University of the Witwatersrand
The extent of an employer’s vicarious liability when an employee act within OR outside the scope of employment
Insurance and risk management IIA research project part II
The purpose of this paper will be to emphasis vicarious liability by first giving a broad definition of the concept of vicarious liabilty as well as outlining its doctrine. The essay will then critically assess and discuss relevant proceeding cases and circumstances in case law to employ them as support in the argument of whether or not vicarious liability may be imposed in the case provided. Lastly the essay will assess all the prerequisites of vicarious liability in terms of the case provided, so as to decide if vicarious liabilty is applicable or not.
Vicarious liability can be outlined by approach of strict liability of someone meant for the delict of another.1 Employers associate degreed proprietors can be command incidentally or vicariously to blame for the delict of their staff subject to the conditions that: (a) there subsists an employer/employee association at the amount the delict is committed ; (b) the delict in question should are committed within the course of employment; and (c) the delict below prosecution should fall within the scope of such employment.The basis of the school of thought of employer’s vicarious liability could be a school of thought of no fault liability in terms of that one person is command to blame for the unlawful acts of another. No fault liability ordinarily applies in things wherever a selected relationship exists between persons. generally the connection between associate degree leader and worker might bring about to vicarious liability.2 the origin of the school of thought of vicarious liability relies on public policy and also the notion that an individual that has been legally out of action shouldn’t be left while not a claim31 Knobel (eds) Law of Delict 365.2 alternative samples of relationships that will bring about to claims of vicarious liability embrace principal and agent, motor automotive owner and motor automotive driver and also the state and public faculties.3 LE mixture 2003 jurisprudence Journal 1879.
Application of vicarious liability to the case of TBF Inc.
Utilization of vicarious risk to the instance of TBF Inc.
Issue: Manager – Vicarious risk – while playing out his obligations representative striking individual from the general population – acts so firmly associated with obligations that it was inside the course and extent of his business
Offended party: Rusty QR
Clench hand litigant: TBF Inc.
Second litigant: Frikkie XY
The offended party organized activity against the respondents for harms endured because of wounds supported when he was struck by a worker (refered to as the second litigant), of the main respondent, in the late hours of February fourth, 2000.
The principal respondent is a nearby organization which conducts business as a steakhouse eatery in midtown, Atlanta (‘TBF Steakhouse’).
The primary litigant initiated business on 4 February 2000 from 17h00 until 24h00. From that time there has never been any occurrence where a representative, regardless of whether on obligation or on furlough, was engaged with a physical quarrel with a client.
The second litigant’s work with the principal respondent
The second respondent was utilized by the primary litigant basically as an easygoing laborer in the eatery and auxiliary as a barkeep and cleaner at the eatery network.
The second respondent did not have an inferred or express specialist to utilize power of at all nature against any client nor was the second litigant, as a result of his work with the main respondent, qualified for utilize power of at all nature against any client.
A delict happens when one gathering confers a wrong against another. The essential components of delict are lead, wrongfulness, blame, causation and harm. As a beginning stage, it is fundamental to understand that every one of the five components specified above must be available before a man can be set to be delictually obligated.
DEFINITION – Lead is an intentional human act or oversight.
The attributes of direct are as per the following:
The demonstration must be that of an individual.
The demonstration must be performed intentionally.
Lead perhaps in either the type of positive act (e.g. crashing into somebody) or an oversight
In the matter of the first and second respondent it is anything but difficult to demonstrate that the delict was totally willful as the second litigant had the choice to not take after the offended party and his better half out yet he did.
The demonstration was that of a person as the second litigant acted absolutely out of incitement and disturbance at Corroded’s remarks.
