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The doctrine of vicarious liability is a doctrine deeply imbedded in our legal syste m. The doctrine imposes strict liability upon an employer for all the delicts committed by his employees who are acting within the course and scope of their employment at the time the delicts were committed. It is a requirement that the employer was at fault and this must be proved, but however he can also be liable where there is no fault. The victim can also sue both the employer and the employee. The doctrine is backed up by public policy considerations or rationales which have made it to be embedded in our law. Despite these rationales it is also criticised for being a rule of rough justice and so various criticisms have been used to attack the soundness of the se policies. In the light of this, the paper shall examine the policy considerations and weigh their soundness, if sound at all and finally conclude on how sound these considerations are. The first rationale is based on control, stating that, there must be strict liability on the employer because the employer has the capacity to control his/her employees by instructing them to engage into activities on his/her orders. Therefore s/he creates the risk that the employees may course harm to others. In the case of Feldman (Pty) Ltd v. Mall1, WATERMEYER, CJ., said: "A master who does his work by the hand of a servant creates a risk of harm to others if the servant should prove to be negligent or inefficient or untrustworthy ... because he has created this risk for his own ends, he is under a duty to ensure that no-one is injured by the servant's improper conduct or negligence in carrying on his work....", this also had a strong influence in our law such as in the case of Nott v. ZANU (PF)2 the decision in this case was based upon the rationale of control and it is regarded as one of the major pillars of vicarious liability. However this rationale has not been left without criticism. P.S. Atiyah3 maintains that control cannot be treated as a sufficient reason for always imposing liability. Control never has per se been a ground for imposing liability, for instance a parent is not vicariously liable for his or her child’s delicts4, a superior servant is not liable for the delicts of his subordinate servants and school children are not liable for the delicts of their pupils. Another difficulty with the control test is that there are many professional and skilled servants such as a professional architect or a consulting engineer, whose skills are such that the employer may have little knowledge on how the work is done so he has less control and supervision is worthless in that situation. This shows that the rationale has little substance and it fails as a pivot to the doctrine of vicarious liability.
1945 A.D. 733 @741 1983( 2) Z .L.R. 208, 1984(2)S .A. 115. 3 P.S. Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967) 4 Note that the Author uses the word tort but in Roman Dutch Jurisdictions we use the word delict instead of tort. It must also be noted the two have slight differences, ther e are important differences in respect of the structure of liability. Delictual liability under Zimbabwe's Roman-Dutch system proceeds on the basis of general principles of liability under the Lex Aqualia and the Actio injuriarum, wher eas in the law of torts the approach is casuistic with the plaintiff having to prove a named tort. This difference, however, is not material in this article.
The second policy consideration is based on compensation, meaning, the employer has a greater ability to compensate the victim because he has “deep pockets”. It states that the employer is usually in a far much better financial position to compensate the injured party than the employees; it is therefore unfair to expect the employee to pay compensation for a delict arising out of performing work on behalf of the employer. This also means that the innocent plaintiff has a solvent defendant against whom to enforce their legal rights and most likely employer is wealthier and or carries insurance. However this rationale has been criticized for failing to explain why compensation must come from the employer, since the plaintiff will be equally compensated if the payment came from other sources. Moreover even if the concern is “effective compensation” as opposed to “possible compensation” then government should then take up (in some cases) the duty to compensate the victim. This rational also tends to destroy the employee independent contractor distinction. According to R. Flannigan, “generally speaking an employer is will be richer… than the workers he employs whether they are servants or independent contractors. That being so no distinction ought to be used between servants and independent contractors for the purposes of vicarious liability.” This shakes the validity of the compensation rationale. Another similar rational, the third one, is the one of loss-spreading. It is submitted that the employer can far much better absorb losses because the burden of the injury will be spread out among his customers and insurers, therefor liability must be fixed upon him. Traynor J in Escola v. Coca-Cola Bottling Co5 said, “The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the [employer] and distributed among the public as a cost of doing business.” Despite the weight given to this rationale it has been under great criticism. It is criticised