GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin bin Mohamed Amir [2022] 6 MLJ 369

Case Review: GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin bin Mohamed Amir [2022] 6 MLJ 369

Court: Federal Court (Putrajaya)

Judges: Rohana Yusuf PCA, Harmindar Singh, Rhodzariah Bujang FCJJ

Date of Judgement: 18 October 2022

Topic: Vicarious Liability

Facts

1.    The Respondent (‘Amirul’) filed a claim against the first Defendant (‘Jaafar’) in the High Court and the Appellant (‘GMP’) as the Second Defendant for vicarious liability.

2.     As a matter of fact, GMP and Jaafar entered into a contract of employment on 28 November 2016 wherein GMP took Jaafar under its employment in the position of personal bodyguard.

3.     On first day of December 2016, Dato’ Ong Teik Kwang, known as Dato’ M was driving his car with Jaafar seated in the rear passenger seat.

4.     Jaafar as usual, was performing his duty as a personal bodyguard for Dato’ M.  While the car was moving along the Expressway, Jaafar unexpectedly shot and killed Dato’ M with a firearm (‘Glock automatic’) provided by GMP.

5.     Due to the sudden shot, the car collided with another car and stalled.  Jaafar then got off from the car and fired the bullets randomly with the Glock automatic at members of the public.

6.      At the same time, Amirul was riding his motorcycle along the same Expressway.  When Amirul approached the location where Dato’ M’s car had collided with another car, he got down from his motorcycle and asked Jaafar what had happened.

7.    In a split second, Jaafar whipped out the Glock automatic and shot Amirul right in the chest which he collapsed thereafter.  Jaafar’s action had unfortunately caused grievous injury, both physically and psychologically to Amirul.

8.    Amirul’s action against Jaafar was on the basis that the latter was the primary tortfeasor while his action against GMP was on the basis of vicarious liability for Jaafar’s wrongful act.

Issues

1.      Whether GMP could be vicariously liable for Jaafar’s unlawful actions committed against Amirul?

Ratios

1.     Vicarious liability has been under scrutiny for these recent years and it is important to celebrate the findings of apex Court regarding the issue of vicarious liability.

2.     In deciding the issue, the Federal Court deliberated the scope of vicarious liability where it has alluded with much clarity in the High Court case of Lee Woon Jeng v Excel Champ Automobile Sdn Bhd [2015] MLJU 2380 stating that-

An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The difficulty often arises with determining what is ‘in the course of employment’ or sometimes referred to as scope of employment. To come within the scope of employment it is necessary to ascertain if what an employee does at work is sufficiently connected with the duties and responsibilities of the employee.”

3.    In determining the liability, it is necessary for the Federal Court to consider the law on vicarious liability where it look up to the fairly old legal cases such as Lee Beng Choon v Tan Ngiap Kee [1962] 1 MLJ 315 and Samin bin Hassan v Government of Malaysia [1976] 2 MLJ 211 where the judges in these cases have often referred to the employees going on a ‘frolic of their own’ in describing acts of employees which have nothing to do with their employment or outside the scope of employment.

4.     However, the phrase ‘frolic of his own’ is in itself vague and unhelpful as it does not provide a sufficient basis to determine the existence or limits of vicarious liability.

5.    Thus, the Federal Court in this case was seen referred to Lord Diplock’s explanation in the cited case of Morris v C W Martin & Sons Ltd [1966] 1 QB 716 where it took much consideration in the classic Salmond test in determining whether any employee’s tort was committed in the course of employment as below-

“This test required that before vicarious liability can be inferred, there must exist a relationship of ‘master and servant’ between the defendant and the person committing the wrong. The servant, in committing the wrong, must have been acting in the course of his employment. A servant is deemed to be acting in the course of his employment if his act is either-

(a)  a wrongful act authorised by the master; or

(b)  a wrongful and unauthorised mode of doing some act authorised by the master.

