O’REGAN J
“This qualification is necessary because the servant, while on his frolic may at the
same time be doing his master’s work and also because a servant’s indulgence in a
frolic may in itself constitute a neglect to perform his master’s work properly, and
may be the cause of the damage.”33
[28]
Watermeyer CJ explained the reason for the rule as follows ─
“I have gone into this question more fully than seems necessary, in the hope that the
reasons which have been advanced for the imposition of vicarious liability upon a
master may give some indication of the limits of a master’s legal responsibility, and
the reasons are to some extent helpful. It appears from them that a master who does
his work by the hand of a servant creates a risk of harm to others if the servant should
prove to be negligent or inefficient or untrustworthy; that, because he has created this
risk for his own ends he is under a duty to ensure that no one is injured by the
servant’s improper conduct or negligence in carrying on his work and that the mere
giving by him of directions or orders to his servant is not a sufficient performance of
that duty. It follows that if the servant’s acts in doing his master’s work or his
activities incidental to or connected with it are carried out in a negligent or improper
manner so as to cause harm to a third party the master is responsible for that harm.”34
[29]
Tindall JA formulated the approach in slightly different terms ─
“In my view the test to be applied is whether the circumstances of the particular case
show that the servant’s digression is so great in respect of space and time that it
cannot reasonably be held that he is still exercising the functions to which he was
appointed; if this is the case the master is not liable. It seems to me not practicable to
formulate the test in more precise terms; I can see no escape from the conclusion that
ultimately the question resolves itself into one of degree and in each particular case a
33
Id at 744.
34
Id at 741.
21
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