Employer’s Liability for Damage Caused by the Employee to a Third Party under Serbian Law - Acta Universitatis Sapientiae

Acta Univ. Sapientiae, Legal Studies, 12, 2 (2023) 59–73

DOI: 10.47745/AUSLEG.2023.12.2.04

Abstract. In this paper, the authors give a review of the rules on the employer’s liability for damage caused by an employee to a third party at work or in work-related situations under Serbian law.It is a form of liability for others (vicarious liability), which is by the majority opinion in the Serbian literature qualified as strict liability. The justification for such an opinion is that the fault of the liable person, in this case the fault of the employer, is not legally relevant (it may exist, but it is not of legal importance). However, the fault of the employee is legally relevant: for establishing the liability of the employer, it is required that the employee is at fault for the damage caused. Relying on this requirement, some support that the employer’s liability is fault-based, but it can be considered as a minority opinion. These considerations are, however, relevant only if damage is not caused by a so-called hazardous thing or activity.If such is the case, the employer is liable according to the general rules of strict liability.In addition to the fault of the employee, the other requirement of the employer’s liability is that the damage is caused by the employee at work or in relation to it. The case law tends to interpret extensively the category of damage caused in relation to work. The injured party’s claim is directed against the employer.However, the law prescribes that the injured party may claim damages directly from the employee as well, if they caused damage intentionally. This rule gains practical relevance in the case of employer’s insolvency. The interests of the employer are protected by the rule granting them a recourse right against the employee, for the damages paid to a third party, if the employee caused damage intentionally or with gross negligence. In addition, the employer’s liability for damage caused to a third party may surface in the framework of the liability of the legal persons for the damage caused by its organs. Namely, if the employee performs the function of an organ of the employer that is a legal person, the special rules on the liability of the legal person for the damage caused to third parties by the acts of persons performing the function of the organ of the legal person may also be applied.

Keywords: vicarious liability, the employer’s liability, fault-based and strict liability, Serbian Obligations Act