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DATE: 01 OCT 2024
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TOPIC: VICARIOUS
LIABILITY
 • Definition
• Relationships
OVERVIEW • Liability: Why hold employer liable?
• Case Law
 VICARIOUS LIABILITY - DEFINITION

• Indirect liability of one for the damage caused by another, when there is a relationship such as
employer and employee, principal and agent, car owner and car driver, state and public,
school, pets, etc.

• When an employee acts within the scope of work and commits a delict - the employer is fully
DEFINITION
liable for the damage.

• Form of strict liability - fault is not required on the part of the employer/principal.

• One person is held liable for a delict committed by another person & applies where there is a
particular
 FOUR SUCH RELATIONSHIPS:
• Employer-Employee

• Principal-Agent

• Car owner – Car driver

• State – Public school

 WHY HOLD THE EMPLOYER LIABLE?
• Rationale behind this is based on various theories such as:

• Employee is merely an employer’s arm (Identification theory)

• Employer is liable because he is in a better financial position than the employee (Insolvency
theory)

• Employee is entrusted with work, which puts him at risk of committing delicts, hence employer
should be held liable on grounds of fairness (Risk/Danger theory). This is considered as the true
rationale.
 WHEN IS THE EMPLOYER NOT LIABLE FOR
EMPLOYEE’S DELICT?

• If the employee exclusively promoted his own interests = subjective test

• If the employee completely disengaged himself from the duties of his employment contract = objective test

3 Requirements of vicarious liability in employer-employee relationship

1. There should be an employer-employee relationship at the time the delict was committed (a contract of employment or
formal appointment).

2. There must be a delict by the employee

3. The employee must have acted within the scope of work when delict was committed (execution or fulfilment of duties)
 CAR OWNER – CAR DRIVER
If a car owner allows someone else (who is not his employee) to drive his car & the driver negligently causes an
accident, the owner is fully liable for the loss, provided:

MOTOR-CAR
(a) The owner requested the driver to drive the car / supervised his driving;

OWNER – MOTOR-
(b) The vehicle was driven in the interests of the owner; and

CAR DRIVER
(c) The owner retained a right (power) of control over the manner in which the vehicle was driven
 PRINCIPAL – AGENT
• When an agent (ie, someone who is authorised to perform a legal act – usually concluding a

• contract171 – on behalf of his principal) acting in the execution of his authority commits a delict,

• his principal is fully liable for the damage.

3 REQUIREMENTS

a) there must be a principal–agent relationship when the delict is committed

b) the agent must commit a delict

c) agent must act within the scope of his authority when the delict is committed.
 STATE – PUBLIC SCHOOL

• The state is therefore exclusively liable for damage caused by any delict (for example, by teachers or

learners) that is associated with an educational activity of a public school.

 INDEPENDENT CONTRACTORS
• The contract of mandate involves one party providing services to another for remuneration without being under the
latter's control, and it does not establish vicarious liability for the mandator. The mandator may be liable for damages
caused by the mandatory only if the mandator also committed a delict or if certain conditions, such as issuing
improper instructions or appointing an incompetent contractor, are met.

3 requirements

a) Would a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor
to perform?

b) Would a reasonable man have taken steps to guard against the danger?

c) Were such steps duly taken in the case in question? Only where the answer to the first two questions is in the
affirmative does a legal duty arise, the failure to comply with which can form the basis of liability
 REMEDIES
• Remedies are:

 compensatory in character,

 compensating / indemnifying the aggrieved party for the harm the wrongdoer caused.
CASE LAW: CROWN SECURITY CC V GABRIELSEN
Facts:

Gabrielsen (defendant) awarded 8.6 million by court aquo following a shooting incident by guard
employed by Crown Security (plaintiff). The plaintiff appealed to the Supreme Court to determine
whether he is vicariously liable for delict by the guard as found by the court a quo, and the Plaintiff’s version:

appeal was dismissed. ✓ A lady who worked for him and had a
romantic relationship with him left the
Court findings:
premises in the company of her former
partner with whom she had a quarrel.
In keeping with the requirements….
✓ The plaintiff (also a respondent in the appeal
✓ A delict by the employee (guard) was committed, case) followed them to an apartment to
check on her.
✓ The employer-employee relationship existed
✓ Plaintiff (also a respondent in the appeal
✓ The guard was on duty at the designated duty station at the time of the shooting, case) was advised by the guard to climb over
operating a firearm and ammunition provided by the employer. the boundary wall to knock on the door

✓ Guard did not exclusively promote his own interest or completely disengage himself from ✓ The same guard shot him upon climbing the
wall back out.
the duties of his contract

Therefore: There was a sufficiently close connection between the wrongful conduct of the
guard and the nature of his employment.