Finally the strike on Corroded was a positive direct – (Frikkie strolled up to them and ambushed Corroded after the verbal fight)
For delictual risk to be bestowed upon the Respondent, his direct ought to be viewed as wrongful. To decide if direct is wrongful, the incidental 2 inquiries ought to be inquired: Is there a lawfully perceived intrigue that has been encroached? Was the lawfully perceived intrigue encroached lawfully or during a nonsensical way? In the event that the response to the over 2 inquiries is affirmative, the direct is wrongful. regarding matter of TBF INC. the response to each those inquiries is affirmative – upon the initiation of his day of labour at the restaurant, the most respondent had well-appointed the second litigator with a disciplinary summing up of obligations constituting that he was treat all purchasers inexhaustibly, heartily and agreeableness this intrigue has been encroached by the ambush of the second respondent on the pained party. But our law perceives the incidental conditions wherever wrongful direct is pardoned incorporates incitement – Incitement is out there once a Respondent is incited or motivated by words or activities to create hurt the pained party. So within the matter of the second litigator and also the pained party, the attack wouldn’t be viewed as wrongful.
Two principle types of blame are discovered, to be specific, goal and carelessness.
So, blame implies that a man can be reprimanded for his lead.
Nonetheless, before a man can be reprimanded for his lead, one needs to set up whether he can be considered responsible. Responsibility –
A man is responsible for his activities on the off chance that he can recognize good and bad and act as per such refinement. On the off chance that a man is observed not to be responsible, no blame can be ascribed to him.
Regarding South African law, individuals have been observed not to be responsible when at least one of the accompanying elements are available:
Ages 1 – 7 (babies) – can never be responsible
Ages 7 – 14 (ascribes) – can be turned out to be responsible
Ages 14 onwards – responsible
Psychological instability or ailment
Thus in the matter of the second litigant and the offended party, neither the principal nor the second respondent would be considered responsible as the nearness of incitement exists, consequently they would not be considered to blame.
For a delict to exist there must be an association (causal nexus) amongst lead and harm. As it were, did the direct reason the harm? For our situation the appropriate response may essentially be addressed yes. The strike by the second litigant on the offended party did to be sure prompt the wounds managed by the offended party.
Harm incorporates both patrimonial (monetary) and in addition non-patrimonial (non-financial misfortune).
Patrimonial misfortune can be communicated in cash. A basic case would be the harm caused to one’s vehicle in a crash. The expenses in repairing the vehicle would be patrimonial misfortune. An imperative perspective to recollect in regard of patrimonial misfortune is that of moderation of misfortune. The Offended party has an obligation to keep any further harm a Litigant has caused. On the off chance that he doesn’t find a way to forestall additionally harm, the Offended party won’t have the capacity to assert the further harms from the Respondent. In any case, the Offended party, on the off chance that he takes sensible strides, to moderate his misfortune, is qualified for recuperate the expenses of the sensible advances taken from the Respondent.
NON PATRIMONIAL Misfortune
Non patrimonial misfortune does not by any means have a financial esteem. Be that as it may, the harms granted will be in fiscal terms. Cases of non-patrimonial misfortune are agony and enduring, passionate stun, distortion, loss of luxuries of life and abbreviated future. I.e. As for the situation think about, the offended party’s sweetheart endures a non-patrimonial misfortune and therefore looks to guarantee remuneration.
For this situation, there is the presence of both financial (offended party) and additionally non-monetary (offended parties sweetheart) misfortunes. Thus the presence of this component of delict can be demonstrated.
THE OCCURENCE WHICH OFFERED ASCEND TO THE PLAINTIFF’S CLAIM:
On 4 February 2000 at roughly 19h00 the offended party touched base at the premises (TBF Steakhouse) and entered the eatery with his sweetheart. In the eatery two verbal quarrels occurred between the offended party and the second litigant. As per the quarrels the second litigant left his post at the bar and took after the match outside as they were leaving at roughly 23h00 and continued to physically attack the offended party while yelling unrefined comments.
THE DISPUTES OF THE GATHERINGS
The offended party fights that the activities and direct of the second respondent when he attacked the offended party were done in the course and extent of the second litigant’s business or that such activities and lead were adequately firmly associated with his obligations as a representative of the principal respondent to render the main litigant vicariously at risk.
