Vicarious Liability

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1. Introduction
“Vicarious” means, “in place of another”. Although we are generally only liable for our own wrongful actions in certain circumstances a person who is not at fault can be held liable for the delict of another. This usually occurs in partnership, agency, motor car accidents and employment, these are instances where there is a special relationship between the person held accountable and the person who committed the delict which provides allows for the former to incur the liabilty. The object of this assignment is to explain the principle of vicarious liability and show which instances it applies to. Reference will be made to decided cases and statutes.

2. Employer- Employee Relationship
The employer- employee relationship is one of the most common occurrences of cases of vicarious liability. The most accepted reason for conferring liability to the employer is that by assigning a task to the employee, the employer creates a risk of harm and is thus under a duty to ensure that the employee’s work does not cause injury or harm to others whilst carrying out his duties for the employer. This was established in Feldman (Pty) Ltd v Mall that: “ a master who does his work by the hand of a servant creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by the servant’s improper conduct or negligence in carrying on his work and that the mere giving by him of directions or orders to his servant is not a sufficient performance of that duty. It follows that if the servant’s acts in doing his master’s work or his activities incidental to it or connected with it are carried out in a negligent or improper manner so as to cause harm to a third party the master is responsible for that harm” There are three requirements which must be fulfilled in order to hold the employer liable: * There must have been a delict committed.

* There must be an employer - employee relationship at the time the delict is committed. In Gibbins v Williams, Muller, Wright &MostertIngelyf en AndereGibbins instituted an action for damages for injuries sustained at a university orientation ceremony which was permitted by the house father A, when he dived into a mud bath and injured his back leaving him paralysed. In determining whether the university could be held vicariously liable for the omissions of the house father, A the court looked at the relationship between A and the university. The court found that A and the university had a relationship of a contractual nature based on the contents of the regulations of the university, and the regulations provided for the element of control over A by the university, as well as for remuneration for A’s serves and the university’s right to terminate A’s services. This indicated an employer- employee relationship between A and the university which rendered the university liable for the harm suffered by Gibbins. * The employee must be acting in the course and scope of his employment. The test for this was formulated in Minister of Police v Rabie which outlined that any act done by the employee solely for his own interests and purposes falls outside the course and scope of employment even though it is occasioned by his employment. Further that in deciding whether the act was in the servant’s own interests one must also look at his intention. This is the subjective part of the test. However if the there is a sufficiently close link between the employee’s act for his own interests and purposes and the business of the employer, the employer can be held liable. This is the objective part of the test.

Minister of Police v Rabie also established that the state as an employer can also be held liable for the actions of its employees, provided that all three requirements are also met. On the same principle, a master (employer) is not...
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