VICARIOUS LIABILITY Flashcards
Define Vicarious Liability
Strict liability resulting from when the employer is held liable without fault for an employee’s wrongdoing and the delictual liability of the employee is transfered to the employer
General rule
An employer is vicariously liable, regardless of the absence of fault on the employer’s part, for the employee’s delicts when these are committed in the course and scope of employment
Requirements
- There must be an employer employee relationship at the time when the delict is committed: a contract of service must exist
- Employee must commit delict
- Delict must be committed by employee while acting within course and scope of employment
Principles
- Minister of Police v Rabie: held that even where employee deviated from scope of employment, employer may still be liable if employee acted solely for his or her interests in situation brought about by employment.
- Courts look at whether there is a sufficiently close link b/w employee’s act for own purposes and business of employer
- Risk of danger
K v Minister of Safety: Facts
K and her boyfriend had a fight in a nightclub and he refused to take her home. She walked to the nearest petrol station and was offered a lift by three police men. The police men took her somewhere and raped her in turn at knifepoint
K V Minister of Safety: Issue
whether the State can be held vicariously liable for the deviation of the acts by the policemen and that it can be said that they were still acting in the course and scope of the employment
K v Minister of Safety: Principles
- There must be an employer employee relationship at the time when the delict is committed: a contract of service must exist
- Employee must commit delict
- Delict must be committed by employee while acting within
course and scope of employment
- Is there a sufficient close link b/w 1 + 3
K v Minister of Safety: Application
SCA: there’s no close link b/w 1 +3 in the sense that the policemen were acting out of their own selfish interests. The action was not authorized by the Minister.
CC: The police were on duty, in uniform travelling with a police car and the business of the Minister creates a foreseeable risk that people would trust policemen offering assistance.
The harm must be foreseeable and there must be a close connection b/w acts of the employee and instructions of the employer in furtherance of the business interests
K v Minister of Safety: Conclusion
CC held that the policemen abused their power knowing that a civilian like the plaintiff would trust the police because of their known duties. It is reasonable to infer that the plaintiff would have never accepted the lift if the policemen were not on duty, wearing uniform and travelling in a state car. There is a close link b/w the acts of the policemen and the employer and Minister is held vicariously liable
Stallion Security v Van Staden: Facts
Mr. Khumalo was employed as the Appellant’s site manager at the Bidvest head office to conduct regular inspections of the other security guards who were on duty, this included unexpected/after hour visits to Bidvest’s premises. Furthermore, his scope of employment included inspections of the interior of the building by using a bypass/override key in order to do so. In October 2014, Mr. Khumalo continuously failed to attend at work, claiming that he was ill and unable to report to duty. Due to his failure to complete his work as the site manager, the risk manager at Bidvest requested that the Appellant remove Mr. Khumalo from his position. The Appellant however, already granted Mr. Khumalo sick leave.
On or about 29 October 2014, Mr. Khumalo “hired” a firearm and, knowing that the Deceased often worked late, attempted to rob the deceased and locate a petty cash box. He attempted to do so on numerous occasions. A few days later, Mr. Khumalo shot and killed the Deceased after he was escorted out of the head office by Mr. Khumalo and taken to a shopping centre to withdraw money from an ATM.
Stallion Security v Van Staden: Issue
whether the Stallion Security Company was vicariously liable for the Respondent’s claim for loss of support as a result of the death of the Deceased
Stallion Security v Van Staden: Principles
- Ordinarily, an employer will be held vicariously liable for an employee’s wrongful conduct committed during the course or within the scope of his/her employment.
-Difficulties arise in circumstances where an employee commits an intentional wrongful act, which is entirely for his/her own purpose (as in the above matter). - The vicarious liability test is applied on a case by case basis and objectively by asking the question of whether the delict committed is “sufficiently connected to the business of the employer” in order to render the employer liable.
-In other words, whether a link exists between the wrongful act and the conduct authorised by the employer to justify the vicarious liability (the “risk liability”).
Stallion Security v Van Staden: Conclusion
The factors considered were as follows:
1. whether liability should lie against the employer, rather than concealing the decision surrounding ‘scope of employment’ and ‘mode of conduct’;
2. whether the wrongful act is sufficiently related to the conduct authorised by the employer in order to justify the employer’s vicarious liability (whether a connection exists between the creation or enhancement of a risk and the wrong that stems from the conduct)
3. other factors such as:
- the opportunity that the employer afforded the employee to abuse his/her power
- the extent to which the wrongful act may have furthered employer’s aims
- the extent to which wrongful act was related to friction/confrontation/intimacy inherent in the employer’s enterprise
- the extent of power conferred on the employee in relation to victim
- the vulnerability of potential victims due to an employee’s wrongful exercise of his/her power.
Although Mr Khumalo acted on his own accord, his position and duty creates the link conditio sine qua non harm and loss
Appellant is liable
