List of cases 1. Stroman Motors Co v Brown. 2. IMPERIAL CHEMICAL INDUSTRIES LTD V SHATWELL 1965 LORD PEARCE 3. HEWITT V BONVIN (1940) . Lord Mckinnon. 4. Lord Denning in Stevenson, Jordan and Harrison Ltd v Macdonald & Evans 5. YEWEN V NOAKES (1880) ;Bramwell LJ 6. of Short v J & W Henderson Ltd (1946) where Lord Thankerton 7. SIME V SUTCLIFFE CATERING (SCOTLAND) LTD 8. Collins v Hertfordshire Country Council 9. Zedtee Sdn Bhd v Maduraya Sdn Bhd 10. Mat Jusoh bin Daud v Syarikat Jaya Seberang Takit Sdn Bhd ; 11. READY MIXED CONCRETE (SOUTH EAST) LTD V MINISTER OF PENSIONS AND NATIONAL INSURANCE 12. CENTURY INSURANCE V.NI ROAD TRANSPORT BOARD [1942] 13. Rose v Plenty – MILK MILK 14. - Zakaria CHe Soh v Chooi Kum Loong & Anor 15. Parke B in Joel v Morrison; 16. Keppel Bus Company v Saad Bin Ahmad 17. Bohjaraj Ksainathan v Nagarajan Verappan ; 18. Conway v George Wimpey 19. Twine v Bean Express 20. Limpus v General Omnibus 21. Lloyd v Grace, Smith & Co- Fraudulent Clerk 22. Keppel Bus Company v Saad Bin Ahmad 23. LISTER & OTHERS V.HASLEY HALL LTD 24. Dubai Aliminium Co Ltd v Salaam Mercy Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd. -Lord Porter
2.1 Tort – Negligence; Following the case of Caparo Industries Plc v Dickman followed by the Federal Court Decision in Stephen Phoa v Majlis Perbandaran Ampang it is settled law that to impose a duty of care there must be ; 1. Foreseeability of damage. 2. A relationship – proximity between the plaintiff and defendant following Lord Atkins’ “Neighbourhood” principle. 3. Reasonable to impose such duty towards the plaintiff.
2.2.0 Vicarious Liability;
Definition:
The tort of vicarious liability is explained by Norchaya Talib in Law of Torts in Malaysia with an example of A being liable t o C for damage or injury suffered by C due to tortious action committed by B. The tort of vicarious liability centres on cases where by liability is imposed on person based on the tort or damage committed by another person. The person liable need not have done anything wrong. The most important thing that needs to be established in order to impose liability is determining the nature of the relationship between the person who committed the act and the person in which liability is imposed on, for instance ; master and employee or employer and employee and principal and his agent.
Rationale
qui facit per alium facit per se ; "He who acts through another does the act himself." It is a fundamental maxim of the law of agency. Stroman Motors Co v Brown.
a principal is liable for the acts of his agents Vicarious Liability is usually i mposed in a r elationship of employment. The primary factors that are to be taken into account is a) The principle of benefit and burden b) Principle of deep pocket c) And control is capable of being exercised by the employer
IMPERIAL CHEMICAL INDUSTRIES LTD V SHATWELL 1965 LORD PEARCE : The doctrine of vicarious liability has not grown from any clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it. The doctrine maintains that liability even in respect of acts which the employers had expressly prohibited and even when the employers are guilty of no fault themselves. It follows that they are liable for the torts of one servants against another. Definition of an employee is stated in the case of HEWITT V BONVIN (1940) however it is for an exclusive employee which falls under contract of service. Mac Kinnon LJ : Any person employed by another to do work for him on the terms that he, the servants, is to be subjected to the control and direction of his employer in respect of the manner in which his work is to be done. One must distinguish the difference between contract of service and contract for service.
Lord Denning in Stevenson, Jordan and Harrison Ltd v Macdonald & Evans ; It is easy to identify a contract of service but hard to tell the differences. A ship ’s captain, a driver : COF. But Pilot of ship and taxi Driver; CFS.
