The principle of vicarious liability stipulates that an employer is vicariously liable for all the delicts that are committed by his or her employee during the course and scope of their employment. It should be highlighted that independent contractors do not fall under the ambit of employees and as such employers are not vicariously liable for their actions as they are not committed during the course and scope of their employment.
This principle is applied because the employer retains the services of the employee and gains significantly from the works of the employee and as a result is in a much better financial position than the employee to compensate where a wrong has been committed.
The employee may also be accountable for his or her own wrongdoing in the event they went on a frolic of their own and were not acting within the scope of their employment, but in actuality, the employee is rarely sued because they typically lacks the financial means to cover damages.
The requirements for vicarious liability are that;
- the delict is committed by an employee who is in the employ of the employer and not an independent contractor; and
- the employee commits the wrong during the course of his employment.
It should be noted that it is not enough that the employee committed the offense during regular working hours. The employer will not be held responsible if the employee acts only in his or her personal interest and outside the scope of their employment with that company.
The doctrine is justified and upheld for the reasons that are listed below;
- The employer should fairly be held liable for any losses made throughout the course of the business if he or she or it hires people to further his her or its own economic interests;
- Since the employee frequently lacks the financial means to make restitution, the employer is typically in a much better financial position to compensate the injured party; as a result, it is unfair to demand that the employee makes restitution for a wrong committed while performing work for the employer;
- By purchasing insurance, spreading the cost to customers and raising the price of goods or services, the employer, which is frequently a sizable business, is far better equipped to bear losses of this nature (i.e. the employer can afford insurance whereas the employee often cannot);
- By telling employees what to do, an employer increases the possibility that those employees will injure others while also having the power to regulate their behaviour.
The above-cited sentiments were deduced from the case of Mungofa v Muderede & Ors[1]. In the event that the employee of a service provider that you engaged acted negligently, please feel free to engage our team that will assist you accordingly. For all your litigation needs please do not hesitate to contact our team and make an appointment with us.
This is for general information purposes only.
[1] HH-129-03.
