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BAYLEY V MANCHESTER, SHEFFIELD AND LINCOLNSHIRE RLY [1873]

1) FACTS

a) The plaintiff was a passenger on defendant’s train.

b) One of the porters of the defendants pulled him out of the carriage due to
mistaken belief that the plaintiff was traveling on a wrong train.
c) The plaintiff suffered severe injuries.

2) ISSUE

a) Who would be held liable?

3) HELD

a) The defendants were held liable.

b) Here he didn’t do anything unlawful and master will be liable even if the
servant acts on the belief that he is doing some lawful act which he is
authorized to.

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CASSIDY V MINISTRY OF HEALTH [1951] 2 KB 343

1) FACTS

a) The claimant was a patient at a hospital run by the defendant who required
routine treatment to set the bones in his wrist.
b) Due to negligence on the part of one of the doctors, the operation caused his
fingers to become stiff.
c) The claimant sued the defendant in the tort of negligence on the basis of
vicarious liability.

2) ISSUE

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a) If negligence is proven against a primary tortfeasor, it is sometimes possible

to hold their employer liable under the doctrine of vicarious liability. This
doctrine holds that an employer is legally responsible for torts committed by
their ‘servants’ in the course of their employment. The equivalent term under
modern law would be ‘employee’. At the time, the dominant test for
determining whether the primary tortfeasor was a servant was whether the
defendant had control over how they performed their services.
b) The defendant argued that the doctor responsible for the negligence was not
one of their servants, as they had no control over how he performed his job.
c) The issue was the meaning of ‘servant’ in the context of vicarious liability.

3) HELD

a) The Court of Appeal held that the defendant was vicariously liable.
b) The fact that the worker engages in specialised and technical work for which
he is specially qualified does not mean that he is necessarily not a servant.
The Court held that a person is a servant of the defendant if he was chosen
for the job by the defendant and is fully integrated into the defendant’s
organisation.
c) In this case, the doctors were appointed to the hospital by the defendant and
not chosen by the patient, and were fully integrated into the hospital. They
were therefore the defendant’s servants.

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CENTURY INSURANCE CO LTD V NORTHERN IRELAND ROAD

TRANSPORT BOARD [1942] AC 509

1) FACTS

a) A transport undertaking had a contract with a petroleum company for the

carriage and delivery of their petrol in lorries, agreeing to insure the lorries
against any spillage or fire of the petroleum.
b) The lorries were insured by an insurance company against liability to third
parties.
c) While one of the lorries was delivering petrol at a gas station, the
undertaking’s driving lit a cigarette, causing an explosion and consequent
damages.

2) ISSUE

a) Firstly, the question arose as to whether the employer or the insurance

company was liable.
b) Secondly, the question arose as to whether the employee’s smoking of the
cigarette was in the course and scope of his employment for the purposes of
rendering the employer’s vicariously liable.

3) HELD

a) Firstly, the Court held that the employer is the party who has the right to
control the conduct of the act at the given time. The transport company was
in control of their own truck drivers to deliver the petrol and it, not the
insurance company, must be held to be the employer.
b) Secondly, the Court held that the truck driver’s act, albeit careless, took place
during the course of his employment as he was in the midst of delivering the
petrol to a tank. Recent authority has overturned the requirement that the act
be done for the benefit for the employer.

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c) The employee was negligent in the discharging of his duties by smoking as

he did, yet was nevertheless in the course of discharging his duties to his
employer and, thus, the employer was liable.
d) Accordingly, the transport undertaking was held vicariously liable for the
damage caused by their employee’s negligence.

CHUAN SENG AND CO PINAPLE FACTORY V IDRIS AND ANOR

1) FACTS

a) The defendant employee gave a lift to two person in his lorry, an accident
occurred in which the two person died.
b) The defendant was found not vicariously liable.

2) HELD

a) The court follow the dicta in Twine v Beans Express LTD and stated that
giving a lift was outside the scope of employment as the driver was prohibit
from giving lift to other person.

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COLLINS V HERTFORDSHIRE COUNTY COUNCIL ( 1947 ) KB

1) FACTS

a) A hospital had in its employ, a student who was employed full-time in the
capacity of a resident junior house surgeon, and aslo a surgeon in good
standing on the medical register, who worked two days per week for a fixed
number of hours.
b) Both persons were on the hospital pay list. The surgeon was preparing to
perform a jaw operation on the plaintiff’s husband, and instructed the junior
house surgeon, over the phone, to collect certain materials, one being that of
procaine(a local anesthetic drug).
c) The junior house surgeon misheard the item as being cocaine.
d) During the operation, a lethal dosage of cocaine was injected into the
husband which resulted in his death. The plaintiff brought an action against
the hospital authority.

2) HELD

a) On the issue of vicarious liability of the hospital authority, they were held
responsible for the acts of the junior house surgeon, but not for those of the
visiting surgeon, since in the case of the junior surgeon they had the power to
direct her on what to do and how to do it, but in the case of the surgeon they
did not have that power.

