VICISSITUDES OF VICARIOUS LIABILITY

 

Whilst we are awaiting certainty regarding the enactment of the new Regulations to the Civil Aviation Act, we shall turn our scope to an aspect that affects almost every role-player in the aviation industry, from AMO’s and AME’s, to flight instructors and flight schools, to pilots and operators. This is the aspect of vicarious liability.

 

In the recent past, we have seen a number of aircraft collisions that have taken place, and some of the most pertinent questions are whether it is possible for an employer to be held liable for damage occasioned by a delict (actionable wrong) committed by his or her employee, in the course and scope of that employee’s employment, alternatively, what would it take for an employer not to be held liable for such a delict committed by said employee?

 

VICARIOUSLY LIABLE OR NOT

 

The first of the two postulations mentioned above have been answered in many legal cases decided by our Courts, one of the more recently decided cases being a matter decided in the Constitutional Court, that of K v Minister of Safety and Security 2005 (6) SA 419 (CC) wherein it was held that the common law principles of vicarious liability hold an employer liable for the damage occasioned by the delicts committed by the employees where the employees are acting in the course and scope of their duty as employees. The principles ascribe liability to an employer where its employees have committed a wrong but where the employer is not at fault. As such the principles are at odds with a basic norm of our society that liability for harm should rest on fault, whether in the form of negligence or intent. Thus the doctrine of vicarious liability can best be described as a form of strict liability of one being held liable for damage occasioned by a delict committed by another (strict liability pre-supposes that no fault is required on the part of the employer).

 

The origin of vicarious liability lies in the need to provide the victim of a delict with a defendant of substance able to pay damages.

 

Whilst majority of the matters dealing with vicarious liability deal with the relationship between employer and employee, vicarious liability can also arise as a result of other relationships, such as that of principal and agent, but usually do not arise in the case of the relationship between an independent contractor and his or her “employer”. Having said this, vicarious liability may arise ‘by reason of a relationship between the parties and no more’, which relationship is almost inevitably a contractual relationship where one of the parties exercises authority over the other.

 

There are, however, a few fundamental requirements which have to be met before one arrives at apportioning such strict liability on the part of another. Three requirements of paramount importance are, inter alia :

 

(1) it must be established that the person who committed the delict was in fact in the employ of the employer at the time when the delict was committed (sounds fairly obvious, but note the aspect of independent contractors as discussed above);

(2) it must be established that the employee committed the delict during the course and scope of his or her employment (acting in defiance of a lawful express mandate or instruction may be considered acting outside the course and scope of an employee’s employment); and

(3) consideration should also be given to what exactly the duties of the employee were at the time of the committing of the delict (for example an employee proceeding on a frolic of his or her own and committing a delict for which the employee was not employed, would normally not result in the employer being held liable for such a delict committed).

 

VICARIOUS LIABILITY IN AVIATION

 

Vicarious liability equally extends to aviation and is therefore not inherently different to other industries when it involves employer-employee relationships, however some interesting scenarios and facts are worth considering and thus mentioning here.

 

Pilots who are employed by an operator usually fall under the scope and employment of such an operator and the relationship is seldom disputed, unless of course the question of employee versus independent contractor is thrown into the mix. Albeit that a contractual relationship exists between the pilot (as independent contractor) and the operator, it is clear that the operator exercises authority over the pilot and the pilot is bound to operate the aircraft according to the Manuals of Procedure and Standard Operating Procedures of the operator. There are numerous other scenarios in aviation in which employers can be held liable for delicts committed by their employees and these cover all the different sectors of the industry, from aerodrome/airport proprietors to ground handlers and aircraft maintenance organisations to operators of aircraft.

 

In our law, motor car owners and motor car drivers are dealt a blow in the finding of the Court in the matter of Paton v Caledonian Insurance Co 1962 (2) SA 691 (D) when it was held that “It appears that the owner of a potentially dangerous thing, such as a motor vehicle, who retains control of it, although he allows another to handle it, is vicariously responsible to others for the harm caused to them by such handling.” From an aviation point of view, a driver (employee) of a truck, motor vehicle, forklift, tug or tractor on a busy airport apron in close proximity to aircraft immediately springs to mind here. The question to be asked is whether this extends to pilots and operators.

 

ALLEGE AND PROVE

 

One must bear in mind that before the Court comes to the conclusion that vicarious liability exists, the onus to prove that the person who committed the actionable wrong was indeed an employee of the defendant, acting within the course and scope of that person’s employment in the execution of that person’s duties, alternatively acting under the authority of another, always rests and remains upon he or she who makes such allegation.

 

If one takes cognizance of the above, a pertinent question which arises is whether a pilot acting as an independent contractor can be viewed as being vicariously liable, as in the long run, such pilot exercises his / her duties under the authority of the aircraft operator, whilst furthering the interests of such aircraft operator.

 

Grant Naude

Aviation Division – Viljoen-French & Chester Inc