Employer’s liability for damage caused by the employee to a third party using a hazardous thing or performing a hazardous activity under Serbian law – case study

Abstract

Under Serbian law one of the cases of vicarious liability explicitly foreseen by the 1978 Obligations Act is the liability of the employer for damage caused to a third party by an employee at work or in work-related situations. The employer’s liability emerges only if the employee acted with fault, whereby the existence of the employee’s fault is presumed. The employer may exempt his/her liability if successfully rebuts this presumption, namely, if proves that the employee acted with due diligence and care. Thus, there is no employer’s liability if the employee did not act with fault. Some argue that the requirement that the employee acted with fault qualifies the employer’s vicarious liability as fault-based. However, according to the prevailing opinion in the recent literature it is considered as strict liability, since the employer cannot be exempted from liability by proving that there was no fault of his/her own.
However, any contemplation on the relevance of either the employee’s or employer’s fault is redundant, and thus on the nature of the employer’s liability as well, if the employee causes damage to a third party using a so-called hazardous thing, or if the performance of his/her working tasks is regarded as a so-called hazardous activity. Then, the general rules of strict liability apply and the employer cannot exclude his/her liability even by proving that the employee acted with the required care and diligence. The employer’s liability in this case is based on an increased, elevated risk of damage to the surroundings, originating from a hazardous thing or hazardous activity. If the general rules of strict liability are applied to the employer’s vicarious liability, the employer is considered as the proprietor of a hazardous thing, or a person conducting a hazardous activity, regardless that the employee directly controls the elevated risk of damage from the hazardous thing, or performs an activity considered hazardous.
This paper aims to explore how Serbian case law interprets the notions of hazardous thing or activity in relation to employer’s vicarious liability. It also examines the relevant factors that may impact the outcome of such cases, such as the nature of the activity being performed, the degree of the risk of damage caused things or activities considered as hazardous, etc.