Course: Tort Law
Title: Vicarious liability
Date: 2019- 8-6
2016. Question no. 5
1st ISSUE
Contract of
service
told be noted
negligent act
LAW
doctrine-Imperial
Chemical
Industries ltd
Benefit-burden
principle
3elements
Zakaria bin Che Soh v
Chooi Kum Loong, it held
tat the to test whether the
manner of doing the act out
of the employment, the act
must not so far remote.
But, what to the extent of
not so far remote?
According to the fact and
judgement of Zakaria case,
it was stated tat an act
though not strictly one
which an employee is
required by his
employment to perform is
still to be regarded as
within the sphere of his
employment if it is a
reasonable or necessary
thing to do under all the
circumstances UNLESS it
has been expressly or
impliedly excluded from
his employment.
Therefore, referring to
Zakaria case, Minyak act
of purchasing lottery ticket
while on the way of his
delivery round, it’s
reasonable and not too far
remote. Therefore, the
third element is
established. Where Minyak
had is actually committed
the tortious act during the
Whether PDB is vicariously liable for Angin by the negligent tort committed of his employee,
Minyak
Referring to the case Imperial Chemical Industries Ltd v Shatwell, it was held tat the doctrine
of vicarious liability may not grown from very clear or logical principle but for social
convenience and rough justice. Master(presumably to be benefit from the service) employed
the servant, and being presumably better off to compensate the victim(respondent) which may
resulted from the arrangement(damage done by employee), is answerable to the world at large
for the tort committed by his servant within the scope of it.
According to the Benefit and Burden principle, employer is found liable for the tortious act of
his employee. Since the employer is benefited from the employee’s services and he should be
liable for any wrongful act of the employee in the performance of his work.
To establish vicarious liability against PDB, Pf must establish 3 elements: First, the
employee, Minyak committed a tort. Secondly, the existence of employer-employee
relationship. Thirdly, employee,Minyak committed the tortious act during the course of
employment.
Firstly, was Minyak committed a tortious act? From this case, it’s evident tat Minyak forgot
to apply the brakes of his tankers and negligently strikes the Lamborghini car owned by
Angin. In the case of Pua Lai Ong v Kassim, the first defendant(the employer) r still liable for
the wrongful act of the first defendant(the bus driver) for the injuries suffered by Pf(the bus
conductor). Where the first and foremost is to decide is whether a tort was committed ,before
examine the nature relationship betw. Pf and Df to be establish. Therefore, it’s Minyak had
committed tort negligently is establish.
Secondly, Is there existence of relationship betw. PDB and Minyak? From the facts of the
given, it’s stated tat Minyak is under a contract of service. According to the case Collins v
Hertfordshire County Council, where control test is used, tat a contract of service exists, if the
employer have the power to instruct the employee and in control of the method in which the
works to be done. However, in this case, PDB maybe argue tat he had told Minyak not to
offer lift to anyone, but in fact Minyak still break the rule or instructions by PDB. Referring
to the case of Canadian Pacific Railway Company v Lockhart, it held tat : Even if employer
had expressly prohibited certain act, however, the employer still vicariously liable if the
employee broke the rule and caused damage. From the facts, it’s evident tat the employer,
PDB actually had instructed Minyak not to offer lift to anyone, this is a way to to control the
method of works to be done by PDB. Moreover, Minyak who worked as tank driver,
generally, PDB has the power to determine the salary of his services. Thus, there’s existence
of relationship betw, PDB and Minyak.
Thirdly, Is Minyak conducted tort during the course of his employment? Generally, the
employee is held to be acting in the course of employment by looking at his ‘conduct’. The
circumstances of the course of employment fall within carelessness of worker in the
performance of his job. Referring to case Century Insurance Co Ltd v Northern Ireland Road
Transport Board, it was held that the defendant(employer) was vicariously liable for the
negligent act of his workers as the act was done in the course of the employment. And tat
even though the actual act of smoking (which cause the damage) did not benefit the
employer. This is becoz Liability was based on the fact tat the driver did what he employed to
do(which was to deliver the petrol). Applying Century Insurance in the case, PDB was
vicariously liable for the negligent act of Minyak as the act was done in the course of the
course of his employment employment. Even though the actual act of being negligently forgot to apply brakes of his car
which acting for his which causes damage to Angin and did not benefit PDB. But based on the fact that Minyak
benefit. just did what he employed to do (which was to transport the tankers) by employer.

