It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).
However, matters become a little bit more difficult when an employee commits a wrong entirely for his/her own purposes and the question arises as to whether or not the employer is vicariously liable.
What are some of the principles to be applied in determining whether or not an employer is vicariously liable under such deviant circumstances?
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- There is a specific test to be applied to determine vicarious liability in such deviation matters and this entails, firstly, to determine whether the subjective intention of the perpetrator was to act solely for his/her own interests (this is a factual assessment) and, thereafter, it is to determine, objectively, whether the wrong committed is sufficiently connected to the business of the employer (this is a mix of factual assessment and application of law).
- So, the vital question to determine is whether or not a close enough causal link exists between the business of an employer and the wrong committed by the employee and, in this regard, the following is of relevance:
- the link is not established when the business of the employer provided the employee with a mere opportunity to commit the wrong
- something more than a mere opportunity is required to establish the required causal link (Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 1695 (SCA)); Feldman (Pty) Ltd v Mall 1945 AD 733; Minister of Law and Order v Ngobo 1992 (4) SA 822 (A))
- In applying the relevant principles, it is important to determine whether the employer enabled the employee to commit the wrong and whether or not this enablement created a risk that the employee might abuse his/her powers, thus leading to the unlawful conduct.
