Historical Aspects of Employer’s Liability for Damage Caused by an Employee to a Third Party at Work or in Work-Related Situations under Serbian Law

Abstract

In this article, the author analyses the evolution of an employer’s liability for damages caused by an employee to a third party at work and in work-related situations under Serbian law. As a starting legal source, she considers the Serbian Civil Code of 1844, which is a shortened version of the Austrian Civil Code of 1811, and analyses its rules on this subject. However, during the translation of the Austrian Civil Code, an omission occurred, which made it difficult for the author to determine whether it establishes fault as a condition of liability in a general way and to draw a conclusion on whether the liability of the employer is fault-based or a form of strict liability. After the Serbian Civil Code had ceased to be in effect, with the adoption of the Law on the Invalidity of Legal Regulations enacted before 6 April 1941, the employer’s liability for damage caused by an employee and suffered by third parties was regulated by the Basic Law on Labour Relations on 24 October 1966. Similarly, the Draft of a Code on Obligations and Contracts of 1969, published by Professor Mihailo Konstantinović (“Sketch”), also regulates this issue but differentiates between two categories of employers: state and private employers. In relation to the liability of public employers, it referred back to labour law regulations. Finally, the 1978 Obligations Act regulated this subject matter in relation to all employers. It prescribes that the employer shall be liable for damage caused by an employee to a third party at work and in work-related situations, with the condition that the employee acts at fault. The 1978 Obligation Act does not determine the legal nature of this liability. However, contemporary legal scholarship is of the opinion that it should be construed as strict liability, since the employer cannot exempt himself/herself from liability by proving that there is no fault on his/her side. Only employees’ faults are legally relevant.