VICARIOUS LIABILITY

PRESENTED ON 24 MAY 2019

 LWB02C
ALYA ZARIFAH BT AZMI 2018680606
FARAH NURIZZATY AFIFA BT AZHAR 2018645008
YASMIN RAIHANA BT MOHD YAZID 2018680802

PRESENTED FOR
Dr. NORAIZA ABDUL RAHMAN
 “Whether Don may successfully claim
for damages against EE Sdn Bhd on the
ground of vicarious liability”
Employers are vicariously liable for the torts
of their employees that are committed
during the course of employment.
 JUSTIFICATION
The wealth of a
encourages accident As the employer
defendant, or the
prevention by makes a profit
fact that he has
giving an employer from the
access to resources
a financial interest activities of his
via insurance, has in
in encouraging his employees, he
some cases had an
employees to take should also bear
unconscious
care for the safety any losses that
influence on the
of others those activities
development of legal
cause.
principles.
 There must be a
wrongful or tortious
act

ELEMENTS

The tort is committed There must be a special

within the course of relationship
employment
 FIRST THERE MUST BE A WRONGFUL
ELEMENT OR TORTIOUS ACT
 THERE MUST BE A WRONGFUL OR TORTIOUS ACT
O The court will first and foremost
decide whether a tort has been
committed.
O All the elements of the particular
tort must be satisfied, only then the
nature of the relationship between
plaintiff and defendant would be
examined.
O The second liability can only be
imposed on the second party if there is
tortious wrong committed by the party
in fault
For the tort of negligence,
3 elements:
- the element of duty of care,
- breach of duty
- damage caused by defendant’s breach of duty.
Donoghue v Stevenson,
( Neighbour principle derived )
Lord Atkin - neighbour as the person who is closely
and directly affected by someone’s act.
Two tests :
- foreseeability test
- proximity test.
 By applying the neighbour
However, this duty of care has Aden’s act had resulted Don
principle, Don can be considered as
been breached by Aden when he to be thrown out of the van and
Aden’s neighbour as Don is Aden’s
continues to drive the van when he is suffered severely injuries and the
passenger who is directly affected by injuries suffered is not too remote.
gripped by severe chest pains which it
Aden’s act and Aden could foresee that
is unsafe. This is because a reasonable
he would cause injury to Don if he As all the elements are
man would not continue to drive fulfilled, therefore, it can be
continues to drive a van when he was
when he/she did not sure whether it concluded that there is a tortious act
attacked with severe chest pains.
is safe to drive with such condition. committed by Aden which is
Therefore, there is a duty of care owed
negligence.
by Aden towards Don.
 SECOND THERE EXISTS A SPECIAL
ELEMENT RELATIONSHIP
 Control Test SHORT V J & W
This was the traditional test HENDERSON
used to identify the special
relationship between the employer and
employee. It is very easy and simple to The power to SELECT
identify the relationship of master
and servant or apprentice initially
with the use of control test. The power to determine
However, this test is not sufficient to salary
include other complex relationships of
workers and employer such as drivers The power of CONTROL
and plumbers on the issue of whether WORK
they are employee or independent
contractor.
The power to TERMINATE
Collins v. Hertfordshire County
Council & Anor
Had distinct contract of service and
contract for services by having one
case where the master can require
and order how is to be done despite
of what is to be done, while the other
case, he can only acquire what is to
be done.
The court held that the contract of
service will only exist if the employer
had the power to instruct the
employee and to control the method
in which the work was to be done.
Control over the hiring and dismissal
of the worker has been held to be
evidence of an employer-employee
relationship
Cassidy v Ministry of
Health
The Court of Appeal held that the
defendant was vicariously liable.The fact
that the worker engages in specialised and
technical work for which he is specially
qualified does not mean that he is
necessarily not a servant. The Court held
that a person is a servant of the defendant
if he was chosen for the job by the
defendant and is fully integrated into the
defendant’s organisation. In this case, the
doctors were appointed to the hospital
by the defendant and not chosen by the
patient, and were fully integrated into
the hospital. They were therefore the
defendant’s servants
Bata Shoe Company (Malaysia) Ltd v. Employees Provident Fund Bhd

Whereby for the purposes of the Employees Provident Fund Ordinance, plaintiff company had
sought a declaration on the fact that the salesmen were not their employees as they are
employed by their shop managers. Gill J had held that the salesmen in the retail shop are
not employees of Bata as Bata does not select and appoint them. Their wages are paid
by the manager instead of the company. Even if Bata has only indirect control on dismissal
or suspension under the agreement where manager is required to dismiss any salesmen
under him; and has no direct control on the manner how the work of sales performed by
the salesmen, Bata has never required the manager to dismiss them. It is ultimately the
shop manager to exercise those rights. The company only has the power to transfer a shop
manager, but has no powers on the salesmen. Therefore, the plaintiff is entitled for the
declaration and the defendant is required to pay the cost of actions.

