Vicarious liability of employer for assault perpetrated by employee on a customer

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

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, a casual barman 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 him and his girlfriend.

After some time they were 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")

1. '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.

2. 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.

3. This qualification is necessary because the servant, 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.'

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:

1. '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.

2. 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:

1. "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.

2. 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.

3. 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-à-Vis customers will clearly go a long way towards limiting an employer's potential liability for the acts of its employees.