Appeal court dismissed the appeal and upheld the court a quo’s decision.
CASE LAW: MASOKELA V HELMSMAN GROUP HOLDING PTY (LTD) (HC-MD-
CIV-ACT-DEL-2022/01191) [2023] NAHCMD 399 (13 JULY 2023)
Facts

In this case, the plaintiff sued Helmans Group Holding Pty (Ltd) and its employee for
damages from a car accident caused by the employee’s negligence. The company
denied liability, claiming the employee had stolen the vehicle and was acting outside his The first Defendant’s version
employment. The court found the employee negligent but ruled the company was not
vicariously liable, as the employee was unauthorized and not acting within his The first defendant's version was that the
employment scope. The plaintiff's claim against the company was dismissed, and the
second defendant had stolen the vehicle
court awarded N$53,775 in damages against the employee.
and was acting for his own purposes at
the time of the accident, thus not within
Courts reasoning
the scope of his employment. They
The court found the second defendant was negligent in causing the accident, as his emphasized company policy, which
actions were not contested, the court therefore ruled that the first defendant could not prohibited unauthorized driving and
be held vicariously liable because the second defendant was driving without highlighted that the second defendant did
permission and not in the course of his employment. The evidence suggested he was not hold a driver's license.
acting solely for his own interests, as there was no authorization or valid business
purpose for his actions at the time of the accident. Ultimately, the court preferred the
first defendant's version and concluded they were not liable for the second
defendant's actions.
 CASE LAW: URSULA ESTER BLAAUW VS
BANK WINDHOEK LTD & OTHERS

In Ursula Ester Blaauw v Bank Windhoek Ltd & Others, the bank was found vicariously liable for
the fraudulent actions of its employees. The employees had committed fraud against the plaintiff
in a manner that was closely connected to their duties at the bank.

The court had to determine whether the bank could be held liable, even though the fraudulent
acts were not part of the employees' formal duties. The judgment reinforced that if the wrongful
act is connected to the scope of employment, the employer may still be vicariously liable.
 DUTY OF CARE IN VICARIOUS LIABILITY

Duty of care in vicarious liability cases involves the responsibility of employers to ensure
that their employees do not cause harm to third parties. In Ursula Ester Blaauw v Bank
Windhoek Ltd, the court held that the employer had a duty to oversee its employees and
prevent them from engaging in fraudulent activities.

Although the fraud was outside the direct duties of the employees, the court found that the
bank had failed to take reasonable measures to prevent such actions. The failure to
properly supervise employees breached this duty of care, resulting in liability for the
employer.
 SCOPE OF EMPLOYMENT
One of the key considerations in vicarious liability cases is whether the wrongful act occurred within the 'scope of
employment.' This includes actions authorized by the employer or reasonably connected to the employee's job
duties. Even if the act is unauthorized, it may still fall within the scope if it is incidental to the job.

In Ursula Ester Blaauw v Bank Windhoek Ltd, the fraudulent activities were connected to the employees' roles in
handling financial transactions. The court ruled that the employer was vicariously liable because the wrongful acts
occurred in the workplace and were closely linked to their professional responsibilities.
 CONCLUSION

THANK YOU
Vicarious liability is a crucial principle in DELICTUAL law that ensures accountability extends beyond the
person directly responsible for a wrongful act. Through various relationships, such as employer-employee
or principal-agent, this doctrine ensures that those who are in positions of power or authority take
responsibility for the actions of those under their control.
Group: Genesis LD
THANK YOU FOR YOUR TIME
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