ORGANISATION/
integration TEST
Introduced to redress the
inconclusiveness of the
traditional control test
CONTRACT OF SERVICES VS
CONTRACTS FOR SERVICES
A ship’s master, and a reporter on the staff of
a newspaper are all employed under a
contract of service; but a ship’s pilot, a
taxi-man, and a newspaper contributor are
employed under a contract for services. If the
worker is in business on his own account,
then it is more likely that he will not be
deemed to be an employee
Stevenson, Jordan and Harrison Ltd v
McDonald and Evans
A copyright dispute between two publishing houses, the
outcome which depended upon the status of an author
who had submitted a series of lectures to the defendants
for publication. The author was employed by the plaintiffs
to write educational texts, but the printed material was at
the centre of the dispute was the result of a series of
lectures that he had given at an evening institute in his
spare time. He transferred his copyright in this material to
his publisher, MacDonald & Evans. His employer sued
for the copyright, claiming that the material has been
produced by their employee in the course of his
employment. The Court of Appeal ruled that the material
based on his lectures was not produced as an integral
part of his employment and therefore did not belong to
the employer.
 Mat Jusoh bin Daud v Syarikat Jaya
Seberang Takir Sdn Bhd

The plaintiff was employed as a sawyer in the defendant's sawmills. He was injured in the course of his
employment and as a result lost three fingers of his right hand. Because of the injuries, he was refused
further employment at the defendant's sawmill. He sued the defendants and claimed for damages. The
defendant denied liability contending that the plaintiff was not their employee but the employee of the
defendant's contractor Lim.

The court held that Lim could not be held to be a contractor as he was not undertaking to execute any
part of the defendant’s sawmills business. He was merely a middle man to procure workmen for the
defendants to be employed at the defendant's sawmill. Since wages and the number of logs to be
sawn were determinable by the defendants, the plaintiff’s work was an integral part of the
defendants’ business and therefore an employee of the defendant. Besides, the court found that the
defendant’s negligent for not providing a sufficient number of workmen to do job the plaintiff was doing
and not providing a proper and effective system of work.
Salleh Abas FJ therefore held that the defendants are wholly responsible for the injuries suffered by the
plaintiff.

Multiple/mixed
Test
Employers ‘lack control’ over the method
in which the work is to be done and this
no doubt had caused the control test
increasingly difficult to apply.
It was realised that no one factor could
be isolated in determining such a
relationship and this dissatisfaction had
led to the development of the mixed or
multiple test.
This test is likely to be in favoured by
the courts as the approach is based on
common sense.
Hall v Lorimer
The Court of Appeal said no single test is absolute.
All tests are open to interpretation and there is no
conclusive or definitive test
Ready Mixed Concrete v Minister of Pensions
Whereby all factors in the relationship should be
considered.
The employee or servant agrees that he will use his
own expertise and the employer pays him in
monetary form or remuneration
Employee or servant agrees that he will be bound by
the employer’s instruction.
All other conditions in the agreement are consistent
with the nature of the job being a contract of service.
 APPLICATION

This is because the second

In applying the legal Therefore, it can be
defendant company in the
principles stated above to assumed that the present
present case is Echo
the present case, the case occurred within the
Engineering Sdn Bhd and
relevant test to be applied in borders of Malaysian
the words at the end of the
the present case in order to jurisdiction. The control test
company’s name indicates
determine whether Aden is should be applied because
that it is registered in
an employee of Echo in Malaysia, the courts
Malaysia thus can be
Engineering Sdn Bhd is the generally preferred to apply
deduced to be a Malaysian
control test. the control test.
company.
 APPLICATION

In Bata Shoe Company

In applying the control test to
(Malaysia) Ltd v.
the present question, Echo Therefore, the defendant can
Employees Provident Fund
Engineering Sdn Bhd can be be seen to exercise power or
Bhd, the court held that the
seen to exercise control over control over Aden’s conduct
worker is a non-employee
the manner in which Aden while he is working as a
because the defendant was
does his work. This can be delivery man for the
not responsible for the
proven because of the term company. Thus, the second
payment of wages and did
of Aden’s employment that element to establish
not have control over the
he may not carry any other vicarious liability is fulfilled.
manner in which the work
person other than Aden is an employee of
was performed, as in
employees of the company Echo Engineering Sdn Bhd.
accordance with the
in the van.
principles of the control test.
 THIRD THE TORT IS COMMITTED
WITHIN THE COURSE OF
ELEMENT EMPLOYMENT
 THE TORT IS COMMITTED WITHIN THE COURSE OF
EMPLOYMENT

An employer is only
vicariously liable for
the torts of his
employee which Lister v Helsey Hall Ltd,
occur in the ‘course
of employment’. An employer cannot avoid liability
by showing that an employee
engaged in an intentional and
unauthorised wrongdoing.
An employee will only
avoid liability if it can be If there is connection, it is
shown that an irrelevant whether the
employee acted “on a employee’s act was unauthorised.
frolic of his own” or
acted in a way that was
unconnected with his
employment
THE TORT IS COMMITTED WITHIN THE COURSE OF
EMPLOYMENT

