Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 653
A MASLINDA ISHAK
v.
MOHD TAHIR OSMAN & ORS
B COURT OF APPEAL, PUTRAJAYA
SURIYADI HALIM OMAR JCA
SULAIMAN DAUD JCA
JEFFREY TAN JCA
[CIVIL APPEAL NO: W-01-156-08]
C 1 SEPTEMBER 2009
TORT: Damages - Negligence - Vicarious liability - Invasion of privacy
- Principles applicable - Whether principal jointly and severally liable for
wrongful act of agent
D
TORT: Negligence - Vicarious liability - Claim for damages - Invasion
of privacy - Principles applicable - Whether principal jointly and severally
liable for wrongful act of agent
TORT: Vicarious liability - Principal’s liability for agent’s wrongful act
E - Invasion of privacy - Claim for damages - Principles applicable
CIVIL PROCEDURE: Damages - Invasion of privacy - Vicarious
liability - Principles applicable - Whether principal jointly and severally
liable for wrongful act of agent
F
The appellant was arrested at a nightclub in a joint operation by
officers of Angkatan Relawan Rakyat Malaysia (‘RELA’) and
Jabatan Agama Islam Wilayah Persekutuan, Kuala Lumpur
(‘JAWI’). The 1st defendant, an officer of RELA, was charged
G
under s. 509 of the Penal Code for invading the appellant’s
privacy by taking numerous photographs of the appellant urinating
in the truck she was placed in after her arrest. He pleaded guilty
and was convicted accordingly. The appellant brought a claim for,
inter alia, general, aggravated and exemplary damages against the
H
1st defendant, the 2nd respondent, the Director General of
RELA, the 3rd respondent, the Director of JAWI and the 4th
respondent, the Government of Malaysia. The trial judge found for
the appellant, but only in respect of the 1st defendant and not
the respondents. The appellant, being dissatisfied, filed the present
I
appeal.
654 Current Law Journal [2009] 6 CLJ
Held (allowing the appeal with costs) A
Per Suriyadi Halim Omar JCA delivering the judgment of
the court:
(1) On the facts, the 1st defendant was present at the scene, not
on his own volition, but on instruction. He was not only B
under the direct supervision of RELA but was, on that
particular night, also subject to the direction of JAWI, with his ←
material
duties shuttling from ensuring the security of those who facts
participated in the exercise to keeping an eye over those who
were arrested. Since the 1st defendant took the unauthorised C
photographs in the course of the work he was instructed to
carry out, at a time when the operation was in progress, the
respondents must be held to be vicariously liable. It is trite
law that when an injury or loss is caused to a third person by
judgement
↳
the wrongful act of an agent acting within the scope of his D
authority, his principal is jointly and severally liable with him.
Thus, the respondents must jointly and severally bear the
burden of the first defendant’s liability. Keppel Bus Co Ltd v. *
Sa’ad Ahmad (foll); Roshairee Abd Wahab v. Mejar Mustafa Omar
& Ors (foll); Yeo Tin Sang v. Lim Choo Kee (foll). (paras 22 & E
23)
[Order accordingly.]
Bahasa Malaysia Translation Of Headnotes
F
Perayu telah ditangkap di sebuah kelab malam dalam suatu operasi
bersama oleh pegawai-pegawai Angkatan Relawan Rakyat Malaysia
(‘RELA’) dan Jabatan Agama Islam Wilayah Persekutuan, Kuala
Lumpur (‘JAWI’). Defendan pertama, seorang pegawai RELA,
telah dituduh di bawah s. 509 Kanun Keseksaan mengganggu G
privasi perayu dengan mengambil banyak gambar-gambar perayu
sedang membuang air kecil dalam trak yang beliau telah
dimasukkan selepas ditangkap. Beliau memplid bersalah dan telah
disabit dengan sewajarnya. Perayu mengemukakan suatu tuntutan
untuk, antara lain, ganti rugi umum, teruk dan teladan terhadap H
defendan pertama, responden kedua, iaitu Ketua Pengarah RELA,
responden ketiga, iaitu Pengarah JAWI dan responden keempat,
Kerajaan Malaysia. Hakim perbicaraan membuat keputusan yang
memihak kepada perayu, tetapi hanya berhubung dengan defendan
pertama dan bukan responden-responden. Perayu, berasa tidak I
puas hati, memfail rayuan semasa.
Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 655
A Diputuskan (membenarkan rayuan dengan kos)
Oleh Suriyadi Halim Omar HMR menyampaikan penghakiman
mahkamah:
(1) Atas fakta-fakta, defendan pertama berada pada tempat
B kejadian itu, bukan atas kehendaknya sendiri, tetapi atas
arahan. Beliau bukan sahaja di bawah penyeliaan terus RELA
tetapi, pada malam tertentu itu, juga tertakluk kepada arahan
JAWI, dengan tugas-tugasnya berulang-alik daripada
memastikan keselamatan mereka yang mengambil bahagian
C dalam usaha itu kepada mengawasi mereka yang telah
ditangkap. Oleh kerana defendan pertama mengambil gambar-
gambar tanpa kebenaran semasa menjalankan tugas yang beliau
telah diarah untuk melaksanakan, pada masa operasi itu sedang
dijalankan, responden-responden mesti didapati mempunyai
D liabiliti vikarius. Ia adalah undang-undang mantap bahawa
apabila suatu kecederaan atau kerugian disebabkan kepada
pihak ketiga disebabkan oleh tindakan salah seseorang agen
yang bertindak dalam skop kuasanya, principalnya mempunyai
liabiliti bersesama dan berasingan dengannya. Oleh yang
E demikian, responden mesti bersesama dan berasingan
menanggung beban liabiliti defendan pertama. Keppel Bus Co
Ltd v. Sa’ad Ahmad (diikuti); Roshairee Abd Wahab v. Mejar
Mustafa Omar & Ors (diikuti); Yeo Tin Sang v. Lim Choo Kee
(diikuti).
F
[Diperintah sedemikian.]
Case(s) referred to:
Canadian Pacific Railway Co v. Lockhart [1942] AC 591 (refd)
Dyre and Wife v. Munday & Anor [1895] 2 QB 742 (refd)
G Goh Choon Seng v. Lee Kim Soo [1925] AC 550 (refd)
Keppel Bus Co Ltd v. Sa’ad Ahmad [1972] 1 LNS 53 HC; [1974] 1 LNS
62 PC (foll)
Mohd Nor Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor
[2008] 2 CLJ 369 CA (refd)
Rose v. Plenty [1976] 1 All ER 97 (refd)
H Roshairee Abd Wahab v. Mejar Mustafa Omar & Ors [1997] 1 CLJ Supp 39
HC (foll)
Samin Hassan v. Government of Malaysia [1976] 1 LNS 139 FC (refd)
Yeo Tin Sang v. Lim Choo Kee [1960] 1 LNS 164 (foll)
Legislation referred to:
I
Government Proceedings Act 1956, ss. 5, 6
Penal Code, s. 509
656 Current Law Journal [2009] 6 CLJ
For the appellant - Karpal Singh (Sangeet Kaur Deo with him); M/s Karpal A
Singh & Co
For the respondent - Amarjeet Singh Serjit Singh SFC; AG’s Chambers
[Appeal from High Court, Kuala Lumpur; Civil Suit No: S4-21-134-2003]
Reported by Suresh Nathan B
JUDGMENT
Suriyadi Halim Omar JCA: C
[1] The appeal was unanimously allowed with costs here and
below. We found the 2nd, 3rd and 4th defendants (hereinafter
referred to as the respondents) vicariously liable, jointly and
severally, and ordered the sum of RM100,000 ordered by the D
learned judge of the High Court against the first defendant to
remain unvaried. The deposit, was also refunded to the plaintiff
(hereinafter referred to as the appellant).