In help of this conflict guide for the offended party presented the accompanying:
1. The occurrence happened while the second respondent was utilized by the primary litigant and was on obligation; the second respondent was required and anticipated that would serve the offended party; the second litigant was obliged to agree to his obligations and the arrangements of the code alluded to above.
2. The offended party and the second litigant were on the premises of the primary respondent when the episode happened.
As expressed before the main issue that must be resolved in this activity was whether the principal litigant was vicariously at risk for the activities of the second respondent the offended party and the second respondent were on the premises of the primary litigant when the occurrence happened. The occurrence took after inside a short space of time after the main quarrel in the advantageous store and quickly after the second squabble in the accommodation store. The occurrence emerged in light of the fact that the second respondent felt incited by the offended party while the second litigant was practicing his capacities and executing his obligations. The second respondent neglected to conform to the arrangements of the code. The principal litigant needed to realize that the second respondent, in the wake of having ambushed a kindred worker was fanciful and effectively incited and could jeopardize individuals from the general population frequenting the premises and the accommodation store. The primary litigant’s inability to hold a disciplinary request after the second respondent’s ambush of another worker, was contra the arrangements of the code and could have made an impression with the second litigant that the principal litigant did not entirely uphold the code, did not consent to the arrangements of the code itself and that the main respondent overlooked the second litigant’s activities and direct amid the attack on the other representative. In time, space and nexus, the second respondent’s activities and lead were adequately firmly associated with his obligations as a worker of the main litigant to render the primary litigant at risk.
It is counterfeit to break the occasions into partitioned compartments regarding circumstances and end results, in conditions where the occurrence took after not long after the main quarrel in the advantageous store and quickly after the second squabble in the helpful store, while the second litigant was serving clients, and finished in a matter of seconds soon after the principal fight and instantly after the second quarrel and as an immediate consequence of the first and the second quarrels, on the premises. Then again, the primary respondent battles that it isn’t vicariously subject for the activities and lead of the second litigant amid the episode. This conflict depends on the accompanying:
The way that the primary respondent neglected to make any strides against the second litigant after the occurrence is unimportant and insignificant to the inquiry regardless of whether the main litigant is vicariously at risk for the episode. There was at no time any explanation behind the primary litigant to trust that any of its representatives, including the second respondent, would ambush any client.The incident occurred in a heated argument between the second defendant and the plaintiff in the early hours of the evening. The second defendant’s actions during the incident were a Spontaneous act of retributive justice. It was an act out of aggression and personal vindictiveness, after the plaintiff clearly provoked the second defendant. The second defendant’s actions and conduct during the incident was solely for his own interests and purposes; fell outside his authority i.e. he was not expressly or tacitly authorized to use any force of whatsoever nature against a customer or entitled, as a consequence of his employment, to use force of whatsoever nature; the second defendant’s action during the incident can be described as a “frolic of his own”. By walking outside the convenient store, the second defendant abandoned his duties as employee of the first defendant. The mere fact that the incident occurred as a result of an altercation which started while the second defendant was acting as an employee is, for purposes of determining vicarious liability, irrelevant. The personality or background of an employee cannot influence the question whether or not an employer should be held vicariously liable. A contravention of the code is rather indicative of the fact that the first defendant is not vicariously liable. In any even the assault by the second defendant of an employee is irrelevant as the plaintiff’s case is not that the first defendant breached a duty of care or acted negligently in any manner. What occurred after the incident, with specific reference to the disciplinary hearing, cannot influence the question whether or not the first defendant is vicariously liable.
Vicarious liability in general terms may be defined as “the strict liability of one person for the delict of another”. 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). Accordingly the first question to be considered is whether the second defendant was going about the employer’s business; i.e. whether the “standard test” is applicable.
