South Africa - course and scope of employment "vicarious liability"
In Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport 2000 (4) SA 21 (SCA) the following was stated at 24 H – 25 E:
“The standard test for vicarious liability is, of course, whether the delict in question was committed by an employee while acting in the course and scope of his employment. The inquiry is frequently said to be whether at the time of the employee was about the affairs of business or doing the work of the employer (see, for example, Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) at 827B; Minister of Police v Rabie 1986 (1) Sa 117 (A) at 132 G). This is no doubt true, but it should not be overlooked that the affairs or business or work of the employer in question must relate to what the employee was generally employed or specifically instructed to do. Provided the employee was engaged in activity reasonably necessary to achieve either objective, the employer will be liable (see Estate Van der Byl v Swanepoel 1927 AD 141 at 145 – 6, 151 – 2). The difficulty, of course, is that while the general approach to be adopted may be easy enough to formulate, its lack of exactitude is such that problems inevitably arise in its application. This is particularly so in the so-called ‘deviation’ cases. What is clear is that not every act of an employee committed during the time of his employment which is in the advancement of his personal interest or for the achievement of his own goals necessarily falls outside the course and scope of his employment. (Viljoen v Smith 1997 (1) SA 309 (A) at 315 F – G.) In each case, whether the employer is to be held liable or not must depend on the nature and extent of the deviation. Once the deviation is such that it cannot be reasonably held that the employee is still exercising the functions to which he was appointed, or still carrying out some instruction of his employer, the latter will cease to be liable. Whether that stage has been reached is essentially a question of degree. (See Feldman (Pty) Ltd v Mall 1945 AD 733 at 756 – 7; Union Government v Hawkins 1944 AD 556 at 563; Viljoen v Smith (supra at 316E – 317A).) The answer in each case will depend upon a close consideration of the facts. The same is true of the inquiry as to whether the deviation has ceased and the employee has resumed the business of his employer.”
In Minister of Police v Mbilini supra the following was stated at 711 H – 712 A:
“Where a person is sought to be held liable for the wrongful act of an alleged servant the position has always been that it is for the plaintiff to prove that the person who did the wrong was (a) the servant of the party sought to be held liable and (b) that he performed the wrongful act in the course or scope of his employment. As long ago as Mkize v Martens 1914 AD 382 Innes JA stated at 319 that:
‘(a) plaintiff who seeks to make a master liable for the negligent act of a servant must prove that the servant was acting in the course of his employment. That onus may conceivably be discharged by inference from established facts; but it does not seem to me to be shifted by the mere proof that the act was done at a time when and a place where the servant was in his master’s employ.’”
In Minister of Police v Rabie 1986 (1) SA 117 (A) the following is stated at 134
C – E:
“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, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention (Cf Estate Van der Byl v Swanepoel 1927 AD 141 at 150). The test is in this regard subjective. On the other hand, 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.”
VICARIOUS LIABILITY OF EMPLOYER FOR ASSAULT PERPETRATED BY EMPLOYEES ON CUSTOMERS
Costa Da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy
Supreme Court of Appeal - 486/01 Judgment date: 7 March 2003
Delict - vicarious liability of employer for assault perpetrated by employee barman on customer. Usefulness of agreed statement of facts after trial for purposes of appeal highlighted.
Human resource practitioners are acutely aware that the Company may be held liable for the misconduct of their employees towards customers or suppliers. This potential liability was demonstrated in the Supreme Court of Appeal case, Costa Da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy.
In this case, on the evening of 31st October 1997 the Respondent and his girlfriend went to the Umdloti Bush Tavern and seated themselves at the horseshoe shaped bar. Goldie, casual barman in the employ of the Appellant, was on duty from 18h00 until 03h00 the following morning. Upon the arrival of the Respondent and his girlfriend, Goldie was stationed behind the bar. The Respondent and his girlfriend waited at the bar for service. It appeared to them that Goldie was serving everyone else besides the Respondent and his girlfriend. After some time the Respondent was served by another barman. While he was being served, the Respondent mentioned to the other barman that Goldie could take a few lessons from him on how to serve customers. This was stated within earshot of Goldie, who, in response, glared at the Respondent. Thereafter Goldie came over to the Respondent and, from behind the bar, beckoned him to come closer with his right forefinger. The Respondent responded by saying words to the effect that he "did not come for people like that". This agitated Goldie who, thereafter, occasionally glared at the Respondent and appeared to be aggressive. He was visibly upset and, whilst glaring at the Respondent, nodded his head as if to convey something. Goldie resented being criticised for lack of service in circumstances where, in his view, he tried to serve everyone as quickly as possible. He agreed that he was upset but denied that he intended to intimidate the Respondent. At some stage Goldie reported the incident to a member of management, who told him not to get involved with the Respondent and to allow another barman to served the Respondent. When the Respondent and his girlfriend decided to leave, the Respondent generously tipped the other barman. Goldie noticed this. As they were about to leave, Goldie left the bar area and quickly exited through the main entrance to the premises. The Respondent and his girlfriend met up with Goldie in the corridor immediately outside of the glass door on the premises. There Goldie immediately commenced punching the Respondent and, when he fell to the ground, repeatedly kicked him with booted feet, in particular, on his right leg. As a result of the attack the Respondent sustained injuries.
