Assignment 2-Article Review in Report

Not more than 5 pages.

Due Date: 11th June 2023 before 6PM (Internal date: 9 June 2023)
Title: An Article Review on The Extent of Vicarious Liability in Malaysia (Article
Danny)
1. Overview of The Article
 Main point
 Main claim
 Research Result
 Demonstrate how the evidence support the argument (macam mana case tu support
author ni punya point) -aisy
 Mention the conclusion by author -aisy
Mohamad Amirul Amin Mohamed Amir- The Respondent
Jaafar- First Defendant
GMP Kaisar Security(M) Sdn Bhd (Appeallant)- Second Defendant
(salin untuk translate) For the following above, the Federal Court in the present case set out
four common denominators underpinning the scope of the vicarious liability where an
employee had committed an intentional wrong:
i. The intentional wrong is committed in the course of employment.
ii. There must be a connection between the wrongful act and the nature of the
employment.
iii. The nature of the employment is such that the public at large are exposed to the risk of
the physical or proprietary harm; and
iv. The risk is created by the employer by virtue of the features of the business.
Applying these factors, 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 for the following
reasons:
i. The Appellant’s business is a private agency that offers the service of armed
bodyguards.
ii. The appellant was responsible for selecting and employing Jaafar, thus enabling him
to function as a personal bodyguard.
iii. It was not disputed that at the material time Jaafar was performing his duty as a
bodyguard (albeit in an illegal way); and
iv. By providing Jaafar with a firearm, the Appellant had created a risk which exposed
the public to potential harm; and this risk manifested into reality when Jaafar
embarked on a shooting rampage for reasons only known to him.
In their Lordships’ view, there is little doubt that the wrongful act omitted by Jaafar is closely
connected with the line of work assigned to him by the Appellant, and for which the
Appellant equipped him with the lethal weapon. The Federal Court concluded that although
Jaafar’s actions may not have been authorised by the Appellant, Jaafar’s actions in unlawfully
discharging his firearm and causing injury to the Respondent were so closely connected with
his employment that it would be fair and just to hold the Appellant vicariously liable.
Accordingly, the appeal was dismissed.
2.4 How the Evidence Support the Argument

In demonstrating the evidence to support the author’s argument that the “close
connection” is preferable in this case rather than the “Salmond” test, the author had included
some of the cases that have been proven to apply the test as the solid and tangible
corroboration for his statements. In the article, it has been said that a significant case in
English law that established the “close connection test” in the context of vicarious liability is
the case of Lister v Hesley Hall Ltd [2002], which dealt with the issue of whether an
employer could be held liable for the sexual misconduct of its employee. Under the close
connection test, the emphasis switched from the employee’s particular duty to whether their
position and illegal behaviour were sufficiently connected. The House of Lords held that the
defendant company was vicariously liable for the actions of their employee, Thornton. They
emphasized that the sexual abuse had occurred during the time when Thornton was acting in
the capacity of a warden and taking advantage of his position of authority over the boys. The
close connection between his employment and the abuse was evident, and the employer
should bear responsibility. The decision in the case expanded the scope of vicarious liability
which allows for a more flexible approach in determining when an employer can be held
liable for the wrongful acts of their employees. It recognized that liability should extend
beyond the specific tasks an employee was hired to perform and take into account the broader
context and relationship between the employee and the employer’s business activities.

Besides that, the author also provided a case in Malaysia that has accepted and
adopted the “close connection” test, which the case of Dr Hari Krishnan & Anor v Megat
Noor Ishak Bin Megat Ibrahim & Anor and Another Appeal [2018], the appellants were
doctors who operated a private medical clinic. The key legal issue in this case was whether
the appellants could be held vicariously liable for the negligence of their employee. Under the
close connection test, the court considers factors such as the nature of the employee’s duties,
the time and place of the incident, and whether the employee's actions were closely connected
to the performance of their employment. The test aims to determine if there is a sufficiently
close connection between the employee’s actions and their employment to hold the employer
liable. The Federal Court held that the negligent act of administering the intravenous injection
by Megat Noor Ishak was within the scope of his employment as a medical assistant. The
court held that the act occurred during the course of his employment and was closely
connected to his assigned duties. Therefore, the court concluded that the appellants were
vicariously liable for the negligence of Megat Noor Ishak.

