It is trite law in South Africa that an employer will be vicariously liable for the negligent act of his or her employee/employees or agent/agents, in the event of the employee/employees or agent/agents acting in a negligent manner during the course of his/her employment.
The question that arises from the above is to what extent will an employer be held liable if his/her employee, at the time of committing the negligent act, attend thereto in his/her personal capacity whilst in the course of business of the employer?
Test for determining vicarious liability
There are three common law requirements to determine the vicarious liability of an employer in standard matters, namely:
- An employer-employee relationship must be established;
- A wrongful act must have been committed by an employee; and
- The employee must have committed the wrongful act whilst acting within the course and scope of his/her employment.
The problem with the above test came when determining vicarious liability in cases which deviated from the norm, as the former created an easy method for the employer to prove that an employee was acting outside the scope of his/her employment. There was accordingly an uncertainty in the law regarding the test for vicarious liability when it cannot be determined by the common law test.