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2014 MarsdenLR 1319

HIGH COURT MALAYA KUALA LUMPUR
MOHAMMAD YAZID LIM MOHAMAD AZIZ & ANOR – Appellant
Versus
MOHD JAVED MOHD NIZAR & ANOR – Respondent


Judgement Key Points

What is the test for vicarious liability of an employer for an employee's intentional wrongdoing? (!) (!) Is the defence of qualified privilege available for an email complaint to an artistes association? (!) What quantum of general and aggravated damages is appropriate for assault causing facial lacerations and trauma? (!)

Key Points: - Plaintiffs (actor/comedian and actress) sued defendants (director and production company) for assault, battery, defamation, and breach of contract arising from a filming incident on 11 May 2010 (!) (!) - Court found 1st defendant and Halim intentionally assaulted 1st plaintiff with a glass mug and punches, causing two deep laceration wounds; rejected defendants' accidental/self-defence version (!) (!) - 2nd defendant held vicariously liable as 1st defendant was executive director and incident occurred in course of employment (!) (!) - Awarded RM100,000 general/aggravated damages to 1st plaintiff and RM20,000 to 2nd plaintiff for trauma; RM100 special damages for medical costs (!) (!) - Defamation claim for email to Artistes Association failed due to lack of original email evidence; earlier liability order set aside (!) (!) - Defendants' counterclaim for breach of contract and defamation dismissed; plaintiffs not habitually late or indisciplined (!) (!) - No special damages for loss of income as plaintiffs failed to prove pre/post-incident earnings comparison (!) (!) - Court relied on plaintiffs' credible testimony, medical evidence, and police report; rejected defendants' witnesses as biased (!) (!) - Costs of RM50,000 awarded to plaintiffs considering case complexity and duration (!) (!)

What is the test for vicarious liability of an employer for an employee's intentional wrongdoing? [p_791][p_812]

Is the defence of qualified privilege available for an email complaint to an artistes association? [p_891]

What quantum of general and aggravated damages is appropriate for assault causing facial lacerations and trauma? [p_952]


GROUNDS OF JUDGMENT

Su Geok Yiam J:

Background

[1] This is an action by the plaintiffs against the defendants for alleged physical assault, battery, defamation and also breach of contract.

[2] The 1st and 2nd plaintiffs are husband and wife. The 1st plaintiff is an actor and comedian in Malaysia. The 1st plaintiff is also well-known as "Johan Raja Lawak" in Malay or "King of Comedians" in English because he came out third in a competition for the best comedian which was organized by Astro in 2005.

[3] The 2nd plaintiff is an actress in Malaysia who is known on television as "Ozlynn Wati".

[4] The 2nd defendant is a private company incorporated under the Companies Act 1965. The 2nd defendant is a producer of films including films and programmes shown on television.

[5] By a written agreement dated 8 May 2010 ("the contract") which was signed by the 2nd plaintiff on behalf of herself and the 1st plaintiff on the one part and the 2nd defendant on the other part, the 1st and 2nd plaintiffs were engaged by the 2nd defendant to act in a horror play entitled "Bisikan Arwah" in Malay which means "Whisper of the Spirit" in English ("the play"). The play, which would have four episodes and which wo


























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