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The vicarious liability of an employer for the delicts of employees

One of the risks of carrying on a business is that, in law, an employer is vicariously liable for the delicts (unlawful acts) committed by employees in the course and scope of their employment.

Vicarious liability exists even though the employer was not at fault

The term “vicarious liability” connotes that legal liability is not based on the employer’s fault, but on the fault of the employee.

Hence, even though the employer was not in any way at fault (for example, even if the employer had been careful to hire conscientious employees and gave them proper training in how to perform their duties), the employer may nevertheless incur legal liability for any delicts they commit in the course of their employment.

So, for example, if an employer hires a driver for his delivery truck, and the driver negligently causes damage to another vehicle, the employer is vicariously liable for that negligent act, and the owner of that other vehicle is entitled to sue the employer to recover the damages he suffered.

Another example is where an employee, in the course of employment, writes something or says something defamatory of another person. The employer will be vicariously liable for the compensation due to the person who was defamed.

An employer is not vicariously laible if, at the time in question, an employee had entirely abandoned his employer's work

There have been a host of reported judgements over the years, which have laid down the criteria whereby a court determines whether or not the wrongful act in question was perpetrated 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 master’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.

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

It is easy to see the risks that these principles pose to an employer. In the example, given above, of an employer employing someone to drive a delivery truck, 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 Minister held liable for the negligent conduct of an off-duty policeman

A recent application of these principles can be found in Minister of Safety and Security v Luiters 2006 (4) SA 160. 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 (said the court) not acting outside the scope of his employment, for “in pursuing the persons who had attempted to rob him, he could hardly have been unmindful of his authority as a policeman” and he was, moreover, using his service pistol. In short, 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.

In the light of judgments such as these, which give a wide interpretation to the concept of “the course and scope of employment”, it is 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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