VICARIOUS LIABILITY

Doctrine
Employer vicariously liable for all delicts committed by
employees (who are not independent contractors) when
employees are acting in course and within scope of their
employment at time delicts committed.
Do not have to prove that employer has been at fault, for
instance, by negligently employing incompetent employee or
by negligently failing to give proper instructions to employee.

Employer vicariously liable even though employee committed

delict in circumstances in which employer neither knew nor
should reasonably have known that delict would be committed
by employee.
Employee also liable for own delict, but in practice
employee is not often sued because will frequently lack
financial resources to pay compensation.
 Rationale for doctrine
Why does law hold employer liable for delicts of employees?
Doctrine usually justified on basis of social policy that:
 By instructing employees to engage in activities, employer
creates risk that employees may cause harm to others and
employer has capacity to control workers’ activities;
 Employer operates business through employees & makes
profits;
 Employer usually in far better financial position to
compensate injured party than employee who will often not
have financial resources to pay compensation and, as
between employer & employee, unfair to expect employee
to pay compensation for delict arising out of performing
work on behalf of employer;
 Employer often sizeable enterprise & can far better absorb
losses by taking out insurance or distributing costs to
customers by increasing price of products or services.
Mungofa v Muderede & Ors HH-129-03

Doctrine is based on social policy.

Most important considerations are:

 belief that person who employs others to advance own
economic interest should in fairness be placed under
corresponding liability for losses incurred in course of
enterprise;
 employer is more promising source of recompense than
his servant, who is apt to be a man of straw;
 vicarious liability promotes wide distribution of delictual
losses, employer being most suitable channel for passing
them on through liability insurance and higher prices.
But is a limit. Employer not liable for delicts of employee
done by employee solely for own interests & purposes &
outside authority not done in course of employment.
If employee’s abandonment of employer’s work amounts to
mismanagement of it or negligence in its performance,
employer will be responsible for harm done to third parties.
But where harm is caused, not by employee’s abandonment
of employer’s work but by activities in his own affairs,
unconnected with those of employer, employer will not be
responsible.
Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H)
Corporations or large employers of necessity conduct their
operations through employees and appropriate that answer
for faults of employees committed in course of and within the
scope of their employment.
Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H)
Is a compelling social policy behind doctrine. Corporations
or large employers of necessity conduct their operations
through employees. This points to the approach employer
must, in appropriate case, answer for faults of his or her
employees, as long as they are committed in course of and
within the scope of their employment.
Requirements
 employee is “servant” and not an independent contractor;
and
 employee is acting in course of his or her employment.
Employee not independent contractor
No vicarious liability for delicts of independent contractors.
Independent contractor: person employed to do work who
is not subject to control and direction of employer as to
manner he does the work.
Person employed as “servant” is subject to employer’s
control and direction both as to what work he does and the
manner in which he carries out the work.
What is important is whether there is right to exercise
control over the manner of performance of work and not
whether this right is actually being exercised for the time
being
being by the employer. If there is such a right of control the
employee cannot be an independent contractor. The easiest
example of this distinction is that if D employs a person as a
taxi driver that person is normally an independent contractor
as he decides upon the manner in which he carries out the
work, whereas if D employs a person as a chauffeur, he is
usually an employee as D has the right to control the actual
manner of his driving. Persons with special expertise such as
architects, lawyers and so on are usually employed as
independent contractors.
 Course of employment
Not sufficient that employee committed delict during ordinary
work hours. If employee does something which is entirely for
his own benefit and which does not form part of duties as
employee in that business, employer not liable.
e.g. if D employs person as worker on car assembly line and
during work hours he steals from another employee or
assaults him, employer not vicariously liable. Same applies if
employee has been permitted by employer to use employer’s
property for his (the employee’s) own purposes, e.g. I permit
my employee during work hours to borrow my bicycle to visit
sick friend and employee rides carelessly and knocks down
someone whilst going to or from his friend’s house.
Even if employee is doing thing with intention of benefiting
his employer and not himself, employer still not liable if
employee is doing something which is neither part of
employment duties nor reasonably incidental thereto.

