Vicarious liability: not simply a matter of legal policy

• Jurisdiction: South Africa
• Pages: 21-43
• Author: Hartmut Wicke
• Date: 27 May 2019
• Published date: 27 May 2019
• Citation: (1998) 9 Stell LR 21

VICARIOUS LIABILITY: NOT SIMPLY

A MATTER OF LEGAL POLICY

1

Hartmut Wicke

LLM

1 Introduction

Vicarious liability may be defined as the liability of one party for a

wrong committed by another. In contrast to personal liability, vicarious

liability is imposed on a person who is not at fault himself: an employer

cannot rely on the defence that, for example, he or she had exercised care

in the selection of an employee, who later committed a delict. At first

sight, the imposition of vicarious liability might appear to be deeply

unjust: A's property is taken away and given to B, because C has injured

B. It is nowadays accepted that vicarious liability does, in most

circumstances, promote justice. However, the theoretical analysis of

vicarious liability has always produced some uncertainty. This concerns

the social justificiation as well as the judicial basis: vicarious liability runs

counter to the elementary principle of the law of delict that the person

held responsible must be to blame for the conduct in question.

2

The

employer's liability has therefore been characterised as "an anomaly

which can only be explained on grounds of social policy".

3

In addition to theoretical problems, many questions revolve around the

practical application of vicarious liability. It appears that only one

principle in this context is generally accepted, namely that an employer is

liable where the delict of his or her employee was committed in the course

of employment. Difficulites start with the question of who qualifies as an

employee in contrast to a so-called "independent contractor". Once it has

been determined that the wrongdoer is the employee of another person, it

has to be decided whether the particular act falls inside or outside the

scope of employment, a stage of inquiry which usually involves difficult

marginal questions.

Furthermore, vicarious liability also applies outside the relationship of

employer and employee. It will be seen that South African law recognises

This article is based on my unpublished LLM-thesis

Vicarious Liability in Modern South African Law

(University of Stellenbosch 1997). I would like to thank my supervisor prof MM Loubser for the

invaluable guidance and criticism in the completion of the work.

2

On the basis of vicarious liability in positive law see Barlow

The South African Law of Vicarious

Liability in Delict and a Comparison of the Principles of other Legal Systems

(1939) 184; Scott

Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg

(1983) 30

et seq;

Olivier "Enkele Verdere

Beskouings oor Deliktuele en Verrykingsaanspreeklikheid" 1965

THRHR

56 63; Van der Merwe &

Olivier

Die Onregmatige Daad in die Suid-Afrikaanse Reg

6th ed (1989) 508; Van der Merwe

Skuldlose

Aanspreeklikheid vir Skade Veroorsaak deur Diere

(1970) 260

et seq;

Van der Walt

Risiko-

Aanspreeklikheid uit Onregmatige Daad

(1974) 346 n 1; Van der Walt "Vonnisbespreking: Botes v

Van der Venter 1966 (3) SA 182 (A)" 1967

THRHR

70

75; Becker v Kellermann

1971 2 SA 172 (T).

McKerron "Basis of Doctrine of Vicarious Liability: Two Views" 1956

SALJ

432 433.

21

(1998) 9 Stell LR 21

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22



STELL LR 1998 1

four categories of vicarious liability that are determined according to the

relationship between the parties. The relevant relationships are those of:

(i) employer and employee; (ii) principal and agent;

4

(iii) car owner and

driver;

5

and (iv) partners among each other.

6

However, courts and legal

writers have not always distinguished clearly between these different

categories. There is considerable confusion as to the meaning of the

relevant terms in this context, such as "employer", "employee",

"master", "servant", "principal", "agent", "independent contractor",

"authority",

"mandatum"

and

"conductor operis".

7

Scott, as an eminent

South African authority in this field, therefore questions whether it is

appropriate to differentiate at all between the separate classes of

liability.

8

He argues that one principle, namely the risk principle,

underlies all the different instances of vicarious liability. It has also been

suggested that there is one comprehensive test for all relevant relation-

ships of vicarious liability, namely the traditional "control test".

9

According to one opinion, however, "the principles are so confused

that they are incapable of being reformed". Therefore a "bold break is

required to correct the flaws and to modernise the law".

10

In the absence

of consistent principles, each case may simply involve a decision on

grounds of legal policy. However, legal certainty demands that the

requirements for liability be clearly determinable. The purpose of this

article is an attempt to identify the principles underlying the legal

phenomenon of vicarious liability and thereby to contribute to the

rationalisation of this complex branch of law.

2 Three aspects: the legal rules, the basis in positive law, the

social justification

When seeking to determine the general principles of vicarious liability,

it is useful to distinguish carefully between three aspects of the inquiry:

the legal rules determining the liability, the basis in positive law on which

the rules rest and the reasons or social justification for those rules.

4

See already

Ravene Plantations Ltd v Estate Abrey

1928 AD 143 153: "It is a well-known principle of

our law that a master is liable for the act of his servant so long as the servant does the act in the course

of his employment . . . This doctrine has been extended so as to embrace the case where an agent or

servant acting within the scope of his authority makes a fraudulent misrepresentation by which the

principal is benefited."

5

In

Boucher v Du Toit

1978 3 SA 964 (0) 972 Van Heerden J characterised the car owner's liability as

" 'n analogiese uitbreiding van die aanspreeklikheid van 'n werkgewer vir die onregmatige dade van sy

werknemer wat op grond van beleidsoorwegings gebillik kan word".

6

Note

Lindsay v Stofberg NO

1988 2 SA 462 (C) 467: "[I]t seems to be generally accepted that one

partner is vicariously liable for the wrongful act of another when such act falls within the scope of the

partnership business."

7

See Kerr "Mandataries and Conductores Operis" 1979

SALJ

323; Kerr

The Law of Agency

3rd ed

(1991) 18

et seq;

Midgley "Mandate, Agency and Vicarious Liability: Conflicting Principles" 1991

SALJ

419; Scott

Middellike Aanspreeklikheid

Inleiding XI; for definitions of the relevant terms see

Wicke

Vicarious Liability

25

et seq.

8

Middellike Aanspreeklikheid

ch 3.

9

See Barlow

Vicarious Liability

95

et seq;

Joubert

Die Suid-Afrikaanse Verteenwoordigingsreg

(1979)

181. See also Mureinik "The Contract of Service: An Easy Test for Hard Cases" 1980

SALJ

246

247 n 6;

Colonial Mutual Life Assurance Society Ltd v MacDonald

1931 AD 41 43;

Rodrigues v Alves

1978 4 SA 834 (A) 842.

70

Midgley 1991

SALJ

419 425.

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