically follow.
The conduct must also have caused the damage.
This is often one of the most technically challenging aspects of an investigation.
For example:
A contractor excavates near underground pipes.
Several days later, a water main fails.
Did the excavation actually cause the failure?
Or was the pipe already weakened by corrosion?
Similarly:
A farm fire spreads onto neighbouring land.
Was it caused by inadequate firebreaks?
Strong winds?
Electrical infrastructure?
Arson?
Spontaneous combustion?
Determining causation frequently requires:
- Expert reports.
- Technical inspections.
- Scientific analysis.
- Weather information.
- Physical evidence.
The investigator’s role is to establish whether there is a factual connection between the conduct and the resulting damage.
Element Five: Damages
Finally, liability investigations consider whether actual damages have been suffered.
Not every inconvenience results in a compensable loss.
Investigators therefore examine:
- The nature of the damage.
- Whether the damage can be verified.
- Supporting documentation.
- Repair costs.
- Replacement values.
- Financial losses where applicable.
While specialist quantity surveyors, engineers or accountants may sometimes assist with quantification, the investigator still plays an important role in documenting the extent of the damage.
Why These Five Elements Matter During an Investigation
Understanding these elements changes the way an investigation is approached.
Instead of asking:
“Who is responsible?”
A liability investigator asks:
- What happened?
- What evidence supports this?
- What conduct occurred?
- Was there a legal duty?
- Were reasonable precautions taken?
- What caused the damage?
- What losses have actually been suffered?
These questions encourage objective analysis rather than speculation.
Applying the Principles: An Agricultural Example
Imagine a fire spreads from one farm onto another.
An investigator does not begin by assuming that the owner of the originating property is liable.
Instead, the investigation may include:
- Examining weather conditions.
- Inspecting firebreaks.
- Reviewing firefighting efforts.
- Interviewing neighbouring landowners.
- Assessing compliance with applicable legislation.
- Reviewing satellite imagery where available.
- Examining ignition sources.
- Establishing the timeline of events.
Only after gathering and analysing this evidence can informed opinions be expressed regarding the elements of conduct, wrongfulness, fault, causation and damages.
This structured approach ensures that conclusions are based on facts rather than assumptions.
The Value of an Independent Investigation
One of the strengths of a professional liability investigation is its objectivity.
The investigator does not begin with a conclusion and search for evidence to support it.
Instead, evidence is gathered first, analysed carefully and allowed to guide the findings.
This approach benefits everyone involved.
It assists insurers in making informed decisions.
It provides transparency for insured parties.
It ensures that claimants receive fair consideration.
Most importantly, it helps establish the true circumstances surrounding the incident.
Looking Ahead
In this article, we introduced the five elements that commonly form the basis of liability investigations.
In the next article, we will focus on the element that arises most frequently in insurance claims—negligence.
We will examine how investigators evaluate whether a risk was reasonably foreseeable, what constitutes reasonable conduct, and why negligence involves much more than simply making a mistake.
Key Takeaways
- The law of delict provides a practical framework for investigating liability claims.
- Liability investigations generally consider five key elements: conduct, wrongfulness, fault, causation and damages.
- Damage alone does not establish liability.
- Every element must be considered in light of the available evidence.
- Professional liability investigations rely on objective facts rather than assumptions or opinions.
- A structured investigative approach helps insurers make fair, informed and defensible decisions.
The Liability Mann
Independent. Evidence-Based. Trusted.
Specialists in Insurance Liability & Agricultural Liability Investigations.