2.5 Conclusion Made By Author

Regarding this matter, the conclusion that has been mentioned by the author is that the
“close connection” test has replaced the previous vague criteria for determining vicarious
liability. It widens the scope of liability and considers the changing social dynamics in the
workplace and employment relationships. It focuses on whether there is a close connection
between the employee’s actions and their employment. This test applies specifically to cases
where an employee commits an intentional wrong. Therefore, the Federal Court in
determining the aspect of vicarious liability need to identify the common factors first,
including the creation of risk to the public by the employer and the risks associated with the
employer’s business.

In Lister v Hesley Hall Ltd, the defendants operated a residential community school for
boys. One of their employees, a warden named Thornton, had been engaging in sexual abuse
of the boys under his care. The claimants, who were victims of Thornton's abuse, brought a
lawsuit against the defendant company, seeking to hold them vicariously liable for the
employee's actions.
The key legal question in the case was whether the defendant company could be held
responsible for the actions of their employee. The traditional approach to vicarious liability
required a direct connection between the employee's wrongful act and their employment
duties. However, the House of Lords (now the Supreme Court) departed from this approach
and introduced the "close connection test."
Under the close connection test, the focus shifted from the nature of the specific task the
employee was hired to perform to whether there was a sufficiently close connection between
the employee's position and their wrongful conduct. The court considered factors such as the
time and place of the incident, the nature of the employee's duties, and whether the
misconduct was an abuse of the power given to the employee by their employment.
In this case, the House of Lords held that the defendant company was vicariously liable for
the actions of their employee, Thornton. They emphasized that the sexual abuse had occurred
during the time when Thornton was acting in the capacity of a warden and taking advantage
of his position of authority over the boys. The close connection between his employment and
the abuse was evident, and the employer should bear responsibility.
The decision in Lister v Hesley Hall Ltd expanded the scope of vicarious liability by
introducing the close connection test, which allows for a more flexible approach in
determining when an employer can be held liable for the wrongful acts of their employees. It
recognized that liability should extend beyond the specific tasks an employee was hired to
perform and take into account the broader context and relationship between the employee and
the employer's business activities.

Dr Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and Another
Appeal is a Malaysian case that involves the application of the "close connection" test in the
context of vicarious liability.
In this case, the appellants were doctors who operated a private medical clinic. The first
respondent, Megat Noor Ishak, was employed by the appellants as a medical assistant. During
the course of his employment, Megat Noor Ishak negligently administered an intravenous
injection to a patient, resulting in severe injuries to the patient. The patient then brought a
lawsuit against the appellants, seeking to hold them vicariously liable for the actions of
Megat Noor Ishak.
The key legal issue in this case was whether the appellants could be held vicariously liable
for the negligence of their employee. The court applied the "close connection" test to
determine the existence of vicarious liability.
Under the close connection test, the court considers factors such as the nature of the
employee's duties, the time and place of the incident, and whether the employee's actions
were closely connected to the performance of their employment. The test aims to determine if
there is a sufficiently close connection between the employee's actions and their employment
to hold the employer liable.
In this case, the court found that the negligent act of administering the intravenous injection
by Megat Noor Ishak was within the scope of his employment as a medical assistant. The
court held that the act occurred during the course of his employment and was closely
connected to his assigned duties. Therefore, the court concluded that the appellants were
vicariously liable for the negligence of Megat Noor Ishak.
The case of Dr. Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and
Another Appeal illustrates the application of the "close connection" test in determining
vicarious liability. It emphasizes that the employee's actions must have a sufficiently close
connection to their employment for the employer to be held liable.

2.5 Conclusion Made By Author

Regarding this matter, the conclusion that has been mentioned by the author is that ….
It is clear that “close connection” is now the test for vicarious liability, doing away with the
vagueness of what amounts to “acts done on a frolic of his own” or the importance of
determining authorised and unauthorised acts, or authorised acts done in an unauthorised
manner. The “close connection” test has undeniably widened the scope of vicarious liability
and the courts have deemed this necessary to do justice in view of the “changes in social
development affecting workplace environment as well as “employment relationship”.
Crucially, it is important to note that the common denominators propounded by the Federal
Court in this case only apply in determining if an employer is vicariously liable “where an
employee committed an intentional wrong”. For the intentional torts, the Federal Court has
confirmed and expressly included considerations on the creation of the risk to the public at
large by the employer and the risks associated with the employer’s business in the latter two
common denominators.
These risk considerations are in line with the UK and Canadian approach. It remains to be
seen if these considerations have any room in non-intentional tort cases, as in both the
negligence cases of Dr Kok Choong Seng and Dr Hari Krishan, it was established that the
doctors were held to be truly independent contractors at the first stage of the test and as such
vicarious liability cannot arise at all.

