The Dangers of Vicarious Liability as an Employer

There is already a common understanding that in circumstances where an employee is found to have acted negligently, or has caused damage or harm in some way, it is often likely that such an employee’s employer will often be held vicarious liable for the employee’s actions.

It is therefore important to determine to what extent such an employer will be held liable in the event that an employee, at the time of committing a negligent act, attended thereto in his or her personal capacity whilst in the ordinary course of business of the employer.

There are three common law requirements to determine the vicarious liability of an employer in standard matters, namely:

1. An employer-employee relationship must be established;

2. A wrongful act must have been committed by an employee; and

3. The employee must have committed the wrongful act whilst acting within the course and scope of his or her employment.

The problem with the above test came when determining vicarious liability in complex cases where an easy method to avoid such liability was for the employer to prove that an employee was acting outside the scope of his or her employment. There was accordingly an uncertainty in the law regarding the test for vicarious liability and case law was needed to develop the way forward.

Minister of Police v Rabie

One of the first of such cases was Minister of Police v Rabie, where the court created a test to be applied in cases which deviated from standard matters as set out above. This test provided that an employer may still be held liable even if the employee had abandoned his or her duties and committed a negligent act on his or her own, provided that there is a sufficiently close connection between the actions of the employee and the business of the employer.

This test created both a subjective and objective element, the subjective element explores the intentions of the employee when committing the act, and after the establishment of the subjective element, the objective element to the test has to be considered in order to determine whether or not there is a sufficiently close link to the negligent conduct of the employee and the business of the employer.

Minister of Safety and Security v Morudu and Others

In Minister of Safety and Security v Morudu and Others, the Supreme Court of Appeal (hereinafter referred to as the “SCA”) had the opportunity to re-apply the test as set out above. In this matter, the employee had been employed in the fingerprint unit of the police. He attended the Respondent’s house in an unmarked police vehicle in civilian clothing whilst on duty, as he believed that the Respondent was having an affair with the another individual (hereinafter referred to as the “deceased”), and accordingly the Respondent and deceased were unaware that the employee was a police officer. The SCA, after applying the test, held that the conduct of the employee was to further his own interest and that there was not a sufficiently close link between the conduct of the employee and the business of the employer and accordingly the conduct was deemed as a “radical deviation from the tasks incidental to his employment”.

Minister of Safety and Security v Booysen

In addition to the above, and to confirm their decision, the SCA in Minister of Safety and Security v Booysen was again presented with a matter where an employee, whilst on duty, in full uniform and carrying his firearm, attended the plaintiff’s home with whom he was in a relationship, to have dinner, where after, without reason, drew his pistol and shot the plaintiff in the face and then killed himself. The SCA held that there was no connection between the officer visiting the plaintiff and his duties as a police officer, the SCA concluded that there was no link between the act performed by the officer and his duties as an employee, even though he was there in police uniform and carried his firearm.

Although the underlying principles of vicarious liability are rather simple, the different approaches by our courts increase the burden of proof on an employer to show that there was no sufficiently close link to an employee’s conduct and the business of the employer.