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CONWAY V GEORGE WIMPEY AND CO LTD

1) FACTS

a) Conway (C) was on his way to work on an aerodrome when he hailed a lorry
belonging to the George Wimpey & Co Ltd (W) and driven by one of their
employees (D).
b) The lorry was crossing the aerodrome taking a number of the defendants’
servants to their work. D had been expressly told by W’s transport manager
that he could only transport W’s men, and a notice to this effect had been
affixed in his cab.

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c) Nevertheless, D gave C a lift for a short distance.

d) When C dismounted the lorry, he caught his right leg under a wheel of the
lorry and had to have it amputated after it was badly crushed.
e) C raised an action against W for damages.

2) ISSUE

a) The issue in question was whether W as D’s employers could be held liable
for the injury caused to C as a result of the lorry ride D provided for C
against W’s instructions.

3) HELD

a) Both D, as the lorry driver, and C were equally responsible for the accident.
C was effectively a trespasser when he mounted the lorry, and it was
immaterial whether he knew he was one or not. D performed a wrongful act
in allowing C, who was not an employee of W, to ride the lorry, and as this
performance was not one which he was employed to perform at all, the act
was outside the scope of his employment.
b) W could therefore not be held liable for C’s injury as a result of C’s trespass.
c) Trespass will arise where a person crosses the property of another on reliance
of the permission of a person who has no authority to give that permission.

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HALL V LARIMER [1993] EWCA Civ 25

1) FACTS

a) Hall v Lorimer [1993] EWCA Civ 25 is a UK labour law case concerning the
status of a worker as employed or self-employed. It took the view that an
employment contract requires regard to be had to the extent to which the
worker is in business on their own account.
b) Because Mr Lorimer took a business-like attitude to finding new clients he
was held to be running a self-employed business and not working in a
succession of short-term employments.
c) Mr Lorimer received £32,875 for his employment and incurred expenses of
£9,250.
d) He was a television technician working for 20 separate companies on short
term jobs.

2) HELD

a) Nolan LJ held that he was self-employed and could therefore set his expenses
off against his income. He said what is partly relevant to employment status
is,
b) “ the extent to which the individual is dependant or independent of a
particular paymaster for the financial exploitation of his talents. ”
c) He takes financial risks, provides his own tools/equipment, and takes the
profits, and pays his own taxes and National Insurance contributions.

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ILKIW V SAMUELS

1) FACTS

a) The plaintiff was injured by the careless manouvering of a lorry by the

defendant’s employee.

2) HELD

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a) When considering the vicarious liability of an employer, the proper approach

to the nature of the servant’s employment is a broad one.
b) Referring to nouns such as ‘sphere’ and ‘scope’: ‘As each of these nouns
implies the matter must be looked at broadly, not dissecting the servant’s task
into its component activities – such as driving, loading, sheeting and the like
– by asking: what was the job on which he was engaged for his employer?
and answering that question as a jury would.’
c) As to distinctions between restrictions on the sphere of employment and
restrictions on conduct within that sphere of employment: ‘the decision into
which of these two classes the prohibition falls seems to me to involve first
determining what would have been the sphere, scope, course (all these nouns
are used) of the servant’s employment if the prohibition had not been
imposed.
d) As each of these nouns implies, the matter must be looked at broadly, not
dissecting the servant’s task into its component activities – such as driving,
loading, sheeting and the like – by asking: what was the job on which he was
engaged for his employer? and answering that question as a jury would.’

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GURMIT KAUR A/P JASWANT SINGH v TUNG SHIN HOSPITAL & ANOR
[2012] 4 MLJ 260; [2012] MLJU 348; [2013] 1 CLJ 699; [2012] 4 AMR 532

1) FACTS

a) When the plaintiff, a 38 year old mother of four, had sought treatment for the
removal of a cervical polyp, she had been referred to the second defendant, a
doctor who had a practice in the first defendant hospital. After consulting the
second defendant the plaintiff had decided to surgically remove the polyp
and requested the second defendant to perform the operation. She was
admitted at the first defendant hospital for the operation to remove the polyp.
b) However, at the plaintiff ’s follow-up consultation she learned that the
second defendant had removed her uterus (‘the hysterectomy’). The plaintiff
commenced the present claim for damages in negligence against the
defendants.
c) It was the plaintiff ’s case that the second defendant had breached his duty of
care when heoperated and removed her uterus instead of only removing the
polyp; and that the first defendant was vicariously liable for the actions of the
second defendant. The plaintiff also submitted that because of the second
defendant’s negligence she had lost the opportunity of having another child.
In his defence the second defendant submitted that the hysterectomy was
medically indicated to treat the plaintiff ’s heavy and painful menstrual
period.
d) The second defendant also claimed that the plaintiff had fully understood the
nature of the operation to be undertaken and had consented to the
hysterectomy by signing the consent form.
e) The first defendant contended that since the second defendant was a
freelance consultant who used the first defendant’s premises, itwas not
vicariously liable for the acts of the second defendant.

