Vicarious liability: Easy to understand, difficult to adjudicate

May 1st, 2017

By Leslie Kobrin

It is a well-known principle in South African law that an employer is vicariously liable for the negligent act of his or her employee or agent, when the employee or agent acts negligently while in the course and scope of his or her employment. However, the question that remains to be answered is: What is the position when the employee deviates from his or her employment to perform a personal errand during his time of employment and in that time commits a negligent act?

The jurisprudential foundation for the above issue was discussed in Feldman (Pty) Ltd v Mall 1945 AD 733.

In that case, while driving his employer’s motor vehicle, the employee went to perform a personal errand, consumed alcohol and was involved in a motor collision, which was due to his negligence. The majority comprising the Appeal Court Bench found that the employee never entirely abandoned his employer’s work as throughout the entire episode he had custody and control of his employer’s motor vehicle. In this instance, the court held the employer vicariously liable.

In the case of Minister of Police v Rabie 1986 (1) SA 117 (A) the plaintiff sued for damages for wrongful arrest and assault. The police officer who made the arrest was an engineer in the employ of the police. At a time when off duty and in plain clothes, he made the arrest. He encountered the plaintiff, introduced himself as a police officer, took the plaintiff to the police station, opened and filled out a docket, and wrongfully charged the plaintiff with housebreaking. The minister was held liable and in passing judgment Jansen JA held that although the policeman acted off duty outside of the scope of his employment, his clear intention was to arrest the plaintiff. This is a subjective test. On the other hand if there is a close link between the employees act and his personal interests but for the business of his employer, the employer would be liable. This is the objective test. In conflating the two tests to the facts, he found the employer liable.

The Constitutional Court (CC) applied this test in K v Minister of Safety and Security 2005 (6) SA 419 (CC), but went further in holding that:

  • Applying the subjective test and the objective test both questions must be answered in the affirmative.
  • In the objective element the court is obliged to articulate whether there is a sufficient connection between the wrongful act and the employment and the application of this test should not offend the Bill of Rights or be at odds with our constitutional order.

Thus the common law of vicarious liability was developed in two essential respects.

Firstly, the normative considerations at play must be articulated by the court. Secondly, a new test, namely, that the imposition of vicarious liability must embrace the normative conditions.

In the K matter three off-duty police officers offered the plaintiff a lift home. Clearly in offering her a lift home they were acting in the fulfilment of their duties as police officers. On route they raped her and abandoned her on the side of the road. In this case the CC held that the police officers and their employer carried a constitutional duty to prevent crime and protect members of the public. Secondly by accepting the lift offered to her, she placed her trust in them to deliver her safely to her home, which was reasonable for her to do in these circumstances. Thirdly, there was a simultaneous commission and omission. The commission was the actual rape and the omission was they failed to protect her from harm in offering her the lift when it was reasonable for them to do so.

The CC dealt with this very issue in the case of F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC) the fact were strikingly and disturbingly similar to the facts in the K matter. The police officer offered a 13-year-old girl a lift home from a night club. He was off-duty, in plain clothes and had himself been at the night club. He was, however, on standby, which meant that he could be called to be on duty at any time and for this reason he was given use of an unmarked motor vehicle. In the vehicle the girl noted police dockets and asked the officer what these were and he said he was a detective, which made her realise he was a police officer. He took her to a secluded spot where he raped her. In this case, in holding the minster liable, the court held that the state’s constitutional duty to protect the public, the trust the public is entitled to place in the police, the significance of the officer being off duty but on standby, the simultaneous commission of the rape and his omission to protect the plaintiff, and the existence of an intimate link between the officer’s conduct and his employment. Mogoeng J (as he then was) noted that these elements complemented each other in determining and holding the minister vicariously liable.

In another matter, the Supreme Court of Appeal (SCA) in Minister of Safety and Security v Booysen (SCA) (unreported case no 35/2016, 9-12-2016) (Makgoka AJA (Leach JA, Wallis JA and Schoeman AJA concurring. Bosielo JA dissenting)), the police officer was on duty as a reservist in police uniform and armed with a police pistol working night shift. He went to have supper with the plaintiff with whom he was in an intimate relationship, which he did often. He was dropped off there in a police vehicle and was to be fetched by his colleagues when done with supper. After eating supper he and the plaintiff sat outside. Suddenly and without warning he got up, drew his pistol, shot the plaintiff in the face and turned the pistol on himself and shot and killed himself. No one at the house had any inkling of his intentions.

The SCA ruled that it was common cause that the shooting was not foreseen by the plaintiff and there was no sign that the officer would act as he did. Moreover, there were no problems in the relationship. He held that there was no connection between him visiting the plaintiff and his duties as a police reservist. She did not fall in love with him because he was a policeman. Whereas in the preceding cases there was an element of trust, which the victims placed in the policemen, such element did not arise in this case. The court found, no link between the act he performed and his duties as a police reservist despite the fact that he was there in police uniform and he carried a pistol.

On this basis, Makgoka AJA found there was not a strong and significant connection between the conduct of the police reservist and his employment by the police and as such ruled that vicarious liability cannot be imputed to the police.

Bosielo JA wrote the dissenting and minority judgment. He found that the following common cause facts existed in this case namely, the police officer was on duty on the night in question, he was dressed in full police uniform, he carried a police pistol, he had been dropped off at the plaintiff’s home for supper in a police vehicle, that he had arranged to be fetched from the plaintiff’s home in a police vehicle to continue with his duty, but for him having shot and wounded the plaintiff and committing suicide, and that he had been assigned to attend complaints by members of the public. He also found that it could not be disputed that he assumed his official duties the moment his shift started until the time he knocked off duty. Should there have been an attempted burglary at the plaintiff’s home, while eating his supper, he would have been expected to act in his official duty. The normative values expressed in the F matter must not be seen in isolation, but holistically to determine if they complement one another in order to establish vicarious liability. At para 51 of the judgment, Bosielo JA stated:

‘Does the fact that the deceased shot his girlfriend at her home whilst he had gone there to have supper make any difference? Simply put, does the fact that the deceased was on a break to eat his supper, sever his links as a police officer with the Minister to a point where it destroys any basis of a possible vicarious liability on the part of the Minister? I think not.’

He thus found that the normative factors constitute a sufficiently and intimate connection between the shooting of the plaintiff and the police reservist, and his employment by the employer to combat crime. This, he found to be in line with the sprit, purport and objects of the Bill of Rights. For these reasons he found the existence of vicarious liability could be imputed to the minster.

The article by Siyabonga Sibisi ‘Vicarious liability of employer for employee’s frolic: More clarity on detour issues’ (2016 (Nov) DR 52) clearly sets out the legal principles, which will be applied in cases where an employee, while performing tasks allocated to him or her by his or her employer deviate from such duty to embark on a frolic of his or her own and on the course thereof acts negligently.

I submit that the principles of vicarious liability are easy to understand but difficult to adjudicate as is clearly seen in the case of Booysen. Two meticulous descriptions of the same facts and application of the same principles led to two different conclusions. A careful analysis of all the facts and applying them to the principles enunciated above are required in each case.

Leslie Kobrin Dip Iur (Wits) Dip Bus Man (Damelin) is an attorney at Bove Attorneys in Johannesburg.

This article was first published in De Rebus in 2017 (May) DR 28.