The second defendant was, at the time of both altercations with the plaintiff, engaged in the affairs of the business of the first defendant. The plaintiff had specifically stopped at the first defendant’s premises as The plaintiff submitted that at the time the second defendant assaulted the plaintiff he was acting in the course and scope of his employment. He substantiated his argument as follows: when the second defendant had the two verbal altercations with the plaintiff the interaction was related to the work of the second defendant as a bartender. He was at work behind the counter when the altercations occurred. The assault of the plaintiff outside the restaurant was a consequence of the altercations that took place inside the restaurant. It was not possible to separate the events that led to the assault by placing them into different compartments. The standard test would, therefore, apply to the facts of the present case, it was argued. The first defendant, on the other hand, submitted that the second defendant was, when he assaulted the plaintiff, acting outside the scope of his employment. The second defendant was clearly motivated by anger. He was upset, following the altercation he had had with the plaintiff. At the time he assaulted the plaintiff he was clearly settling a score and this had nothing to do with his employment with the first defendant as a cashier, it can be argued. A master is not responsible for the private and personal acts of his servant, unconnected with the latter are employment, even if done during the time of his employment. The act causing damage must have been done by the servant in his capacity qua servant and not as an independent individual. (See, for example, Feldman (Pty) Ltd v Mall 1945 AD 733 at 742 and HK Manufacturing Co (Pty) Ltd v Sadowitz 1965 (3) SA 328 (C) at 336A).
In Mkize v Martins 1914 AD 382 at 390 Inness JA (as he then was) formulated the basic principle underlying vicarious liability as follows:
“However that may be, we may, for practical purposes, adopt the principle that a master is answerable for the torts of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interests and purposes, and outside his authority, is not done in the course of his employment even though it may have been done in his employment. Such an act cannot be said to have taken place ‘in the exercise of the functions to which he (the servant) is appointed’.”
for the plaintiff submitted that even though it cannot be argued that the second defendant was employed to assault the plaintiff it was clear from the facts that at the time of the incident the second defendant was engaged in the affairs or business of his employer, the first defendant. The argument went thus: a customer to order a meal and enjoy a few drinks. He had to interact with the second defendant, employed at the time as a bartender, by the first defendant. The interaction between the two was not about private matters unrelated to the business of the first defendant. The incident commenced in the restaurant after the plaintiff had requested for a drink for him and his girlfriend. During one verbal altercation the second defendant was at all times behind the bar in the restaurant engaged in the affairs of the first defendant. The second defendant left his post only briefly to follow the plaintiff out during which period he assaulted him, and as a result was reprimanded and sent home by the first defendant. The stabbing took place on the premises of the first defendant.
Counsel for the plaintiff submitted that it was not possible to compartmentalize the different stages of the incident and to hold that the act of the second defendant to leave his post behind the bar for that period of time was completely unrelated to the rest of the incident. Counsel for the plaintiff further submitted that it could not be said that, when the defendant stabbed the plaintiff, he acted ‘on a frolic of his own’ as the altercation both verbal and physical, was conduct incidental to the business of the first defendant and the second defendant was throughout the incident, engaged in the business of his employer.
In Minister of Police v Rabie 1986(1) SA 117 (A) at 134 C-D the court explained the standard test for vicarious liability thus:
“It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment. . .” The test in this regard is subjective.
What is clear from the cases is that the concept of vicarious liability implies that there must be some kind of a link between the relationship of master and servant and the wrongful act committed by the servant. Where this link is missing there cannot be vicarious liability.
In the present case it is difficult to see that there is any link in assaulting the plaintiff, and the duties of the second defendant as a bartender and casual worker serving the interests of the first defendant. In observation the second defendant was not acting within the course and scope of his employment at the time of the incident. He assaulted the plaintiff not to advance any interest of the first defendant but to settle a score with the plaintiff who had upset him. That is what was on his mind at the time. The assault on the plaintiff by the second defendant was clearly an act done solely for his own interests and purposes and had nothing to do with his employment as a cashier.