2) HELD

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a) In all the circumstances of the case I am of the considered view that a global
sum of RM120 000.00 for the general damages for the loss of uterus,
inability to conceive, injury, and pain cause due to operation and pain and
suffering after the operation is fair and reasonable, having regard to the
seriousness of the negligent act by the Defendants.
b) Interest on general damages at the rate of 8% per annum from the date of
service of the writ until full payment.
c) Interest for special damages at 4% per annum from date of incident up to the
date of judgment and at 8% per annum thereafter until full payment.
d) Costs of this action to the Plaintiff, to be taxed unless agreed.

JOEL V MARISON [1834] 172 ER 1338

1) FACTS

a) The plaintiff was walking on foot on a public highway. The defendant had a
horse and a cart, which were under the care, government and direction of his
servant.
b) The servant was driving the cart carelessly, improperly and negligently and
struck the plaintiff with the cart whilst making a detour from the task, which
his master had sent him for.
c) The plaintiff fell on the ground and as a result, one of his legs was fractured.
He was prevented from conducting his business for six months, he had to
incur medical expenses and further expenses in order to employ workers to
look after his business.
d) The plaintiff sought compensation from the master.

2) ISSUE

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a) Is the master of a servant liable in damages for the careless driving of the
latter?

3) HELD

a) The verdict was in favour of the plaintiff.

b) The master is liable for the careless driving of his servant if the servant is
driving the cart on his master’s business or if the servant, being on his
master’s business, decides to take a detour.
c) The master is not liable for the careless driving of his servant, if the servant
decides to lend the cart to another person without the master’s knowledge or
the cart is secretly taken by a person who is not at the time employed on his
master’s business.

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KEPPEL BUS COMPANY LIMITED V SA'AD BIN AHMAD [1974] 1 MLJ 191

1) FACTS

a) The respondent was assaulted by a servant of the appellant company. At the

relevant time when the act was committed, the respondent was a passenger in
a bus belonging to the appellants and the servant was the conductor of
that bus.
b) There had been an argument between the conductor and the respondent and
subsequently the conductor struck the respondent's glasses, breaking them
and causing the respondent to lose his eye. There was no evidence to show an
emergency situation calling for forcible action on the part of the conductor.
c) There was no evidence of disorder among the passengers of the bus. The
question in the case was whether the conductor did what he did “in the
course of his employment.”
d) The trial judge specifically rejected the conductor's version of the incident,
gave judgment in favour of the respondent and the Court of Appeal
dismissed the appeal by the appellant company ( [1972] 2 MLJ 121 ).
e) The company appealed to the Privy Council.
f) The conductor was not a party to the proceedings before the Court of Appeal
or to the present appeal.

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LIMPUS V LONDON GENERAL OMNIBUS COMPANY (1862)

1) FACTS

a) Wiles J, Blackburn J
b) Ratio: The driver of an omnibus, seeking to disturb the omnibus of another
company, drove his own across the path of another. His employers had
furnished him and other drivers with a card saying they ‘must not on any
account race with or obstruct another omnibus.’ Baron Martin had directed
the jury that, if the defendant’s driver did it for the purposes of his employer,
the defendants were liable: but if it was an act of his own, and in order to
effect a purpose of his own, the defendants were not responsible.
c) The jury found for the plaintiff.

2) HELD

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a) The employer was liable for the ensuing accident despite written instructions
to the driver to exercsie care. The employer was liable because the injury
resulted from an act done by the driver in the course of his service and for his
master’s purposes; it was not done by the servant for his own purposes, but
for his master’s purposes.
b) Lord Blackburn said: ‘A footman might think it for the interest of his master
to drive the coach, but no one could say that it was within the scope of the
footman’s employment, and that the master would be liable for damage
resulting from the wilful act of the footman in taking charge of the horses.’

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LISTER V HESLEY HALL LTD [2001] UKHL 22

1) FACTS

a) A warden was employed at an annex of a boarding school for boys and

responsible for the day-to-day running of the school, discipline of the boys,
organisation of their daily activities, as well as supervision and care of the
boys after school hours.
b) Between 1979 and 1982, the warden had sexually abused a number of the
boys, yet unbeknownst to his employers.
c) The sexual abuse took numerous forms and was usually administered in the
context of the warden’s control and discipline at the boarding school.

2) ISSUE

a) The question arose as to whether the employers of the warden may be held
vicariously liable for their employee’s intentional sexual abuse of school
boys placed under his care.

