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2021 MarsdenLR 303
HIGH COURT MALAYA SHAH ALAM
KOH TAT MENG – Appellant
Versus
KERAJAAN NEGERI SELANGOR DARUL EHSAN – Respondent
[Civil Appeal No: BA-11A-26-10/2020]
The State Government cannot be held vicariously liable for the actions of local council employees unless a direct connection or employer-employee relationship is established.
Headnote:(A) Federal Constitution – Article 74 – Local Government Act 1976 – Vicarious liability – The Plaintiff's appeal against the dismissal of his claim for battery and vicarious liability against the State Government was rejected – The learned Magistrate's decision was affirmed as the 4th Defendant, being the State Government, is not vicariously liable for the actions of employees of the local council. (Paras 36, 35)
Facts of the case: The Plaintiff alleged battery by the 1st Defendant during an intervention to stop the capture of a stray dog, prompting a claim against the 4th Defendant for vicarious liability despite the 4th Defendant not being involved.
Findings of Court: The Court determined the relationship between local councils and state governments is distinct, negating vicarious liability for actions by local council employees absent a connection to the 4th Defendant.
Issues: The main issues addressed whether the 4th Defendant can be held liable for the actions of the local council employees underpinning the cause of action pleaded.
Ratio Decidendi: The Court ruled that without evidence of an employer-employee relationship between the Plaintiff and the 4th Defendant, the suit against it cannot stand; the 4th Defendant is a separate entity with no control over the local council's actions.
Result: Appeal dismissed with costs.
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JUDGMENT
Introduction
[1] The Appellant's claim against the Respondent was struck out by the learned Magistrate. The Appellant was aggrieved and appealed against the said decision.
[2] The Appellant was the Plaintiff in the Magistrates' Court and Kerajaan Negeri Selangor Darul Ehsan, the Respondent was the 4th Defendant. I shall refer to them as they were in the Court below.
[3] Although the other Defendants are not a party to this appeal, I shall nevertheless identify them for ease of reference.
[4] The 1st Defendant at all material times is employed and attached to the dog catching unit of the Majlis Perbandaran Subang Jaya (MPSJ).
[5] The 2nd Defendant is the Yang Di Pertua of MPSJ and MPSJ is the 3rd Defendant in this case.
[6] The 4th Defendant is the Selangor state government.
Background Facts
[7] The facts of the case are well set out in the Plaintiff's written submissions and are repeated here for the record.
[8] On 3 October 2019 the Plaintiff saw a group of men wearing the MPSJ uniform trying to capture a stray dog with a loop from underneath a parked car. The Plaintiff intervened and advised the MPSJ men not to capture the dog with the loop as it is in contradiction with the Standard Operating Procedure of the local council to capture dogs in that manner.
[9] The Plaintiff saw the 1st Defendant and his fellow officers continuously trying to drag the dog and he reproached the men. However the 1st Defendant and the other officers became annoyed with him and shouted at the Plaintiff using vulgar words.
[10] Subsequently the 1st Defendant pushed the Plaintiff against the parked car and choked him by pressing his arm roughly round the Plaintiff's neck.
[11] The officers then continued to drag the captured dog still with the loop tied around its neck and flung it into the back of the MPSJ vehicle.
[12] The Plaintiff again reproached the officers and urged them to treat the dog humanely and again the 1st Defendant and the other MPSJ officers responded by scolding him with vulgar words. They left with the dog soon after.
[13] The Plaintiff lodged a police report 5 days later on 8 October 2019 at the USJ Police Station, Subang Jaya, Selangor against the 1st Defendant for the act of battery committed by the 1st Defendant on the person of the Plaintiff.
[14] The Plaintiff asserts that the physical assault caused by the 1st Defendant is an act of battery and/or trespass and the 2nd, 3rd and 4th Defendants should be held vicariously liable for the act of battery and/or trespass to the person of the Plaintiff.
[15] On 13 December 2010 the Plaintiff filed an action in the Shah Alam Magistrates' Court to claim for general damages amounting to RM50,000 as well as a public apology by all the Defendants to the Plaintiff.
[16] The 4th Defendant (Kerajaan Negeri Selangor Darul Ehsan) filed an application to strike out the Plaintiff's suit pursuant to O 18 r 19(1)(a), (b) and (d) ROC, 2012 on the following grounds:
(a) the facts pleaded by the Plaintiff do not give rise to any cause of action against the 4th Defendant; and
(b) the filing of the Plaintiff's suit is an abuse of Court process, frivolous and/or vexatious.
[17] The learned Magistrate agreed with the 4th Defendant's submissions and dismissed the Plaintiff's application with costs.
The Plaintiff's Submission In Support Of His Appeal Against The Decision Of The Magistrates' Court
[18] In summary the Plaintiff contended as follows:
(i) the learned Magistrate erred when she decided that the claim for vicarious liability did not disclose any reasonable cause of action. It was neither frivolous, vexatious nor an abuse of the Court process; and
(ii) the Plaintiff had successfully raised triable issues ie, that the 4th Defendant is a State Government constituted pursuant to the law of the Constitution of Selangor 1959 and that the 3rd Defendant falls under the jurisdiction of the Defendant which requires the 4th Defendant to oversee the functions of the 3rd Defendant as stated in art 74 of the F