[2] The appeal came about as the appellant had filed an action
E
against the first defendant and the three respondents. The
appellant’s claim for, inter alia, general, aggravated and exemplary ←
material
damages, was allowed in the above sum of RM100,000 solely facts
against the first defendant, but not against the respondents. Being
dissatisfied, the appellant filed an appeal as against the
F
unsuccessful litigation against the respondents. There was no
appeal filed by the first defendant regarding the sum of
RM100,000 against him or for that matter by the respondents. It
was on account of wanting to avoid any confusion of the
respective relevant parties that we deliberately referred to the
G
respective parties as the appellant, first defendant, and respondents
(the 2nd, 3rd and 4th defendants).
[3] A perusal of the amended statement of claim shows that the
relief sought against the first defendant and the respondents were
on the basis of them being jointly and severally liable. With the H
respondents off the hook, and the first defendant a man of straw,
that judgment would have remained a paper judgment, as openly
admitted by counsel for the appellant. The other facts adduced in
the statement of claim, and not disputed are that, the first
defendant was a member of the RELA (Angkatan Relawan Rakyat I
Malaysia), the 2nd respondent the Director General of RELA, the
Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 657
A 3rd respondent the Director of the Jabatan Agama Islam Wilayah
Persekutuan, Kuala Lumpur (JAWI) and the 4th respondent the
Government of Malaysia.
[4] It was pleaded that at about 11.30pm on 21 March 2003
B the appellant was arrested at the Kelab De Vegas at Jalan Imbi,
Kuala Lumpur in a joint operation by officers of the 2nd and 3rd
respondents. The appellant, together with some other persons ← material
arrested, were then put into a truck and driven off to Taman
Maluri, Cheras. Enroute the appellant had requested from officers facts
C of the 2nd and 3rd respondents permission to use the toilet
facilities but was disallowed. Instead she was scolded and told to
urinate in the truck. As she was in quite a state, she asked her
friends to shield her by encircling her with a shawl, in order to
ease herself. At that particular moment, the 1st defendant suddenly
D opened the door of the truck, rushed in, pulled down the shawl
and proceeded to take numerous photos of the appellant in a
squatting position urinating. As a result, the appellant was
thoroughly humiliated with the whole incident, which was within
the view of everyone in the truck.
E
[5] There was abundance of evidence as regards this invasion of
privacy, amongst others, his subsequent prosecution for a charge
under s. 509 of the Penal Code under arrest case C83-494-2003.
He pleaded guilty and was convicted of it. He was accordingly
sentenced to four months jail vide, with the sentence confirmed by
F
the High Court vide a revision. In fact, this issue of the invasion
of privacy was never under challenge.
[6] To return to the pleadings, the appellant pleaded that her
privacy had been invaded, resulting in her humiliation, trauma and
G serious mental anguish. She wanted general, aggravated and
exemplary damages in the sum of RM5,000,000, interest and costs
from the first defendant and the respondents. She pleaded that the
officers of the 2nd and 3rd respondents at the material time, had
negligently failed to protect her well-being, by allowing the first
H defendant to snap those photographs. To reiterate, at the end of
the trial, the learned judge found for the appellant only as regards
the first defendant, but not the rest of the respondents. Neither
did the first defendant nor the respondents appeal against that
decision.
I
658 Current Law Journal [2009] 6 CLJ
[7] The learned judge in her grounds of judgment found that the A
first defendant, together with several members of RELA who
participated in the operation carried out by JAWI, did so in their
official capacity. On the other hand the first defendant was never
ordered to photograph any person arrested, let alone the camera
used was his. His action of taking pictures of the appellant B
urinating was not part of his duty to ensure security but a
personal one. The learned judge concluded that the respondents
therefore were not vicariously liable for the acts of the first
defendant.
