The Bodyguard: Federal Court holds employer liable for acts of employee in shooting incident

It was early evening on 1 December 2016. Dato’ Ong Teik Kwang, better known as Dato’ M, was driving his BMW on the Lim Chong Eu Expressway in Penang with two passengers inside. One was Lee Hong Boon who was seated in the front passenger seat, whilst the other was Jaafar bin Haalid (‘Jaafar’), who was seated in the rear passenger seat.
Jaafar had been employed three days earlier as a personal bodyguard by a private agency1, GMP Kaisar Security (M) Sdn Bhd (‘the Appellant’) and had been assigned to be Dato’ M’s bodyguard under a contract between the Appellant and a company, North Metal Industrial Sdn Bhd.
While the car was travelling towards the Penang Bridge, Jaafar suddenly shot and killed Dato’ M with an Austrian-made Glock Mod 19 automatic pistol provided to him by the Appellant. The BMW then collided into the rear of another car. The other passenger alighted from Dato’ M’s car and ran away. Jaafar then came out from the car and fired his gun randomly at members of the public, killing two persons, a florist and a professional clown, and wounding four others.2
Shortly thereafter, at around 7.15 p.m., Mohamad Amirul Amin Mohamed Amir (‘the Respondent’), a videographer, approached the scene of the collision on his motorcycle. The Respondent noticed that a man sitting near the scene of the collision was bleeding profusely. Presuming that the man was the victim of a road accident, the Respondent got down from his motorcycle. As he approached the injured man, he saw Jaafar standing nearby and enquired what had happened. Jaafar retorted “Hang, nak apa?” (“What do you want?”) and whipped out his gun and shot the Respondent in the chest.
The High Court and Court of Appeal Decisions
The Respondent filed a claim in tort against Jaafar as the first defendant and the Appellant as the second defendant for vicarious liability in the High Court. The Respondent’s claim was allowed and he was awarded RM70,000.00 as general damages and RM14,470.00 as special damages.
The Court of Appeal upheld the High Court’s decision by a majority of 2:1. The majority found no appealable error and affirmed the findings of the trial Judge, including the finding that the Appellant was vicariously liable for the injuries sustained by the Respondent. The dissenting judge took the view that there was no clear finding by the trial Judge that Jaafar had committed a specific tort against the Respondent for vicarious liability to be triggered or considered. In any event, the dissenting judge opined that Jaafar’s actions had no connection whatsoever in the carrying out of his duties and were not acts authorised by his employer in the course of employment and held that the finding of vicarious liability against the Appellant was incorrect.
The Decision of the Federal Court
The Appellant obtained leave to appeal to the Federal Court. The decision of the Federal Court is reported in GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamad Amir [2023] 1 MLRA 99. In the appeal, two issues arose for the Federal Court’s determination:
  1. Whether there was a failure by the trial Judge to make a clear finding that Jaafar had committed a specific tort against the Respondent; and

