Part II

The law on vicarious liability has been discussed in many cases. The critical consideration is therefore whether the wrongdoer was engaged in the affairs or business of his employer. This is generally referred to as the “standard test” or “general principle”. The problem of application presents itself particularly in what have become known as “deviation cases”: instances in which an employee while in a general sense still engaged in his official duties deviates there-from and commits a delict.

It has been ruled in a series of cases that the fact that the employee deviates from the course of employment will not necessarily mean that there is no longer vicarious liability. This stems from considerations of social justice. The approach is that the degree of deviation from the course of employment has to be of a major extent before it will hold that the employee is no longer in the course of his or her employment.

For example, if the employee, while about his or her employer’s business, temporarily diverts from that business to do something for his own purposes, the court will ask the question: was the deviation of such a degree in terms of time and distance that it cannot reasonably be said that he or she was still exercising the functions for which he or she was employed?

A typical case where this issue arises is where an employer instructs his delivery driver to deliver certain items and then to return the delivery van to his premises. If, having done his delivery rounds the driver drives to his own home to pick up some of his personal possessions before returning the van to the employer and he drives negligently and has an accident either on the way to his home or on his way from his home to the employer’s premises, the question is whether the employer will be vicariously liable for the harm caused. This will depend upon the extent of the deviation.

In Nott v ZANU (PF) 1983 (2) RLR 208 (S) a driver had collided with the Plaintiff’s vehicle. At the time of the accident the driver had deviated from his assigned task to do his own personal business. The court held that the employer was nonetheless vicariously liable to because in terms of time and space the deviation was not major and had not seriously interfered with the exercise of the driver’s duties. The deviation was not such as to lead to the conclusion that the driver had abandoned his functions.

In Feldman (Pty) Ltd v Mall 1945 AD 733 the facts as set out in the headnote were as follows: “A servant of the defendant had been given custody of a motor van and a number of parcels, with instructions to drive the van and deliver the parcels to various customers in a town. Having delivered the parcels he was to return the van to a certain garage.

“It appeared that after delivering the parcels he had driven the van to a place some miles away on his own business, and there drank enough liquor to make him incapable of driving the van with safety.

“Shortly after his departure from such place on his way back to the garage, he negligently collided with and killed the father of two children.”

The deviation in point of distance was about three-and-a-half miles (i.e. five kilometres), and the deviation in point of time was about three to four hours. In a split decision of 4 to 1 the court held that the employer was vicariously liable.

In our jurisdiction, the standard test for vicarious liability, was applied in Biti v Minister of State Security 1999 (1) ZLR 165 (S). In the Biti case, the driver of a Government vehicle was instructed to take three Government officers home after work and then keep the vehicle safely overnight. In the morning he was to pick up the same officers and drive them to their workplace. He was on call while not actively on duty. About two and a half hours after he should have finished dropping the three officers, he rammed into a stationary taxi owned by the plaintiff, badly damaging the taxi and severely injuring the plaintiff.

The accident occurred at a place which was about a 5km deviation from the routes he would have had to have taken to drop off the Government officers. There was some evidence that the driver was heavily intoxicated and that he had his girlfriend in the car.

The trial court held that the Ministry which employed the driver was not vicariously liable.

On appeal, however the Supreme Court held that the standard test for vicarious liability requires the court to decide whether the wrongdoer was engaged in the affairs or business of the employer when he committed the delict.

In the present case, the business of the Government driver included not only the transporting of passengers to their homes, but also keeping the vehicle in safe overnight custody.   Although the driver had deviated from his authorised route, the deviation, in terms of time and space, was not such as to convert it into “a frolic of his own”. The improper mode of exercising his duty of keeping the vehicle safely overnight was still done within the course of his employment and the Ministry which employed him was vicariously liable.”

Let us give elaboration to this principle through a real story of a truck driver which we will deal with next week.

To be continued next week . . .

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara @gmail.com