C
[8] Perusing the memorandum of appeal, much of the grounds
registered were related to the learned judge’s finding of facts, but
come the hearing day before us, learned counsel emphasised more
on the finding that the action of the first defendant was a ‘frolic
of his own’. The relevant portion of those finding of facts read: D
ini kerana tindakan defendan pertama mengambil gambar plaintif
tidak mempunyai sebarang kaitan dan tidak kena mengena dengan
tugasnya, mengawal keselamatan pada malam tersebut. issue of
←
the
[9] We now reproduce the thrust of the appellant’s submission E
on the issue of “frolic of his own”, and it reads as follows: case
... the test where vicarious liability is concerned is whether the
act was done “in the course of business”. Not whether the
employer authorised the act or knew that it was being done. In
this case, in light of the finding of the learned High Court judge F
that the first defendant, was in fact at the operation in his official
capacity as a RELA officer, his actions of taking the said
photographs were in fact done in the course of business. It is
humbly submitted that at the time the pictures were taken the first
defendant was in the process of carrying out his duty as G
instructed to him by the third defendant. This is admitted by SD2
(he succinctly said: ‘apabila kejadian ini berlaku en setuju Md
Tahir itu masih diperlukan untuk mengawal-masih dalam arahan
en- Ya”). He was specifically instructed by the third defendant to
control those who had been arrested. In the course of doing that,
the first defendant took the said photos. As it was the first H
defendant’s duty to control those detained, it is submitted that he
was in fact in charge of the plaintiff at the time. It is submitted
that when the act of taking the photographs occurred the
operation was still in progress. Although the said act may have
been unauthorised by the third defendant, it was carried out I
during the normal course of duty of the first defendant as
instructed by the third defendant.
Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 659
A [10] There was factual basis of the appellant’s contention against
the respondents as:
(a) they had admitted that the 1st defendant was a RELA officer
at the material time. Further it was admitted that the 2nd
B respondent was the director of RELA. With the first
defendant being a RELA officer he thus came under the 2nd
respondent’s control. (These admissions had thus established
a relationship between the 1st defendant, the 2nd respondent
and the 4th respondent); ratio
←
C
(b) pertaining to the relationship between the 1st defendant and
the 4th respondent, the latter had admitted that it was
vicariously liable for the actions of the 2nd respondent, but
only to the extent of s. 5 and s. 6 of the Government
Proceedings Act 1956. To be held liable for the negligent act
D
of its officer, there must be proceedings against the officer
personally. In this case, s. 5 and s. 6 of the Government
Proceedings Act 1956 had been complied with, in that there
were proceedings against the 1st defendant then (Mohd Nor
Afandi Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor
E
[2008] 2 CLJ 369). The relationship between the 1st
defendant and the 4th respondent thus had been established;
and
(c) at the time the pictures were taken, the 1st defendant was in
F the process of carrying out his duty as instructed to him by
the 3rd respondent ie, to control those who had been
arrested. In the course of doing so, the 1st defendant took
the said photos. The act of taking the photographs occurred
when the said operation was still in progress and therefore,
G the 3rd respondent should be equally vicariously liable.
[11] The federal counsel for the respondents began, as per the
written submission that the photographs did not show the
appellant in the act of urinating. The oral testimony was a
H fabrication and had been discredited by the documentary evidence.
This at best was an unusual submission as both parties had
agreed, and admitted further in the statement of defence, that she
indeed did urinate in the truck. The fact that the learned judge
decided against the first defendant shows that the appellant had
I established all the necessary ingredients for a case based on a
balance of probability. The learned judge in her grounds of
660 Current Law Journal [2009] 6 CLJ
judgment elucidated, “Saya mendapati bahawa tindakan defendan A
pertama mengambil gambar-gambar plaintiff yang sedang membuang
air kecil ... (emphasis added),” in no uncertain terms established
that a finding of fact had been made.
[12] As there was no appeal on this finding, it was too late in B
the day for the respondent’s counsel to touch on the facts, which
culminated in that submission. Apart from that unusual submission,
counsel wanted the RM100,000 damages award be set aside,
when there was no appeal filed against it.