In the alternative counsel for the plaintiff submitted that in the event of it being held that the second defendant was not engaged in the affairs or business of his employer during the stabbing, the first defendant my still be held vicariously liable in terms of the test for “deviation cases”. In support of this submission plaintiff’s counsel relied on the case of F v Minister of Safety and Security supra at 547H-550B where Mogoeng J, in the majority judgment, stated:
“Two tests apply to the determination of vicarious liability. One applies when an employee commits the delict while going about the employer’s business. This is generally regarded as the ‘standard test’. The other test finds application where wrong doing takes place outside the course and scope of employment. These are known as ‘deviation cases’. The matter before us is a typical deviation case.
Feldman (Pty) Ltd v Mall is a pivotal common-law authority on deviation cases. In that case an employee drove his employer’s vehicle to deliver parcels as instructed by his employer. Thereafter, he attended to his personal matters. He then consumed alcohol, which significantly impaired his capacity to drive. On his way back to his employer’s premises, he negligently collided with, and killed, a man who had two minor dependants. By majority, the Appellate Division held the employer liable for the minor children’s claim.”
The above is an illustration that even where an act was done outside the course and scope of the servant’s employment if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.
Counsel for the plaintiff submitted that the facts in the matter showed that the present matter fell squarely within the deviation category. He argued that the subjective state of the second defendant’s mind at the time of the first and second verbal altercations is just as relevant as his state of mind at the time of the stabbing. He reiterated that it was not possible to compartmentalize the different stages of the incident.
Counsel for the plaintiff submitted that even if it were to be found that the wrongful act comprising the un-compartmentalised altercations was not committed solely for the purpose of the second defendant, then the first defendant should be held vicariously liable for the acts of the second defendant in Accordance with the findings in Minister of Safety and Security v Luiters 2006 (4) SA 160 (SCA). If, however, it was found that the incident can be compartmentalized and the wrongful act was committed solely for the purpose of the second defendant, the first defendant may still be held liable vicariously if there was a sufficiently close connection between the employee’s act in his or her own interest and the employer’s business. Counsel for the plaintiff submitted that in casu there was such a sufficiently close connection. He argued that the close connection between the second defendant’s act of stabbing the plaintiff in the context of the nature of his employment and the first defendant’s business appear from the same facts and that the deviation was not great in respect of space and time.
For his submission counsel for the first defendant relied on the matter of Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 (4) SA 34 (SCA). In that matter the court had to decide whether a barman (Goldie), employed by the restaurant, acted inside or outside his scope of employment when he assaulted a patron (Reddy) outside the bar. Before the assault Reddy, who was in the company of his girlfriend in the bar, had made snide remarks about Goldie’s efficiency as a barman when Goldie had ignored him and served other patrons. The remarks provoked Goldie and shortly before Reddy left the bar Goldie had gone out to wait for him outside the bar. There he waylaid him and attacked him. Reddy claimed damages from the restaurant on the ground of vicarious liability. The court a quo applied the degree of deviation test and held that Goldie’s wrongful act was committed within the scope of employment and stated the following:
“It was not a grudge which Goldie harboured against the plaintiff independently of his work situation. It was a grudge which arose directly out of his work situation. The digression or deviation, if any, from What Goldie was employed to do, and what he in fact did was so close in terms of space and time that it can reasonably be held that he was still acting within the course and scope of his employment.”
This decision was, however, overturned on appeal. The Supreme Court of Appeal held that the restaurant was not vicariously liable for the Goldie’s conduct as the assault had occurred after Goldie had abandoned his duties as a barman. The Court expressed itself thus:
“It was a personal act of aggression done, neither in furtherance of his employer’s interest, nor as an incident to or in consequence of anything Goldie was employed to do. The reasons for and the circumstances leading up to the assault may have arisen from the fact that Goldie was employed by the restaurant as a barman, but personal vindictiveness leading to the assaults on patrons does not render the employer liable.”
Counsel for the first defendant argued that the first respondent could not be held vicariously responsible for the conduct of the second defendant for similar reasons set out in the matter above.