Employer may still be liable if, although thing done by

employee is not directly part of duties, it is reasonably
incidental thereto. Thus, in one case it was held that the
cooking of food on roadside was reasonably incidental to
duties of employees as they were long-distance wagon
drivers and it was to be expected that they would stop and
cook their own food along the way.
 Deviation from course of employment
Fact that employee deviates from course of employment will
not necessarily mean there no vicarious liability.
Considerations of social justice have led courts to adopt
approach that degree of deviation from course of employment
has to be of major extent before will hold that employee is no
longer in course of employment.

If employee, whilst about employer’s business, temporarily

diverts from that business to do something for his or her own
purposes, court will ask: was deviation of such a degree in
terms of time and distance that it cannot reasonably be said
that was still exercising functions for which employed?
Typical case, D instructs delivery driver to deliver certain
items and then to return the delivery van to his premises.
After delivery rounds, driver drives to own home to pick up
some of personal possessions before returning van to D
and he drives negligently and has an accident either on the
way to home or on his way from home to D’s premise.
Question is whether D is vicariously liable for harm caused,
and this depends upon extent of deviation.
NSSA v Dobropoulos & Sons (Pvt) Ltd 2002 (2) ZLR 617 (S)
Court stated rationale behind holding employers vicariously
liable, even where employees have deviated from strict
course of duty, it is right and proper, where one of two
innocent parties has suffered loss arising from misconduct of
third party, that loss should fall on the one of two who could
most easily have prevented happening or recurrence of
mischief. Not based on creation of risk but rather on
balancing between imputing liability without fault, which runs
counter to general legal principle, and need to make amends
to injured person who might otherwise not be recompensed.
Depends on nature and extent of deviation.
Question of degree as to whether deviation such that cannot
be reasonably held that employee its still exercising functions
to which was appointed. In this case court found that
employee had recommenced the assigned task after a
deviation and employer was vicariously liable.
 Where liability despite deviation

Nott v ZANU (PF) 1983 (2) RLR 208 (S) driver collided with
P’s vehicle. At time of accident driver had deviated from
assigned task to do own personal business.

Court held employer vicariously liable to P because in terms

of time and space deviation not major and had not seriously
interfered with exercise of driver’s duties. Deviation not such
as to lead to conclusion that driver had abandoned his
functions.
Biti v Minister of State Security 1999 (1) ZLR 165 (S)
Government driver instructed to take officers home after work
& keep vehicle safely overnight. In morning, required to pick
up officers & drive them to work place. On call while not
actively on duty. About 2 and half hours after should have
finished dropping officers, rammed into stationary taxi owned
by P, badly damaging taxi and severely injuring P. Accident
occurred about 5 km deviation from routes would have had to
take to drop off officers. Some evidence driver was heavily
intoxicated & had girlfriend in car.
Trial court: Ministry not vicariously liable. On appeal, business
of driver included not only transporting officers to homes, but
also keeping vehicle safe overnight. Although driver deviated
from authorised route, deviation, time and space, not such as
to convert it into “a frolic of his own.” Was improper mode of
exercising duty of keeping vehicle safely overnight was still
done within course of employment and Ministry which
employed him was vicariously liable.
 Where no liability after deviation

Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) a

policeman, known to be mentally unstable assigned to guard
residence of Government minister. Issued with rifle and
ammunition. Deserted post during night and went on a
shooting spree. Severely injured P and killed P’s wife.

Minister not vicariously liable because policeman’s digression

from appointed duty so great in respect of space and time
that could not be reasonably said that still exercising
functions to which was appointed. His digression was
complete abandonment of master’s business in favour of
some activity of his own.
(But Ministry liable on basis of negligence)
Gwatiringa v Jaravaza & Anor 2001 (1) ZLR 383 (H)
D1 employed by D2, a security company, as roving dog
handler. Assigned to guard municipal workshop in industrial
area. When on duty, supposed to wear uniform. One night
took off uniform, tethered dog, and drove off in municipal
vehicle. Was not licensed driver. Some distance away. he
crashed vehicle causing damages to P’s property.

