Our law has long recognised the importance of imputing blame on the party responsible for causing harm. In certain circumstances, courts have held that public policy and the interests of justice require that secondary liability be assigned to a party who was not the primary cause of the damage or harm. This is known as vicarious liability. In Olfaardt v Zenex Jean Avenue and Another 2014 1944/12 GPP (unreported), the court defined vicarious liability as: “the strict liability of one person for the delict of another”. The court held further in paragraph 8 thereof that: “It is a well-established principle that vicarious liability can be imposed on an employer either firstly when an employee commits the delict while engaged in the employer’s business (i.e. when he is acting in the course and scope of his employment) or secondly in so-called “deviation cases” (i.e. where the delict was committed whilst the employee was deviating from the business of the employer)”.
This means that vicarious liability as a concept in delict is invoked on the basis of agency and/or imputing the blame on a principal instead of the person acting in terms of that principal’s instructions. To elucidate on the types of cases that may arise from vicarious liability, that is ‘deviation cases’ vs ‘direct engagement cases’, onehas to view a matter with certain considerations in mind. For example; A, a security guard in the employ of My Lo LTD assaults a customer X after a verbal altercation while A is on duty. Assuming that X was unlawfully assaulted, he can institute a delictual claim against My Lo LTD on the basis that A was in their employ as at the time when the assault took place, this is a typical example of a direct engagement case.
On the other hand, if A unlawfully causes a motor vehicle accident with X after returning home from delivering material to a My Lo LTD client, then X may institute a delictual claim against My Lo LTD on the basis of vicarious liability, this is a typical deviation case (see F v Minister of Safety and Security 2012 (1) SA 536).
An important element of vicarious liability is that the person who causes the harm must not have been acting in their own personal interest but must have been acting on behalf of a principal and in that principal’s interest. This important consideration means that My Lo LTD cannot be held delictually liable in an example where A, while returning from work accosts X and further assaults him for a personal matter and in the pursuance of A’s personal interests.
Lastly, delictual liability should be distinguished from criminal liability. In the motor vehicle example above, if A was under the influence thereby rendering him criminally liable, he cannot seek to transfer the liability to his employer on the basis that he was in the process of furthering his employer’s interests; conversely, X’s claim against My Lo LTD will remain and that will have no impact on the criminal liability of A.