Elements to establish VICARIOUS LIABILITY
The key elements that is to be established are
1) A wrongful or tortious action. a. Nuisance – Caparo Industries Plc v Dickman. Steven Phoa v MPAJ b. Trespass 2)
The nature of the relationship
3) The tort must be committed within the course of employment
2. Nature of Relationship- Special Relationship- Employer-Employee (Contract of Service)- Establish that the tortfeasor is an Employee.
a. The Control Test – Most popular in Malaysia, but argued to be inaccurate, but to prevent inaccuracy there are exceptions. laid down in the case of YEWEN V NOAKES (1880) ; Bramwell LJ : A person was a servant or employee if he was subject to the command of the master as to the manner in which he shall do his work.
Following the decision of Short v J & W Henderson Ltd (1946) where Lord Thankerton said that there were four factors : i. ii. iii. iv.
The Power of Selection by the Employer The Power of det ermining the salary or other remuneration. The Power or right of the employer to control the method in which the work was done The Power or right of the employer to termina te the employee’s services
SIME V SUTCLIFFE CATERING (SCOTLAND) LTD [1990] where plaintiff works at a canteen and fell when he slipped on remains of food that is spilled by another employee and the defendant is a catering firm that runs the canteen under a contract between the plaintiff’s employer who is the owner of the factory. It was held that because the owner has full control of the canteen workers in how the work is to be executed he is deemed vicariously liable for the tort committed by the worker. In Collins v Hertfordshire Country Council court held that contract of service existed if the employer has the power to instruct the employee to control the method in which the work is to be done. Control over hiring and dismissal. The control test is widely used in Malaysia despite it being no longer true an inaccurate. In Zedtee Sdn Bhd v Maduraya Sdn Bhd , the court used the decision of Honeywill Ltd v Larkin Bros where the determination of work and control was determined on if the employer while prescribing the work to be done, leaves the manner of doing it to the control of the doer, he is an independent contractor. The Control Test is inaccurate it the matters of professional employee as the employer cannot control the method the employee executes their work.
b. Business Integration test
Introduced by Lord Denning in Stevenson, Jordan and Harrison Ltd v Macdonald & Evans (1952); in a contract of service, the person concerned works as art of the organisation, it is not integrated into it but id only an accessory to it. Mat Jusoh bin Daud v Syarikat Jaya Seberang Takit Sdn Bhd ; The court held that since wages and the number of logs to be sawn was determined by the defendants, the plaintiff ’s work was an integral part of the defendant ’s business. P/s: In the matter of negligence committed by own-self, injuring own self, employer must take reasonable care as to not subject employee to unnecessary risks. (reasonably foresee) (provides competent workforce, adequate material and a proper system of work and effective supervision.)
c. Multiple Test; READY MIXED CONCRETE (SOUTH EAST) LTD V MINISTER OF PENSIONS AND NATIONAL INSURANCE Three factors need to be fulfilled: i. The employee agrees to use his own expertise and the employer pays him either in monetary form or in other form of remuneration; ii. The employee agrees either expressly or impliedly that he will be bound by the employer’s instructions; and iii. All other conditions in the contract are consistent with a contract of service.
3.The Tort must occur within the course of Employment;
An employer will only be liable if the tort was committed during the course employment. , a conduct is considered to be within the course of employment if; 1.
Either expressly or impliedly allowed by the employer.
2.
When the employee does something that is authorized in an unauthorized manner.
3.
The employee does something that is closely connected to what he is employed to do, in the course of doing the job.
