Imagine your employee crashes your company car while running a personal errand during work hours, and the victim sues your business. Is it fair for you, as the employer, to pay for the damages? This scenario highlights the concept of vicarious liability, a legal principle that plays a major role in South African law, especially in the workplace.

This article explains what vicarious liability is, how it works, the key court cases that shaped it, and what it means for employers and employees in everyday life.

What is Vicarious Liability?

Vicarious liability means that one person or entity can be held legally responsible for the actions of another. In South Africa, this most often applies to employers being held liable for wrongful acts committed by their employees while carrying out their work duties.

The basic requirements for vicarious liability are:

• There is an employer-employee relationship.
• The employee commits a wrongful act (known as a “delict”) during the course and scope of their employment.

Importantly, the employer does not need to be personally at fault. The law imposes this liability for policy reasons: to ensure victims have someone solvent to claim against, and to encourage employers to manage and reduce risks in the workplace.

An example is when an employer is liable for sexual harassment in the workplace. See this article.

An English judge wrote, in a case that considered the liability of a church for the sexual assault of one of its priests:

“The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise.”

When vicarious liability is attributed to an employer, the employer and employee will be held jointly liable. The employer may claim a contribution from the employee.

Key Legal Principles

For vicarious liability to apply, several principles must be met:

• Scope of Employment: The wrongful act must occur within the scope of the employee’s job duties. If the employee was doing something related to their work, even if they did it poorly or negligently, the employer can be held liable.
• Control and Authority: The employer must have some level of control over the employee’s actions, either directly or indirectly, which establishes the employment relationship.
• Frolic and Detour: Employers are not liable for all actions of their employees. If an employee acts entirely outside the scope of their job (a “frolic of their own”), the employer may escape liability.

For example, if a delivery driver assaults someone in a road rage incident while taking a detour to visit a friend, the employer could argue that the driver was acting outside their work duties, and the employer should not be held responsible.

Court Cases

Minister of Police v Rabie (1986)

This landmark case involved an off-duty police mechanic who assaulted and wrongfully arrested a civilian. The key question was whether the state, as the employer, was liable for the actions of an employee who was not officially on duty.

The court developed a two-stage test:

• Subjective Test: Was the employee acting in the interests of the employer or for personal reasons?
• Objective Test: Even if the employee acted for personal motives, was there a sufficiently close link between the wrongful act and the employee’s duties?

The court found the state liable because the employee used his authority as a police officer, creating a “sufficient connection” between his job and the wrongful act.

K v Minister of Safety and Security (2005)

This Constitutional Court case involved a woman who was raped by three on-duty police officers who offered her a lift home. The question was whether the state could be held liable for such a serious crime, even though it was not part of the officers’ official duties.

The court said yes, emphasizing constitutional values like the duty of the police to protect citizens. The “close connection” test must consider the nature of the job and the vulnerability of the victim. In this case, the officers abused power given to them by the state, so the state was held liable.

Practical Implications for Employers

Vicarious liability places responsibility on employers for the wrongful acts of their employees, not as a form of punishment, but as a recognition that employers benefit from the work employees do. The law expects employers to share in the risks that come with that benefit, particularly in situations involving vulnerable individuals or where harm is foreseeable.

To manage these risks, employers should implement proactive measures such as training staff on acceptable conduct, supervising high-risk roles, enforcing clear workplace policies, and obtaining liability insurance. While these steps can’t guarantee protection from liability, they significantly reduce the likelihood of incidents and may help limit potential damages. Legal advice is also essential in navigating specific risks and ensuring compliance with the law.

Conclusion

Vicarious liability serves important goals in South African law by ensuring that victims of wrongful acts by employees have a practical remedy, often through a more financially secure employer. It also incentivises employers to properly train, supervise, and guide their staff, promoting safer and more accountable workplaces. At its core, the doctrine is based on fairness—recognising that since employers benefit from their employees’ work, they should also bear some responsibility for the risks involved.

However, the law also sets limits. Employers are not expected to carry the burden for every act an employee commits, especially when those actions have no connection to the job. By understanding the key principles and landmark cases, employers can better manage their legal exposure. Ultimately, vicarious liability is not just about assigning blame; it’s about promoting responsible conduct and providing justice where harm has occurred.