3) HELD

a) The House of Lords held that vicarious liability can arise for unauthorised,
intentional wrongdoings committed by an employee acting for his own
benefit, in so far as there exists a connection between the wrongdoings and
the work for which he was employed to render it within the scope of
employment.
b) The Court rejected the restrictive view that vicarious liability could only arise
when the employee is acting for his employer’s benefit. On the facts of the
case, the Court held that there was a sufficient connection between the work
that the warden was employed to do and the abuse that he committed to
render it within the scope of employment.
c) The abuse was committed at the time, premises and during the course of the
warden’s care of the boys. The warden’s function was to care for the boys
and the fact that he performed that function in an abusive manner does not
sever the connection with his employment for the purposes of vicarious
liability.

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d) Accordingly, the employers were held liable.

LLOYD V GRACE, SMITH AND CO

1) FACTS

a) Lord Macnaghten, Earl Loreburn LC

b) Ratio: Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to
the solicitors’ fraudulent managing clerk.

2) HELD

a) Vicarious liability can extend to fraudulent acts or omissions if those were

carried out in the course of the employment or within the scope of the
apparent authority, albeit by an employee or a partner conducting the
business of a type which he had a right to conduct.
b) The principal was liable for the fraud of the agent because conveyancing is
part of the ordinary business of solicitors.
c) The client had been invited by the firm to deal with their managing clerk.
d) It was irrelevant that the agent acted with a dishonest purpose for his own
ends.

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e) His act was of the class or kind of acts which fall within the ordinary
business of solicitors.

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MAT JUSOH BIN DAUD V SYARIKAT JAYA SEBERANG [1982] 2 MLJ 71

1) FACTS

a) In this case the plaintiff was employed as a sawyer in the plaintiffs sawmill.
He was injured in the course of his employment and as a result lost three
fingers of his right hand. Because of the injuries he was refused further
employment at the defendant's sawmill.
b) He was out of work for one year until he found employment as a labourer. He
sued the defendants and claimed general and special damages. The defendant
denied liability contending that the plaintiff was not their employee but the
employee of the defendant's contractor Lim.
c) In the alternative the defendants pleaded that even if the plaintiff was held to
be their employee, the defendants were not liable because the accident was
wholly caused by the plaintiff's own negligence.
d) The defendants also pleaded contributory negligence by the plaintiff.

2) HELD

a) The documentary evidence in this case constituted a clear admission by the

defendants that the plaintiff was their employee and this admission despite
the evidence given by the witnesses for the defendants remained unrebutted;
b) On the facts of the case, Lim could not be held to be a contractor within the
meaning of section 19 of the Workmen's Compensation Act, as he was not
undertaking to execute any part of the defendant's sawmill business. He was
merely a middle man or agent to procure workmen for the defendants to be
employed at the defendant's sawmill.
c) The employer of the workmen must be the defendant for whose business they
were employed applying the test of organization it is clear that what was
done by Lim and the workmen procured by him was done as an integral part
of the defendant's business. Even on the question of control the ultimate
authority to decide whether a log is sawn or not and how many logs were to
be sawn obviously resided with the defendants who conveyed their decisions
through their supervisors. In the circumstances the plaintiff must be held to
be an employee of the defendants;
d) On the facts of this case the defendants were guilty of negligence for not
providing sufficient number of workmen to do the job and for not providing a
proper and effective system of work;

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e) In this case the pre-trial loss of earnings should have been claimed as special
damages. Even though the claim was wrongly made as general damages, the
court could increase the special damages to include the pre-trial loss of
earnings;
f) Having regard to the sums awarded in other cases and in particular to the
injuries suffered by the plaintiff and the length of his stay in hospital, the sum
of $15,000 would be allowed for pain and suffering and loss of amenities;
g) In regard to loss of future earning capacity, the amount awarded should be
$18,683.39;
h) The general damages should be reduced to take into account the possibility of
overlapping and the amount awarded should be $32,683.89.

MORRIS V CW MARTIN AND SONS LTD

1) FACTS

a) Mrs Morris, the owner of a mink stole, sent her coat to a furrier in London,
named Solomon Mark Beder.
b) In a telephone exchange, Mr Beder stated that he did not do any cleaning
himself, and that it was sub contracted to the defendant firm, CW Martins &
Sons Ltd. They themselves were 'well-known', 'reputable' cleaners,and it was
agreed that the fur coat would be sent to them. Upon collecting the fur coat,
the defendant company did so under the terms of "The Fur Dressers and
Dyers Conditions of Trading, 1955"; while it was in their possession, it was
lost.
c) Mrs Morris sued CW Martins & Sons Ltd, claiming that they had not
exercised reasonable care in maintaining the coat; this argument was turned
down by the first trial judge, who believed that the defendants took
reasonable care to safeguard the coat.
d) Additionally, he stated that the acts of the defendant's employee, in stealing
the coat, were not committed in the course of his employment, and thus the
employer could not be liable for them.