C
[13] As regards the issue of vicarious liability, in support of the
learned judge’s conclusion, he ventilated that the 1st respondent issue
←
was not acting in the course of employment and was in pursuit of
his own misguided and personal aims when attempting to
photograph the appellant. The learned federal counsel further
D
ventilated that:
The test to determine vicarious liability is established law and is
not in dispute. In this appeal the question is whether the use of
the camera by the 1st respondent was “so closely connected with
the acts that he was authorised to that, for the purposes of liability E
of the Government as his employer, his wrongful use may fairly
and properly be regarded as made by him while acting in the
ordinary course of employment”. If the wrongful act is not so
connected then the employer is not responsible.
i. Bernard v. Attorney General [2005] 2 LRC 561; F
ii. Attorney General of the British Virgin Islands v. Craig Hartwell
[2004] 1 WLR 1273;
iii. Lister and others v. Hesley Hall Ltd [2001] 2 AER 769;
G
iv. Keppel Bus Co. Ltd v. Sa’ad bin Ahmad [1974] 1 WLR 1082;
v . Keppel Bus Co. Ltd v. Sa’ad bin Ahmad [1972] 2 MLJ 121.
The approach is to concentrate on the relative closeness of the
connection between the nature of employment and the particular H
tort (Bernard v. Attorney General [2005] 2 LRC 561). At the end
of the day every case will be decided on its own peculiar facts
The fact that the employment provides the employee with the
opportunity to perform the act does not necessarily mean that the
act was within the scope of employment. There must be some I
greater connection between the tortuous act of the employee and
the circumstances of employment than the mere opportunity to
Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 661
A commit the act which has been provided by the access to the
premises which the employment afforded (Lister and others v. Hesley
Hall Ltd [2001] 2 AER 769).
[14] In conclusion learned federal counsel submitted that there
was no connection between the act of the first respondent and
B
the duties for which he was entrusted. The usage of the camera
had nothing to do with his duties and its use was a “frolic of his
own”.
[15] Perusing the submissions of the parties, it was no surprise
C to see that both parties had supplied some near similar cases and,
on that excuse we refer to some of them. In Dyre and Wife v.
Munday & Anor [1895] 2 QB 742, CA Lord Esher MR ruled:
The liability of the master does not rest merely on the question
D of authority, because the authority given is generally to do the
master’s business rightly; but the law says that if, in the course
of carrying out his employment, the servant commits an excess
beyond the scope of his authority, the master is liable.
[16] In the same case Lopes LJ remarked:
E
The law says that for all acts done by a servant in the conduct
of his employment, and furtherance of such employment, and for
the benefit of his master, the master is liable, although the
authority that he gave is exceeded.
F [17] In Goh Choon Seng v. Lee Kim Soo [1925] AC 550, apart
from holding the same view as above, held that where a servant
did some work for which he was appointed to do, but did in a
manner not authorized, and would not have authorized had he
known it, the master was nevertheless liable.
G
[18] The principle of the employer being responsible for the act
ratio
of its employee, in the course of his employment, was applied in ←
its full force in Keppel Bus Co. Ltd v. Sa’ad bin Ahmad [1972] 1
LNS 53. In that case, the Court of Appeal of Singapore found
H that there was sufficient evidence for the trial judge to conclude
that the conductor in hitting the respondent in a very high handed
manner, was acting in the course of employment. The learned C.J
had adverted to the Canadian case of Canadian Pacific Railway Co
v. Lockhart [1942] AC 591. When the matter went up to the
I Privy Council the decision of the trial judge was overturned on the
662 Current Law Journal [2009] 6 CLJ
premise that there was insufficient evidence to support the A
conclusion arrived at. What is relevant is Lord Kilbrandon’s
remarks in Keppel Bus Company Ltd v. Sa’ad bin Ahmad [1974] 1 ← ratio
LNS 62, where he opined:
There is no dispute about the law. The Court of Appeal relied B
on the well-known passage from Salmond on Torts, which was
approved in C.P.R v. Lockhart at page 599; it is not necessary to
repeat it.
ratio
The Court of Appeal rightly point out that the question in every ←
case is whether on the facts the act done, albeit unauthorized and C
unlawful, is done in the course of employment; that question is
itself a question of fact. (emphasis added).
