Contents
Vicarious liability ........................................................................................................................................ 2
Employment relationship ...................................................................................................................... 2
Course and scope of duties [new test] .................................................................................................. 5
Defamation ............................................................................................................................................... 10
Defamatory statement......................................................................................................................... 12
Defenses ............................................................................................................................................... 17
Media...................................................................................................................................... 19
,Vicarious liability
- The employer being held responsible for the delict/ harm caused by the employee, in the ordinary
course of their work.
REQUIREMENTS [NECESSARY CONDITIONS]:
The defendant will only be held vicariously liable if, and only if…
1. A delict was committed against the plaintiff by a wrongdoer (W caused a Delict to P)
2. When the delict was committed, the wrongdoer was the defendants employee (W works for D)
3. The delict was committed in the course and scope of the wrongdoer’s employment with D.
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Cases
Employment relationship
Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 (De Villiers CJ only)
Principles Derived:
A principal (employer/ master) can only be held liable for the wrongdoing of their agent (employer), where the agent is a
servant of the principal.
o The agent is a servant when the principal not only prescribes and supervises the duties of the agent, but also when the principal has
the authority/ is able to instruct the manner in which the duties are carried out. {supervision test}
Liability will not extend to the principal when the agent is a contractor, subcontractor, or the servant of a contractor or
subcontractor.
Issue
Does an agent who is hired to carry out duties set out in their employment agreement, constitute a servant to the principle,
when the principal does not instruct/ direct the agent as to how their duties should be carried out?
[I.e. when the agent works independently, without instruction or direction form the principal, as to how the duties should be
carried out]
Facts
Someone working for CMLAS, was employed to get people to sign with the life insurance, or something….. They got into a car
accident on the way back from a medical examination for the life insurance. Mr. Macdonald, the doctor in the car, sustained
severe injuries. Mr. M is suing the society (CMLAS) for vicarious liability- alleging that the accident happened as a result of
the negligence of the employee.
The duties of the employee in terms of his contract: namely, "to obtain proposals for assurance for the society, to collect the
required premiums thereon, and to arrange for proponents to be medically examined."
Holding
Held, allowing an appeal that the agent was not a servant of the society, but an independent contractor for whose negligent
acts the society was not liable.
“No doubt Brittain in driving the plaintiff out was in a sense acting in the affairs of the society. But not being the servant of the society
he is in law considered to have been acting in his own affairs as master. And as he was acting for himself in the exercise of his own
independent calling he did not require the authority of the society”
Ratio
, The hired agent is in possession in the car, and is listed in the hire-purchase agreement as the sole driver (not the company/
employer); the contract of the agent stipulates the work duties that have to be done, but does not prescribe any manner as
to how it should be conducted; there is no clause pointing to the authority/ ability of the principal to instruct the agent to
conduct their duties in a particular manner (no right of supervision); the principal does not interfere with the work of the
agent, nor does he question him- he is simply aware.
The relation of master and servant cannot exist where there is a total absence of the right of supervising and controlling the
workman under the contract; A master must have the right to prescribe to the workman not only what work has to be done,
but also the manner in which the work has to be done.
General principle of our law is = no one is liable for delicts committed by another except in the case of a master being
liable for the negligence of his servants committed in the scope of their employment, or where there has been instigation,
exhortation, assistance, or advice [by the master to the servant].
BRAMWELL, B., put it in this way: "A principal has the right to direct what the agent has to do; But a master has not only
that right, but also the right to say how it is to be done."
"The difference…between an agent and an independent contractor is, that an agent is bound to act in the matter of the
agency subject to the directions and control of the principal, whereas an independent contractor merely undertakes to
perform certain specified work, or produce a certain specified result,
Blackburn, J: When a contractor acts on his own, without the instruction of the master, he (contractor) bares the liability. An
employer has no control (right of supervision/ instruction) over a contractor
Just because someone is hired by you to undertake some tasks= does not create the servant-master relationship;
Even the right to tell them what work should be done, and/or supervise it =/= servant
“Essential feature”= the right to instruct them about how it should be done.
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*Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A)
Principles Derived:
Contract of service that renders one as an employee [servant] vs. contract of work [as used by independent contractor]
+ Dominant impression test (low-key v. similar to organisation test [even though it was rejected by him]…to see whether the worker has
been absorbed into the business’ ordinary work/ become part of the company)
Issue
What constitutes a ‘contract of service’ that would render an individual to be an employee?
1.1 What contractual terms/ agreement make someone an employee [entitled to compensation in the event of injury
1.2 Whether the appellant was at the time of the accident a "workman" as contemplated by section 3 (1) of the Act
Facts
The appellant was employed at the beginning of August 1960 as "an agent" by Union Guarantee and Insurance Co. Ltd.
(hereinafter referred to as "the company") at Cape Town. As an "agent" he had to obtain proposals for insurance. On 26
August 1960 he suffered severe bodily injuries in a motor car accident arising out of and in the course of his employment. A
claim for compensation and payment of medical aid expenses under the provisions of the Workmen's Compensation Act was
subsequently filed on his behalf with the Workmen's Compensation Commissioner. He was informed on 2 August 1962 that
the Workmen's Compensation Commissioner had repudiated his claim on the ground that he was not a "workman" as
contemplated by the Act.
Holding