2) HELD

a) Lord Denning established that the key question to creating liability was
whether Mrs Morris could sue the cleaning firm for the theft of their
employee:

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b) "Mr. Beder could clearly himself sue the cleaners. But can the plaintiff sue
the cleaners direct for the misappropriation by their servant?"
c) Denning argued that she could, stating that a duty of care was owed by the
sub-bailees to take reasonable care of the fur coat. This duty was
non-delegable, in that they themselves were personally liable for the
conversion of their employee, in stealing the coat:
d) “ From all these instances we may deduce the general proposition that
when a principal has in his charge the goods or belongings of another in such
circumstances that he is under a duty to take all reasonable precautions to
protect them from theft or depredation, then if he entrusts that duty to a
servant or agent, he is answerable for the manner in which that servant or
agent carries out his duty. If the servant or agent is careless so that they are
stolen by a stranger, the master is liable. So also if the servant or agent
himself steals them or makes away with them. ”
e) This judgment had several effects. Denning was explicit in overruling the
previous authority of Cheshire v Bailey, and creating a general duty of
sub-bailees to take due care in the possession of goods. In doing so, both
Denning and Diplock LJ rejected the trial judge's emphasis on contract
theory; it is clear there was no contract between Mrs Morris and the eventual
cleaners. However, the relationship of bailor and bailee of a chattel can exist
outside of a contract, it was the existence of this relationship that gave rise to
a duty in Diplock's view.

POLAND V PARR & SONS [1927] I KB

1) FACTS

a) A contractor’s employee was, in the course of his employment, following

close behind his employer’s waggon carrying sugar bags.
b) Seeing a boy with a hand on one of the bags, the employee believed the boy
to be stealing sugar and hit him.
c) This caused the boy to fall and the waggon to run over his foot, leading to the
loss of his leg.
d) The boy had not, in fact, been stealing the sugar although the employee had
believed so.

2) ISSUE

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a) The question arose as to whether the employee’s actions were authorised by

the employer, imputing the employer’s liability for the injuries sustained by
the boy.

3) HELD

a) The Court held that the employer was liable as it was an impliedly authorised
act conducted during the employee’s course of employment and as a result of
the employee acting within the scope of his duty to protect the employer.
b) Although the employer held that the employee was acting without their direct
nor indirect authority, the Court held that the employee had an implied
authority to act to protect his employer’s property if he has reasonable
ground to believe that it was in danger.
c) The Court stipulated that the employee’s actions were entirely in the interests
of protecting the employer, although it was an excessive means of doing so.
Accordingly, the employee was held to be impliedly authorised by the
employer and the employer was held liable for the resultant personal injuries.

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READY MIXED CONCRETE V MINISTER OF PENSIONS

1) FACTS

a) A driver contracted with a mixed concrete company for the delivery of

concrete.
b) The contract declared him an “independent contractor” and set out wages and
expenses.
c) The driver was to purchase his own vehicle, yet with a requirement that the
vehicle be painted in company colours.
d) He was to drive the vehicle himself but under compliance with certain
company’s rules including, for example, the manner of vehicle repairs and
payments.

2) ISSUE

a) The question arose as to whether the driver was an “employed person” under
a contract of service with the company for the purposes of the National
Insurance Act 1965.

3) HELD

a) Firstly, the Court held that whether a contract creates a ‘master and servant’
relationship between an employer and employee is determined on the basis of
contractual rights and duties, and that the nomenclature used in the contract
is irrelevant. Thus, the fact that the contract termed the driver to be an
“independent contractor” is not material.
b) Secondly, the Court held that employment under a contract of service exists
when:
(1) a person agrees to a perform a service for a company in exchange for
remuneration; and
(2) a person agrees, expressly or impliedly, to subject himself to the
control of the company to a sufficient degree to render the company his
“master,” including control over the task’s performance, means, time; and

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(3) the contractual provisions are consistent with ordinary contracts of

service.
c) On the facts, the Court held that the driver had sufficient freedom in the
performance of his contractual obligations as he was free to decide the
vehicle, his own labour, fuel, and other requirements in the performance of
the task. In lieu of these freedoms, he was an independent contractor and not
an employee of the company.

ROSE V PLENTY

1) FACTS

a) Rose v Plenty [1976] 1 WLR 141 is an English tort law case, on the issue of
where an employee is acting within the course of their
employment. Vicarious liability was tenuously found under John William
Salmond's test for course of employment, which states that an employer will
be held liable for either a wrongful act they have authorised, or a wrongful
and unauthorised mode of an act that was authorisedMr Plenty was
a milkman under employment in Bristol by the Co-operative Retail Services
Ltd, since Easter of 1970.
b) At the depot where he worked, there was a prohibition on allowing children
onto any vehicle, with evidence that the employers and trade unions had
attempted to stop such behaviour. There were signs to this effect, which were
large and visible to employees; one such stated:
c) "Children and young persons must not in any circumstances be employed by
you in the performance of your duties.
d) However, children still persisted in going to the depot in the hopes of being
allowed onto milk floats.