[19] So what is ‘in the course of employment?’ Certainly in the
course of his specific work for which he is employed qualifies. In
D
Samin bin Hassan v. Government of Malaysia [1976] 1 LNS 139 the
driver of a Telecoms Department vehicle was negligent and had
caused injuries to the appellant. He had allegedly taken the
vehicle for a trial run to test the brakes. The court found as a
fact that the driver had taken out the vehicle for his own purpose
E
ie, he had gone home for lunch with it. When dismissing the
appeal the Federal Court had occasion to opine:
This appeal is concerned with the liability of the master for his
servant. The master should shoulder the servant’s liability if at the
material time the servant was acting in the course of the F
employment and for the business of the employer. The meaning
of the words “in the course of employment” was fully considered
by the House of Lords in Davidson v. M Robb, and the headnotes
of the Law Reports read:
“In the course of employment” does not mean during the G
currency of the engagement, but means in the course of the
work which the workman is employed to do and what is
incidental to it and absence on leave for the workman’s
own purposes is an interruption of the employment
(emphasis added).
H
[20] In the same case, Suffian LP referring to Rose v. Plenty
[1976] 1 All ER 97 referred to Lord Denning’s remarks which
read, inter alia, as follows:
I
Maslinda Ishak v.
[2009] 6 CLJ Mohd Tahir Osman & Ors 663
A In considering whether a prohibited act was within the course of
employment, it depends very much on the purpose for which it
was done. If it is done for his employer’s business it is usually
done in the course of his employment, even though it is a
prohibited act …
B
[21] We now would like to refer to a case that has some legal
÷
similarities to the facts of this appeal. In Roshairee Abd Wahab v.
Mejar Mustafa Omar & Ors [1997] 1 CLJ Supp 39 the plaintiff
was assaulted by the first and second defendants while undergoing
an orientation programme at Kem Lok Kawi, a military camp in
C
Sabah. At the material time, the plaintiff was under the charge of
the first defendant, who was assigned as a duty officer to carry
out the orientation programme. The second defendant was
attached to the said regiment stationed in the said camp. Both
defendants denied the plaintiff’s claims but the learned judge found
D
for the plaintiff. He further opined:
Though the first defendant’s acts of assault were unauthorized by
the third defendant, they were carried out during the normal
course of duty of the first defendant. Such being the case, his
E unauthorized acts have become so connected with his authorized
acts that this court finds them to have become “modes-although
improper modes of doing them.” For this, the third defendant (the
Government of Malaysia–supplied) must be held vicariously liable
for the unlawful actions of this defendant.
[22] In this case the learned judge had made a finding that the
F
first defendant’s presence on the scene was on an official capacity.
ratio
Apart from being a RELA member, and thus an employee of the
←
Government of Malaysia having certain responsibilities to the
country, he was also there to specifically assist JAWI carry out its
G operation. The witness for JAWI clearly stated that he was
incharge of a group of fifteen JAWI and five RELA officers and
had admitted in cross-examination, “saya setuju pada malam itu En
Tahir bertindak atas arahan saya”. The first defendant therefore
was not there on his own volition but on instruction. He not only
H was under the direct supervision of RELA, but on that particular
night was also subject to the direction of JAWI, with his duties
shuttling from ensuring the security of those who participated in
the exercise, and to keeping an eye over those arrested. As he
took the unauthorized photographs, whilst in the course of the
I work or employment for which he was instructed to carry out, at
664 Current Law Journal [2009] 6 CLJ
a time when the operation was in progress, the respondents must A
be held vicariously liable. In a nutshell, the evidence of snapping
the photographs being so closely connected to his duties not only
was overwhelming, but fitted well with the remarks of Lord
Kilbrandon of Keppel Bus Co Ltd v. Sa’ad bin Ahmad (supra). Our
conclusion of the first defendant’s principals being vicariously liable
is also in consonant with the submission of the learned federal
B
T
counsel that “at the end of the day, every case will be decided
on its own peculiar facts.” ratio
[23] With the above findings concretized the respondents must C
jointly and severally bear the burden of the first defendant’s
liability. It is trite law that when an injury or loss is caused to a
←
third person by the wrongful act of an agent acting within the
scope of his authority his principal is jointly and severally liable
with him (Yeo Tin Sang v. Lim Choo Kee [1960] 1 LNS 164). D
[24] Based on all the above reasons we allowed the appeal with
costs.
