VICARIOUS LIABILITY


South Africans were shocked after the tragic fatal Pinetown crash that claimed 23 lives so far. The truck driver has been arrested and faces several counts of criminal charges.  We know that the driver of the truck is not the owner of the truck and in fact he is an employee of the owner of the truck.

The question that arises now is whether the employer, being the owner of the truck is liable in any way should a civil action be brought against the company.

The answer to the above question lies in the principle of vicarious liability. In short, vicarious liability refers to the strict liability of one person for the delict of another. It essentially means that one person can be liable for the damage caused by another person. It is liability without fault.

When looking at it from the employer-employee status point of view, it therefore appears that the liability of the employer will be as a result of the employee’s direct liability. The employer is held liable for the wrongful, culpable acts by the employee.

However, the question as to whether the employer is liable or not is not as easily determined. There are prerequisites that need to be satisfied for the liability to follow.  There must be an employment relationship in existence at the time that the delict is committed and further to this, the employee must have acted within the scope of his employment.  It therefore appears that when the employee commits a delict, the relationship between the wrongdoer and his employer at the time of the wrongdoing becomes important.

The Appellate Division (AD) as it was previously known, has held that “master who uses servants creates risk of harm to others if the servant proves to be negligent, inefficient or untrustworthy and it follows that if the servant’s acts in doing his master’s work or his activities are incidental to or connected with it are carried out in a negligent or improper manner so as to cause harm to a third party the master is responsible for the harm”.

Different tests have also been applied by the courts in order to establish if the employee was acting in the scope of his employment.

It therefore, appears that it is important to have rules and procedures in place that might, in future, mitigate against the liability of the employer as a result of the employee’s conduct or to at least cap the employer’s liability.

The conclusion therefore is, if there’s a sufficiently close link between the employee’s conduct and what the employer authorises to perform is established, the employer is vicariously liable.

 

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