What Is Vicarious Liability

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Are you an employer? Do you employ drivers? Messengers? Have you ever considered what happens when they are involved in a motor vehicle collision?

Most employers who employ people to be drivers or messengers do their best to screen these candidates and ensure that they have the necessary driving skills, however, life is unpredictable and more especially navigating through South African roads can sometimes be quite a challenge. It is often the case that your driver would be involved in some sort of motor vehicle accident, be it serious or even a minor bump.

So, who is liable for this damage to the other vehicle? The first question is whether your driver was the one at fault…and if this is so, then are you liable for the damages or is the driver personally liable?

This is where the concept of vicarious liability comes in to play. Vicarious liability is when an employer is liable for the negligent conduct of his/her employee whilst the employee was carrying out his/her employment.

  1. The following are the elements that must be proved for vicarious liability
  2. There must be an employee - employer relationship;
  3. The employee must have committed a wrongful act;

Such wrongful act must be committed during the course and scope of his/her employment.

Therefore, if your employee, let’s call him “X”, is your flower delivery van driver, and whilst delivering a bouquet of flowers to a customer, “X” accidentally skips a red light and knocks into another car; you as the employee will be held liable for the damages to the other car.

Whereas, if “X” was driving the company car but takes a detour to buy himself a coke and whilst on his way there encounters the same accident as described above; he will be liable for the damages and not you as the employer. The reason for this is that the wrongful act was not committed during the course and scope of his employment.

It is therefore important to note the deciding factor in most cases is if the employee was acting in the course and scope of their employment.

As an employer to protect your interests it is important to be very clear with employees as to what falls within the course and scope of employment. Similarly, if you are an employee it is just as important for you to know exactly which tasks fall within the course and scope of your employment, so as to protect yourself in situations such as these. 

Vicarious liability does not only apply to drivers as in the scenario described above, it is applicable in any instance in which an employee commits a wrongful act during the course and scope of his employment.



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