Vicarious liability – An ever-increasing risk for employers

Vicarious liability has always been a curious aspect of our law and monitoring its development as it applies to numerous legal questions and ongoing matters is of interest to many a legal practitioner. Recently, the Eastern Cape Division of the High Court handed down judgment in the case of LM and Others v The Mnquma Local Municipality and Another (453/2020) [2022] ZAECMKHC 64 which develops the aspect further. The judgment explores, among other things, the test for vicarious liability in considering, firstly, whether the Municipality could be held liable for the actions of its employee who alleges to have been acting to further his personal interests at the time the incident in question occurred, and secondly, the employee’s job description and how that impacts the liability determination.

Background

Lukhanyo Tukani (Mr Tukani) was employed by the Mnquma Local Municipality (the Municipality) as a Close Protection Officer, specifically to protect the Municipality’s executive mayor.

On 2 December 2017, Mr Tukani alleges that he was woken up in the middle of the night when he heard his friend calling for help outside of his house. He got up to see that a knife-wielding assailant had pushed his friend against an aloe bush next to the house. Following repeated requests for the assailant to leave, Mr Tukani fetched the firearm issued by the Municipality (in order to enable him to perform his job) and fired three warning shots. The first two warning shots were fired into the air and the third was fired into the ground and caused the assailant to flee. Mr Tukani testified that he saw sparks fly from where the third bullet had hit the ground.

Shortly thereafter Mr Tukani learned  that the third bullet he fired had ricocheted and entered into the home of the plaintiffs beneath the window and tragically hit the plaintiffs’ five-year-old child in the head, causing a severe brain injury.

As a result of the unfortunate incident, the plaintiffs instituted action against both the Municipality and Mr Tukani. The plaintiffs sought to hold the Municipality vicariously liable for Mr Tukani’s actions.

One of the main questions before the court was whether Mr Tukani was acting within the course and scope of his employment when he fired the shot that injured the plaintiffs’ child. If not, then whether the shot was fired in circumstances sufficiently close to the Municipality’s business in order to establish vicarious liability.

The court also briefly considered whether the actions of Mr Tukani were wrongful for purposes of establishing liability.

Findings

The court found that it is established law that an employer is vicariously liable for delicts committed by its employee where the employee was acting within the course and scope of his duties as an employee.

Importantly, the court referred to landmark judgment of Minister of Police v Rabie wherein it was held 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, some reference is to be made to the servant’s intention … if there is a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable …”.

In order to answer the question as to whether Mr Tukani’s actions were “sufficiently close” to give rise to vicarious liability, the court considered Mr Tukani’s job description of a ‘Close Protection Officer’ as per his personnel file.

The Municipality argued that Mr Tukani was provided with the firearm in question solely for the purpose of protecting the executive mayor. Mr Tukani was issued with a 9mm pistol for the purposes of performing his job and due to the fact that he was on standby at all times, he was allowed to retain the firearm whilst off duty. Mr Tukani testified that his only duty was to guard the executive mayor and that he was not aware of the contents of his job description. However, the court noted that the duties owed by Mr Tukani to his employer in terms of his personnel file were recorded as, “activities/tasks associated with maintaining law, order, safety and security through application of laid down policing, protection, firefighting and rescue procedures and attending to processes aimed at compliance with laws, by-laws and regulations in order to ensure any action or situation threatening safety is identified and promptly attended to”.

Furthermore, Mr Tukani’s related functions are also listed as “law enforcement functions; community policing and security operations; enforcing compliance and emergency control functions. It is common cause that those responsibilities had been approved and assigned by the municipality to the post of a ‘Close Protection Officer’”. 

The court found that his job description related more generally to maintaining safety and security, and law and order (among other things), and not solely to the protection of the executive mayor specifically. As such, it was open to the Municipality at any time to require him to perform any of the other listed tasks outside of his protection of the executive mayor.

The court determined that Mr Tukani’s actions fell squarely within the ambit of his job description (what is assumed to be the law enforcement functions, policing operations and security operations), despite Mr Tukani’s testimony to the contrary and despite the argument that he was unaware of his full job description. The court found that he was essentially taking steps to prevent the commission of serious crimes, and his own subjective view and understanding of his duties cannot change the objective purpose and intention of his employer. From that which is contained in the judgment regarding Mr Tukani’s testimony, it would appear that he had never previously performed any of those functions.

As a fallback position, the court stated that even if the finding is incorrect, the plaintiffs had established that Mr Tukani’s actions were sufficiently closely linked to the purposes and business of the Municipality. As such, the determination was ultimately that vicarious liability had been established and that the Municipality is liable for the plaintiffs’ damages.

In considering whether the actions of Mr Tukani were wrongful in the circumstances the court stated that Mr Tukani should have foreseen the reasonable possibility of the bullet he had fired injuring another person, given his training and experience with firearms. Therefore, he was held to have acted wrongfully. In support of this finding, the court cited the judgment of Sea Harvest Corporation (Pty) Ltd and another v Duncan Dock Cold Storage and another [2000] 1 All SA 128 (A).

The court found that Mr Tukani had negligently discharged his firearm in circumstances where he could reasonably foresee that his conduct could injure another person and failed to take steps to prevent this from occurring. The court ultimately held that in acting in this manner, Mr Tukani was acting in the course and scope of his employment with the Municipality and as such, the Municipality was held vicariously liable for Mr Tukani’s actions. As such, both the Municipality and Mr Tukani are jointly and severally liable for the plaintiffs’ damages as claimed for the minor’s injuries.

Analysis

This judgment seems to open the door for a broad interpretation of the test for vicarious liability and, like a double-edged sword, has the ability to cut both ways. The finding comes off the back of the Supreme Court of Appeal’s determination in the case of Stallion Security (Pty) Limited v Van Staden 2020 (1) SA 64 (SCA) . The Van Staden judgment developed the test for vicarious liability by stating that where the employer had created the risk of the harm that materialised, including the means to cause the harm, then this was sufficient for vicarious liability.

The court in the case under discussion found that regardless of what Mr Tukani perceived his duties to include, the fact that his written job description included more general duties to the public outside of his protection of the executive mayor, were sufficient to find that the Municipality was vicariously liable. As such, Mr Tukani’s intentions and subjective understanding of his actions were not a relevant consideration for purposes of determining vicarious liability. It seems, however, that the Municipality’s intentions as the employer regarding Mr Tukani’s duties, are relevant in determining this.

It would appear that our courts are continuously increasing the scope for vicarious liability as the need to hold employers liable for the wrongful actions may give greater support for the solvency theory that was previously used to sustain vicarious liability given the lack of resources available in our society. 

We submit that a balance needs to be found between wanting to ensure that parties receive the justice that they deserve and holding the correct people liable for certain actions. It is preferable to avoid having a situation in which there is open-ended liability on the parts of municipalities, and employers generally. There is still a threshold to meet before an employer can be held vicariously liable for its employees’ actions and by lowering the bar, a risk is run that entities are held liable for all actions of their employees and as such, serves as a warning to ensure that the necessary safeguards are put in place to ensure that liability is limited in all aspects, including the liability brought about by one’s own employees.

To access a copy of the judgment, click here.