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Trust Maanda
Post Correspondent
AN employer is vicariously liable for the wrongs committed by his or her employee against a third party.
Vicarious liability is liability of an employer for the wrongful actsof his or her employee. In order for the employer to be liable, the employee must have committed the wrong while he or she was acting within the course and scope of his or her employment.
The employee must have been acting on the business of his or her employer.
According to J Burchell in Principles of Delict p 215: “The employer need not be personally at fault in any way, but the wrong of the servant (for which the servant remains personally liable) is imputed or transferred to the employer who often has the ‘deeper pocket’ or ‘broader financial shoulders’ to compensate the person injured by the servant’s negligence.”
The employer must choose an employee who is honest and sufficiently equipped to exercise care towards third parties.
By instructing his or her employee to engage in activities, the employer creates the risk that the employee may cause harm to others.
Vicarious liability usually arises from negligent performance of duty, but it can also arise from intentional and wrongful conduct of an employee committed outside the scope of his or her employment.
A security guard employed to guard, but ends up stealing the property of the third party he or she is assigned to guard, does so because his or her employment provided the opportunity to steal.
The employer is liable for two reasons.
First, the employer’s duty to the third party was breached by the employee it entrusted to perform its business of guarding the property and secondly, that by abandoning the employer’s work, the employee committed, not only a misconduct for his or her own benefit, but that abandonment constituted mismanagement in the performance of the employee’s work, which resulted inthe harm to the third party.
Liability arising out of wrongful arrest done by policemen are frequent situations in which the employer will be held liable for the intentional or wrongful conduct of the employee.
The standard test for vicarious liability is whether an employee was engaged in the affairs or business of the employer when the wrongful act occurred.
An employer is liable for any wrongful act committed by his or her employee which he has authorised or ratified, and is also liable for any wrongful act committed by his or her employee in the course of carrying out the employer’s instructions or while engaged in any activity reasonably incidental to the carrying out of those duties.
Where an employee commits the wrong while pursuing his or her own interests, he or she will be on a frolic of his or her own and the employer is not liable.
However, even where an employee commits a wrong while pursuing his or her own interests at the expense of the interests of the employer, the employer may still be vicariously liable.
The determining factor is the degree of deviation from the employer’s business.
If a driver who is sent by the employer on an errand to Dangamvura from Mutare City Centre, deviates into Old Chisamba in Sakubva, and an accident occurs while in Old Chisamba, his degree of deviation is slight. The employer may be vicariously liable.
The test to be applied is whether the circumstances show that the employee’s digression is so great inrespect of space and time that it cannot reasonably be held that he is still exercising the duties to which he or she was assigned. The employer is not liable if this is the case.
If a driver of a vehicle is strictly forbidden from carrying passengers, but does so while on his or her employer’s business, and an accident occurs, causing injury to the unauthorised passengers, due to the negligence of the driver, the employer is vicariously liable.
This is different from a situation where the driver had no authority at all to drive. In Wentworth-Wear v Zvipindu 2000 (1) ZLR (SC), the employer had dismissed his driver from employment a few days before the accident.
Despite the dismissal, the driver had subsequently taken the former employer’s commuter omnibus without the employer’s express authority.
The driver was involved in an accident.
The employer had dismissed the driver summarily contrary to the law, but the practical effect was that at the time the driver was involved in the accident he had no employer’s authority to drive the motor vehicle.
A dismissed employee who takes the former employer’s vehicle without its consent cannot be acting within the course and scope of employment because there is no existing employment at the time.
The principles of vicarious responsibility for an employee’s negligence cannot be extended to include a non-employee.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
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