6.1 Conclusions in general
• What is the common-law doctrine of the employer’s vicarious liability and how does it differ from other forms of liability?
The employer’s vicarious liability under the common-law is a form of strict liability by which the employer is held liable for the conduct of his or her employees who commit a delict while acting in the scope of their employment.616 When the employer’s vicarious liability is evaluated, fault on his part is not a consideration617 but he is held strictly liable for the conduct of his employees. In respect of the employer’s personal liability, for instance in the case of an employer and an independent contractor, fault on his part is an important consideration.618 The reasonableness of the steps an employer takes in mitigating the cause of injury is irrelevant for purposes of holding the employer liable under the common-law doctrine.619
• How was the doctrine introduced and developed in the South African labour sphere?
The South African labour structure initially related to agricultural and farming activity at the time of the VOC in the 1650s. Later copper was mined in Namaqualand, followed by the discovery diamonds in the 1860s and then the discovery of gold. Work in the mines included digging, loosening soil, shovelling, hosting and separating the minerals from the ore, for instance diamonds were handpicked. 620 The discovery of South Africa’s natural resources lead to industrialisation621 and the introduction of machinery and other innovations during the first and second industrial revolutions, including the steam engine, motor vehicles and electricity.622 As a result of automation new forms of work were created, for instance drivers were required to operate the vehicles and mechanics were needed to fix the machines.623
616 Munkman (n 75) 1.
617 Van der Merwe, Roos, Pistorius and Nel (n 25) 510.
618 Murray (n 50) 5 and 6.
619 Chartaprops (Pty) Ltd v Silberman (n 530) par 6.
620 Nkosi (n 53) 1, 5 and
621 Finnemore (n 4) 22.
622 Nkosi (31) 50 and Smith (n 145) 1 and 2.
623 Nkosi (31) 5, 12, 50 and 51.
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Urbanisation also increased as a consequence of industrialisation; people were encouraged to move to urban areas in search of employment and the industrial revolutions changed the way people lived and interacted with one another.624 Work no longer was limited to farm-work, and in the course of their employment workers now engaged with members of the public.
However, these changes created new challenges; faulty machine operation could cause accidents in the workplace625 and cause patrimonial and non-patrimonial damages.626 Machine accidents cause harm ranging from economic losses to the loss of life as well as the loss of income.627 It was under such circumstances that third parties need an effective remedy drawn on an employer with deep pockets in cases of harm caused by the changing world of work.628 In order to address the liability issues that resulted from the change the common law doctrine of vicarious liability was introduced into the South African legal system from English law.629
The law has constantly been adapted to suit the changing needs of society.630 In the case of K v Minister of Safety and Security the Constitutional Court developed the common-law doctrine in order to meet constitutional standards.631 The development of the doctrine follows a decision by the Supreme Court of Appeal which found the doctrine incapable of providing a remedy for a victim of rape because the rape was considered to occur outside the scope of the employees’ employment.632 Contrary to the finding by the SCA the Constitutional Court held that the violation of the appellant’s constitutional rights in terms of the police have a constitutional duty to protect such rights created sufficient grounds to hold the employer liable.633
• What values does the doctrine add to society and the employment realm?
624 Smith (n 145) 2.
625 Dzwiarek (n 165) 129.
626 Chopra and White (n 41) 119
627 Chopra and White (n 41) 121
628 Neyers (n 171) 291, 292 and 293.
629Stevens (n 96) 78.
630 Claasens and Budlender (n 8) 76.
631 K (CC) (n 228) par 22, 35 and 48.
632 K (SCA) (n 229) par 7.
633 K (CC) (n 228) par 22, 35 and 48.
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An objective of this study is to determine the importance of the common-law doctrine of the employers’ liability. Under the common-law the chief value of the doctrine lies in the provision of an effective remedy for a third party victim of wrongdoing in the workplace against a more financially able party.634 Employees mostly are not in a financial position to compensate a third party, so justice and equity rely on an understanding that an employer, who is the main benefactor of workplace activity and is in a better financial position, should compensate the third party.635 A second and more significant value can be derived from the constitutional development of the common-law which provides a remedy for third parties against employers whose employees violate constitutional rights, more particularly in cases where employees have a constitutional duty to protect those rights.636
• What is the Fourth Industrial Revolution and in which respects do the machines in the Fourth Industrial Revolution differ from machines utilised during previous industrial revolutions?
