1.

0 INTRODUCTION

1.1 This submission is filed on behalf of the Respondent together
with the Respondents Bundle of Authorities (RBA) duly
tabbed.
1.2 This is an appeal against the decision of Mr. Justice Hamid
which arises from proceeding commenced in the High Court,
where the rulings was in favour of the respondent, Miss
Petunia against appellant, St Laurie Girls School for damages in
vicarious liability.
1.3 The fundamental reason for this application before the
honourable Yang Arif is that the verdict made by the learned
judge, Mr Justice Hamid was erred in law. The appellant
appeals on Two(2) grounds which are:
1.3.1 The Masks were not employees but independent
contractors thus making the school not vicariously liable
for their action.
1.3.2 The Masks put themselves outside the course of their
employment when they disobeyed Miss Crabs
instruction thus proving the School not liable for their
actions.







2.0 BACKGROUND FACTS
2.1 The Appellant, St Laurie Girls School is a small rural
boarding school which Miss Crab is the headmistress.
December last year, all the catering staff who were in
charge came down with flu and took a weeks sick leave,
thus rendering the school canteen operation halted.
2.2 The Appellant(Miss Crab), contacted a local pub lanlords,
Mr and Mrs Mask, and engage with them a short
agreement which they were designated as Fixed-term
contractors. The conditions of the contract was that they
were to begin work on 5
th
of December for seven days,
they were paid a lump sum of payment based on the
hours they work.
2.3 The Appellant vetted the menus and supervised the
service. The Masks cooked in the school kitchens and
brought fresh ingredients with them.
2.4 On 11
th
of December, The Masks prepared Christmas
dinner for the school pupils, and they were given a strict
instruction by the Appellant(Miss Crab) not to include
any nuts in the meal. Despite the strict instruction made
by the Appellant, The Masks decided on their own to add
walnuts to the turkey stuffing. As a result of their tortious
act, Miss Petunia(Respondent), a pupil at the School
suffered allergic reaction and were admitted to Hospital.
2.5 The Respondent(Miss Petunia) took action against St
Laurie Girls School under the torts of vicarious liability.
And Mr Justice Hamid held that the School were liable on
the basis that.
2.5.1 The masks were employees of the school and
therefore the school could be held vicariously
liable for their actions.
2.5.2 In disobeying Miss Crabs instructions, the Masks
were not acting on a frolic of their own but in the
course of their employment.
2.6 The Appellant appeals with leave to the Appeal Court on
two grounds which are:
2.6.1 The Masks were not employees but
independent contractors thus making the
school not vicariously liable for their action.
2.6.2 The Masks put themselves outside the course of
their employment when they disobeyed Miss
Crabs instruction thus proving the School not
liable for their actions.













Issue

3.0 GROUND NO.1

3.1 The Masks were employees of St Laurie Girls School.

According to 'Law of Tort in Malaysia' by Norchaya Talib:

"Vicarious liability refers to a situation where A is liable to C
for damage or injury suffered by C due to the negligence or
other tort committed by B. A need not have done anything
wrongful and A further need not owe a duty of care to C. The
most important condition for imposing liability on A is the
nature of relationship between A and B and the tort committed
by B is connected to the nature of this relationship. This
relationship is usually that of master and servant or employer
and employee and as between a principal and his agent".
1


The doctrine of vicarious liability applies to an employee but
not to an independent contractor under a 'contract for service'.

Thus, vicarious liability is where one person is held liable for
the torts of another, even though that person did not commit
the act itself. The most common form of vicarious liability is
when employers are held liable for the torts of their employees
that are committed during the course of employment.


1
Talib, N. (2010). Law of torts in malaysia. (3
rd
ed., p.411) Petaling Jaya: Sweet & Maxwell Asia.
4.2 In establishing the torts of Vicarious Liability :-
4.2.1 The tortfeasor must be an employee of the master

4.2.2 The employee must have committed a wrongful, or
tortious act

4.2.3 The tort must have been committed in the course of
employment.


4.3 It must be noted the importance of distinguishing an employee
with an independent contractor. A person who is in a
contract of service is a servant or employee whereas one
who is in a contract for service relationship is an
independent contractor. General rule is that an employer is
not liable for the tort of his independent contractors.

4.4 The arguments:

4.4.1 In distinguishing whether the tortfeasor is an
employee or an independent contractor, it is crucial
to determine the type of contract.

4.4.2 'Contract Of Service' Or 'Contract For Service': Judicial
Interpretation

Section 2 of the Employment Act 1955, defines
'contract of service' as "any agreement, whether oral or
in writing and whether express or implied, whereby one
person agrees to employ another as an employee and
that other agrees to serve his employer as an employee
and includes an apprenticeship contract".
2


In other words, a contract of service is one in which a
person undertakes to serve another and to obey his
reasonable orders within the scope and the duty of the
undertaking.

