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2022 MarsdenLR 429
FEDERAL COURT PUTRAJAYA
GMP KAISAR SECURITY (M) SDN BHD – Appellant
Versus
MOHAMAD AMIRUL AMIN MOHAMED AMIR – Respondent
[Civil Appeal No: 02(f)-44-07-2021(P)]
An employer may be held vicariously liable for an employee's intentional wrongdoing if closely connected to the scope of employment, despite being unauthorized.
Headnote:(A) Employment Law – Vicarious Liability – The principles of vicarious liability were examined in the context of intentional wrongdoing by an employee – The court assessed whether an employer can be held liable for an employee’s criminal acts committed during employment – It was found that an employer is vicariously liable where an employee’s wrongful act is closely connected to their employment duties (Paras 26-28, 34-35).
(B)
Course of Employment – The court clarified the interpretation of actions ‘in the course of employment’, emphasizing liability could exist even for actions outside express authorization if closely connected with the employee’s duties (Paras 25, 32-33).
(C)
Determining Liability – For vicarious liability to arise, there must be a clear finding of wrongful conduct by the employee related to their employment, and the employer has a responsibility due to the risks inherent in their operations (Paras 30-31, 41-48).
Facts of the case:
A bodyguard employed by GMP shot a civilian while executing his duties, leading to a claim of vicarious liability from the victim (Paras 3, 9-10).
Findings of Court:
The courts affirmed that the employer, GMP, was vicariously liable due to the close connection between the employee's actions and his duties as a bodyguard (Paras 36-38).
Issues
: The primary issues included the necessity of a specific finding of tortious conduct by the employee and the appropriateness of imposing vicarious liability for criminal acts (Paras 20-21).
Ratio Decidendi:
The court held that the employer is liable when the employee's actions, albeit unauthorized, are closely related to their employment responsibilities and pose a risk to the public (Paras 32-35).
Result:
Appeal dismissed; employer held vicariously liable.
JUDGMENT
Introduction
[1] This appeal is directed against the decision of the Court of Appeal which had affirmed, by majority, the decision of the High Court of Penang. The appeal concerns an important aspect of the law on vicarious liability. Specifically, it raises the question of when can an employer be held liable for an intentional wrong committed by his employee where no fault can be attributed to the employer.
[2] The appeal was filed pursuant to the granting of leave on the following questions:
(i) Sama ada di dalam suatu tuntutan di bawah prinsip tanggungan liabiliti secara vikarius, adakah perlu untuk Mahkamah perbicaraan memutuskan terlebih dahulu sama ada perbuatan pekerja yang dinamakan adalah suatu perbuatan salah ataupun tidak? Sekiranya tidak ada apa-apa keputusan dibuat oleh Mahkamah perbicaraan berkenaan salah ataupun tidak perbuatan pekerja tersebut, bolehkah majikan dipertanggungjawabkan di bawah prinsip tanggungan liabiliti secara vikarius;
(ii) Sama ada di dalam suatu tuntutan di bawah prinsip tanggungan liabiliti secara vikarius, adakah perlu untuk Mahkamah perbicaraan (selepas memutuskan bahawa perbuatan pekerja yang dinamakan adalah suatu perbuatan salah) memutuskan gantirugi yang perlu ditanggung oleh pekerja tersebut sebelum memutuskan sama ada majikan boleh dipertanggungjawabkan di bawah prinsip tanggungan liabiliti secara vikarius;
(iii) Sama ada di dalam suatu tuntutan di bawah prinsip tanggungan liability secara vikarius, adakah majikan boleh dipertanggung jawabkan ke atas perbuatan salah pekerjanya semasa bertugas yang jelas bertentangan dengan skop pekerjaannya serta merupakan tindakan pekerja itu sendiri (on his own frolic); and
(iv) Di dalam suatu tuntutan di bawah prinsip tanggungan liabiliti secara vikarius, apakah tafsiran jelas "di luar skop pekerjaannya" dan "di atas tindakan pekerja itu sendiri (on his own frolic)".
[3] The respondent ("Amirul") had filed a claim in tort against one Jaafar bin Haalid ("Jaafar") as the 1st defendant in the High Court and the appellant here ("GMP") as the 2nd defendant for vicarious liability. Amirul's cause of action against Jaafar and GMP emanated from the tragic event where he was shot at close range by Jaafar and consequently sustained serious bodily injuries. Amirul's action against Jaafar is on the basis that the latter is the primary tortfeasor while his action against GMP is on the basis of vicarious liability for Jaafar's action.
[4] The High Court, after a full trial, allowed Amirul's claim including the claim for compensatory damages. He was granted RM14,470.00 as special damages and RM70,000.00 as general damages. On appeal, the Court of Appeal, by majority, found no appealable error and affirmed the findings of the learned trial Judge. The minority had a different view which we will come back to when dealing with the issues in this Appeal. The appeal was then heard by this Court after which the matter was adjourned for decision.
The Material Facts
[5] The relevant background facts leading to the filing of the present appeal are well stated in the judgments of the Courts below and in the parties' submissions. The salient facts, as far as they are relevant to the present appeal, can be restated as follows. For convenience, the parties will be referred to as they were in the Court of first instance or by their abbreviated names as described earlier.
[6] On 23 November 2016, a contract was entered between GMP and a private limited company known as North Metal Industrial Sdn Bhd ("North Metal"). The essential terms of the contract purport that GMP would be providing North Metal with the service of armed personal bodyguard.
[7] On 28 November 2016, a contract of employment was signed and entered between GMP and Jaafar, wherein among the salient terms are:
(i) that GMP takes Jaafar under its employment in the position of personal bodyguard, where the terminology used is "Pengawal Peribadi [Kontrak]";
(ii) the date of commencement of Ja
