Vicarious liability is a legal concept that holds an employer or principal liable for the wrongful
acts committed by its employees or agents in the course of its employment. Vicarious liability is
a legal concept that holds one party responsible for the actions of another party, even if the first
party did not directly commit the wrongful act. In the context of employment law, vicarious
liability typically arises when an employee commits a tortious act (a wrongful act that causes
harm to another person) while acting within the course and scope of their employment. The
concept of vicarious liability is rooted in the fact that the superior party (such as an employer)
has induced, facilitated, or otherwise contributed to its agent’s acts. An example of vicarious
liability is when an employer is held liable for the action of one of his employees.
Employers can be held liable for the actions or omissions during the commission of the
employee’s job. In order for the act to be considered “in the course of employment,” the
employer must have authorized or directed the act, or be otherwise connected with the act. An
employer is not, however, responsible for actions taken by his employee which are not within the
scope of his employment. Most often, a victim is required to prove that the elements of vicarious
liability exist.1 If he fails to do so, the court may find that the employer is not liable for the
damages. The primary element of vicarious liability that must be proven is: The agreement the
employee entered into as a condition of employment required the employee to work under the
authority of the employer. Additional elements of vicarious liability require the employer to have
control over the employee, and the actions of the employee to have fallen within the scope of his
employment at the time of the incident. 2 For example: Bob hires John as a forklift operator.
While moving a large crate to the customer loading zone, John hits a customer’s car, damaging
it. John was engaged in the duties required by his employment; therefore, Bob can be held
vicarious liable for the damages.3
Scope of employment refers the actions of an employee within the terms of his employment.
Scope of employment varies, depending on the specific requirements of the job the employee is
1
Dharangadhra Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152
2
R.W. Sharrock, The Law of Delict
3
Dharangadhra Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152
hired to do. There are several instances however, where a worker is not working inside the scope
of employment.4
There are certain circumstances in which a worker is not working within a scope of employment.
These include: Independent Contractors – Individuals performing work for someone else, though
not considered legal employees but independent contractors, are not working within the scope of
employment for the sake of vicarious liability. Illegal Acts – The commission of an illegal act is
not within the scope of employment. Any damages caused by the act, or during the commission
of the act, are not considered an employer’s responsibility in most cases. 5 In a medical setting, a
hospital or doctor can be held vicariously liable for a claim based on the acts of one of its
employees. This includes the actions of its physicians, nurses, laboratory personnel, imaging and
other technicians, CNAs, administrative employees, and other staff members. 6 Due to the
possibility of vicarious liability, hospitals, clinics, and doctors are responsible for ensuring all of
their employees have the necessary qualifications and credentials needed to perform their jobs. 7
If a physician or other healthcare provider is considered an independent contractor of a hospital,
vicarious liability may not apply, though laws on this vary by state.8
In Zimbabwe the law of vicarious liability is based on the common law, which imposes liability
on an employer for the wrongful acts of its employees committed within the scope of their
employment. The test for determining whether an employee’s conduct falls within the scope of
employment, is whether it is sufficiently connected to the employee’s duties or whether it is a
“frolic” of his own. In Zimbabwe in the case of S Vs. Chidziva, established that an employer can
be held for the sexual harassment of an employee by a fellow employee if the employer knew or
ought to have known about the harassment and failed to take reasonable steps to prevent it. In
this case the employer was held liable for the damages suffered by the victim.
4
R.W. Sharrock, The Law of Delict
5
G. Feltoe, "The Scope of Vicarious Liability in Zimbabwe," Zimbabwe Legal Journal.
6
Montreal v. Montreal Locomotive Works Ltd (1947) 1 DLR 161
7
Minister of Health v Chirwa, Supreme Court of Zimbabwe.
8
G. Feltoe, "The Scope of Vicarious Liability in Zimbabwe," Zimbabwe Legal Journal.
The interpretation of "course and scope of employment" is critical for establishing liability.
