I do not share the court a quo's understanding of what is meant by 'pure economic loss' in the present context. I believe its meaning to be far less metaphysical. As explained by Harms JA in Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 1, it means simply this: '"Pure economic loss" in this context connotes loss that does not arise directly from damage to the plaintiff's person or property but rather in consequence of the negligent act itself, such as loss of profit, being put to extra expenses or the diminution in the value of property.' (See also Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) 497I-498H; Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para 14; Wille's Principles of South African Law 9 ed, (General editor: Francois du Bois) sv 'Delict' by Daniel Visser, 1105; Neethling, Potgieter & Visser, Law of Delict, 5 ed 268 et seq).

Thus understood, the Agency's claim, in my view, falls squarely within the ambit of pure economic loss. As formulated, its claim was for loss of revenue in the form of toll fees resulting from the closure of the road. The Agency did not allege, nor did it set out to prove in evidence, that it was the owner of the road; that the road was physically damaged by the collision; or that the closure of the road resulted from any physical damage to the road. The Agency's argument on appeal, that in terms of s 7 of the Act it was in fact the owner of the road on which the collision occurred, is of no consequence and misses the point. For present purposes the question is not whether the Agency is in fact the owner of the road. The point is that it did not rely on such ownership to support its claim.

Recognition that we are dealing with a claim for pure economic loss brings in its wake a different approach to the element of wrongfulness. This results from the principles which have been formulated by this court so many times in the recent past that I believe they can by now be regarded as trite. These principles proceed from the premise that negligent conduct which manifests itself in the form of a positive act causing physical damage to the property or person of another is prima facie wrongful. By contrast, negligent causation of pure economic loss is not regarded as prima facie wrongful. Its wrongfulness depends on the existence of a legal duty. The imposition of this legal duty is a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms. In the result, conduct causing pure economic loss will only be regarded as wrongful and therefore actionable if public or legal policy considerations require that such conduct, if negligent, should attract legal liability for the resulting damages (see eg Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) paras 12 and 22; Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA) para 12; Telematrix (supra) paras 13-14; Trustees, Two Oceans Aquarium Trust (supra) paras 10-12).

In this light, so Fourway contended on appeal, the Agency was obliged to allege in its pleadings not only that the negligent conduct relied upon was wrongful, but that it also had to allege and prove the facts relied upon to substantiate the considerations of policy giving rise to a legal duty on the part of Fourway's employee. As a result of the Agency's failure to adhere to these rules of litigation, so the argument went, neither the policy considerations relevant to the question of wrongfulness, nor the factual basis underlying such policy considerations, were identified and investigated during the trial. In consequence, so the argument concluded, it would be prejudiced if the issue of wrongfulness were to be summarily disposed of at the appeal. Fourway therefore suggested that, unless this court upholds its contention that the damages claimed are too remote – to which I shall presently return – the issue of wrongfulness should be postponed and decided with the rest of the issues concerning the quantum of the Agency's damages, which are standing over in any event.

The proposition that a plaintiff claiming pure economic loss must allege wrongfulness, and plead the facts relied upon to support that essential allegation, is in principle well founded. In fact, the absence of such allegations may render the particulars of claim exipiable on the basis that no cause of action had been disclosed (see eg Trope v SA Reserve Bank 1992 (3) SA 208 (T) at 214A-G; Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) 797E; Telematrix (supra) para 2). But, as we know, Fourway did not file an exception. The trial proceeded without any objection on its part. In the circumstances it would be futile to investigate whether an exception, if properly and timeously taken, would have been successful. As I see it, the question is rather whether, despite the lack of necessary allegations in the Agency's pleadings, Fourway had sufficient opportunity to produce the facts it would seek to rely on for the determination of the policy considerations pertaining to wrongfulness in its favour. Conversely stated, the question is whether Fourway has shown prejudice, in the sense that it would have conducted its case in a materially different way if the Agency's claim for pure economic loss had been properly pleaded. (See eg Shill v Milner 1937 AD 101 at 105; Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198; Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433; Stead v Conradie 1995 (2) SA 111 (A) at 122A-H.)

As I see it, the proposal by Fourway that the issue of wrongfulness be referred back for determination by the trial court therefore depends on the outcome of two discrete enquiries. First, can this court, on the basis of the facts available, decide that, as a matter of policy, Fourway should be held liable for the loss of revenue claimed by the Agency? If not, that would be the end of the matter. The Agency would have failed to make out a case. A decision on the other hand that the issue of wrongfulness should on the facts available be determined in favour of the Agency will lead to the next enquiry. The question is: can it be said that, if the issue of wrongfulness had been properly pleaded by the Agency, Fourway would have conducted its case any differently? If not, the Agency is entitled to succeed. It is therefore only a finding of potential prejudice on the part of Fourway that can justify a referral back to the trial court.