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
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 to 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 imposed in a relationship 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 ships 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 determining 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 terminate the employees 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 plaintiffs 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 plaintiffs work was an integral part of the defendants 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 employers 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 masters implied commands when driving on his masters business, he will make
his master liable; but if he has going on a frolic on his own, without being at all in his masters 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 and caused blindness. Employer isnt 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 employers oral instruction when he gave a lift to 3rd party who got injured.
Employer wasnt 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 plaintiffs 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 and caused blindness. Employer isnt 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 trips 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 wardens act was closely
connected with his employment and that would be fair to impose 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 Salaams solicitors were Amhurst Brown Martin & Nicholson, and they had drafted documents for
him. Amhursts had been sued and had settled a $10m claim. Then, they sought contribution from Mr Salaam under the
Civil Liability (Contribution) Act 1978. This required showing that Amhursts was liable for wrongful acts by Mr Anthony
Amhurst, under the Partnership Act 1890 section 10. Whether there was a close and direct connection between the
employees 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.