“I was involved in a motor vehicle accident during May 2019, when a truck branded by SASKO Bread, drove into the rear of my vehicle. After the accident and when I approached the driver of the vehicle I could establish very quickly that the driver of the vehicle had been drinking. Can I hold SASKO liable for the damage to my vehicle?”
First of all to answer the above question one must provide a definition for vicarious liability, which is that 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.
According to Neethling’s Law of Delict liability is defined as “the strict liability of one person for the delict of another, which arises from a particular relationship between such persons for example that of employment.
What you must prove?
In cases of this nature the Plaintiff must allege and prove in addition to the usual allegations to establish delictual liability i.e. owner of the vehicle and damage to the vehicle but also:
1) That the person who committed the delict was an employee of the employer;
2) What was the scope of the employee’s duties at the relevant time;
3) That the employee performed the delictual act in the course and scope of the employee’s employment.
Reason why you sue the employer:
In the matter of Rabie v Minister of Police the following was stated:
“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 and scope of his employment, and that in deciding whether an act by the servant does so fall, same reference is to be made to the servant’s intention. The test is in this regard subjective on the other hand, if there is nevertheless a sufficiently close link between the servants acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test”
Furthermore in the matter of Feldman v Mall, where Watermeyer CJ captured the test for vicarious liability in deviation cases as follows:
“If an unfaithful servant, instead of devoting his time to his master’s service, follows a pursuit of his own, a variety of situations may arise having different legal consequences.
… (b) If he (the servant) does not abandon his master’s work entirely but continues partially to do it and at the same time to devote his attention to his own affairs, then the master is legally responsible for harm caused to a third party, which may fairly, in a substantia degree, be attributed to an improper execution by the servant at his master’s work, and not entirely to an improper management by the servant of his own affairs.”
It further makes more economical sense that you will rather sue the employer, who is in most instances in a better position to settle your claim then that of the employee.
Difficulties with these matters lies in proving the third essential element mentioned above, being that the employee acted within his course and scope of this employment and must one be wary that an employer does not establish that the employee was on a frolic of his own and not furthering the interest of the employer.
There is however instances where the Court held that although the employee was on a frolic of his own the employer was still held liable. See in this regard K v Minister of police and F v Minister of police where in both instances the court found that the Minister of Police liable for damages suffered by the Plaintiff when they both were raped by police officials.
As such I am of the view that as per the scenario listed above, you will be able to proof a claim against the employer being SASKO for the actions of employee and should you approach an attorney to draft a proper summons to include your claim against the employer.
Reference List:
· F v Minister of Safety and Security, 2012 (1) SA 536 (CC)
· K v Minister of Safety and Security 2005 6 SA 419 CC