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e) Soon after he was employed, Mr Plenty was approached by Leslie Rose, at

the time a 13-year-old boy, who asked if he could help the employee on his
rounds. This was agreed upon, and Rose engaged in collecting money and
delivering milk during Mr Plenty's rounds.He was paid a small wage for this
help on several occasions, before he was injured due to the negligent driving
of Mr Plenty, suffering a fractured leg.
f) At first instance, Plenty was adjudged 75% contributorily negligent, and
recovery from the employer was barred altogether, the judge stating that it
was not in the scope of Mr Plenty's employment to take on a child as a
subordinate.

2) HELD

a) On appeal to the Court of Appeal, this judgment was reversed, with Lord
Denning making the leading speech. It was established that, as in the case of
Limpus v London General Omnibus Company the employee was merely
acting in an unauthorised way, whilst still going about his duties of
delivering milk
b) “ In the present case it seems to me that the course of the milk
roundsman's employment was to distribute the milk, collect the money and to
bring back the bottles to the van. He got or allowed this young boy to do part
of that business which was the employers' business. It seems to me that
although prohibited, it was conduct which was within the course of the
employment; and on this ground I think the judge was in error. I agree it is a
nice point in these cases on which side of the line the case falls; but, as I
understand the authorities, this case falls within those in which the
prohibition affects only the conduct within the sphere of the employment and
did not take the conduct outside the sphere altogether. I would hold that the
conduct of the roundsman was within the course of his employment and the
masters are liable accordingly, and I would allow the appeal. ”
c) Whilst the majority of Lord Denning and Scarman LJ agreed upon this
interpretation, Lawton LJ dissented, arguing that precedents set in two earlier
cases, Twine v Bean's Express Ltd and Conway v George Wimpey & Co
Ltd,could not be distinguished from the instant case.
d) In these cases, no liability was found on the part of the employer where
passengers taken by employees - against specific instructions - were injured.
Lord Denning distinguished the cases on the grounds that Leslie Rose had
been furthering the employee's duties, keeping Mr Plenty within the course
of his employment.

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SAMIN BIN HASSAN V GOVERNMENT OF MALAYSIA [1976] 2 MLJ 211

1) FACTS

a) In this case, it had been held in the High Court that the driver of a Telecoms
Department Land Rover was negligent and thereby caused injuries to the
appellant.
b) The learned trial judge also found that at the material time, the driver of the
Land Rover was not a servant or agent of the government.
c) At the trial, the driver had stated that he took out the Land Rover for a trial
run to test its brakes and that in the course of the trial run, he had stopped at
his house for lunch and that when the accident occurred he was returning to
the depot where the vehicle was normally kept. The learned trial judge found
that on the evidence, there was no defect which made the trial run necessary
and that the driver had not obtained the permission of his supervisor to take
the Land Rover out.
d) He found as a fact that the driver had taken out the Land Rover for his own
purpose which was clearly to go home for lunch and that in doing so he had
no permission and was driving on his own and that he was at the material
time not driving as a servant or agent of the government.
e) The appellant appealed to the Federal Court.

2) HELD

a) Held, dismissing the appeal

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b) The appellate court could not disturb the finding of the learned trial judge
and in view of the law applicable, the employers, the government, were not
liable.

SHORT V J & W HENDERSON LTD

1) HELD

a) Lord Thankerton pointed out that there are four indicators to examine the
degree of control exercised on an individual: the power to appoint, the power

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to dismiss, the payment of wages, as relevant to the establishment of

existence or the contract of service.

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DR KOK CHOONG SENG & ANOR v SOO CHENG LIN AND ANOTHER
APPEAL [2018] 1 MLJ 685

1) FACTS

a) Soo Cheng Lin (‘Soo’) had consulted Dr Kok Choong Seng (‘the doctor’), a
consultant orthopedic surgeon, about a lump in his left forearm. The doctor
had advised Soo to undergo an operation to remove the lump. On 14
September 2004, the doctor had performed the operation at Sunway Medical
Centre Bhd (‘the hospital’) and Soo was discharged on the same day. After
the operation Soo complained of pain and numbness in the area operated
upon and was referred by the doctor to a hand and micro surgeon from Pantai
Medical Centre, who diagnosed Soo as having lost 90% of his left median
nerve and thus conducted a microscopic reconstruction on Soo’s left median
nerve.
b) Soo claimed that the pain, injuries and suffering he suffered and the
additional costs of another surgery to the same area arose from the
negligence of the doctor and the hospital. Consequently, Soo brought an
action against the doctor and the Hospital in the High Court.
c) The High Court judge found the doctor liable in negligence in his capacity as
a medical practitioner, and the hospital liable in negligence as a provider of
healthcare services which included the competence, skill and expertise of the
doctor.

