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Case Update: Malaysian Apex Court answers important aspect of the law on vicarious liability

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31 October 2022

LAW OF TORT
Vicarious Liability – Employer – Intentional Wrong – Employee – Close Connection – Nature of Employment

GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Bin Mohamed Amir
Civil Appeal No. 02(f)-44-07/2021(P)|Federal Court
- see the grounds of judgment here

Facts GMP Kaisar Security (M) Sdn Bhd (“Appellant”) entered into a contract with a private limited company where GMP would provide the service of armed personal bodyguards. Subsequently, the Appellant employed an individual by the name of Jaafar, as a personal bodyguard. The Appellant then placed Jaafar under the control and authority of the private limited company. Two days after the commencement of Jaafar’s employment with GMP, while performing his task as a bodyguard, Jaafar suddenly shot and killed the individual he was tasked to guard in a moving car that eventually collided the rear of another car and stalled. Jaafar then alighted from the car and fired randomly with the Glock automatic, provided to him by the Appellant, at members of the public. Amirul Amin (“Respondent”) who was riding his motorcycle along the very same road, had slowed down assuming there had been a road accident. Seeing an injured man on the fork of the road, the Respondent got down from his motorcycle and approached him. The Respondent saw Jaafar standing nearby and asked him what had happened. In a split second, Jaafar whipped out the Glock automatic and shot the Respondent in the chest. The Respondent was subsequently rushed to the hospital where he was treated. Ultimately, the Respondent had sustained gunshot injury to the chest which led to nerve injuries coupled with Post-Traumatic Stress Disorder. Consequently, the Respondent filed a claim in tort against Jaafar as the 1st defendant in the High Court and the Appellant as the 2nd defendant for vicarious liability. After a full trial, the High Court a llowed the Respondent’s claim. On appeal, the Court of Appeal, by majority, found no appealable error and affirmed the High Court’s decision. Hence this appeal. 

Issues 1. Whether, as a matter of law and fact, GMP could be vicariously liable for the actions of
Jaafar?
2. Whether there was a failure on the part of the learned trial Judge to make a clear finding of liability for a particular tort against the tortfeasor?

Held In dismissing the Appeal, the Federal Court first dealt with the second issue where they held that the failure of the learned trial Judge to attach a particular label on Jaafar's action, with respect, cannot be a justification to set aside the entire judgment which is based on findings of facts after a full trial. For all intents and purpose of the instant civil action, the Federal Court was of the view that the Respondent need only prove the facts that form the substratum of his cause of action and that this had been accomplished on the required standard of proof as found by the learned trial Judge. In respect to the first issue, the Federal Court held that the High Court and the majority in the Court of Appeal had not erred in applying the close connection test. The Federal Court came to such conclusion due to a number of factors, for instance, the feature of the Appellant’s business and that the Appellant was the registered owner of the firearms with the carry and use licence issued by the Home Minister. Therefore, it was the Appellant which equipped Jaafar with the Glock automatic. Further to that, the Appellant was responsible for selecting and employing Jaafar to function as a personal bodyguard thus enabling him to carry the said firearm. The Federal Court noted that Jaafar’s actions may have been unauthorised by his employer but the pertinent question to ask is whether Jaafar’s actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. On the facts of this case and for the reasons the Federal Court had stated in their judgment, the answer was yes. In conclusion, Jaafar’s wrongful act was not independent from the task he was employed to do. Accordingly, the Appellant’s argument on this issue must fail and the appeal be dismissed.

Zul Rafique & Partners
{31 October 2022}

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