Zimbabwean courts have adopted an evolving approach, influenced by social justice
considerations. Muzenda v Attorney-General: This case highlighted the judiciary's readiness to
interpret the scope of employment broadly, ensuring that victims receive compensation. Critics
argue that such an approach risk diluting the boundary between authorized duties and personal
actions.9 Masamba v JSC Secretary: The court scrutinized the professional misconduct of a
magistrate, raising questions about whether discretionary roles should fall under vicarious
liability. The case demonstrates the complexities in balancing employee discretion with
employer liability.10 R.W. Sharrock advocates for a contextual approach to defining scope,
arguing that the connection between the wrongful act and employment should be assessed
holistically. Zimbabwean courts have largely mirrored this perspective, ensuring fairness for
victims while considering employers' practical limitations.11
In another case of Ngubane v South African Broadcasting Corporation, the Constitutional Court
held that an employer can be held vicariously liable for the discriminatory conduct of its
employees even if the employer did not expressly authorize or condone such act. The court held
that the employer had a duty to take positive measures to prevent discrimination in the
workplace. 12
Employers whose employee engages in an activity that was not directed or controlled by the
employer may not be responsible for damages. This depends on what the activity was, and what
purpose it served. For instance, an employee simply taking a “detour” while in the business of
his employer, such as stopping to get gas while making deliveries, may still expose the employer
to liability. Having gas in the vehicle is necessary to making the employer’s deliveries. On the
other hand, an employee who remembers her child forgot her permission slip to the 4th grade
field trip, runs home to pick it up, then delivers it to the school, all while she is supposed to be
making those deliveries, is definitely not engaged in the employer’s business. Any damages
caused, say from having a traffic accident while rushing to the school, is not the employer’s
responsibility. This is known as an employee “frolic.”13
9
Muzenda v Attorney-General, Supreme Court of Zimbabwe.
10
Masamba v JSC Secretary, High Court of Zimbabwe
11
R.W. Sharrock, The Law of Delict.
12
Ngubane v South African Broadcasting Corporation
13
G. Feltoe, "The Scope of Vicarious Liability in Zimbabwe," Zimbabwe Legal Journal
Patrick Lynch was a cattle drover for the Cavan Town Cattle Market. In 2010, he and two other
employees were supposed to be herding cattle between pens, on the way to the auction floor.
This is a three-man job, but Patrick’s fellow employees left to take care of their own business,
leaving him to move the cattle by himself. While moving through the pens to open a gate, Patrick
had to pass behind a large bull, which kicked him in the groin, causing serious injuries. Patrick
filed a civil lawsuit against Cavan Town Cattle Market, claiming his injuries were a direct result
of his employer’s negligence. The employer responded, stating that the employee should not
have performed the duties if the job was unreasonably risky. The court ruled in favor of the
employer, finding it had not been negligent, and overlooking any question of negligence on the
part of the two other employees.14 Patrick appealed his case. The appellate court disagreed with
the lower court’s decision, holding that the actions of the other two workers, who had deserted
their duties, acted negligently. The employer, therefore, was vicariously liable for those
employees’ acts. The court further held that the employer had a duty to provide a safe work
environment, and that it had failed in that duty. The appellate court did not overlook Patrick’s
own contribution to his injuries, finding that he indeed should not have performed the duty if it
was risky. The amount of Patrick’s damages was reduced by 33%, as he was found to be one-
third responsible.15
Vicarious Liability can be invoked in an Agent- Principal relationship. A ‘Principal’ is
any person who appoints some other person called the ‘Agent’ to perform his duties on behalf of
him and also to represent the principal in dealing with any third party. The principal can make
the agent do all that he can do himself except the acts which are of personal nature. 16 The agent
works with the intention to bind the principal. Therefore, the agent works as a link between the
principle and the third party. If the agent does something wrong, then the principal can be held
vicariously liable for the acts of his agent. For instance, if there is a managing clerk of a
company. He is actually acting as the agent of the company. 17 When he acts on behalf of
the company, he is authorized to perform certain duties and take some actions. If, in case,
the agent does something wrong while performing his duties on behalf of the company, the
14
Minister of Health v Chirwa, Supreme Court of Zimbabwe.
15
R.W. Sharrock, The Law of Delict.
16
Lloyd V Grace Smith & Co. [1912] AC 716 (HL)
17
State Bank of India V Shyama Devi AIR 1978 SC 1263
principal, that is, the company can be held responsible for the agent’s acts or in other
words, can be held vicariously liable.
Conclusion
Vicarious liability can be established in an Agent-Principal or Master- Servant relationship.
However, vicarious liability cannot be established in case of an independent contractor with few
exceptional cases. In case of a partnership firm, all the partners are liable for each other’s acts
and hence, can be held vicariously liable. The doctrine of vicarious liability plays a vital role in
Zimbabwean law by ensuring accountability and victim protection. However, its application
particularly the interpretation of "course and scope of employment" requires careful judicial
scrutiny to balance fairness for victims with realistic limits on employer liability. Moving
forward, a more nuanced approach, incorporating both local and comparative insights, could help
refine the doctrine’s application in Zimbabwe’s legal landscape.
Bibliography
Muzenda v Attorney-General, Supreme Court of Zimbabwe.
Masamba v JSC Secretary, High Court of Zimbabwe.
Mwonzora v Police Commissioner-General, High Court of Zimbabwe.
Minister of Health v Chirwa, Supreme Court of Zimbabwe.
R.W. Sharrock, The Law of Delict.
G. Feltoe, "The Scope of Vicarious Liability in Zimbabwe," Zimbabwe Legal Journal.
