| mekanik |

| the vicarious liability of an employer |

The term “vicarious liability” implies that legal liability is not based on the employer’s fault, but on the fault of the employee, meaning that vicarious liability exists even though the employer was not at fault.

 

Thus, even though the employer was not in any way at fault, the employer may nevertheless incur legal liability for any delict or wrongful acts that employees commit in the course of their employment.

 

If an employer hires a delivery driver, and the driver negligently causes damage to another vehicle, the employer is vicariously liable for that negligent act. The owner of the other vehicle would be entitled to sue the employer to recover the damages he suffered.

 

The risks involved for the employer are prominently portrayed when the principles of vicarious liability are applied to the above example. For example the employer will not escape vicarious liability for damage done by the employee merely because he instructs the employee not to drive carelessly, nor by ensuring that the employee is well-trained in driving skills. Even if the damage caused by the employee’s negligent driving occurred when the employee had, against instructions, deviated from the prescribed route in order to carry out some task of his own, the courts have found that the employer will still be liable unless “the digression was so great in respect of space and time that it cannot reasonably be held that the employee is still exercising the functions to which he was appointed”.

 

The pivotal question to be asked in such circumstances is weather the employee was acting in the course and scope of his employment. Once it can be determined that an employee had entirely abandoned his employer's work the employer will be able to escape the burdensome weight of vicarious liability.

 

Over the years case law has set out the criteria whereby a court determines whether or not the wrongful act in question was committed by the employee “acting in the course and scope of his employment”.

 

The courts have found that an employer is not liable for an employee’s actions if the latter “abandons his employer’s work entirely in order to devote his time to his own affairs”. Equally, if the harm to the third party is caused by the employee’s activities whilst the latter was going about his own affairs, unconnected with those of his employer, the employer will not be liable to the third party for harm caused by the employee.

 

On the contrary, if the employee abuses his employer’s business or performs his duties negligently, the employer will remain vicariously liable to third parties for any harm that is caused.

 

A recent application of the above principles can be found in the case of Minister of Safety and Security v Luiters. In this case, the Supreme Court of Appeal was requested to consider the situation where an off-duty policeman, pursuing someone who had robbed him, fired his service pistol and the bullet accidentally struck an innocent bystander, leaving the latter a quadriplegic.

 

The bystander sued the Minister of Safety and Security, as the employer of the policeman in question, alleging that the policeman (even though off-duty and even though he had not acted in accordance with police standing orders or the provisions of the Criminal Procedure Act) had been acting in the course and scope of his employment, when he negligently fired the bullet that caused the harm.

 

The Supreme Court of Appeal held that the Minister was indeed vicariously liable for the damage negligently caused by the policeman. Although he was off-duty at the time, and although he was pursuing someone who had attempted to rob him in his private capacity, he was not acting outside the scope of his employment.

 

The court stated unequivocally that “in pursuing the persons who had attempted to rob him, he could hardly have been unmindful of his authority as a policeman”. The court found that the wrongful act was not done solely for the purpose of the employee, which is a question requiring a subjective consideration of an employee’s state of mind.

In many instances, the employee may be a person of limited financial means and may be unable to pay a substantial damages claim, whereas the employer may have much deeper pockets.

 

It is clearly seen that the courts give a wide interpretation to the concept of “the course and scope of employment”, which makes it clear that the only effective protection that an employer can get from this wide-ranging potential liability in respect of vicarious liability, is by way of insurance. Every employer should ensure that his business has adequate insurance cover in this regard.

 

 

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