Factors to be considered:

- The act is either

expressly/impliedly allowed
by the employer

- The employee does an

authorised act in an
unauthorised manner

- The act is closely related to

what the employee was
employed to do, in the
course of doing the job.
THE TORT IS COMMITTED WITHIN THE COURSE OF
EMPLOYMENT

There are few situations that could act as a yardstick in

determining whether the employee’s conduct is within the
scope of his employment and decided whether the employer
may or may not be vicariously liable for the tort committed by
his employee.

For an example is when the employee acted against his

employer’s express prohibition.
 THE EMPLOYEE ACTED AGAINST HIS EMPLOYER’S EXPRESS PROHIBITION

If the worker acts contrary to the express prohibition of his employer by doing
something which he is not employed to do, he is more likely to be construed as
acting outside the scope of employment.

Twine v bean’s express ltd
Facts: The employee, acting contrary to his
employer’s instructions, gave a lift to a third party
who was subsequently injured due to the
negligence of the employee.
Held: The employer was not vicariously liable as
giving free lifts was not the job the employee was
employed to do and therefore he was acting
outside the scope of his employment.
Chuan seng & co pineapples factory v idris &
anor
Facts: the defendant’s employee gave a lift to two
persons in his lorry. An accident occured in which the
two persons died.
Held: Court followed dicta in Twine v Bean’s Express
Ltd and stated that giving lift was outside the scope
of employment as the driver was prohibited from
giving lifts to other persons. Thus, the defendant was
found not vicariously liable.
 THE EMPLOYEE ACTED AGAINST HIS EMPLOYER’S EXPRESS PROHIBITION
However, if the act done goes against the express
forbidden but brings benefit to the employer, the
conduct is said to be within the scope of his
employment
Rose v Plenty,
Facts: a worker acting against the instructions of
his employer, employed a 13-years old boy to help
him deliver and collect milk bottles. The boy
suffered injuries due to the negligence of the
worker.
Held: The employer was vicariously liable as the act
was done for the profit of employer. Thus, the
conduct is said to be within the scope of the
employment.
State government of perak v muniandy
Facts: the respondent who was an employee of the
appellant had hitched a ride on one of the appellant’s
lorries, which was driven by his co-worker, to go home.
The driver did not tell the respondent that the
respondent was prohibited from riding on the lorry. An
accident occured in which the respondent sustained
injuries.
Held: The employer was vicariously liable, despite been
prohibited from giving lifts, on the ground that the
driver was performing his job in an unauthorised way.
He was driving as an employee of the appellant.
Therefore, he was still acting within the course of the
employment.
application
In this present case, Aden, the driver of EE Sdn
Bhd has to drive to premises of a supplier to
collect some materials. There is a notice located
in that van which expressly prohibits him from
give a lift to anyone except the company
employees.
These impliedly means that Aden is employed
only to drive to the premises to collect materials
and also not to give a lift to anyone except the
employees.
 the act of Aden which gives a lift to Don was done
against the express prohibition. However, it still
application brings benefit to EE Sdn Bhd.
This can be seen as the purpose of Don to ride the
vehicle is to collect some supplies that urgently
needed to repair the machine at Echo plant . If Aden
did not give a lift to Don, then Don would not be
able to complete his work .
Thus, by referring to the case of:
Rose v Plenty,
Aden’s conduct is within the scope of employment
by considering the benefits received by EE Sdn Bhd
and the tort occurred while he was on his way to the
said premises as what he was employed to do.
By applying the case of:
State government of perak v
muniandy
The EE Sdn Bhd was vicariously liable, despite
been prohibited from giving lifts, on the ground
that Aden was performing his job in an
unauthorised way. However, he was driving as an
employee of the EE Sdn Bhd. Therefore, he was still
acting within the course of the employment.
In conclusion, EE Sdn bhd can still be made liable
as the tort committed during the course of the
employment. Thus, the third element is fulfilled.
 CONTRIBUTORY NEGLIGENCE
Contributory negligence is a term used to describe the
DEFENCES
actions of an injured individual who may have also
contributed or caused his/her own injury.

The negligence was indeed contributory as Don, the

passenger, did not put on seatbelt. If he had been wearing
seatbelt, his injuries would have been less serious.
 VOLENTI NON FIT INJURIA
this means ‘voluntary taking of a risk’. It’s when a person
chooses to be in the situation that causes the injury.
Don chose to be in the situation that causes the injury when
he chose to take a lift from Aden and allowed Aden to
continue driving despite the chest pain suffered by Aden as
well as not wearing the seatbelt, he has voluntarily taking
the risk on his own consent
Thanks!
Any questions?