However, the act of Minyak purchasing some lottery tickets within his course of employment
may be something to argue about. However, based on the facts of the case, Minyak is actually
took a ‘brief detour’ to purchase lottery tickets. According to the case of Zakaria bin Che Soh
v Chooi Kum Loong, in the judgement stated tat to test whether the conduct of the worker is
reasonable or not, in that it must not too remote from the contemplation of both parties as to
take the act out of the employment. So, for instance, if a driver had driven a hundred
kilometres for lunch, the employer would not be vicariously liable. Even though the purpose
of that trip did not hv anything to do with the employer, but it was something tat was
expected to be done in the course of his employment and thus the accident occurred within
the course of his employment.
By applying the judgement of Zakaria to this case, the act of purchasing lottery tickets was
not in the course of his employment because it was not something to be expected to be done.
However, in my opinion, since the fact stated tat only a ‘brief detour’ within the course of
employment (as stated in the facts tat Minyak ‘on a delivery round’), Minyak’s conduct is
reasonable and not too remote as the act out of the employment, this is because it’s inevitable
tat ‘on a delivery round’, a ‘brief detour’ is still considered to be reasonable.
Therefore, it can be conclude tat Minyak committed the tort was occur within the course of
the employment.

It can be concluded tat PDB is vicariously liable for Angin’ injuries for the negligent act of
Minyak as 3 elements for establishing vicarious liability has fulfilled.

The second issue is whether Minyak’s daughter claim damages for the negligent act of his
employee Minyak against PDB?
Refer to case of Majlis Perbandaran Pulau Pinang v Lim Soo Seng, the court held tat there
was no implied term in the contract of employment that the employer would compensate the
driver for injuries to third party arising out of the negligent driving of the employer’s bus. The
court further held that in the effect of s10(1)(c) of Civil Law Act 1956 tat the employee
cannot claim contribution or reimbursement from the employer .

The Third issue is whether PDB is vicariously liable for Kayu by the tortious act committed
by Minyak?

Explain The 3 elements for establishment of vicarious liability[the same as above]

For the first element, minyak committed a tortious act towards Kayu by striking kayu on his
head and causes injuries.
For the second element, there’s relationship betw.PDB and Minyak
For the third element, the circumstances where Minyak committed tortious act during his
course of employment is employee is acting ‘on the frolic of his own’. According to case
Joel v Morison, it was held tat if a servant was going against his master’s implied command
when performing his task, the master will be vicariously liable. However, if the servant was
going on a frolic of his own, without being at all on his master’s business, the master will not
be liable. Applying Joel v Morison is this case, since Minyak act of striking the head was
going on the frolic of his own, without being at all on his master’s business, PDB shoudn’t be
vicariously liable. Moreover, generally, the commission of an assault/battery may still be
within the course and scope of employment if it is committed in furtherance of the employer’s
interest. Where, however, the assault/battery is an independent act of violence, the employer
will not be liable. Consider case of the Keppel Bus Ltd v Saad case, the respondent had an
argument with the conductor, where respondent was not pleased with the way in which
conductor treating the elderly woman. And The conductor struck the respondent’s eyes with
ticket-punch and blinded him. The question before the court is whether the act done, although
unauthorized and unlawful, was done in the course of the employment. The court however
held tat the act was done outside the scope of employment as when the battery occurred.
Where the course of battery, namely the elderly woman, was no longer on the bus. The
conductor was therefore acting on his emotions, which were unrelated to his employment. His
employer was therefore not liable.
In applying Keppel Bus case, the fact tat Minyak was ‘still enraged by the earlier incident of
cruel joke on him’, Minyak was considered to be acting on his emotion. This is because the
earlier incident should hv been passed(where the assault/anger came from)and therefore,
when Minyak can’t control his emotion and acted outside of the scope of his employment.
The employer, PDB is therefore not vicariously liable.
In conclusion, PDB was not liable for Kayu by the tortious act by Minyak. Because Element
3 was not establish due to the reason tat Minyak committed the tortious was not in course of
employment.