Abstract
The parent-child relationship does not provide a basis for vicarious liability in our law and before considering whether it should, it is necessary to give a brief background of the doctrine of vicarious liability and the policy factors underlying it.
Highlights
The parent-child relationship does not provide a basis for vicarious liability in our law and before considering whether it should, it is necessary to give a brief background of the doctrine of vicarious liability and the policy factors underlying it. (Much has been written on vicarious liability, but for an introductory overview see Neethling and Potgieter Neethling-PotgieterVisser Law of Delict (2010) 365ff; Scott Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg (1983) passim; Wicke Vicarious Liability in Modern South African Law (1997); Wicke “Vicarious Liability: Not a Matter of Legal Policy” 1998 Stell LR 21; and Atiyah Vicarious Liability in the Law of Torts (1967) passim.)
Vicarious liability may in general terms be described as the strict liability of one person for the delict of another, the former being indirectly or vicariously liable for the damage caused by the delict of the latter (Neethling and Potgieter Delict 365; and Wicke 1998 Stell LR 21)
OBITER 2011 victims with compensation where legal and public policy so requires despite the absence of fault on the part of the defendant; it is a public policy mechanism for extending liability arising from the commission of a delict (cf Hollis v Vabu Pty Ltd (2001) 181 ALR 263 273-274)
Summary
Not all the policy reasons mentioned above (par 4) that are applicable to vicarious liability generally are necessarily relevant to the question of extending such liability to the parent-child relationship. Many foreign jurisdictions have on grounds of public and legal policy extended the liability for loss caused by children to their parents, and South African courts should consider these developments in developing the law In this regard the manner in which Nel J in Grobler v Naspers Bpk (supra 298) took into account the relevant provisions of the Constitution and foreign law for his innovative decision that an employer is vicariously liable for the sexual harassment committed by its employee serves as an example
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