2.0 OVERVIEW OF THE ARTICLE

2.1 Main Point
The main purpose of this article is to investigate the application of the "close connection"
evaluation in determining vicarious liability in the legal situation that involves GMP Kaisar
Security (M) Sdn Bhd and one of its employees, Jaafar bin Haalid. This will be done in order
to fulfill the primary objective of the article. In spite of the fact that Jaafar's acts were illegal,
extra-jurisdictional, and unlicensed, the article clarifies that the Federal Court has upheld the
security agency's vicarious accountability for such actions. The most recent decision made by
the court suggests a move toward a more comprehensive perspective on vicarious liability,
which places an emphasis on the proximate relationship between an employee's misconduct
and their work duties, rather than strict concepts of permitted and impermissible conduct.
This movement implies a shift towards a more comprehensive perspective on vicarious
liability. The article emphasises that the ruling only applies to situations in which an
employee has committed intentional infractions, and it emphasises the relevance of
evaluating the hazards caused by the employer's company in order to determine vicarious
responsibility. Both of these points are brought up in the context of the ruling.
2.2 Main Claim
The fundamental claim that is made in this article is that the Federal Court, by means of its
judgement, affirmed the idea of vicarious culpability in connection to GMP Kaisar Security
(M) Sdn Bhd (the appellant), which is a private security service, with respect to the behaviour
of its employee, Jaafar bin Haalid. This is the most important claim that is made in this piece.
The court determined that Jaafar's illegal and unethical behaviour, which went beyond the
scope of his job responsibilities, was intimately connected to his position as a bodyguard by
using the "close connection" test to determine vicarious liability. The court came to the
conclusion that Jaafar should be held vicariously liable for his activities. As a result, it was
fair and just to hold the appellant vicariously liable for the damage caused by Jaafar's actions
because of the relationship between the two parties.
2.3 Research Result
The article discusses a specific court case and the decision that was reached in that case. The
conclusion of the legal processes established that the Federal Court upheld the vicarious
liability of the private security service GMP Kaisar Security (M) Sdn Bhd for the actions of
its employee Jaafar bin Haalid. The court utilised the "close connection" analysis and came to
the conclusion that Jaafar's acts, despite the fact that they were not sanctioned, that they went
beyond the scope of his obligations, and that they may have been illegal, were closely
connected to his function as a security employee. As a result of this, the court came to the
conclusion that it was fair and reasonable to impose vicarious duty on the appellant for the
damage caused by Jaafar's actions. As a consequence of this, the appellant's appeal was not
accepted, and the initial judgement, which found the appellant to be vicariously responsible
for the injuries sustained by the respondent, was upheld.

Yes, besides the case of Maslinda Ishak v Mohd Tahir Osman & Ors [2009], there are a few
other Malaysian cases that have applied the "close connection" test in the context of vicarious
liability. Here are a couple of notable examples:
1. Daniel Anak Samban v Mohd Isa bin Hussain & Anor [2014]: In this case, the Federal
Court of Malaysia applied the "close connection" test to determine the liability of an
employer for the actions of its employee. The court held that for vicarious liability to
arise, there must be a sufficiently close connection between the employee's wrongful
act and their employment. In this case, the employee, who was a police officer,
committed assault and battery on the claimant during the course of his duty. The court
found that there was a close connection between the employee's actions and his
employment as a police officer, and therefore, the employer was held vicariously
liable.
2. Rubberex (M) Sdn Bhd v Chee Swee Lee [2016]: This case involved an employee
who sexually harassed a colleague during a company-organized event. The Court of
Appeal of Malaysia applied the "close connection" test to determine the employer's
vicarious liability. The court emphasized that the act must be closely connected with
the employee's duties or activities assigned by the employer. In this case, since the
harassment occurred during a company event and involved the employee's interaction
with a colleague, the court held that there was a close connection to the employee's
employment, and the employer was found vicariously liable.
These are just a couple of examples of Malaysian cases that have applied the "close
connection" test in relation to vicarious liability. It's important to note that the application of
this test may vary depending on the specific facts and circumstances of each case.