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d) The trial judge also found that the hospital owed a non-delegable duty of care,
or a duty which was described as ’a kind of vicarious liability’, to Soo to
ensure that care was taken.
e) Thus, at the High Court, the plaintiff’s claim against the doctor and the
hospital was allowed. In terms of quantum, Soo was awarded RM50,000
being general damages for pain and suffering, and RM5,100 being special
damages for physiotherapy, other related treatment and travelling expenses.
f) However, the trial judge rejected Soo’s claim of RM19,632.84 for medical
expenses, which was paid by Soo’s insurers. Aggrieved, the hospital
appealed against the finding of vicarious liability for the doctor’s negligence,
while Soo appealed against the quantum of damages awarded for pain and
suffering, and the rejection of the claim of RM19,632.84 for medical
expenses.
g) Applying the test laid down in the case of Woodland v Swimming Teachers
Association and others [2014] AC 537 (‘the Woodland case’), the Court of
Appeal concluded that the hospital owed a non-delegable duty of care
to Soo and rejected the relevance of Soo’s own choice in engaging the
doctor’s services. As such, the Court of Appeal dismissed the hospital’s
appeal on liability. On the other hand, the Court of Appeal found that the
deductibility of the insurance payment or the medical expenses paid by Soo’s
insurers was governed by statute in the form of s 28A(1)(a) of the Civil Law
Act 1956 and thus allowed Soo’s appeal on quantum.
h) The decision of the Court of Appeal has resulted in the leave granted for the
two present appeals, namely the hospital’s appeal against the Court of
Appeal’s decision on liability and the hospital and the doctor’s appeal against
the decision on quantum. The hospital argued that as medical practitioners
were not employees of the hospital but independent contractors, it would be
contrary to the Private Healthcare Facilities and Services Act 1998 (‘the
PHFSA’) and the Private Healthcare Facilities and Services (Private
Hospitals and Other Private Healthcare Facilities) Regulations 2006 (‘the
Regulations’) to impose a non-delegable duty on private hospitals in relation
to the provision of medical services.
i) In relation to vicarious liability the hospital argued that the imposition of
vicarious liability on private hospitals would run contrary to the legislative
scheme, which provided distinct roles for private hospitals and medical
practitioners.
j) Soo in turn argued that the hospital should be responsible for the risks
associated with its commercial enterprise, and patients should be able to look
to the hospital’s deepest pockets to recover damages.

2) HELD

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a) Held, allowing the hospital’s appeal on liability and dismissing its appeal on
quantum:
b) The nature of a non-delegable duty was, in essence, a positive duty to ensure
that reasonable care was taken. However, non-delegable duties represented a
‘markedly more onerous obligation’ than just a positive duty with the
defendant taken to have assumed responsibility for the exercise of due care
by anyone to whom performance was delegated. When the features of
non-delegable duties as described in the Woodland case were applied to the
present case, it became clear that the first feature had been satisfied, ie
that Soo as a patient admitted and undergoing operation in the premises of
the hospital, was in an especially vulnerable position dependent on the
hospital against the risk of injury. In relation to the second feature,
although Soo was undoubtedly placed under the actual custody, charge or
care of the hospital while he was admitted therein there was no finding of
fact as to whether the hospital was negligent either in its selection of
practitioners, provision of facilities, or system of work. Further,
non-delegable duties are based on an assumption of responsibility, inferred
from the circumstances of the relationship between the plaintiff and the
defendant. However, the facts in this case point against the existence of such
an antecedent relationship. From the circumstances surrounding Soo’s
engagement of the doctor and admission to the hospital, it can be inferred
that Soo reasonably expected the operation to be conducted by the doctor
with due care, wherever the doctor referred him to do so. In respect of the
conduct of the operation by the doctor, the hospital had not assumed a
positive duty to protect the plaintiff from injury. Thus, the second feature in
the Woodland case formulation was not satisfied on the facts, in that the
hospital had not assumed a positive duty in respect of the conduct of the
operation
c) In addition to the second feature in the Woodland case not being satisfied on
the facts, the questions of how the hospital chose to perform the duty (the
third feature), the hospital’s delegation of an integral part of that duty (the
fourth feature), and the delegatee’s negligence in the performance of the duty
(the fifth feature) did not arise. Further, the policy argument that the hospital,
having undertaken a commercial enterprise for profit, had ‘deeper pockets’ to
which Soo should have recourse and ought to bear the risks of harm caused
in that enterprise ran contrary to the fundamental principles on which
non-delegable duties were based. This was because non-delegable duties
were not imposed based on financial means or profit. Thus, the defining
features of non-delegable duties identified in the Woodland case were not
present in the instant case, and accordingly the hospital was not liable for
breach of a non-delegable duty to the plaintiff
d) Based on recent decisions of the courts it is now apparent that the boundaries
of vicarious liability had been expanded to include tortfeasors who are not
employees of the defendant but stand in a relationship which is sufficiently
akin to employment but not to include those who were clearly independent

