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2013 MarsdenLR 1321
COURT OF APPEAL PUTRAJAYA
PROJEK LEBUHRAYA UTARA-SELATAN BERHAD – Appellant
Versus
PERMAS FORWARDING AGENCY SDN BHD – Respondent
[Civil Appeal No: N-04-322-09-2012]
Employers cannot be held vicariously liable for unpaid tolls unless explicitly provided for in the statute, as interpreted within the context of the Federal Roads (Private Management) Act 1984.
Headnote:(A) Federal Roads (Private Management) Act 1984 - Section 8(2) - Appeal concerning vicarious liability for unpaid tolls - Court held that business owners cannot be held liable for unpaid tolls by employees unless expressly stated in the statute - Clear legislative intent must be evident for imposing liability, and merely being a registered owner does not suffice. (Paras 1-18)
Facts of the case:
The Appellant claimed RM19,654.00 in unpaid tolls from the Respondent, who was found vicariously liable in Magistrate Court but had the decision reversed by the High Court. (Paras 2-5)
Findings of Court:
The Court reinforced that the statute does not impose liability on vehicle owners for tolls unpaid by drivers unless explicitly stated, emphasizing the interpretation of the statute as a whole. (Paras 10-15)
Issues: The primary issue was whether the Respondent could be found vicariously liable for tolls unpaid by employees under Section 8(2) of the Act. (Paras 1, 5, 12)
Ratio Decidendi: The court concluded that liability must stem from clear statutory language, and without such provisions in the Act, extending vicarious liability to vehicle owners is unjustified. (Paras 10, 12, 15)
Result: Appeal dismissed with costs of RM5000.00 to the Respondent.
| Table of Content |
|---|
| 1. vicarious liability on non-payment of tolls. (Para 1) |
| 2. employer's liability for road tolls (Para 2 , 3) |
| 3. vicarious liability and court’s reversal (Para 4 , 5) |
| 4. interpretation of legislation context (Para 6 , 7 , 9) |
| 5. interpretation of s 8(2) of the act. (Para 8) |
| 6. legislative intent and absurdity avoidance (Para 10 , 11 , 12 , 13 , 14 , 15) |
| 7. distinction of liability types (Para 16) |
[1] This appeal raises a short and interesting point of law, and that is whether an employer is vicariously liable for non-payment of road tolls in the context of s 8(2) of the Federal Roads (Private Management) Act 1984 .
Background Facts
[2] The factual matrix upon which the issue of law arises is this. The Respondent was sued by the Appellant in respect of unpaid tolls amounting to RM19,654.00 in the Magistrate Court. The Appellant is granted a concession to construct and maintain the North-South Expressways and is also authorised to collect tolls from users of the Expressways. It is undisputed that the employees had used the Expressways, and through their usage, avoided and failed to pay the relevant tolls, amounting to RM19,654.00.
[3] The Appellant succeeded in its claim before the Magistrate Court. However, on appeal to the High Court, the Magistrate Court's decision was reversed and it is the High Court decision, which is the subject of this appeal.
Magistrate Court's Reasons
[4] The learned Magistrate found that the Respondent was responsible for the acts of its employees premised on s 8(2) of the Federal Roads (Private Management) Act 1984 and the principle of vicarious liability.
High Court Decision
[5] The High Court reversed the decision of the Magistrate Court on the following grounds:
i. It is not the intention of s 8(2) of the Federal Roads (Private Management) Act 1984 to affix liability on the owners of vehicles for tolls not paid by the drivers using the highways.
ii. The principle of vicarious liability is not applicable in this matter as there is no proof that the Respondent had authorised its employees not to pay the tolls.
Our Grounds Of Decision
[6] The issue as set out in the opening paragraph calls upon us to interpret s 8(2) of the Federal Roads (Private Management) Act 1984 in the context of the Act itself.
[7] It is trite law that a statute should be read as a whole. What that means is simply that each clause in a statute is to be 'construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute' (see per Lord Davey in Canada Sugar Refining Co Ltd v. R [1898] AC 735 at p. 741).
[8] In our view, the relevant provisions of the Federal Roads (Private Management) Act 1984 are these:
Section 2 (1):
"It shall be lawful for the Minister responsible for works by order published in the Gazette to authorise any person who has agreed to construct, re-construct, upgrade, repair or maintain any road, bridge or ferry which has been declared or is to be declared a Federal road, bridge or ferry under the Federal Roads Ordinance 1959 or which is in any Federal Territory to demand, collect and retain tolls for such period as may be specified in the order for the use of such road, bridge or ferry by any person or class of vehicles."
Section 8 (1) and (2):
"(1) Any person who uses or attempts to use any road, bridge or ferry in respect of which an order under s 2 has been made without payment of the tolls prescribed in the order shall be guilty of an offence and shall, on conviction, be punished with a fine of not less than two thousand ringgit and not more than five thousand ringgit.
(2) Notwithstanding subsection (1) tolls due and payable by virtue of an order made pursuant to s 2 may be recoverable by an action at law by the person so authorised under the said section.
(3) Section 173A of the Criminal Procedure Code shall not apply in respect of an offence under subsection (1).
(4) In every case in which the offender is sentenced to pay the fine
