Who will be liable if an employee injures a third party while using a company vehicle?
Written by: Gerrit Augustyn
The Scenario
Mr A is an employee of Company X that does consulting work all over South Africa on environmental issues. Mr A, stationed in Pretoria, is sent to Durban for five days by his employer to do consulting for one of its clients. Mr A drove to Durban using a company vehicle.
The Incident
After having breakfast on day three of his business trip at the Guest House Mr A went to work at the client. He finished work at the client at around 16:45 and on his way back to the guest house Mr A was involved in a motor vehicle accident. The driver of the other vehicle sustained serious injuries as well as damage to his vehicle. Mr A was at fault as he skipped a red traffic light.
The Question
The injured party want to claim damages and approaches his legal advisor. He wants to know whether he can claim from Mr A’s employer who is obviously in a better financial position to compensate.
The Legal Position in South Africa
The matter to be dealt with here falls under the Law of Torts, also known as the law of unlawful acts. This forms part of private law with the purpose of organising relations in society, but also to recognise individual rights, to weigh them up against each other and then also to reconcile them where there is a clash of these rights.
To be successful with this civil claim for compensation five (5) elements has to be present and proven by a claimant:
1) Act – an Act in South Africa law can be in one of two forms. The first is a commissio (“positive act”). In this form energy is used (i.e. Party A hits Party B). The second is an ommissio. This is where there is a legal duty on a person to act in a positive manner and such a person neglects to do so (i.e. a Supervisor notices an employee performing an unsafe act and does nothing to stop or correct him),
2) Unlawfulness – this is determined by looking at society and what society accepts or rejects. If something is rejected by society as against good morals (contra bonos mores) it is unlawful,
3) Guilt – can be in the form of intent or negligence,
4) Damage – in the form of injury to person or damage to property,
5) Causality/Link – this requires that the “Act” mentioned in 1 must have caused the damage mentioned in 4.
Should all of these elements not be proven a party will not be successful with their claim.
One of the forms in which an unlawful act can be embodied relevant to the matter at hand is that of liability without fault. In this form a party can be held liable for the actions of another. Also known as vicarious liability.
The most common under this is that of employer and employee. Here an employer can be held liable for the actions of the employee(s). The stance in law is that where an employee does something in the normal scope of his work to the advantage of the employer that damage during this must equally fall on the employer and not only the advantage. Another is that of the motor vehicle owner and the motor vehicle driver in terms of which the owner of a vehicle will be held liable for the actions of the driver.
We will now focus on the requirement of “during normal scope of work” and the “advantage” of the employer. Two questions must be asked. The first is subjectively whether the employee has only advanced his/her own interest and objectively whether he/she made themselves totally free of their service duties.
Two important cases on this are that of Feldman (Pty) Ltd v Mall and African Guarantee and Indemnity Co Ltd v Minister of Justice.
In the Feldman-case the employee had to do deliveries and thereafter return the vehicle to his place of work. He went of his route by n great distance to a place where he used strong alcohol. Hereafter on his way back to his workplace he negligently caused the death of the claimant’s sole provider.
In the African-case a police officer allowed his colleague, who was prohibited from doing so due to previous driving offences, to drive the patrol vehicle. During patrol they got involved in a race with a sport motor causing damage to a third vehicle and injury to the person.
In both cases the employers were found liable by the courts as the deviated acts of the employees weren’t far removed from their service duties.
Are you aware that the actions of your employees can have serious bearing on your liability towards them and third parties?
August 19, 2024
