Abdul Malik Ishak J:

[1] The plaintiff claimed damages from the defendants for personal injuries and losses suffered by him arising from an accident which occurred on 24 November 1989 at about 8.25pm at or near the second defendant's premises at Jalan Ah Siang, Johor Bahru. It was the plaintiff's case that the accident was caused by the negligence of the servants or agents of the first and/or the second defendants.

[2] Briefly, in his evidence, the plaintiff testified that on 24 November 1989 while he was under the employment of the second defendant as a lorry driver cum attendant and worked with one Hussain bin Mat Isa ('Hussain'), he was requested by an Indian man by the name of Kumar ('Kumar'), who was employed by the second defendant as an attendant in motor-lorry JBP 4502 (it should be a motor-lorry trailer and it is proposed to describe it as such), to open one of the doors or barriers of the motor-lorry trailer which, at the material time, was laden with iron pipes The plaintiff acceded to the request. The motor-lorry trailer had a total of eight doors or barriers - three on each side and one in front and one at the back. These doors or barriers were secured by means of pins It was in evidence that to open the door or barrier it can only be done by hitting the pin with a hammer Thus, whilst the plaintiff was hitting the pin to the third door or barrier with a hammer, the pin broke and the door or barrier was flung open and a few pieces of iron pipes (two or three in number) rolled down and struck the plaintiff's left leg causing him to lose consciousness The plaintiff testified that the hammer was given to him by Kumar and that he agreed to help the latter because Hussain had previously told him that if anyone from the second defendant's company asked for any help he should be obliged to assist. As a result of the accident the plaintiff suffered a crush injury to his left leg with compound communited fracture of tibia and fibula, cut muscle, tendons, nerves and vessels which resulted in traumatic amputation of his left leg. The plaintiff testified that due to his disability, he had lost his job as a lorry driver cum attendant and to date he has not been able to take up any other employment. It was the plaintiff's case that his injuries were occasioned by the negligence of Kumar because Kumar requested him to remove the door or barrier of the motor-lorry trailer by hitting the pin with a hammer when he (Kumar) knew or ought to have known that it was dangerous to remove the door or barrier in that manner.

[3] The plaintiff's cause of action was thus founded on negligence. But before proceeding to discuss the issue of negligence, what is germane to ascertain here was whether or not Kumar was the servant or agent of the first and/or the second defendants and for this exercise, I shall examine the doctrine of vicarious liability. Lord Denning MR in Launchbury & Ors v. Morgans & Ors [1971] 2 QB 245 especially at p 253 explained the doctrine of vicarious liability in this way:

What is the basis of this doctrine of vicarious liability? To answer it, I would first ask: what does 'vicarious' mean? I turn to the Shorter Oxford English Dictionary (3rd Edn,1944) Vol II. It means one 'that takes or supplies the place of another... '. So vicarious liability means that one person takes the place of another so far as liability is concerned. Familiar instances are where the master shoulders the liability of his servant: or the principal shoulders the liability of his agent: and so forth. Whenever the law imposes vicarious liability, it does so for reasons of social policy -reasons which commend themselves to the people at large. If a servant injures another by his negligence, his master should answer for it. If an agent deceives another by his fraud, his principal should make good the loss It does not matter whether the servant or agent is acting for the benefit of his master or principal, or not. Suffice it that the master or princi