for its failure to account for cases where vicarious liability is imposed in situations where loss cannot be spread. For instance the employer of a domestic servant is clearly vicariously liable for the delicts of his or her servant while s/he has no means to spread the loss. This also applies in the case of a charity organisation. The rational fails to account for these two cases while it is trite law that in both cases the employers are vicariously liable for their employees’ delicts. Furthermore it does not explain why the “loss spreading” vehicle has to be the employer not through a scheme of social insurance of vicarious liability on the government. The forth policy consideration is based on the fact that the employer operates his/her business through his employees and make profits. According to Mungofa v Muderede & Ors6 the court said that the doctrine of vicarious liability of employers for the delicts of employees is based on social policy. The most important considerations are the belief that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise. And also according to Flemming7 ,"... a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise…” thus it is also called the enterprise liability rationale. It is based on the notion of reciprocity between benefit and burden. It is also regarded a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. The
150 p. 3d 436 @ 441 HH-129-03 7 th The law of torts 7 edition, @ 340
employer’s enterprise is also said to have exacerbated the risk of that the plaintiff would have to suffer the injury that s/he did. However it also fails to explain why charities are vicariously liable for their employee’s torts, since altruistic institutions do not receive the material benefits required to render the reciprocity argument applicable against them. Reciprocity also does not explain why the employees’ vicarious liability is unlimited in amount rather than being limited to profit or asserts of the enterprise. It does not account why all accidents caused in the search for profits are not included. It does not also explain why independent contractors are left out while the situation is also of mutual profit, benefit and burden. The rationale fails to explain why beneficiaries or shareholders are not vicariously liable for the delicts of their trustees or directors since they too are equity stakeholders. Finally the rationale has difficulty in explaining why the employee remains personally liable for the delict after the delict has been ascribed to the employer’s enterprise, since the rationale supposes that it is the enterprise that benefits and therefor it should bear the burden. Deterrence is also submitted as a fifth policy consideration which underpin the doctrine of vicarious liability. In the name of accident reduction enterprises are made vicariously liable because they are in the best position to reduce accidents through efficient organisation and discipline of staff. This argument holds little water to quench the issue of vicarious liability. It either negates the “vicarious” (indirect) aspect of the rule or it is over-inclusive and cannot explain why it is limited to the employer/employee relationship. Moreover if the reason for the doctrine is that the employer should be held liable because s/he committed some fault (negligence) then liability is not vicarious. If this was the reason for the rule, then one would expect that the employer would be able to escape from “vicarious” liability by proving that s/he was without fault. However it is clear in our law that absence of fault will not serve as a defence to the common law version of the doctrine. According to Atiyah, supra “It is, of course, as clear as anything could be that the master is not exonerated from liability merely because he has exercised all possible care in his choice of servant.” L Madhuku8 also noted that it is conceptually illogical to talk about deterrence where there is no fault. In the light of the opposition to the rationales given some authors try to treat them as mixed policy considerations than on their own this means they are bundled together to express the doctrine. This approach has also been adopted by courts in justifying the application of the doctrine. It is argued that the combination of these policies together would cater for any flaws found in the other and balances their contradictions and incoherencies. However Flannigan notes that “the deep pocket justification makes the employer liable because he is able to bear the loss. The loss distribution on the other hand makes the employer liable because he is able to avoid bearing the loss.” This shows that even if combined, still many of the elements of vicarious liability are difficult to explain. L. Madhuku talks about the theory of justice, which says that it is only fair and right that the employer should compensate for the delicts of his employee because being the beneficiary of the employee’s services; he should be the bear of the losses. It is also submitted that it is fair and just to hold the employer liable because the employee is about the affairs of the employer. Pollock clearly noted that “I am answerable for the wrongs of my servant or agent, not because he is authorised by me or personally represents me but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others”. However there is a perennial problem of determining what justice really entails, what is justice in one place is not justice in another place.