6.   At this juncture, the Federal Court has also referred to the case of Mohamud v W Morrison Supermarkets plc [2016] UKSC 11; who went on to be decided by the UK Supreme in which our Federal Court fully agreed to. The useful exposition of decision that has been adopted in the Federal Court’s findings in the decision below are important to identify a sufficiently close connection here between the employee’s position and his tortious conduct wherein-

“…the defendant could be held liable on the basis of the close connection test. Two matters were declared to be relevant when deciding whether the close connection test has been satisfied. ‘The first question is what functions or ‘field of activities’ have been entrusted by the employer to the employee’, or in other words, ‘what was the nature of his job’?

The second question is whether ‘there was a sufficient connection between the position in which he (the employee) was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of vicarious liability’. This approach was emphatically preferred to the notion that there could realistically be a precise ‘measure (of) the closeness of connection, as it were, on a scale of 1 to 10’.”

7.    Having correctly referred to the law of torts and relevant authorities, the Federal Court considered the prevailing law where the employee committed an intentional wrong is underpinned by the following common denominators:

(a)   the intentional wrong must be committed by the employee in the course of employment;

(b)   there must be connection between the wrongful act and the nature of the employment;

(c)    the nature of the employment is such that the public at large are exposed to risk of physical or proprietary harm; and

(d)   the risk is created by the employer, owing to the features of the business.”

8.     The Federal Court was seen applying the above factors as well as the cited cases where it is more significant that the standout factor is the feature of GMP’s business.  It is a private agency that offers the service of armed bodyguards and the registered owner of the firearms to its employees with the carry and use license issued by the Home Minister.  GMP equipped Jaafar with the Glock automatic firearm.

9.     To iterate further, the Federal Court held that GMP was responsible for Jaafar’s unlawful act in the course of his duty as it was more significant that GMP was responsible hiring and employing Jaafar to perform duty as a personal bodyguard thus enabling him to carry the said firearm.

10.    By providing Jaafar with a firearm to perform his duty as personal bodyguard, GMP has created a risk which exposed the public to potential harm. The risk has become reality when Jaafar decided to shoot randomly at public for reasons only known to him. As reiterated earlier, GMP had created an opportunity for Jaafar to utilise the Glock automatic, albeit for wrongful intent.

11.    Pursuant to that, the Federal Court with very little doubt held that the wrongful act committed by Jaafar is closely connected with the line of work assigned to him by GMP, and for which GMP equipped him with the lethal weapon.  As stated earlier, Jaafar was on duty that fateful day pursuant to his employment as a personal bodyguard.

12.   The Federal Court had answered a pertinent question on whether Jaafar’s action in shooting at random people with his firearms and causing injury to Amirul was so closely connected with his employment that it would be justified to hold GMP vicariously liable and the answer was a solid ‘Yes’.

13.    To put it in another way, Jaafar’s wrongful act was not independent from the task he was employed to do. In this connection, it is apposite to recall through the cited cases wherein the nature of the work carried out by the employees exposed third parties (the innocent members of the community) to the risk or danger to their lives or safety, and, the same nature of the work allowed the malevolent employees the opportunity to commit the intentional wrong on the third parties.

14.    The Federal Court found that the assessment of High Court and the Court of Appeal to hold GMP vicariously liable for Jaafar’s wrongful act was justified. The decisions and orders made by the courts below are affirmed by the apex Court.

Decision

1.     GMP is vicariously liable for Jaafar’s unlawful actions that was committed against Amirul.

Key Take Away 1.      In essence, vicarious liability is a legal liability that makes the employer liable for the unlawful/wrongful acts of its employees.

2.     It is clearly observed that an employer is liable even for the employee’s unauthorised acts if they are so closely related to authorised acts that they can be considered modes, albeit improper modes, of doing them. However, the employer is not liable if the unauthorised and wrongful act is not so closely related to the authorised act that it can be considered a mode of doing it, but is an independent act.

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