The Fourth Industrial Revolution is "unlike anything humankind has ever experienced."637 In the 4IR machine accidents constitute such “strange cases” that the law of liability will need to be adapted.638 There is change of role players in cases relating to liability in the workplace under the 4IR; human labour will be substituted by AI.639 Therefore, liability for harm caused by the machines can be attributable either to the manufacturer or to the employer.640 A line needs to be drawn in ascertaining the extent to which employers are held accountable for wrongdoing committed by the use of AI in the workplace in a manner similar to the way courts have determined factors in ascertaining the extent to which employers can be held vicariously liable for the acts of their employees.641 Manufacturers also will be held liable for product defects under the 4IR. There is no reason why computers should be treated differently from other types of machinery except that a higher standard of care can be expected of machines in the 4IR in comparison with previous processes of automation.642
634 Feltoe (n 169) chapter 3.
635Neyers (n 170) 292.
636 K (CC) (n 228) par 22, 35 and 48.
637 European Centre for Development of Vocational Training (n 266) 2.
638 Crootof (n 9) 1353.
639 Tassell (n 3).
640 Rachum-Twaig (n 532) 3.
641 Murray (n 50) 31.
642 Vladeck (n 556) 127.
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The high standard of care arises from the fact that for the first time non biological matter has intelligence. Machines in the 4IR are distinguished from their predecessors in that they bridge the gap between the “digital, physical and biological” worlds.643 They are enabled to perform low-skilled and highly-skilled forms of employment and can perform tasks exclusively reserved for humans, including financial audits, legal representation, as well as occupations in health and education644 with little or no human intervention.645 Among the types of machines are humanoid robots with enhanced human-like muscles and movement.646 There are features of machines in the 4IR that distinguish them from their predecessors. The first feature is an intelligence which enables the machines to solve real life problems and achieve complex goals with minimal or no human input.647 Machine learning intelligence refers to the machines’ ability to learn new skills and to evolve. As more data becomes available to AI machine-learning intelligence enables it to refine methods and improve performances automatically.648 The second feature is memory and relates to information-storing devices. The memory of AI functions in a way similar to a human brain;649 it consists of an artificial neural network which processes information inputs and provides an output in the form of an “auto-associative”650 memory device by using triggers and clues in order to find the missing piece of information as compared to current computers that use a physical address. Memory and learning are interrelated; the more information AI has the more skills it acquires.651 These features are interrelated with the third which is computation. Computation refers to the processing of the information in a computer’s memory as well as the new skills acquired through machine learning to produce a function,652 it is the use of information to perform tasks.
These machines are held to a higher standard of care than their predecessors;653 prior to AI machines could not learn from their mistakes or evolve and act sensibly when faced with
643 Schulze (n 267).
644 European Centre for Development of Vocational (n 266) 2.
645 Sobel (n 262) 47.
646 Ross (n 393) 24.
647 Tegmark (n 288) chapter 2.
648 McAfee (n 291) chapter 6.
649 Tegmark (n 288) chapter 2.
650 Palm (n 316) 165 and 166.
651 Prasad, Prasad, Yeruva and Murty (n 314) 124.
652 Tegmark (n 288) chapter 2.
653 Vladeck (n 599) 127.
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complex situations, on the other hand, AI can use its memory, intelligence and computation functions to perform duties that are exclusively in the human domain and thus the reasonableness of their actions can be assessed.654 It is only a matter of time before a machine’s personality is adjudicated by the courts.655
• Does the doctrine have a future in the Fourth Industrial Revolution?
Regardless of the innovations brought by AI, there will continue to be accidents in the workplace caused by machinery. The common-law doctrine of the employers’ vicarious liability was introduced into the South African legal system to provide third parties with an effective remedy from harm caused by work activity.656 The 4IR will not be utopia without the blight of human error,657 AI will give rise issues of workplace liability in the way human conduct does, even including motor vehicle accidents658 and race and gender discrimination.659
As stated there are two types of AI used in the workplace, namely semi-automated AI and fully-automated AI.660 In the absence of statutory intervention the common law requirements will be applicable to liability issues arising from the use of semi-automated AI in the workplace. Semi-automated AI works alongside or under the supervision of humans,661 therefore, the common law doctrine applies in that an employee supervises or uses the machine to perform his or her tasks. In a case of wrongdoing in a semi-automated workplace it is an employee in the scope of his or her employment who has commits a delict and the damage caused by the machine is another factor in determining the employer’s liability.
