''Less is more" –
Ludwig Mies van der Rohe, famous modernist architect.
The recent judgment of LM and Others v The Mnquma Local Municipality 1 is an example of how a broad job description may expose an employer to vicarious liability.
On the evening of 2 December 2017, Mr Tukani, in response to one of his friends being attacked by a knife-wielding assailant, fired several warning shots in defence of his friend. One of the bullets struck and gravely injured a 5-year-old child, who was lying in bed of a neighbouring property.
Having found Mr Tukani's actions to be wrongful, negligent and the cause of the child's injuries, the High Court had to decide whether the Municipality should be held vicariously liable. Importantly, and at all material times, Mr Tukani (the 2nd defendant) was employed by the Mnquma Local Municipality (the 1st defendant).
Judge J Smith held that vicarious liability would be established if it could be shown that -
- Mr Tukani was acting in the course and scope of his employment with the municipality when the shots were fired; or
- there was a sufficiently close link between the circumstances under which the shots were fired and the business of the Municipality.
Mr Tukani was employed by the Municipality as a 'Close Protection Officer' tasked with guarding the Mayor. The Municipality argued that, by attempting to assist his friend, Mr Tukani acted beyond the course and scope of his employment (ie, the protection of the Mayor).
During argument, the plaintiffs' counsel referred the Court to a document titled 'Job Description Form', which was included in Mr Tukani's personnel file. According to this Form, Mr Tukani's responsibilities went beyond simply protecting the Mayor and included activities such as: maintaining law and order; firefighting; and community policing.
During cross-examination, Mr Tukani claimed to have no knowledge of the Form and that he was expressly and specifically given the assignment of protecting the Mayor – this was his sole duty.
In considering the evidence, the Court placed significant reliance on the Form. It reasoned that the Form amounts to objective evidence of the Municipality's intention which supersedes Mr Tukani's subjective understanding of what his job entailed.
On this basis, the Court held that, by attempting to assist his friend and prevent the commission of a serious crime, Mr Tukani was acting within the scope of his employment.
Moreover, while the judgment did not deal comprehensively with the question of whether there was a sufficiently close link between Mr Tukani's actions and the business of the Municipality, Judge Smith stated that the purpose for which Mr Tukani was employed was linked closely enough to his actions.
Vicarious liability was therefore established, and the Municipality was found liable to the plaintiffs for their proven damages.
Also, for those of you who enjoy a bit of knowledge testing, we set out below a quick quiz "The Webber Wentzel Insurance Cipher", to try and test your insurance law knowledge in practical ways.