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contractors. In determining whether there was a relationship of employment

or akin to employment between the hospital and the doctor, it was necessary
to consider the practising agreement signed between the hospital and the
doctor, which provided, among others, that the doctor was an independent
contractor and not a servant of the hospital. In respect of the element of
control, it was clear from the doctor’s practising agreement that his services
were generally not subject to the hospital’s control or interference. Similarly,
the doctor was not directed or required by the hospital to conduct the
operation, but advised and arranged it in the course of his own practice at his
private clinic.
e) Thus, the doctor was an independent contractor of the hospital in conducting
the operation. Since the expansion of vicarious liability did not include ‘truly
independent contractors’ the relationship between the hospital and the doctor
was not sufficiently akin to employment so as to give rise to vicarious
liability for the doctor’s negligence in conducting the operation. The liability
for Soo’s injuries would lie solely with the doctor
f) From the line of cases cited it was clear that a plaintiff’s right of action
against a defendant for the full amount of loss suffered was not diminished or
extinguished where such loss was indemnified by an insurer, whether or not
the insurer chose to exercise its right of subrogation. Applying the principles
gleaned from the cases cited to the present case, the medical expenses for the
treatment of the injuries suffered by Soo were a natural and direct
consequence of the doctor’s negligent act, for which the doctor was
liable. Soo was entitled under his insurance policy to have the expenses paid
for by his insurer, having made a contractual arrangement with his insurer
and paid the premiums to provide for the very contingency. Soo’s contract
with the insurer was a collateral and extraneous matter, and did not
impinge Soo’s claim against the doctor for damages suffered as a direct
consequence of the tort. Thus, Soo retained his right of action against the
doctor for the full amount of damage suffered including those
expenses. Soo was entitled to his claim for medical expenses of
RM19,632.84 under both the common law and s 28A(1)(a) of the Civil Law
Act 1956

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STEVENSON , JORDAN AND HARRISON LTD V MCDONALD AND

EVANS ( 1952 )

1) FACTS

a) An engineer wrote a book that used knowledge that he acquired whilst he

was working for a firm in different capacities.
b) Section 5(1) of the Copyright Act 1911 provides that that if the author of a
work was under “a contract of service,” then the first owner of the copyright
shall be the person by whom the author was employed.

2) ISSUE

a) The question arose as to whether the person was considered to be an

employee under a “contract of service” for the purposes of allotting copyright
to the employer under Section 5(1) of the Copyright Act 1911.

3) HELD

a) The Court distinguished between a “contract of service” and “contract for

services” provided to the firm.
b) The Court applied the traditional ‘control test’ concerning whether the
employer has the right to control the way in which a person does the work.
c) The Court further stipulated that a person is considered an employee under a
“contract of service” when the work is integrated in that of the business and
considered an integral part of the business, whereas an independent
contractor for services is merely an accessory to the business and, thus, not
an employee.
d) On the facts of the case, the Court concluded that the engineer’s contract was
mixed between the two at different times. It held that the engineer was the
author of the work, but that specific material that he acquired whilst he was
an employee fell within the Copyright Act 1911 and should be excluded from
the publication.

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TWINE V BEAN’S EXPRESS LTD

1) FACTS

a) A lorry driver gave a lift to a third party who was then killed as a result of
reckless driving. Harpwood concludes that the reason that the employer was
found not to be found vicariously liable as the employer has derived no
benefit from the forbidden act.
b) Conversely, in the case of Rose v Plenty (1976) where a milkman was
assisted by a boy who was injured by negligence, it was found that Mr Plenty
was acting in the scope of his employment and therefore the employer was
vicariously liable. Harpwood states that as Rose was helping him to deliver
his milk, despite the employer forbidding this practice, Rose was performing
an act which ‘contributed to, or provided some benefit to the business of the
employer’ .
c) Applying the case law, as Wayne’s presence on the delivery round did not
provide any benefit to the employer, Dobbinghams will not be likely to face
a successful claim against them by Wayne.

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ZAKARIA B. CHE SOH V CHOOI KUM LOONG & ANOR (1986) 1 M.L.J.
324

1) FACTS

a) The main issue in this case was whether the learned President was right in
exempting the Government of Malaysia from vicarious liability in an action
against it by an injured party involving a motor vehicle allegedly driven by
its servant or agent (the defendant driver).
b) The sole question before the court was whether at the moment of collision,
the defendant driver was using the vehicle for his own private purpose, so as
to constitute a breach in his employment as driver, thus relieving the
Government from all liability.
c) In his reasons for decision the learned President held the issue central to this
appeal in favour of the Government because he found that the defendant
driver (Zakaria the appellant) “though driving the department's official car
with the permission of the head of department … was actually on his way
home for lunch and was not within his employment …”

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