Liability for damages caused by your independent contractor

The South African law of delict is, in general, based on fault.

If I cause injury or loss to you, I am legally liable to pay you monetary compensation if there was fault on my part, in the form either of an intent to do harm, or negligence.

An important exception to this rule is that an employer is vicariously liable for injury or damage caused by delicts (wrongful acts) committed by his employee if the latter, at the time of inflicting the loss or damage was acting in the course and scope of his employment or whilst engaged in any activity reasonably incidental thereto.

Thus, an employer is liable for injury or damage negligently caused by his employees, even though he (the employer) was not at fault in any way.

The employer’s legal liability in this regard is not based on the employer’s fault, but arises as a result of the employer – employee relationship.

For example, if I employ a driver who causes damage through his negligent driving while carrying out an errand for me, I am liable for the damage caused, and it is no defence for me to say that I hired my drivers with care and trained them properly. It is irrelevant that I, as employer, was not negligent; I am vicariously liable for my employee’s negligence.

In order to hold me legally liable, the injured party needs to show that his injury or loss was caused by the driver’s negligence and that the driver was acting in the course and scope of his employment when he committed the act that caused the injury or loss.

EMPLOYEES AND INDEPENDENT CONTRACTORS

The principle of vicarious liability applies only in respect of employees, not independent contractors.

An employee is someone who works under an employer’s control and instructions, such as a driver or a clerk.

An independent contractor is someone who carries out a specific piece of work, but is not subject to the employer’s control and instructions. If you call in an electrician to repair a fault in the wiring of your house, he is an independent contractor, not your employee.

The principle that an employer is vicariously liable for the delicts of its employees caused in the course and scope of their employment is important where an injured party is trying to secure compensation. Very often, the employee is a person of no financial means, and unable to pay damages, whereas the employer may have deep pockets.

The injured party is thus more likely to recover payment if, in law, he can hold the employer liable.

A RECENT SUPREME COURT OF APPEAL DECISION

There is a widespread misapprehension that an employer is never liable for damages caused by an 'independent contractor', employed by him, as distinct from an 'employee'.

This is not so, as was recently affirmed by the Supreme Court of Appeal in Chartaprops 16 (Pty) Ltd v Advanced Cleaning Services CC and Silberman [2008] ZASCA 115.

In this case, a Mrs Silberman visited a shopping mall in Johannesburg. In one of the passageways, a pool of some slippery substance had been spilled on the floor. She slipped on that substance and was injured.

The shopping mall was owned by Chartaprops, which had entered into a contract with Advanced Cleaning Services CC in terms of which the latter was to keep the floors of the shopping mall clean.

The question before the court was – who was legally liable to compensate Mrs Silberman for her injuries – Chartaprops (the owner of the mall) or Advanced Cleaning (who had a contract with Chartaprops to keep the floors clean)?

The High Court had found that the spillage in question had been on the floor for some thirty minutes by the time Mrs Silberman slipped on it, and that Advanced Cleaning had failed to put in place a system to clean up spillages promptly. The court concluded that Advanced Cleaning had been negligent, and that Chartaprops was vicariously liable for that negligence, and thus liable for Mrs Silberman’s damages.

The High Court accepted that an employer is vicariously liable only for the delicts of an employee committed in the course and scope of an employment, and is not vicariously liable for the acts of an independent contractor.

On appeal, the Supreme Court of Appeal made the important point that an employer – "might nonetheless be liable for harm that arises from negligent conduct on the part of an independent contractor but, where that occurs, the liability does not arise vicariously. It arises instead from the breach of the defendant’s own duty (in other words, the duty to take steps to guard against harm)."

The Supreme Court of Appeal said that, in law, the duty to guard against harm being done to other people may be such that the duty can be discharged only if reasonable precautions were in fact taken. In that event, the employer will be legally liable if the independent contractor fails to take those precautions.

In other words, the court held that in certain circumstances, an employer cannot escape legal liability by delegating to someone else (e.g. an independent contractor) the duty to take precautions to guard against harm being caused to third parties.

The crucial question will be whether, in the particular circumstances of the case, the employer himself was under a duty to take precautions, for if he was, then he will be liable for any damages if those precautions were not taken, irrespective of whether he had employed an employee or an independent contractor to take those precautions.

In support of this principle, the court cited the 1991 Appellate Division decision in Langley Fox Partnership (Pty) Ltd v De Valence in which the defendant had hired an independent contractor. The court held that the work which the latter was hired to do was inherently dangerous and, consequently, the employer ought to have taken reasonable steps to guard against the danger.

WHERE A HIGHER STANDARD OF CARE IS REQUIRED, THE DUTY TO TAKE PRECAUTIONS CANNOT BE DELEGATED

In the present case, the court said that in some cases the law will require of an employer to ensure that the necessary precautions are taken, whether by himself or by someone else, such as his independent contractor. Where this higher standard of care is called for, the duty to take precautions cannot be delegated, and the duty will be discharged only if those precautions are in fact taken.

The court held that the facts of the present case were such that the law imposed that higher standard of care, and commented that –

"A person who invites the public to frequent a shopping mall will be expected by members of the public to have ensured that the floors of the premises are reasonably safe and will expect to look to that person if they are not. ... In short, they are entirely reliant on the person in control of the premises to ensure that reasonable precautions are taken to keep the floor safe."

In the above case, the court said that the evidence established that the spillage had lain on the floor for some thirty minutes and this was an excessive time.

In the circumstances, Chartaprops, the owner of the mall, was held to be liable for the damages sustained by the plaintiff, Mrs Silberman.

Interestingly, and perhaps surprisingly, the court held that Advanced Cleaning Services CC, who had been contracted to keep the floor clean, was not jointly liable with Chartaprops vis-a-vis Mrs Silberman for the damages she had suffered. The court remarked in this regard that –

"I think it would be most unjust if the law were to require as a condition for taking up a mop and bucket in return for a wage that the cleaner should assume legal responsibility for the safety of the floors. I see no distinction when the person who wields the mop is not an employee but an independent contractor."