Refer to bibliography @
On that note P.S. James & D.J.C. Brown9 the authors call vicarious liability a rule of rough justice. Furthermore there is no necessary correlation between an employee’s services and any losses which may rise as a result of vicarious liability. Because of the failure of the various rationales given it is submitted by J.W. Neyers10 in his article the theory of vicarious liability, that the focus has been directed on the wrong issue. Instead of focusing on the employer-victim relationship the focus must be on the employer-employee relationship. The very bases of the theory of vicarious liability arise from the laws of contract pointing to the contractual relationship between the employer and the employee. The relationship creates a contract with an implied clause to indemnify the employee because the employee is selling his labour for the employer’s profits, so he will be acting taking risks for the employer and also under his control and direction. So the employer will promise certain costs incurred while acting for his benefits. So vicarious liability arises from the fact that if one commits a delict then the injured party has the right to sue against the injurers’ asserts. But because the delict occurred during the course of work then his right to be indemnified by the employer becomes an assert which he can use to compensate the delict. This enables the victim to sue the employer directly without joining the employee. Unlike the compensation and enterprise liability rationales this actually states why the employee must have committed a delict rather than merely adversely affecting the victim. It also explains why one must be an employee to have the right of indemnity. It also explains why the delict should have been done in the course of his/her employment, i.e.; that is when the indemnity clause will take effect. Both are also sued because the employer is subrogated to the contractual indemnity and the employee has committed a civil wrong. This indemnity principle is not based on some quasi fault or gain biased principle so it encompasses most of the inconsistences of the other rationales given. On the other hand the policy considerations must not be put on the scale of logic and the doctrine cannot be justified on logical grounds because it was created as a social policy tool. Sometimes public policy considerations must take precedents over logic and sound reasoning so despite the inconsistences and the shortfalls presented by these rationales one must take consideration of the fact that these polices brings out the true essence of justice and fairness. In the words of Lord Diplock, “the beauty of the law is that it is a maze not a motor way”. On this note it is safe to say that common law doctrine of vicarious liability is explicable, despite repeated claims to the contrary, as a coherent manifestation of the principles of corrective justice. Though the criticisms leveled against the rationales for vicarious liability shows that the justifications given to it are not very sound. And while the economic and moral considerations seem to be satisfied by those who advocate that the person who derives a benefit from the acti vity of another should also bear the risks of damage inflicted by those acts. Dias & Markesinis point out that the theoretical justifications of vicarious liability are not a problem that worries the courts. In ICI Ltd. V. Shatwell11 Lord Pearce remarks that the doctrine of vicarious liability has not grown from any clear
General principles of the law of torts 4 edition Assistant Professor of Law, University of western Ontario 11  AC 656 @ 685
logical or legal principle but from social convenience and rough justice. This means that no single theory is able to explain the doctrine fully but nevertheless its basis cannot be dismissed entirely. In conclusion the theory of indemnification is a sound theory in support of the doctrine of vicarious liability and why should the doctrine stand. On the other hand the many policy considerations which underpin the doctrine of vicarious liability such as control, compensation, justice, loss-spreading, enterprise liability and deterrence find difficulty on standing on their own and have many flaws and inconsistences, but despite the flaws they have their merits and they are based on a sound an d coherent manifestation of justice. In the words of Williams12 vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely or confined it more narrowly than its true rationale would allow; the rationale, if we can discover it, will remain valid so far as it extends.
Flemming, The law of torts 7th edition, (Sydney: Law Book Co. 1992) G Feltoe, A Guide to the Zimbabwean Law of Delict (G Feltoe 2012) Philip S. James and D.J.L. Brown, General principles of the law of torts 4th edition Pollock F., The Law quarterly review vol, 1 no. 1 (London: Steven& sons 1985) P.S. Atiyah, Vicarious Liability in the Law of Torts (London: Butterworths, 1967) Williams and Hepple, Foundations of the Law of Tort (2nd ed.), (London Butterworths, 1967)
Escola v. Coca-Cola Bottling Co 150 p. 3d 436 @ 441 Feldman (Pty) Ltd v. Mall 1945 A.D. 733 @741 Mungofa v Muderede & Ors HH-129-03 Nott v. ZANU (PF) 1983 (2) Z .L.R. 208, 1984(2)S .A. 115
Vicarious Liability and the Master’s
A Theory of Vicarious Liability by J.W. Neyers Assistant Professor of Law, University of western Ontario Vicarious Liability of an Employer for the Delictual Acts of His Servant under Zimbabwean Law by Lovemore Madhuku: Journal of African Law, Vol. 38, No. 2 (1994), pp. 181-188Published by: Cambridge University Press on behalf of the School of Oriental and African Studies Stable
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