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Vicarious liability summary
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Laws of delict; * Summary *Focus on vicarious liability case laws * Comprehensive
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[K V MINISTER OF SAFETY AND SECURITY 2005 (CC)]Facts
- Ms K had an argument with her boyfriend in the early hours of the morning and he
left her stranded, far from home.
- The 3 policemen, on duty and in their uniforms offered her a lift home.
- They took another turn and raped her. She struggled to free herself during the whole
ordeal.
- The policemen were charged with rape and given life imprisonment.
- Ms K wished to hold the 3 policemen as well as the Minister for damages, but then
when she saw that the policemen were unlikely to be able to pay damaged, she
abandoned the claim towards them and challenged the Minister alone.
- The SCA dismissed her appeal. They said an employer will be vicariously liable for
the delict of an employee if the delict is committed by the employee in their course
and scope of employment. This is difficult in deviation cases in which the standard
test is used.
- According to the SCA the minister could not be held liable for the rape of the
applicant based on this test this is because whether the deviation was of such a
degree that it can be said that in doing what he/she did the employee was still
exercising the functions to which he or she was appointed or was still carrying out
some instruction of his/her employer.
- The SCA rejected that the common-law rule should be developed.
- The court a quo also rejected that the Minister should be liable because at the time of
the rape the policemen were both failing to perform their duty and to protect the
applicant.
Legal Issues
1. Whether the SCA erred in its application of the standard test for vicarious liability.
2. Whether the test should be developed in the light of s39(2) of the Constitution.
3. Whether the state should be held liable directly for its failure to protect Ms K from
har.
Principles and Ratio
The Constitutional Issue
- The Minister tried to argue using the case of Phoebus Appolo where the applicant
sought to hold the Minister liable in delict for damages arising from theft by certain
policemen. The CC said in that case they did not argue about the conflict of
vicarious liability rules. In this case however, if on a proper application of the rule the
state is not liable then the court should consider the developing the rule. The court
should consider Ms K’s constitutional right to freedom and security, freedom from all
forms of violence, dignity, privacy and right to substantive equality.
- The Constitution requires that the court develop the common law to promote the
spirit, purport and objects of the Constitution. The court referred to Carmichele v
Minister of Safety and Security The Constitution has an objective normative value
system. The influence of the fundamental constitutional values on the common law
are mandated in s39(2).
, - S v Thebus and Another the two instances in which the need to develop the
common law under s39(2) arise: When a rule of the common law is inconsistent with
the constitutional provisions. The second instance is when a rule of the common law
is not inconsistent but may fall short of the spirit, purport and objects of the
Constitution.
- The court also highlighted that common law is developed through precedent. Courts
decide cases within the framework of an existing rule – It is not only cases where
existing rules are clearly inconsistent with the Constitution that such an infusion is
made. The normative influence of the Constitution must be felt throughout the
common law Thus, the argument that the principles of vicarious liability do not
render the Minister liable are inconsistent with spirit, purport and objects of the Bill of
Rights and need to be developed.
The Application of the Common-Law Principles of Vicarious Liability: A Purely
Factual Question?
- The common law principles of vicarious liability hold an employer liable for delicts
committed by its employees where the employees are acting in the course and scope
of their duty as employees… As such the principles are at odds with the basic norm of
society that liability for harm should rest on fault.
- The rationale for vicarious liability can be found in a range of underlying principles:
desiring claimants to get remedies, incite employers to take active steps to prevent
their employees from harming others and the principle that damages should not be
borne by employers in all circumstances but only in those in which it is fair to require
them to do so.
- The common law rules of vicarious liability are neither to be confused with their
reason not that their application remains a matter of fact through the prism of
s39(2) one can see that the application of the common law principles of vicarious
liability are not correct because they sterilize the common law test and avoid any
normative or social or economic considerations.
- This dose not mean that an employer will be made liable for damages simply because
of horrendous injuries “It implies that the courts, bearing in mind the values of the
Constitution seeks to promote, will decide whether the case before it is of kind which
in principle should render the employer liable.”
The Common-Law Principles of Vicarious Liability
- The general principles of vicarious liability holds that an employer responsible for the
wrongs committed by an employee during the course of employment as long as the
employee was acting within the course and scope of his or her duty or was engaged
with affairs of his master. There is a deep sense of justice that is served by a person
in authority being liable for somebody under their authority who commits injuries to a
third party.
- The question the courts have to answer is whether the employee is still acting within
the course and scope of his/her duty of is still engages with the affairs of the
employer. The issue comes with looking at deviation.
- The court looked at precedent, particularly that of Minister of Police v Rabie in
which the AD had to consider a claim for damages arising from the wrongful arrest,
detention and assault of the plaintiff. The member of the police force who made the
arrest was a mechanic in plain clothes and not on duty at the time and made the arrest
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