This article discusses the Federal Court case of GMP Kaisar Security (M) Sdn Bhd v. Mohamad Amirul Amin Mohamed Amir  10 CLJ 669, focusing on the concept of vicarious liability of employers for the actions of their employees.
Jaafar bin Haalid (‘Jaafar’) was an employee of GMP Kaisar Security (M) Sdn Bhd (‘GMP’) i.e. the Appellant, wherein Jaafar was hired as an armed bodyguard. Jaafar was then tasked to be the personal bodyguard for one Dato’ Ong Teik Kwang (‘Dato’ M’).
On the evening of 1st December 2016, Dato M was driving his BMW on the Tun Dr Lim Chong Eu Expressway in Penang together with two passengers, Jaafar and one Lee Hong Boon.
While the car was heading towards the Penang Bridge, Jaafar, for reasons unknown, pulled out his pistol (provided by GMP) and shot at Dato’ M, killing him.
The car then hit the rear of another car and came to a halt, which then both Jaafar and Lee Hong Boon alighted from Dato’ M’s car.
At around 7.15 pm, Mohamad Amirul Amin Mohamed Amir (‘Amirul’) i.e. the Respondent, was riding his motorcycle along the Lim Chong Eu Expressway.
When Amirul approached the accident scene, he was shot by Jaafar, again for reasons unknown, and sustained severe bodily injuries.
Consequently, Amirul initiated a claim in tort in the High Court against Jaafar as the primary tortfeasor (the first defendant) and GMP (the second defendant) for vicarious liability on Jaafar’s tort.
In the High Court, the court allowed Amirul’s claim against both Jaafar and GMP, and awarded RM14,470 as special damages and RM70,000 as general damages.
GMP then appealed to the Court of Appeal, which ended with diverging views. The majority held that there was no appealable error in the judgment of the High Court and affirmed the findings of the learned trial judge. However, the dissenting judge held, amongst others, that Jaafar’s criminal acts had no connection whatsoever to the carrying out of his duties of his employment and were not acts authorized by his employer. Hence, the finding of vicarious liability on GMP was incorrect.
Dissatisfied with the decision, GMP appealed to Federal Court, heavily relying on the dissenting judgement.
The Federal Court, amongst others, held the below.
In the present case, Jaafar had committed an intentional wrongful act by causing grievous injury to Amirul.
Whilst clearly the intentional wrongful act was not part of his duties under his employment, and was not authorized by the employer, i.e. GMP, GMP was nevertheless vicariously liable for the actions of Jaafar using the “close connection test”.
At risk of oversimplification, the test provides that vicarious liability can be imposed on the employer if an employee committed a tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable for that tort.
The Federal Court cited the House of Lords in Lister v Hesley Hall Ltd  AC 215. In the case, a warden employed by a boarding school had sexually abused children of the school. The House of Lords held that the sexual abuse was “so inextricably interwoven” with the duty of the warden in looking after the children, as authorised by his employer, that it would be fair and just to hold the employer liable for the abuse, notwithstanding that the act of sexual abuse was clearly unauthorized, and in fact, condemned, by the boarding school. The House of Lords departed from the previous Salmond test and adopted the more flexible “close connection” test.
Overall, whilst the Federal Court recognize that each case has to be decided based on their specific factual matrix, there are four common denominators that underpin the scope of vicarious liability where an employee had committed an intentional wrong:
- the intentional wrong is committed in the course of employment;
- there must be a connection between the wrongful act and the nature of the employment;
- the nature of the employment is such that the public at large are exposed to the risk of physical or proprietary harm; and
- the risk is created by the employer by virtue of the features of the business.
Applying these factors, the Federal Court found that:
- Jaafar was recruited, selected, and hired by GMP;
- Jaafar was given the pistol by GMP;
- Jaafar was offered to be the personal bodyguard of Dato’ M;
- Jaafar was on duty as the personal bodyguard of Dato’ M when the incident occurred, and when he shot Amirul.
Thus, the employer, i.e. GMP, cannot avoid liability simply on the basis that Jaafar was acting out of order. The Court held that the term “frolic on their own” that was previously heavily relied as seen in previous case laws to negate vicarious liability, is no longer the be-all-and-end-all argument, in light of the now more flexible, and wide-reaching close-connection test.
YA Rohana Yusuf PCA, in her ladyship’s concurring judgement, added that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. Her ladyship opined that the act of Jaafar, the tortfeasor, shooting the members of the public and Amirul were a series of actions so closely connected with his employment as a bodyguard which the risk of such misfortune was contributed by the employer i.e. GMP. Therefore, it is just and fair to hold GMP vicariously liable.
The development of this “close-connection” vicarious liability test has provided greater flexibility to Courts in determining whether an employer is liable for the wrongful actions of their employee.
This flexibility is very much needed as the circumstances that vicarious liability may arise, are unknown and infinite. Often, justice lies in finding the employer liable, especially when the primary tortfeasor may have no means to compensate the victim, such as in this case where Jaafar was sentenced to death on 17 December 2020.
For employers, this development meant that employers can no longer evade responsibility by simply saying that their employees had acted without permission. Employers may nevertheless face liability when their employees do acts clearly forbidden by the employers, as long those acts are clearly connected to their employment.
As such, employers must be very mindful when selecting their employees, including having reasonable assessment of the employees’ mental state. Further, employers have to consistently manage and supervise the conducts of their employees, including imposing necessary support and punishments to ensure the discipline of their employees. Lastly, employees must practice compassion and empathy towards their employees and their welfare, mental and financial included. This is so that their employees do not, for whatever reasons, engage in illegal or unlawful acts.
Written by: Louis Liaw ([email protected])