However, counsel for the plaintiff sought to distinguish the facts of the Umdloti Bush Tavern matter from those of the present matter on several grounds, namely, That the assault in the Umdloti Bush Tavern occurred outside the employer’s business premises while the assault in the present matter occurred on the first defendant’s business premises; Goldie did not return to his post after the assault, but was found by his manager, downstairs, where he was summarily dismissed. The second defendant in the present case returned to his post behind the counter and immediately continued to serve customers; Goldie was at all times, during his interaction with Reddy on the evening of the assault (in any event as far as Reddy was concerned) not engaged in the business of his employer, but was following an agenda of his own; At no time did he serve Reddy but was aggressive towards him and as Reddy prepared to leave with his companion he left the bar to wait for them outside the premises where he assaulted him; In the present case the second defendant did not abandon his post or duties but was attending customers immediately prior to the incident, remained on the premises during the incident and returned to his post behind the counter in the convenience store immediately after the incident; Goldie did absolutely nothing incidental to or in furtherance of the business of his employer in his interaction with Reddy. On the contrary, in the present case, the second defendant was consistently engaged in the affairs of the first defendant.
It is so that the facts in the Umdloti Bush Tavern matter are distinguishable from the facts in the present matter. Notwithstanding the distinctions, in my view, the close connection as described above is only one of the considerations. There are other equally important considerations such as the nature of the IConclusionnd reasons for the worker and the idea of deviation from the matter of the business. This is critical particularly in situations where the business has set out rules for the representatives, for example, a Set of principles or obligations. In the present case a vital thought is that as far as Thing (I) of the obligations it was normal from the second respondent that he should treat clients cordially, constantly a graciously.
At the point when the second respondent ambushed the offended party he digressed seriously from the obligations of a clerk when he contradicted the obligations alloted to him. It is along these lines not the level of the deviation that is essential, as contended by advise for the offended party, however the idea of the wrongful direct. It is with the goal that the primary respondent neglected to teach the second litigant in like manner when unmistakably such a stage was justified. In my view, be that as it may, such disappointment ought to make little difference to the assurance of whether the principal litigant is vicariously at risk.
The goal of the second litigant of following the offended party outside, absolutely had nothing to do with his situation as a barkeep or easygoing laborer. It likewise had nothing to do with the matter of the main respondent as proprietor of the eatery. It did, be that as it may, need to do with his own emotions. The verbal fights clearly hurt his emotions and in his mind the best way of managing the issue was to physically assault the individual dependable. A vital thought is that the wrongful lead was particularly restricted in his obligations. In my view this ought to be solid contention against vicarious obligation. (See SAR and H v Albers and Another 1977(2) SA 341 (D)). It is so that in specific occurrences the business will be at risk ” . . . Notwithstanding for acts which he has not approved furnished that they are so associated with the demonstrations which he has approved that they may appropriately be viewed as modes – despite the fact that in legitimate modes – of doing them . . . Then again if the unapproved and wrongful act isn’t so associated with the approved go about as to be a method of doing it, yet an autonomous demonstration, the ace isn’t dependable; for in such a case the hireling isn’t acting throughout his work, however has gone outside of it.” (See Feldman (Pty) Ltd v Shopping center supra 747).
In the present case it can’t be said that ambushing a client is a method of serving a client. Or maybe it is an autonomous demonstration, which isn’t just a criminal demonstration, but at the same time was explicitly taboo by the primary respondent in its obligations for its representatives. For the reasons over the deviation contention should likewise fall flat. In the premises the principal respondent can’t be held vicariously liable for the lead of the second litigant.
In conclusion, the concept of vicarious liability is a very complex issue, as it is torn between trying to protect the right of the victim to gain sufficient compensation and trying to protect the employer from being overburdened by their employees.
Although it goes against the principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability seems appropriate as it does serve a useful purpose; it contributes to the maintenance of safety standards and it enables the victims of negligence by employees to be reasonably certain that someone will be in a position to pay them compensation.
The reasons for and the circumstances leading up to the assault may have arisen from the fact that Frikkie was employed by the first defendant as a barman, but personal vindictiveness leading to the assaults on patrons does not render the first defendant liable.
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