However, the common-law doctrine is inadequate in adjudicating workplace wrongdoing caused by fully-automated AI and currently no legal definition of AI conforms to the requirements of the common law doctrine.662 AI cannot be considered to be an “employee” as
654 Hornby (n 62) 1243.
655 Willick (n 261) 5 and 14.
656 Neethling, Potgieter and Visser (n 24) 355.
657 Ross (n 393) 30.
658 Levin and Garric-Wong (n 403).
659 Ross (n 393) 30.
660 Frohm, Lindsrom, Stahre and Winroth (n 274) 5 and 6.
661 Hammond (n 512) 654.
662 The lack of legal definitions for the legal regulation of AI is a global problem. See in this regard Baranov, Mamychev, Platnikov, Voronov and Voronova (n 508) 2, 3 and 4 and CDH (n 508).
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the definition is restricted to persons who receive remunerations for their work.663 If AI cannot be considered an employee for the purposes of labour law, its scope of employment cannot be legally determined.664 Legal reform entailing a positive adaptation of the doctrine to fit the conditions665 is probable and hinges on the personalisation of AI for the purposes of legal regulation. Given the sort of machines produced under the 4IR the adjudication of the
“personality” of machines by the courts is unavoidable.666
• What are the implications of the continued use of the doctrine for society in the Fourth Industrial Revolution?
The adverse consequence of the continued application of the common law doctrine this study identifies is that employees who commit a wrongful act face consequences more serious than can ever apply to machinery. A justification of the doctrine is that it provides third parties with an effective remedy against those with deeper pockets whereas usually an employee is not in a financial position to fund claims for damages.667 Under the common-law doctrine employees are regarded as joint wrongdoers and the employer has a right of recourse against his employees in cases in which the employer was held vicariously liable for their actions.668 Also, employees face a disciplinary hearing and the possibility of being dismissed from work, machines merely are sent for reprogramming.
There are alternative methods to cover third-party damages in the case of liability arising from the use of fully-automated machines. First, an insurance policy can cover liabilities arising from the use of AI in the workplace. Secondly, in a case of a machine defect, the employer may sue the manufacture for product liability in terms of the Consumer Protection Act.669 Thirdly, the machine is programmed to have discretion to make independent decisions and the machine might act beyond the purpose for which it is intended,670 making it incumbent on an employers to indemnify themselves of liability in the purchase agreement of the machine.
663 Section 213 of LRA (n 19).
664 Only legally-recognised persons can have legal (contractual) rights and duties, see in this regard Robinson, Horsten, Human and Mould (n 460) 6 and 7.
665 Friedman (n 64) 1.
666 Willick (n 261) 5 and 14.
667Feltoe (n 169) chapter 3.
668Neethling Potgieter and Visser (n 24) 373.
669Kriek (n 535) 1
670Rachumn-Twaig (532) 7.
106 6.2 Recommendations
The lack of legal definitions regulating the use of AI is a serious issue,671 the legal personalisation of machines seems unavoidable and it is submitted that fully-automated AI be included in the legal definition of a ‘person’ for purposes of legal regulation. The personalisation of machines will solve various complex legal regulations regarding the employment of AI; if fully automated AI is considered as a person for purposes of legal regulation, it can be considered an employee672 who can act within the scope of his or her employment673 and whose acts can be adjudicated in accordance with the reasonable person’s standard674 for purposes of the common law doctrine in holding employers liable for the wrongful conduct of AI.
This form of legal reform is reasonable in dealing with machines that act and think like humans to the extent that some are referred to as humanoid machines.675 The common-law doctrine will continue to serve its purpose of providing third parties with an effective remedy,676 even in respect violation of constitutional rights as a result of wrongful conduct in the workplace.677
It is recommended that the burden on employees who commit a delictual wrongdoing in the scope of their employment should be mitigated by abolishing an employer’s right to recourse and it is submitted the right be replaced in the form of insurance which covers wrongful conduct of employees acting in good faith.
671Baranov, Mamychev, Platnikov, Voronov and Voronova (n 508) 2, 3 and 4 and CDH (n 508).
672 Robinson, Horsten, Human and Mould (n 460) 6, 7 and 16, Section 213 of LRA (n 19) and Section 35(5) of the BCEA (n 186).
673 Robinson, Horsten, Human and Mould (n 460) 6 and 7.
674 Kruger v Coetzee (n 200) 266.
675 Ross (n 393) 24.
676Feltoe (n 169) chapter 3.
677 K (CC) (n 228) par 22, 35 and 48.
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