Understanding Vicarious liability: Part 1

A bus driver is carrying 70 passengers from point A to B. He is drunk and driving at an excessive speed, fails to negotiate a curve.

The bus is involved in an accident that claims the lives of all the passengers on board. The driver perishes as well in the accident. All of a sudden, the families of plus 70 passengers are plunged into mourning, not to mention unplanned funeral expenses.

Some of the passengers leave young children who still need maintenance as they are of school going age.

Spouses of the deceased are left stranded as the only breadwinner they ever knew has gone.

This story sounds familiar right? In fact, you may have read such stories in the press or social media. The question is who do you turn to for relief?

A security company through its employees is moving cash in transit for a client from point A to B.

“Warden-turned-poacher” scenario arises, and suddenly the security guards decide to do a money heist themselves and disappear into the thin air. Nothing is recovered to date. The client is still waiting for their money, and as a matter fact they need it because that is what they paid you to do? You may have heard these stories. Who does the company sue in such an instance for its money?

You are renovating a site, and one of your employees negligently causes damage to your customers property. The customer wants his or property fixed.

Employer beware

As a business, one of the things that you need to understand is that you can be held liable for the sins of your employees. The doctrine of vicarious liability states that an employer is vicariously liable for all delicts committed by his or her employees (who are not independent contractors) when they are acting in the course and within the scope of their employment at the time the delicts were committed.

Culpa (actionable negligence or fault) is the basis of the liability as, in a way, the employer is being held responsible for employing a “negligent” employee even where no fault is attributable to the employer.

Perhaps you may be wondering what the answer to the above case studies is, the answer is that the employer can be liable for the sins of the employees. This means who you employ as a business is important. They can send you in liquidation. Imagine the case of the late bus driver.

The employer has to pay for the funeral costs for each of the victims. The employer can also be liable for several other claims depending with how knowledgeable the survivors are of the rights in terms of the law.

The party suing the employer does not need to prove that the employer has been at fault, for instance, by negligently employing an incompetent employee or by negligently failing to give proper instructions to the employee.

The doctrine, based as it is primarily on the dual grounds of culpa and social policy, is peculiarly born and bred of the law of delict. The employer is vicariously liable even though the employee committed the delict in circumstances in which the employer neither knew nor should reasonably have known that the delict would be committed by his or her employee (G. Feltoe).

Can you sue the employee also for negligence?

The answer is yes. The employee can also be liable for his or her own delict but in practice people avoid suing the employees for the obvious reason that many times the employee he or she will frequently lack the financial resources to be able to pay compensation. The employer is usually in a much stronger financial position hence they are always targeted in such law suits.

Can an employer sue an employee for negligence?

This question is answered in Quest Motor Corporation (Pvt) Ltd v Nyamakura 2000 (2) ZLR 84 (H) where the Court held that there is no reason in principle why an employer who has suffered loss as a result of the negligent performance by an employee of his or her duties should not be able to claim damages from the employee.

It is an implied term of a contract of employment that an employee will exercise skill and care in the performance of his or her duties. This must be combined with the employer’s duty to provide all necessary assistance.

However, if the employee does not hold himself or herself out as possessing any special ability or skill, it may be that the employee undertakes no responsibility, and the employer would be held to have incurred all risks.

The employee in that particular case did not hold himself out as possessing any special skills or attributes. P had decided that he was suitable for the position, but did not put in place any supervisory procedures to ensure that he carried out his duties. The employee’s failure was due to incompetence rather than negligence. The employer was the author of its’ own misfortunes.

Justification for suiting the employer

What is the justification for suing an employer for the sins of his employee. This stems from social policy that has been developed from a number of considerations. The doctrine finds fortification from the fact that;

The employer who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.

By instructing employees to engage in activities, the employer creates the risk that the employees may cause harm to others and the employer also has the capacity to control his or her workers’ activities;

The employer is usually in a far better financial position to compensate the injured party than the employee who will often not have the financial resources to pay compensation and, as between the employer and the employee, it is therefore, unfair to expect the employee to pay compensation for a delict arising out of performing work on behalf of the employer;

The employer, which is often a sizeable enterprise rather than a single individual, can far better absorb losses of this description by taking out insurance and by way of distribution of costs to customers by increasing the price of products or services (i.e. the employer can afford insurance whereas the employee often cannot). (See Mungofa v Muderede & Ors HH-129-03.)

Requirements for vicarious liability

There are two very important for a claim of vicarious liability to succeed. These are that; the employee is a “servant” and not an independent contractor; and the employee is acting in the course of his employment.

The first part is important in the sense that once its proven that the person in question is not an employee, then there is no claim for vicarious liability that arises.

Even if the employee in question has no written contract, the Labour Act creates a contract for the parties once it is shown that the person performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act (Section 2).

Section 12 of the Labour Act, provides that; “Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

There is no vicarious liability for the delicts of independent contractors. An independent contractor is a person employed to do work who is not subject to the control and direction of the employer as to the manner he does the work.

A person who is employed as a “servant” is subject to the employer’s control and direction both as to what work he does and the manner in which he carries out the work.

The second part is also important as it speaks to course of employment. What this means is that the employer is not liable for everything that the employee does as long as they are not within the scope and course of employment.

It is not sufficient that the employee committed the delict during his or her ordinary work hours. If the employee does something which is entirely for his or her own benefit and which does not form part of his or her duties as an employee in that business, the employer will not be held liable.
To be continued next week…
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis.

They are not meant to create an attorney-client relationship or constitute solicitation.

No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara@gmail.com.-ebusinessweekly