Introduction

Vicarious Liability is a tort law concept which, in the context of employment and the workplaces, means that employers, despite being personally blameless, are being held responsible for the wrongdoings of their employees.[1]

Generally, employers assume the risk in in vicarious liability circumstances because it is believed that they can spread the risk through pricing and insurance and in doing so, they would be accountable for any risk to the public created by their employees in the course of their employment.[2]

However, there are certain circumstances in which an employer will not be held accountable for the actions of their employees too, and when vicarious liability does not apply.

This Article explores the concept of vicarious liability and examines the circumstances in which it applies and which it does not.

Test for Vicarious Liability

The leading case on vicarious liability in Malaysia is the Federal Court case of GMP Kaisar Security (M) Sdn Bhd v. Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC which laid down the test for vicarious liability:

[31] In our considered opinion, and after considering the prevailing law we have set out in the foregoing discussion, the scope of vicarious liability in a case where the employee committed an intentional wrong is underpinned by the following common denominators:

(i) the intentional wrong must be committed by the employee in the course of employment;

(ii) there must be connection between the wrongful act and the nature of the employment;

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

(iv) the risk is created by the employer, owing to the features of the business.

Rationale

In the Court of Appeal case of Airis Nurhana Alfian v. Darul Aiman Sdn Bhd & Anor [2024] CLJU 2218, the court referred to the English case of Viasystems (Tyneside) Ltd v. Thermal Transfer (Northern) Ltd and Others [2006] QB 2006 to explain why employers are vicariously liable for the wrongdoings of their employees:

55 The concept of vicarious liability does not depend on the employer’s fault but on his role. Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those whose set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to the employer on the practical assumption that, inter alia, because he can spread the risk through pricing and insurance, he is better organised and able to bear that risk than the employee, even if the latter himself of course remains responsible; and at the same time the employer is encouraged to control that risk…

When Vicarious Liability Arises

Some of the areas where an employer can be held vicariously liable include:

1. Abuse of Confidential Information

In Siemens Industry Software Inc v. KB Engineering Coatings Sdn Bhd [2025] 2 MRLA 657, the defendant was vicariously liable for its employee, one Mohd Feroz for copyright infringement of the Plaintiff’s computer program and licence file because the said program was downloaded on his work laptop and used during his employment. The court rejected the defendant’s claim that the computer program was downloaded for personal use since it was not supported by any documentary evidence.

2. Invasion of Privacy

In Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653, the appellant was awarded RM100,000 in damages after the court held that the government was vicariously liable for the first defendant, a RELA officer who invaded the appellant’s privacy by taking numerous photographs of the appellant urinating in the truck she was placed in after her arrest.

The reasoning provided by the court, amongst others, was that the RELA officer was present at the scene on instruction (not on his own volition) and he had taken the unauthorized photographs in the course of work he was instructed to carry out which was at a time when the operation was in progress.

3. Sexual Abuse

In the English case of Lister v Hesley Hall [2001] UKHL 22, the House of Lords laid down the “close connection” test and held that the defendants were vicariously liable for the actions of the boarding house warden sexually abusing the claimants because the defendant had assumed the duty to care for the claimants through the services of the warden so a very “close connection” existed between the torts of the warden and his employment.

Similarly, in the English Court of Appeal case of Haringey London Borough Council v FZO [2020] EWCA Civ 180, the Claimant who was sexually abused by his PE teacher while he was a pupil at school and long after he left, was successfully awarded £1.1 million in damages after the court held that the local authority was vicariously liable for the PE teacher.

4. Criminal Acts

In GMP Kaisar Security (M) Sdn Bhd v. Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC, the Federal Court held GMP Kaisar Security (M) Sdn Bhd (“GMP”) vicariously liable for the action of their employee, Jaafar who had randomly fired at members of the public with his firearm and injured the plaintiff in the process because:

1. Jaafar was on duty on that fateful day pursuant to his employment as personal bodyguard of one Dato Ong Teik Kwang, enabling him to carry the firearm;
2. Jaafar’s wrongful act was closely connected with the line of work assigned to him since his wrongful act was not independent from the task he was employed to do;
3. GMP exposed the public to risk by appointing Jaafar as personal bodyguard to Dato Ong; and
4. By providing Jaafar with the firearm, GMP created a risk which exposed the public to potential harm whereby it created an opportunity for him to utilise the firearm albeit for wrongful intent.
5. Personal Injuries

Generally, public hospitals are liable for the negligence of their doctors and nursing staffs because they are the direct employees of the public hospitals and Section 5 of the Government Proceedings Act 1956 also provides for the Government’s vicarious liability in tort.[3]

Private hospitals, on the other hand, are different because private hospital doctors are often considered independent contractors and not employees unless there is evidence to suggest otherwise.