  2. Whether in law and in fact, the Appellant can be held vicariously liable for the actions of Jaafar.
In respect of the first issue, the Federal Court held that describing Jaafar’s act in the pleadings as a “wrongful act in discharging a firearm” without attaching a label on it is not fatal and does not preclude a finding of a commission of tortious wrong. The purpose of tort law, said their Lordships, is ultimately to provide relief to persons against whom wrongful acts are committed, whether intentionally or negligently. In this case, it was undisputed that Jaafar’s acts of discharging the firearm had caused grievous bodily injury to the Respondent, which would attract liability under tort law aside from criminal law.
The apex court then considered the second and core issue, more specifically, whether the Appellant could be held vicariously liable for Jaafar’s acts which were not authorised, outside the scope of his duties, and even criminal in nature. The Federal Court observed at the outset that the law on vicarious liability has evolved a long way and has “come under much scrutiny in recent years.
The close connection test
Traditionally, the Salmond test was applied to determine whether an employee’s tort was committed “in the course of employment”. The test entailed answering affirmatively that the employee’s act is: (i) an authorised wrongful act; (ii) a wrongful and unauthorised mode of doing an authorised act; or (iii) an unauthorised act that is so connected with an authorised act that it may be considered a mode (albeit an improper mode) of doing an authorised act.   
The Salmond test could be applied in a straightforward way in cases involving negligent acts, but not in cases involving intentional wrongdoings which would more likely be seen as independent acts. As such, the House of Lords in Lister v Hesley Hall Ltd [2002] AC 215 (a case where a warden employed by a boarding school sexually abused children) departed from the Salmond test and adopted the more flexible “close connection” test, i.e. an employee will be held to have acted in the course of employment if the tort committed was “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”. Hence, the House of Lords held in Lister 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 to hold the employer liable for the abuse. The Supreme Court of Canada in Bazley v Curry [1999] 2 SCR 534 (which influenced the House of Lords in Lister) pointed out the policy reasons running through the principle of vicarious liability, namely considering “the risk that the employer’s enterprise creates or exacerbates”.
In the same line, the English Court of Appeal in Mohamud v WM Morrison Supermarkets plc [2014] 2 All ER 990 (a case where an employee of a supermarket chain threatened and physically attacked a customer) approved a two-stage test of vicarious liability which is to consider: (i) the relationship between the primary wrongdoer and the person alleged to be vicariously liable and whether the relationship is capable of giving rise to vicarious liability; and (ii) whether there is a sufficiently close connection between the wrongdoing and the employment that it would be fair and just to hold the employer liable.3
The Malaysian courts have accepted and adopted the “close connection” test, as seen in, inter alia, the Court of Appeal case of Maslinda Ishak v Mohd Tahir Osman & Ors [2009] 2 MLRA 609 (a case involving a RELA guard who was escorting the arrested appellant in a truck and took photographs of the appellant when she was easing herself in the truck) and the Federal Court cases of Dr Kok Choong Seng & Anor v Soo Cheng Lin and Another Appeal [2017] 6 MLRA 367 and Dr Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and Another Appeal [2018] 1 MLRA 25. 
Following the above, the Federal Court in the present case set out four common denominators underpinning the scope of vicarious liability where an employee had committed an intentional wrong: 
  1. the intentional wrong is committed in the course of employment; 

  2. there must be a connection between the wrongful act and the nature of the employment; 

  3. the nature of the employment is such that the public at large are exposed to the risk of physical or proprietary harm; and 

  4. 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: 
  1. the Appellant's business is a private agency that offers the service of armed bodyguards; 

  2.  the Appellant was responsible for selecting and employing Jaafar, thus enabling him to function as a personal bodyguard; 

  3. it was not disputed that at the material time Jaafar was performing his duty as a bodyguard (albeit in an illegal way); and 

  4. 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 committed 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.
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 mode/ 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 relationships”.
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 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 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.
Jaafar was sentence to death by the High Court on 17 December 2020 for the murder of three people, namely Dato’ M, the florist and the professional clown. He was also found guilty of five charges of attempted murder of the Respondent and the four people whom he shot during his shooting rampage at the Lim Chong Eu Expressway.4
It is not known whether the other four people who were injured by Jaafar and the families of the three people who were killed by Jaafar have commenced similar civil actions against the Appellant and Jaafar.
Case note by Loo Peh Fern (Partner) and Siew Ka Yan (Associate) of the Dispute Resolution Practice of Skrine.

1 A private agency is an entity licensed under the Private Agencies Act 1971 to, among others, provide guards and protection for the personal safety and security of another person or for the safety and security of the property or business of such other person,
2 Bodyguard sentenced to death for murder, StarOnline, 17 December 2020.
3 On appeal, the ‘close connection’ test was affirmed by the Supreme Court who framed the two-stages test differently, namely: (i) what functions or “fields of activity” have been entrusted by the employer to the employee; and (ii) whether there was sufficient connection between the position in which the employee was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of vicarious liability (Mohamud v WM Morrison Supermarkets plc [2016] AC 677).  
4 Bodyguard sentenced to death for murder, StarOnline, 17 December 2020.

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