Court held had completely abandoned task to which was

appointed. Damaging of P’s property not improper or negligent
mode of performance of duties as guard. His conduct bore no
relation to scope of his employment. No policy reasons would
justify imposing liability on employer, who did not sanction
driving in first place.
 Disobedience of instructions

When instructions given to employee and he disobeys

these instructions, vital question whether instructions
limited and defined actual sphere of employment or
whether they merely sought to regulate conduct of
employee within his sphere of employment. If former, no
vicarious liability, whereas if the latter, vicarious liability may
still be imposed. See Gorah v Mahona 1984 (2) ZLR 102
(S).
 Where no liability after disobedience

Wentworth-Wear v Zvipundu 2000 (1) ZLR 281 (S)

instruction limited the actual sphere of employment.

P injured in a motor accident caused solely by negligence of

bus driver. She sued employer. Employer maintained that
driver was not in his employment at time, having been
discharged for non-payment of traffic fines incurred while in
previous employment. Driver had nonetheless driven bus,
directly contrary to instructions that he was not to drive.
Employer not liable.
Khosa v Cargo Carriers 2006 (2) ZLR 109 (H) P sustained
serious injuries due to negligence of lorry driver. Driver had
specific instructions not to pick up passengers. D gave lift to P
and charged him a fee for lift.

Court held no deviation from route driver was to use while

carrying his employer’s cargo. His only digression was to
carry P against his employer’s instructions. He carried P in
disobedience of his employer’s instruction. It cannot therefore
be said that in so doing he was acting within the sphere of his
employment.
Where liability despite disobedience
Mungofa v Muderede & Ors HH-129-03 Order only regulated
conduct within sphere
P injured in bus accident caused by negligence of driver of
bus, D1. Driver part-time employee of D2. D2’s employees,
bus crew, permitted D1 to drive bus with fare paying
passengers. Bus crew member who allowed D1 to drive
permitting him to drive bus was “doing his master’s work in
pursuing his master’s ends”.
Court held fact that bus crew member may have acted
contrary to D2’s instructions did not necessarily take conduct
out of scope of employment. Here no express prohibition; at
most implied prohibition. Conduct of D1 wholly in pursuance
of D2’s interests, so D2 liable for delict perpetrated by D1.
 Crimes committed by employees

Even if delict committed by employee also crime, employer

can sometimes still be held vicariously liable provided crime
committed course of employee’s employment.
 Where employer still liable
Mberi v Fawcett Security Operations (Pvt) Ltd HH-24-03
Fawcett security guard assigned to guard P’s premises.
Guard broke into locked house and stole property.

Security company held vicariously liable. Held that it is

essential in this type of case that employer has entrusted
care of property stolen to employee.

In present case by posting guard employer had entrusted

care of P’s property to its employee, even though house was
locked and guard did not have access to it as part of his
duties.
Rose NO v Fawcett Security Ops (Pvt) Ltd 1998 (2) ZLR 114
(H) security company employees stole money from P.
Collection of money every week from P. Employees phoned
security company pretending to be speaking for P saying no
collection required that day. Then went to P’s office and
collected money. Money never recovered. P claimed lost
money from security company arguing that was vicariously
liable for dishonest acts of employees.
Court held employees acting contrary to instructions and
against general purposes of their employment and wishes
and interests of their employer. However, by appointing
persons as security guards, security company creates risk
that guards could prove to be untrustworthy and misuse their
powers. On this basis, security company was held liable to P
for the acts of its employees.
 Where employer not liable

Fawcett Security Operations (Pvt) Ltd v Omar Enterprises

(Pvt) Ltd 1991 (2) ZLR 291 (S)
Security guard employed at supermarket to detect and
prevent shoplifting and other thefts stole goods from
supermarket.

Held guard was not abusing authority with which employer,

security company had clothed him, but had simply taken
advantage of opportunity which his employment afforded
him, to steal. Was not risk created by security company
and company therefore not liable.
Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern
v Reddy 2003 (4) SA 34 (SCA) employer not vicariously liable
for assault by employee on restaurant patron as the assault
had occurred outside establishment, after employee had
abandoned his duties. Personal act of aggression was done
neither in furtherance of employer's interests, nor under his
express or implied authority, nor in consequence of anything
the employee was employed to do.
Ess Kay Electronics Pte Ltd and Another v First National
Bank of Southern Africa Ltd 2001 (1) SA 1214 (SCA) Bank
employee committed fraud causing Ps loss. Done solely for
employee's own interests and purposes and outside
employee’s authority. Not done in course of employment,
even if it done during such employment. Employee had acted
outside scope of his actual authority and outside course of his
employment. Bank was held not liable.
Does vicarious liability have to be specifically pleaded?
In Masiya & Anor v Sadomba & Anor HH-28-12 the court held
the employer vicariously liable for the conduct of the
employee. Even though P had not pleaded vicarious liability in
the pleadings, at no stage of the proceedings did the
employer put the issue of vicarious liability into question.
 Claim by employer against employee

