The scope of vicarious liability

Patrick Bracher

Most employers are unaware of the fact that they can be held liable for the actions of their employees and the latest Financial Institutions Legal Snapshot from Norton Rose Fulbright has an interesting article.

Vicarious liability, according to Abrahams and Gross, is where someone is held responsible for the actions or omissions of another. “The employer works through the employee and therefore a potential risk of harm is created for the employer in the event that the employee acts wrongfully. The employer does not even need to be at fault – this is thus a form of strict liability. In the event that an employee acted on a frolic of its own, the employer may still be held liable if it is determined that there is a close link between the business of the employer and the act or conduct of the employee.”

The act or conduct of the employee

On Monday 3 November 2014, the murderer, an employee of a security company, murdered the deceased. The cardinal issue in the appeal was whether the security company was vicariously liable for the resultant loss of support suffered by the deceased’s wife. 

The Gauteng Division of the High Court, Pretoria (per Brand AJ) held that it was but granted leave to appeal to this court. The deceased’s wife sued both the security company and the employee (the murderer) for delictual damages consisting of loss of support as a result of the death of the deceased. Her claim against the security company was founded only on vicarious liability for the wrong committed by its employee. 

A material risk created

According to Patrick Bracher, Director at Norton Rose Fulbright South Africa, the Supreme Court of Appeal has extended the scope of vicarious liability.   

In reference to the above-mentioned case, “The security company was found liable for a murder committed by their site supervisor in an attempt to rob the deceased who was the financial manager at the premises which the security company were required to guard. The court held that placing the murderer in a position where he had full access to the premises created a material risk that he might abuse his powers. The security company had the responsibility to protect the safety of persons on the premises. Placing the murderer as site supervisor in charge of this responsibility created a significant link between the security company’s business and the harm suffered by the deceased’s wife as a result of the murder,” said Bracher. 

Bracher emphasised that the court said the matter was ‘by no means free of difficulty’ but found there was a close enough link established between the business of the security company and the death of the deceased, sufficient to create vicarious liability on behalf of the security company even though the motive of the murderer, who had got into debt he could not manage, was robbery for his own purposes.

According to the Supreme Court of Appeal of South Africa the murderer knew the deceased often worked late. He had also heard that premises kept a petty cash box in the office area. He decided to rob the deceased and to attempt to locate the petty cash box. 

Linking employee’s acts and business of employer

The general principle is that an employer is vicariously liable for a wrong committed by an employee during the course or scope of their employment. “Difficulties arise when the employee commits an intentional wrong entirely for the employee’s own purposes,” said Bracher.

The courts, according to Bracher, now accept that though an act may be done by an employee solely for their own interests and purposes, if there is a sufficiently close link between the employee’s acts and the purposes and business of the employer, the employer may be vicariously liable.

According to the Supreme Court of Appeal, the security company undertook the contractual duty to provide 24-hour access control services at the premises. There can be no doubt that the purpose of these services was to protect the premise’s staff and property from harm. Thus, the security company was contractually burdened with the responsibility to protect the constitutional rights to personal safety of the employees of premises, including the deceased, whilst at their workplace. The security company placed its employee in charge of discharging this responsibility. This factor provides a significant normative link between the security company’s business and the harm suffered by the deceased’s wife.

“The site supervisor was able to enter and exit from the office area without detection or concern, he had intimate knowledge of the layout and security services, an instruction to make unannounced visits to the premises at any time, knowledge of who was working late and possession of override keys to the office area. This created a material risk that he might abuse his powers,” said Bracher.

“There seems to be little escape for security companies and their insurers from vicarious liability for the acts of employees,” concluded Bracher.

Writer’s thoughts:
As mentioned above, as long as the employee is acting within the course and scope of his or her duty… the employer will be held liable. In Neethling’s Law of Delict, he came to the conclusion that, ‘in the past, present and future of vicarious liability in South Africa, as a general guideline, employers should be held liable for delicts committed by their employees if their employment position and work conditions enabled them to commit the delict.” Damages should not be borne by companies in all conditions, but only in those circumstances which it is reasonable for them to do so. Do you agree? If you have any questions please comment below, interact with us on Twitter at @fanews_online or email me - myra@fanews.co.za