1. Vicarious liability

If, in conclusion, one looks at the development of the notion of strict liability in English law, one is immediately struck by the fact that in many essential respects it took a very similar course to that in German or South African law.²⁹⁹ Thus, in particular, it is traditionally unorganized and fragmentary in application.³⁰⁰ Certain specific instances of strict liability have emerged over the centuries, among them,

³⁵ § 8 Strassenverkehrsgesetz.

³¹ §§ 9 sq. Hqftpjiichtgesetz, § 12 Strassenverkehrsgesetz. § 37 Luftverkehrsgesetz.

³⁸ Cf., in particular, Will, op. cit., note 266, pp. 243 sqq.; Kotz, op. cit., note 290, pp. 1779 sqq.; but see also Hubner, Festschrift Mtiller-Freienfels, pp. 331 sqq.

³⁹ Regarding modern South African law, see J.C. van der Walt, "Strict Liability in the South African Law of Delict", (1968) 1 Cilsa 49 sqq.; idem, "Risiko-aanspreeklikheid: Erkenning in die regspraak", 1984 TSAR 211 sqq.; Van der Merwe/Olivier, op. cit., note 238, pp. 485 sqq. On the old common-law (=ius commune) forms of strict liability still in use today (actio de pauperie, actio de pastu, edictum de feris, actiones de deiectis vel effusis and positi vel suspensi) cf. supra, pp. 1108 sqq., 1127 sq. Modern legislation was sparked off by the criticism of the status quo expressed in Union Government v. Sykes 1913 AD 156 ("... my sympathies are entirely with the plaintiff. The South African Railways are administered by the Government, in the public interest, and it seems to me only fair that private persons whose farms are injured by sparks from engines should be compensated at the public expense. That, however, is a matter for the Legislature to deal with" (p. 185, per Solomon JA). Thereupon § 70 Railways Act 22/1916 introduced a reversal of the onus of proof in favour of the injured party.

After dissatisfaction had been expressed in Ross v. S.A. Railways (1938 OPD 128, per Krause J), the legislator finally made the railways strictly liable for fire damage; cf., today, s. 65 South African Transport Services Act 65/1981. For other individual instances of strict liability, cf. s. 26 Electricity Act 41/1987 (presumption of negligence), s. 11 II Aviation Act 74/1962 and s. 41 Nuclear Energy Act 92/1982. There is, however, no strict liability for road traffic accidents. The rule of Rylands v. Fletcher, incidentally (on which see infra pp. 1138 sqq), has not become part of South African law; cf. T.W. Price, "Is the rule in Rylands v. Fletcher part of Roman-Dutch law?", (1953) 70 SAL] 381 sqq., 395 sqq.; but cf. also Eastern Telegraph Co, v. Cape Town Tramways 1902 AC 382 at 393 sq. Today the question of whether a more broadly based principle of risk liability should be recognized receives increasing attention. The matter has even been considered by the Law (Reform) Commission.

³⁵⁰ Fleming, Torts, p. 304; cf. also Atiyah, op. cit., note 260, pp. 157 sqq. most notably, vicarious liability.^{^[5975]} The foundations of the doctrine that an employer is strictly liable for the tort of his servants were laid by Lord Holt in the late 17th and 18th centuries^{^[5976]} and it is not unlikely that the Roman quasi-delicts, more particularly the praetorian liability of the nauta,^{^[5977]} the actio de deiectis vel effusis^{^[5978]} and the idea of selection, as expressed in the Justinianic sources,^{^[5979]} had some influence in this regard. Unlike in Germany, but as in South Africa (strict) vicarious liability has become a feature of the modern law of torts in England, its application depending essentially on two requirements: that there is a relationship of master and servant between defendant and tortfeasor and that the latter caused the harm in the course of his employment.^{^[5980]}'¹⁶

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

1. Vicarious liability

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