That being said, private hospitals can still be held liable for the negligence of their doctors on the basis of non-delegable duty as expounded in the Federal Court case of Siow Ching Yee (Menyaman Melalui Isteri Dan Wakil Litigasinya, Chauwaikin) v. Columbia Asia Sdn Bhd [2024] 4 CLJ 173.

When Vicarious Liability Does Not Apply

1. Independent Contractors

Since a prerequisite for vicarious liability is typically the existence of an employment relationship, independent contractors are responsible for their own civil wrongs because they are not considered employees.

This has been confirmed by the case of Lim Gim Seah v. Lokman Talib & Ors [2012] 5 CLJ 561 which cited the case of English case, Salsbury v. Woodland and Others [1970] 1 QB 324 where Lord Justice Widgery at pp. 336 to 337 held:

It is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of his servant does not arise under the relationship of employer and independent contractor. I think that it is entirely accepted that those cases – and there are some – in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf. The whole question here is whether the occupier is to be judged by the general rule, which would result in no liability, or whether he comes within one of the somewhat special exceptions – cases in which a direct duty to see that care is taken rests upon the employer throughout the operation. This is clear from authority; and for convenience I take from Salmond on Torts, 14th ed. (1965), p. 687, this statement of principle:

One thing can, however, be said with confidence: the mere fact that the work entrusted to the contractor is of a character which may cause damage to others unless precautions are taken is not sufficient to impose liability on the employer. There are few operations entrusted to an agent which are not capable, if due precautions are not observed, of being sources of danger and mischief to others; and if the principal was responsible for this reason alone, the distinction between servants and independent contractors would be practically eliminated from the law.

2. Employees Acting in Personal Capacity, not in Employer Capacity

In Joyfeel Co, Ltd v. Golden Adventure Tours & Travel Sdn Bhd [2023] 1 SMC 213, the Sessions Court held that defendant tour company was not vicariously liable for one Raymond, as there was evidence to prove that the 2 tours for which the Plaintiff sought payment were, in fact conducted by Raymond in his personal capacity and that there was a secret collusion between the Plaintiff and Raymond.

3. Defamation

An employer will not be held liable for a defamatory statement made by his employee as only the person who made the defamatory statement (the defamer) can be held liable under the law of defamation. This has been confirmed in the case of Lim Gim Seah v. Lokman Talib & Ors [2012] 5 CLJ 561 and UG Hotel Property Sdn Bhd v. Chee Soo Lam & Anor [2013] 2 MLJ 235.

Conclusion

Subject to the test laid down in GMP Kaisar Security (M) Sdn Bhd v. Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC, employers can be held vicarious liable for the wrongful actions of their employees though it must be cautioned that the abovementioned areas are non-exhaustive.

While it is unfortunate that employers have to bear the brunt of their employee’s wrongdoings, employers can minimise their exposure to vicarious liability by taking reasonable precautions by hiring the right people using the right contracts, conducting the necessary training and implementing clear policies.

By taking such active steps, employers can better manage legal risks and operate their business more effectively.

If you require any assistance from us, or you are looking for an employment lawyer, please feel free to contact us.

This article is written with the assistance of our pupil-in-chambers, Amelia Lo.

[1] Airis Nurhana Alfian v. Darul Aiman Sdn Bhd & Anor [2024] CLJU 2218

[2] Airis Nurhana Alfian v. Darul Aiman Sdn Bhd & Anor [2024] CLJU 2218

[3] Suzilawati Ali & Anor v. Dr Alif Al Ain Mohd Fathilah, Pegawai Perubatan Hospital Changkat Melintang & Ors [2023] 1 CLJ 959