An employer can be held vicariously liable for an employee's wrongful acts if they are closely connected to the employee's duties, even without the employer's knowledge of the wrongdoing.

S Nantha Balan JCA:

Introduction

[1] There are 2 appeals before us, namely Civil Appeal No B-02(NCVC)(W)-102-01/2023 ("Appeal 102") and Civil Appeal No B-02(NCVC)(W)-112-01/2023 ("Appeal 112"). Both appeals arise from the decision of the learned Judicial Commissioner of the High Court (Shah Alam) dated 21 December 2022 (rendered after a full trial) in Suit No BA-22-NCvC-100-02/2019 ("Suit 100").

[2] The Learned Judicial Commissioner (who has since retired) did not furnish full grounds for her decision. However, the Judicial Commissioner did give broad grounds for her decision. Before us, none of the parties raised any objections as to the absence of the High Court 's full grounds. As such, both appeals proceeded on the basis of the broad grounds as found in the Record of Appeal.

Parties

[3] The Appellant in Appeal 112 (Respondent in Appeal 102) is Telekom Malaysia Berhad ("Plaintiff"). The Appellant in Appeal 102 is Ahmad Faizal bin Ahmad Zamzami (described below as the Sixth Defendant - D6). For completeness, it is necessary to identify all the Defendants in Suit 100. They are;

1. Mohd Shukor Bin Ahmad (No. K/P: 701021-10-6413) (Berniaga Sebagai Triple A Communication) (First Defendant - "D1")

2. Syukur Communication Sdn Bhd (No. Syarikat: 1149090-K) (Second Defendant - "D2")

3. Kaharuddin Bin Yusoff (No. K/P: 770424-08-7287) (Third Defendant - "D3")

4. Fariul Fadzil Bin Abdul Rahim (No. K/P: 781212-13-5009) (Fourth Defendant - "D4")

5. Mohd Saleh Bin Isthnin (No. K/P: 760308-04-5419) (Fifth Defendant - "D5")

6. Ahmad Faizal Bin Ahmad Zamzami (No. K/P: 850111-14-5087) (Sixth Defendant - "D6")

The Claim

[4] Essentially, the Plaintiff's main claim in Suit 100 was for restitution in the sum of RM3,145,821.45 being the loss incurred due to theft of copper cables from their store in Cheras, Kuala Lumpur. D1 and D2 are the Plaintiff's maintenance and repair contractors. D3 was an employee of D1 and D2. Specifically, D3 was employed by D1 and D2 as a Maintenance Supervisor. The theft of copper cables was carried out through a nefarious scheme involving D3 (qua employee and as agent of D1 and D2) and the Plaintiff's employees, namely D4, D5 and D6. The Plaintiff holds D1 and D2 vicariously liable for the wrongful acts of D3 which resulted in the loss of copper cables valued at RM3,145,821.45. According to Black's Law Dictionary, "Vicarious liability" means "The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee, or, a principal for torts and contracts of an agent."

[5] The Plaintiff also contends that D1 and D2 are liable under contract, to indemnify them for loss and damage caused by the wrongful acts of D3 who acted in collaboration with the Plaintiff's said employees. In their Defence, D1 and D2 took the position that they are not liable for D3's wrongful conduct. It was contended that D3 acted on a frolic of his own and was not authorised by D1 and/or D2 to do what he did.

The Contract

[6] By an agreement known as Contract for Panel Contractors Mini JKH for Regional Network Operation (RNO) dated 21 January 2010 ("the Contract") made between the Plaintiff and D1's business entity, Triple A Communication, D1 agreed to execute works required by the Plaintiff in accordance to the terms therein stated. Subsequently, a Novation Agreement dated 8 December 2016 was entered between the Plaintiff, D1 and D2 whereby D1 agreed to transfer all of its rights, interests, benefits, duties, liabilities and obligations under the Contract to D2, while D2 agreed to bound by all terms, conditions and covenants to observed under the said Contract.

Discovery Of Theft

[7] On 9 March 2017, D4 lodged a complaint to the Plaintiff's ENZ Maluri Manager, Abdul Majid bin Mohamed Yusop, informing him of his findings that 25 Mainte