Vicarious Liability

Expanding the Scope of Employer Responsibility

This one time, my son was playing football with his friends when one of them kicked the ball and struck my car. Light-heartedly, I remarked that I would sue his parents if he broke my window. This comment piqued my son’s curiosity, prompting him to ask, “Why would you sue his parents if it was him who broke the window?” I replied, “Because parents are the ones with the money to repair my car.” In hindsight, I probably missed an opportunity to explain to both my son and his friends that, in such circumstances, the parents could be responsible as they could be deemed “vicariously liable” for the damage caused by their child to my vehicle. So, what exactly is vicarious liability?

Well, vicarious liability is a legal concept where one party can be held responsible for the actions of another party. More formally, it is the imposition of strict liability on one person for the delict committed by another, provided that a particular relationship exists between the parties. Common examples of such relationships include an employer and employee, a vehicle owner and the driver, or the state and a public school or hospital.

When an employee commits a delict within the scope of employment, the employer is held strictly liable for the damage caused, even though the employee remains delictually liable. This strict liability regime, which does not require any fault on the part of the employer, was received from English law and has been subject to various theoretical explanations.

Several theories have been advanced to explain the rationale behind the employer’s liability:

Culpa in Eligendo (Fault in the Selection of an Employee): This approach presumes that an employer is negligent in choosing an employee if the employee later commits a delict. Although historically influential, as shown Feldman (Pty) Ltd v Mall,¹ this theory is now generally regarded as a legal fiction.

Interest or Profit Theory: This theory posits that the employer should bear the burden of the employee’s actions because the employer reaps the benefits of the employee’s services.

Identification Theory: Under this view, the employee is seen as an extension of the employer; thus, the employer’s act is essentially the employee’s act.

Solvency Theory: This approach emphasises that employers are generally in a better financial position than employees and, therefore, should be better placed to compensate victims.

Among these, the risk (or danger) theory, which argues that the work entrusted to the employee inherently creates risks for third parties, has been particularly persuasive. This perspective finds support in cases such as Minister of Police v Rabie,² which emphasises fairness and justice in compensating injured third parties.

To establish an employer’s vicarious liability for a delict committed by an employee, three elements must be present:

1. Existence of an Employer–Employee Relationship

There must be a relationship where one person, by contract (a contract of service or locatio conductio operarum), renders their services under the control of another in return for remuneration. Notably, however, even individuals in informal or temporary roles (e.g., school prefects) can fall within the employer-employee ambit. In contrast, a contract of mandate (locatio conductio operis), which involves an independent contractor not subject to control, does not give rise to vicarious liability. Although control, or the capacity to control, is an important indicator, modern case law has moved beyond reliance on any single factor, favouring a multi-faceted test that considers all relevant circumstances. An example of this is seen in Midway Two Engineering and Construction Services v Transnet.³

2. Commission of a Delict

The employee must commit a delict. Given that the employee is also delictually liable, the employer’s liability is typically secondary. However, this does not prevent the employer from raising any defences available to the employee. In essence, both parties are seen as joint wrongdoers concerning the injured party, with the employer having a right of recourse against the employee.

3. Act Within the Scope of Employment

The employee’s wrongful act must be committed in the course of fulfilling contractual duties. If the employee wholly departs from these duties to serve personal interests, the act may fall outside the employment scope. The analysis here involves both subjective elements (the employee’s intent) and objective factors (the degree of connection between the act and the employer’s business). As stated in Minister of Police v Rabie, an act done for personal interests might still render the employer liable if it is sufficiently connected to the business of the employer. However, traditional approaches have generally excluded vicarious liability for intentional wrongdoing unless specific circumstances indicate otherwise.

What of Intentional Wrongdoing?

Historically, intentional wrongdoing was considered beyond the reach of vicarious liability. This position was re-examined in K v Minister of Safety and Security,⁴ where the Constitutional Court held the state vicariously liable for police rape. In K, a young woman was offered assistance by police officials, who, by virtue of their official duties and the trust reposed in them, committed both a commission (the rape) and an omission (failure to protect). Key factors that led to the extension of liability in this case included:

A statutory duty on the police to prevent crime and protect the public.
The plaintiff’s reasonable trust in the police officials.
A sufficiently close connection between the wrongful conduct and the police officials’ work.

The approach in K was reaffirmed in F v Minister of Safety and Security,⁵ (also a police rape case) where the court found a close connection between the rape and the police official’s role on standby duty. However, in Booysen v Minister of Safety and Security,⁶ the court held that the link between a policeman’s wrongful act (the shooting of his girlfriend) and his employment was too attenuated, primarily due to the absence of a trust factor, to sustain vicarious liability. Notably, dissenting opinions, such as that of Zondo DCJ, argued that factors beyond trust should be considered.

The Creation of Risk

An additional and influential factor in determining vicarious liability is the concept of risk creation. Employers create a risk that their employees might commit wrongful acts, whether through negligence or intentional misconduct. As articulated in Feldman (Pty) Ltd v Mall, by employing a servant, the master assumes a duty to mitigate the risk of harm resulting from the servant’s potential misconduct.

In Minister of Police v Rabie, the court indicated that the inquiry into whether an employee acted within the scope of employment should incorporate the risk created by the employer. Later judgments have consistently acknowledged that while risk creation is not an independent ground for liability, it is a critical factor in assessing whether the employee’s act is sufficiently connected to the employer’s business.

For example, in Grobler v Naspers Bpk,⁷ risk creation played a role in the context of sexual harassment in the workplace, leading to a finding of vicarious liability. In Stallion Security (Pty) Limited v Van Staden,⁸ the Supreme Court of Appeal further developed the common law by holding a security company liable for its manager’s murder of a client. The court emphasised that the risks created by employing individuals who may exploit their position can establish a “sufficiently close link” between the wrongful act and the employer’s business. As Van der Merwe JA noted, modern jurisprudence supports the view that the creation of risk of harm by an employer is a relevant consideration in determining vicarious liability.

So, returning to my original encounter with my son and his football-playing friends, had that ball indeed shattered my car window, the parents could very well have found themselves vicariously liable for their child’s actions. This is not simply because they have deeper pockets, as I jokingly suggested, but because the law recognises that those who exercise control and authority over others should bear responsibility for the risks that relationship creates. As the great Spiderman movie once taught us: with great power (or parental authority) comes great responsibility.

Written by Theo Tembo