Murder in the workplace: vicarious liability of the employer

South African law on vicarious liability has been developed following a recent Supreme Court of Appeal (SCA) judgment. Prior to this judgment, there was uncertainty regarding whether an employer can be held vicariously liable for the acts committed by an employee in the workplace if those acts were committed solely for the employee's own purposes.

Stallion Security (Pty) Limited v Van Staden (526/2018) [2019] ZASCA 127 (27 September 2019) involves a claim in delict for loss of support. The delictual claim was launched by the Plaintiff following her husband's murder by a security guard at his workplace. The delictual claim was instituted against both the security guard and his employer.

Facts

Stallion Security (Pty) Ltd (Stallion) contracted with Bidvest Panalpina Logistics (Pty) Ltd (Bidvest) to provide security services, including at its head office. The Accused was employed by Stallion as a security guard. In the course of his employment, and in order to discharge his duties, he was granted biometric access to various parts of the head office building and was issued with an override key for all emergency exits. He became familiar with the layout of the head office and the working habits of its employees. In particular, he noticed that a financial manager worked particularly long hours and that a petty cash box was kept in the finance department.

On 3 November 2014, Khumalo robbed and murdered the financial manager, ostensibly in order to steal money kept in the petty cash box.

His widow sued both Stallion and the Accused for delictual damages for loss of support. The High Court found that although the Accused murdered the financial manager entirely for his own purposes, there was a sufficient link to the Accused's employment with Stallion to hold Stallion vicariously liable for the loss suffered. Stallion appealed the judgment at the SCA.

Appeal

The SCA considered the law on vicarious liability and its development over the years. The general principle that that an employer is vicariously liable for a wrong committed by an employee during the course or scope of his or her employment was confirmed. Where an employee commits a delict whilst solely or partially going about the business of the employer, it is easy to apply vicarious liability. However, difficulties arise where the employee commits an intentional wrong entirely for his or her own purpose.

In order for vicarious liability to find application, there must be a sufficiently close link between the wrongful act of the employee and the business of the employer. It ultimately comes down to the creation of risk of harm by the business of the employer.
The SCA specifically relied on judgments from Canada and the United Kingdom on this issue, including Bazley v Curry [1999] 2 SCR 534. In this judgment, the Canadian Supreme Court found that vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. The following factors should be considered in determining the significance of the connection:

In this matter, the SCA dismissed the appeal. The SCA found that:

• the murder was objectively and inextricably linked to the robbery committed at the head office;
• Stallion provided the Accused with more than a mere opportunity to commit the crimes;
• The Accused's access privileges enabled him to enter into and exit from the office area without detection or concern on the part of Bidvest; and
• The Accused had intimate knowledge of the layout of the office and the security services at the premises. He was also instructed to make unannounced visits to the premises.

These factors, seen together, created a material risk that the Accused may abuse his powers. It meant that the financial manager was vulnerable and this ultimately resulted in his subsequent robbery and murder.