Vicarious Liability
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
“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
References: Books NeethlingJ,Potgieter JM (2010) Law of Delict, 5th Edition, LexisNexis, Durban Pattern v Caledonian Insurance Co. 1962 (2) SA 691 (D) Randbank BPK v Santamverserkeringsmaatskapy 1965 (4) SA 363 [ 3 ]. 1987 (2) 82. [ 4 ]. 1986 (1) SA 117 (A). [ 8 ]. 1991 (1) SA 1. [ 9 ]. Neethling J, Potgieter JM, Visser PJ, Knobel JC (2006) Law of Delict, 5th Edition, LexisNexis Butterworths, Durban. [ 11 ]. 2004 (4) SA 220 (C). [ 12 ]. 2004 (4) SA 220 (C) at p225. [ 15 ]. 1963 (4) SA. [ 16 ]. 1990 (3) SA 350 (c). [ 17 ]. 1985 2 SA 85 (NC) 93. [ 18 ]. 1962 (2) SA 691 (D) 695. [ 21 ]. 1995 (3) SA 941 (W) [ 22 ] [ 23 ]. 1956 (4) SA 519 (A). [ 26 ]. 1981 (4) SA [ 27 ] [ 28 ]. 1928 AD 143.