4.4.3 Fixed Term Or Temporary Contracts

(i) Fixed Term Contract

A contract of employment is deemed to be fixed-term,
when it stipulates the duration or period of the
contract. Normally there will be a date stated as to when
the contract will come to an end and it will automatically
end upon the expiration of the period specified therein.
There may be many reasons for engaging workers for a
short period on fixed term contracts such as seasonal
work, to fill gaps caused by temporary absence of
permanent staff on parental or long term leave and the
performance of specific tasks such as research projects
funded from outside the employer's undertaking.

Section 11 of the Employment Act 1955 (Revised

2
Section 2 of the Employment Act 1955 (Revised 1981)
1981), recognizes that a contract of service may be for a
specified period of time or for a specified piece of work.
3


4.5 Applying the Control Test formulated by Lord Thankerton
in the case of Short v. J. & W. Hendersen Ltd
4
:
4 Factors:
1) Power of selection by employer
2) Power in determining salary or other remuneration
3) Power or right of the employer to control the method in
which the work was done
4) Power and right of the employer to terminate the
employees services.
Refer to :
Short v. J. & W. Hendersen Ltd 1946 SC(HL) 24
Which was followed and applied in Malaysia in..
Employees Provident Fund Board V Ms Ally & Co Ltd -
[1975] 2 Mlj 89
Bata Shoe Co (Malaysia) Ltd v Employees Provident
Fund Board [1967] 1 MLJ 120
Chye Hin Co (Perak) Ltd v Public Prosecutor [1960] MLJ
137

4.5.1 Bata Shoe Co (Malaysia) Ltd v Employees Provident
Fund Board [1967] 1 MLJ 120 (2011) 3 MLJ 506 :

The court held that the word 'employer' is defined in the
same section as a 'person with whom an employee has

3
Section 11 of the Employment Act 1955 (Revised 1981)
4
(1946) 62 TLR 427
entered into a contract of service and includes (a) the
manager, agent or person responsible for the payment
of salaries or wages to an employee.' A contract of
service is one in which a person undertakes to serve
another and to obey his reasonable orders within the
scope and the duty of the undertaking. Whether or not
a particular contract is a contract of service is a question
of fact, depending upon the terms of the engagement, the
method of remuneration, and the power of
controlling and dismissing the workmen, although
none of these factors is by itself conclusive.


4.6 In the case of Chye Hin Co (Perak) Ltd v Public Prosecutor
[1960] MLJ 137 the court noted that to distinguish between an
independent contractor and a servant one of the tests is
whether or not the employer retains the power, not only of
directing what work is to be done, but also of controlling the
manner of doing the work.



APPLICATION
4.7 Here from the facts of the case, it can be understood that Miss
Crab, who is the headmistress of the school had contacted the
local pub and thus had signed a short agreement with the pub
landlords, Mr and Mrs Mask under which they were the
designated fixed-term contractors, which means that Miss
Crab has the power of selection over determining who could
perform the service, although the fact they were just being
employed for a certain period of time which is for only seven
(7) days, it does not render the service to be classified as
independent contractor as applying Section 11 of the
Employment Act 1955 (Revised 1981),the act recognizes
that a contract of service may be for a specified period of time
or for a specified piece of work.

4.7.1 The suitable test that could be apply here to determine
whether the Masks were employees or independent
contractors is the Control Test as being formulated in the
case of Short v. J. & W. Hendersen Ltd.
It is reasonable to say that the power of selection,
determining the salary as well as terminating the service
of the Masks were clearly vested upon the shoulders of
the School (Appellant), it is clear that based on the facts
the appellant has the power and right to control the
method which is to be executed when Miss
Crab(Appellant) herself vetted the menus, supervised the
service, and control the method of the service by giving
clear instructions on not to include walnuts into the
menu that caused the commission of the tortious act. The
Appellant has specifically conveyed a strict instruction to
the Masks, to not include any walnuts in the meal, which
they eventually did.
4.7.2 The Appellant also shown to have the power in
determining the Masks salary based on the fact that the
Masks were paid in a lump sum payment based on the
hours they work. Applying Section 2 of the
Employment Act 1955 (Revised 1981) defines wages
as "basic wages and all other payments in cash payable to
an employee for work done in respect of his contract of
service. Therefore, it is established that based on the
elements of control test and the definition of wages in
Employment act, the contract is a contract of service,
making the Masks as the employee of the Appellant.
4.7.4 Thus, as it is well established that there exist special
relationship of employer-employee between the
commissioner of the tortious act(The Masks) and the
Appellant. Under the torts of vicarious liability, the
employer(Appellant) is therefore liable for the tortious
act committed by the employee(The Masks).