We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.
But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?
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- The standard test applied to determine vicarious liability of an employer concerns a determination as to whether or not the wrong committed by the employee took place during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it – F v Minister of Safety and Security 2012 (1) SA 536 (CC).
- But, where an employee commits the wrong deviating from the normal performance of his/her duties entirely for his/her own purpose, the standard test for vicarious liability is not applicable – Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC).
What is the test to determine vicarious liability in deviation matters?
- Step 1 entails a determination as to whether or not the subjective intention of the perpetrator was to act solely for his/her own interest – this is a factual assessment.
- Step 2: if, indeed, the subjective intention of the perpetrator was to act solely for his/her own interest, then what needs to be determined, objectively, is whether or not the wrong committed is sufficiently connected to the business of the employer – this is a mixture of factual assessment and applying the law.
When would a sufficiently close link exist?
- In dealing with the aforesaid step 2, the starting point is to realise that the link has not been established when the business of the employer furnished the employee with a mere opportunity to commit the wrong.
- Something more than a mere opportunity is required to establish the requisite causal link.
- This requirement of ‘something more’ depends on the specific factual circumstances and the normative considerations relevant to each case.
- Lastly, what is also relevant is the role played in the creation of the risk of harm by the business of the employer.
Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA)
- The supreme court of appeal indicated that the law regulating vicarious liability, as developed in Minister of Police v Rabie 1986 (1) SA 117 (A) should be further developed – what was recognised is that the creation of the risk of harm (risk liability) in an appropriate case constitutes a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer.
- In determining whether or not the employer has created a risk of harm so sufficiently linked to the harm caused by the employee and the business of the employer, the following are, inter alia, relevant factors:
- whether or not the employer enabled the employee to commit wrong(s)
- whether or not this enablement created a material risk that the employee might abuse his/her powers
- whether or not the risk rendered a victim vulnerable
- Another relevant factor in Stallion Security was that the employer contractually undertook to protect the constitutional rights to personal safety of the employees of the client, whilst at the workplace, and placed the employee, who executed the deviant behaviour, in charge of this responsibility – this, in casu, provided a significant normative link between the employer’s business and the harm suffered by the victim (and his/her dependents).