Examples; CENTURY INSURANCE V.NI ROAD TRANSPORT BOARD [1942] defendants worker stopped at a petrol station to transfer petrol from a lorry and he lit the cigarette and threw in on the ground where an explosion ensued. Court held the defendant liable as the worker did something authorised in an unauthorised manner. Rose v Plenty – (express prohibition) a worker acting against the instruction of his employer hired a 13y/o boy to help him deliver/collect milk bottles and the boy suffered injuries and the defendant was deemed liable as the prohibition only affected the manner in which the worker is supposed to perform his duties and tort occurred while he was delivering milk. For his own benefit- Zakaria CHe Soh v Chooi Kum Loong & Anor ; involved in accident (plaintiff was a driver) drove for lunch after driving the director home. Government liable, eventhough the purpose of the trip had nothing to do with the employer, it was something expected to be done in the course of employment. Situations where it is said to be out of the scope of Vicarious Liability. a. Employee acting on his own frolic. Parke B in Joel v Morrison; If he was going out of his way, against his master ’s implied commands when driving on his master’s business, he will make his master liable; but if he has going on a frolic on his own, without being at all in his master ’s business. The master will not be liable. Keppel Bus Company v Saad Bin Ahmad – fought over conducters treatment of old lady. Old lady left bus. Respondent and bus conducter fought, conductor hit respondent with ticket machine a nd caused blindness. Employer isn’t liable as conductor was acting on his own emotion when the lady left the bus and its unrelated to his employment.
Bohjaraj Ksainathan v Nagarajan Verappan ; The plaintiff was a bus passenger, complained about the rudeness of the bus conductor. Conductor assaulted the plaintiff. Held; it was the duty of the conductor to uphold discipline in the bus, he exercised his authority with rudeness and force. He was authorized to do so, and he exercised it improperly; employer liable. b. Express prohibition Rose v Plenty – (express prohibition) a worker acting against the insruction of his employer hired a 13y/o boy to help him deliver/collect milk bottles and the boy suffered injuries and the defendant was deemed liable as the prohibition only affected the manner in which the worker is supposed to perform his duties and tort occurred while he was delivering milk. Conway v George Wimpey – employee acted against the instruction of the employer when he took a passenger into the lorry as there was a strict notice he was not to do that. Passenger was injured and court held the passenger as trespasser so no duty is owed to him. Twine v Bean Express – he went against employer ’s oral instruction when he gave a lift to 3rd party who got injured. Employer wasn’t liable as giving free lift was deemed to be outside of the course of employment. Limpus v General Omnibus – a bus driver was clearly forbidden from racing or obstructing another bus. Employee obstructed the plaintiff ’s bus causing a collision, employer was held liable as the driver was doing an authorized act in an unauthorized manner. c. Criminal Activity Lloyd v Grace, Smith & Co – held that the employer was liable as the employer enabled the clerk to fraudulently transfer properties of the plaintiff to himself for his own benefit. – AUTHORITY Keppel Bus Company v Saad Bin Ahmad – fought over conducters treatment of old lady. Old lady left bus. Respondent and bus conducter fought, conductor hit respondent with ticket machine a nd caused blindness. Employer isn’t liable as conducter was acting on his own emotion when the lady left the bus and its unrelated to his employment.
LISTER & OTHERS V.HASLEY HALL LTD [2001] It had been alleged by some of the boys that the warden had sexually abused them, including gifting them unwarranted surprises, and taking tr ips alone with them. A criminal investigation took place some ten years later, resulting in the warden being sentenced to seven years imprisonment;[5] following this, the victims brought an action for personal injury against the employers, alleging they were vicariously liable.[6] HOL : A master … is liable for acts which he has not authorized, provided that they are so connected with acts which he has authorized, that they may rightly be regarded as modes-albeit improper modes of doing them. The warden ’s act was closely connected with his employment and that would be fair to i mpose liability towards the employer. Dubai Aliminium Co Ltd v Salaam Salaam's solicitors were seeking contribution for damages because of their former client. Mr Salaam had defrauded Dubai Aluminium Co Ltd. Mr Salaam’s solicitors were Amhurst Brown Martin & Nicholson, and they had dra fted documents for him. Amhurst’s had been sued and had settled a $10m claim. Then, they sought contribution from Mr Salaam under the Civil Liability (Contribution) Act 1978. This req uired showing that Amhurst’s was liable for wrongful ac ts by Mr Anthony Amhurst, under the Partnership Act 1890 section 10. – Whether there was a close and direct connection between the employee ’s duties and criminal act. – Lister. d. When the employee was lent. Mercy Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd. Lord Porter: ….. Who is entitled to tell the employee the way he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this, he will be liable, (But it is not enough that task to be performed should be under hos control but also control the method of performing it. Lord Utthwatt: Who had the authority to control the execution of act in question.