Quest Motor Corporation (Pvt) Ltd v Nyamakura 2000 (2) ZLR

84 (H) no reason in principle why employer who has suffered
loss as result of negligent performance of duties by employee
should not be able to claim damages from employee.

Implied term of contract of employment that employee will

exercise skill and care in performance of duties. This must be
combined with employer’s duty to provide all necessary
assistance.

However, if employee does not hold himself or herself out as

possessing any special ability or skill, may be that employee
undertakes no responsibility, and employer would be held to
have incurred all risks.
Employee in present case did not hold himself out as
possessing any special skills or attributes. P had decided
that he was suitable for position, but did not put in place any
supervisory procedures to ensure that he carried out his
duties. Employee’s failure was due to incompetence rather
than negligence. Employer was the author of its own
misfortunes.
 Liability based on negligence
When employer not vicariously liable may still sometimes
be liable on basis of negligence. Thus in Witham v
Minister of Home Affairs 1987 (2) ZLR 143 (H) even
though police not vicariously liable for shooting, still liable
on basis of negligently dangerous situation by putting on
duty officer when knew he was suffering from mental
instability.

Similarly security company could be held be liable for theft

by employee on basis of own negligence if it negligently
employs security guard it knows or should have known is
dishonest or where it negligently fails to properly supervise
its security guards. See Fawcett Security v Oman
Enterprises 1991 (2) ZLR 291 (S).
 Delicts committed by independent
contractors
No vicarious liability for delicts committed by independent
contractors.

Banda v Gamegone (Pvt) Ltd & Anor HH-133-03

Test as to whether person is employee or independent
contractor is existence of a right of control over the person in
respect of manner in which his work is to be done. Servant is
an agent who works under supervision and direction of
employer; independent contractor is his own master. Servant
is person engaged to obey his employer's orders from time
to time; an independent contractor is a person engaged to d
do certain work, but to exercise his own discretion as to
the mode and time of doing it.
Usual test is the “supervision and control” test. Control
includes power of deciding the thing to be done, the way
in which it will be done, the means to be employed in
doing it, the time when, and the place where it will be
done. All these aspects of control must be considered in
deciding whether the right exists in a sufficient degree to
make one party the master and the other his servant. The
right need not be unrestricted. However, while the
questions of control and supervision are important factors
in determining the issue, not the sole criteria; all the
circumstances surrounding the contract must be
considered in order to determine the issue, and no single
factor could be treated as the sole basis of determining
the issue.
However, if person employing independent contractor to do
work is himself or herself negligent, he or she may be held
liable for that negligence.
Example: D hires independent contractor whom he knows is
not competent to perform work - D employs someone to
repair his car. Knows person employed has no mechanical
qualifications and no expertise to carry out the work. The
result is repairs are not done properly and when D takes car
out on road D has accident in which a third party is injured.
D may be liable to the third party because of his own
negligence.
If, in order to carry out the work safely, necessary for the
employer to appraise person engaged of certain facts known
to employer or to give him certain instructions, employer
may be liable for his own negligence in failing to supply the
necessary information or instructions.
An exception to the rule that an employer not vicariously
liable for the delicts of the independent contractor is where
the employer employs an independent contractor to do work
which is inherently dangerous. Here, it has been ruled in a
number of cases that if the work is of a dangerous character
the employer is bound to ensure that the proper precautions
are taken by the independent contractor and if he fails to do
so he will be liable if harm results to a third party from the
work being done. What is meant by “inherently dangerous”
work in this context has not been exhaustively spelt out, but
the demolition of a building close to a public road and the
use of explosives have been held to fall into this category.
On the other hand, the felling of a tree has been said not to
be an inherently dangerous operation. It would seem
therefore that the danger must be extraordinary or of a high
magnitude before the rule that the employer himself is
obliged to ensure that due precautions are taken comes into
operation.