It is trite law that an employer attracts vicarious liability for the delicts of an employee committed in the course and scope of the latter’s employment.

In light of the above principle of law the question is, can the owner of a motor vehicle be held liable for the damage caused by the driver of his / her vehicle where no contract of employment exists between them? The short answer to the above question is a resounding ‘yes’! However, it all depends on the circumstances of the case. For example, the owner of a motor vehicle may lend their motor vehicle to a friend or a family member for their own purposes or they may send their friends or family member on an errand using their motor vehicle. (i.e., picking the owner from the airport or driving them to a hospital).

In first scenario, the owner may not be held liable for the negligent acts of the driver but in the second scenario the owner of a motor vehicle may be held liable for damages caused by the driver of their car, even though they are neither driving nor at the accident scene. In this regard, it would be noted that the traditional conception of the vicarious liability principle stated above extends beyond a situation where no actual employer-employee relationship exists.

Here, the law permits the recovery of damages from one person for a delict committed by another where the relationship between them and the interest of the one in the conduct of the other is such as to render the situation analogous to that of an employee acting in the course and scope of his / her employment, or as Watermeyer J puts it in Van Blommenstein v Reynolds 1934 CPD 265 at 269, where “in the eye of the law” the one was in the position of the other’s servant.

What then are the requirements for holding the vehicle owner liable for negligent acts done by the driver?

In order for an owner to be liable for the negligent acts of the driver the following must be proven;

• The vehicle is being driven on behalf of the owner
• The relationship between the owner and driver is such that the owner retains the right to control the manner in which the car shall be driven [1]

From the above formulation and other decided cases, one may conclude that in order for the owner of a vehicle to be liable for the negligent acts of the driver, the relationship between the owner and the driver must be closely akin to that of an employer and employee. In other words, even though no employer-employee relationship exists between the owner and the driver, the owner would still be held liable if the vehicle was being driven with his / her permission or on his / her behalf.

In the example given above, i.e. where a vehicle owner asks his / her friend or family member to drive him / her to a hospital or to pick him / her from the airport and the driver gets involved in a collision during this time, the owner will share the liability for the collision with the driver.  This is because the elements required for holding the owner liable are present. Firstly, the vehicle is being driven on behalf of the owner or with the owner’s permission. In this regard, it important to note that is not necessary that the owner be physically present in the car because other scenarios may present themselves, where the owner is not physically present in the car but would have given permission to the driver of his car to run certain errands for him / her.

Secondly, the relationship between the owner and the driver is almost akin to that of an employer and employee in that the owner retains some control in the manner in which the car shall be driven.  Here control does not mean that the owner is in direct control but it merely means that he / she must have the right to exercise control over the driver.

In the end, owners of motor vehicles are advised to exercise caution when lending their cars to their friends or family members because they may be held liable for the driver’s negligent acts. This is the case even where the journey is partly for the purposes of the driver and partly for those of the owner.