In overturning the decision of the High Court which found that the employer was vicariously liable for the actions of Goldie, P J J OLIVIER JA cited Watermeyer CJ said in Feldman (Pty) Ltd v Mall 1945 AD 731 at 743 - 744, which set out the general principles relating to vicarious liability of employers ("master") for the actions of their employees ("servants")
'Another form in which the law is sometimes stated is that a master is liable for those wrongful acts of a servant which are done while he is on his master's business but not for those which are done while he is on a frolic of his own. This statement of the principle is misleading. The question is not whether the servant was on a frolic of his own at the time when the wrongful act was done but whether the act causing damage was an act done by the servant in his capacity as servant and not as an independent individual. The phrase "frolic of his own" comes from the judgment of Baron Parke in Joel v Morrison (6 C. & P., at p. 503), but Baron Parke carefully qualified the phrase. He said: "If he be going on a frolic of his own without being at all on his master's business the master will not be liable." This qualification is necessary because the servant, while on his frolic may at the same time be doing his master's work and also because a servant's indulgence in a frolic may in itself constitute a neglect to perform his master's work properly, and may be the cause of the damage.'
This qualification was repeated, inter alia, in Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) at 827 B, where Kumleben JA stated:
'The critical consideration is therefore whether the wrongdoer was engaged in the affairs of business of his employer. (I shall refer to it as the 'standard test' or 'general principle?) It has been consistently recognised and applied, though - since it lacks exactitude - with difficulty when the facts are close to the borderline.'
In the court a quo Pillay J referred to a number of reported cases, in particular to the judgment by Schreiner J of Moosa v Duma and the Vereeniging Municipality 1944 TPD 30, and quoted from p 39 of the report as follows:
'I have had considerable difficulty in deciding whether in the circumstances of this case the incidents were part of the performance by the first respondent of his function of explanation, or whether, though the quarrel arose out of the work he was employed to do, his tortious acts were merely personal and capricious, so as not to fix the municipality with liability. Where a servant having had a quarrel with a member of the public as a result of an interview arising out of the servant's work assaults or defames the other party as a distinct act - doing it perhaps, elsewhere than at his place of employment or after a considerable interval, one would not be disposed to hold the employer liable simply because the quarrel arose out of a matter falling within the servant's functions. But where the quarrel arises at once out of the servant's performance of his work and is followed there and then by the tortious act it seems to me that the proper interpretation of the servant's behaviour is that he is improperly carrying out what he was employed to do and not that he was acting out of personal malice or caprice.'
There are many cases illustrating the application of the principle of vicarious liability, here and overseas. The Court found the case of Deatons (Pty) Ltd v Flew particularly instructive which was heard by the High Court of Australia. The judgment is reported in (1949) 79 Commonwealth Law Reports 370. The facts were that the plaintiff went into a public bar. He was under the influence of liquor. While making his way through the customers at the bar, he upset a number of glasses of beer. The barmaid then asked him to leave. He then used bad language and struck her on the side of her face. She responded by throwing the glass of beer that she was holding into his face, but the glass slipped out of her hand and struck his face, as a result of which he lost an eye. The High Court held that on these findings the defendant, the owner of the bar, could not be held vicariously liable for the delict committed by the barmaid. Dixon J encapsulated his conclusion as follows at 381 - 382 of the report:
'The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.'
In finding for the Appellant, P J J OLIVIER JA held the following:-
"If one applies the basic principles of our law relating to the vicarious liability of an employer for the wrongs committed by an employee (see Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation Bpk 2002 (5) SA 475 (SCA) for an overview of the latest decisions), the conclusion so elegantly worded by Dixon J in Deaton's case, is also particularly applicable to the appeal now under consideration. The assault by Goldie on the respondent outside the tavern occurred after he had abandoned his duties. It was a personal act of aggression done neither in furtherance of his employer's interests, nor under his express or implied authority, 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 appellant as a barman, but personal vindictiveness leading to the assaults on patrons does not render the employer liable."
In conclusion, it is recommended that employers clearly define the parameters of an employee's job tasks, especially those in relation to third parties, such as customers and suppliers. Clarifying the scope of an employee's duties and responsibilities vis~a~vis customers will clearly go a long way towards limiting an employer's potential liability for the acts of its employees.
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