Vicarious liability

You’re in a situation where one of your employees negligently caused a fire which damaged your neighbour’s property. Did you know that you could be held liable for such an action? This is known as vicarious liability.

You might be questioning what this foreign concept entails. Vicarious liability is governed by South African common law and previous case law which has developed the position over the years. The general rule of this principle is that an employer can be held liable for the acts of his employee during the course of his employment. Naturally, this is quite a controversial topic as generally, a person is only liable for the acts that they have committed. This principle, however, is somewhat justified in that should the employee not have been carrying out their duties, the wrongful act would not have occurred.

Vicarious liability

There are three requirements to be met for vicarious liability:

1. The existence of a contract of employment

Firstly, there needs to be an employer-employee relationship. This relationship needs to exist at the time when the wrongful act was committed. It is also important to distinguish whether someone is acting as an employee or an agent. If they are acting as an agent, there is no employer-employee relationship and the employer cannot then be held accountable.

2. The commission of a wrongful act

The employer can only be responsible for the conduct of an employee if the conduct satisfies the requirements for a delictual act, or a wrongful act, that being:

  • An act or omission;
  • Which was wrongful;
  • Actual damage which the party suffered;
  • Which was caused by the wrongful act/ omission; and
  • Was committed in a wilful or negligent manner.

3. The employee must have acted in the course of his employment

It may seem like a simple concept on paper, but in practice it is far from that. The employee must have been engaged in the performance of his duties required in terms of his contract of employment. If the wrongful act was expressly forbidden by the employer, executed maliciously by the employee, or it constituted a criminal offence, it does not necessarily absolve the employer from liability if the employee was engaging in the performance of his duties.

 The factors to consider are:

  • The terms of the contract;
  • The manner in which the services were performed; and
  •  The factual circumstances in which the wrongful act was committed.

It’s clear from these factors that there is no clear-cut case and that every case needs to be considered based on the specific factual circumstances of that case.

The general principal is that an employer is responsible for the act of his employee which was committed in the course of his employment. However, an act performed by an employee for his own interest and purpose, and outside his authority, was not performed in the course of his employment, although performed during his employment.

Employer’s liability

An employer can be liable for the whole claim that the third party claims. A court may order that the employer and employee will be held jointly liable, and payment of the full amount by the one will relinquish the other. However, once that claim has been decided on by a competent court, the employer has a right of recourse against the employee. They can approach the court to have their liability reduced and to portion out such claim or to re-claim the entire amount from the employee, depending on the circumstances. This is governed by the Apportionment of Damages Act 34 of 1956.

Viljoen vs Smith (Supreme Court of Appeal)

The case of Viljoen vs Smith is a prime example of vicarious liability in the agricultural sector.  It is a case that was decided on by the Supreme Court of Appeal.  The facts were as follows:

  • Mr Viljoen owned a farm.
  • Mr Smith owned the farm adjoining that of Mr Viljoen’s.
  • During the course and scope of his employment, one of Mr Viljoen’s employees, while working in the vineyards, needed to use the rest room. It should be noted that there were no toilet facilities around the vineyard, only back at the farm house. It was expected of the employees to use the restroom prior to commencing their work activities. However, should the need arise, they could relieve themselves in the vineyard. The employees were, however, strictly forbidden to trespass on the neighbour’s property and this was punishable with a fine.
  • The employee, however, decided to jump the fence and walk about 300m into Mr Smith’s property to relieve himself. Thereafter, he attempted to light a cigarette. The match head broke off and caused a fire, which in turn caused damage to Mr Smith’s property.
  • In argument, Mr Viljoen stated that the employee had gone to Mr Smith’s farm for a personal purpose and contrary to the rules, and that the wrongful act was committed during his employment and not in the course of his employment. The court disagreed with this.
  • The court held that an evaluation of the employee’s actions, simply put, revealed nothing more than that he intended to relieve himself. Mr Viljoen contended that the fact that the employee walked about 300m into the neighbouring farm illustrated that he “abandoned” his employment. The court, once more, disagreed with this. The court held that the time it took for the employee to walk the 300m and back could not have been more than a few minutes, which is not a substantial degree of digression.
  • The court further held that the employee did not do anything on Mr Smith’s farm, which he was not allowed to do on Mr Viljoen’s farm.
  • Accordingly, Mr Viljoen was held vicariously liable.

An employer will not always be liable for their employee’s actions. For example Mr X, who is a truck driver, is employed by Mr Y. While on a route, Mr X sees Mr A hitchhiking on the side of the road and stops to give him a lift. A short while later, and due to Mr X’s negligence, Mr X crashed the truck and Mr A was seriously injured. Mr Y will not be held vicariously liable for the actions of Mr X, as it is not part of Mr X’s duties to pick up hitchhikers. The act was therefore committed during the execution of his duties, but not as part of his services.

Other examples of when an employer will not be held liable are:

  • When the employee commits a wrongful act while busy with his own interests which do not form part of his duties;
  • A wrongful act committed by the employee for the employer but outside the scope of his duties (example, a waiter, without authorisation, delivers food and injures a third party in an accident);
  • Certain cases where an employer may be exonerated from liability by means of an indemnity clause in the employment contract.

One should always ensure that the correct measures are in place to avoid any types of accidents or mishaps. Employees should be properly briefed and the necessary preventative measures should be put in place to avoid such. You could even look at including indemnity clauses in your employment contracts, although this is not an absolute protection and, as previously stated, each case will always need to be decided on its own merits.



This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out in the abovementioned legislation. This article should under no circumstances be construed as formal legal advice. Contact VDT Attorneys for assistance in this regard.

March 5, 2021

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