“Whether a private security company can be held vicariously liable for the violent conduct of its employee involving firearms during the course of employment?”

GMP KAISAR SECURITY (M) SDN BHD v. MOHAMAD AMIRUL AMIN BIN MOHAMED AMIR [2022] 1 LNS 2455

• This is a Federal Court appeal against the Court of Appeal’s decision which had previously affirmed the High Court’s decision.

• The Appellant, GMP Kaisar Security (M) Sdn Bhd (“GMP”) (who is the 2^nd Defendant in the court of first instance) entered into a contract with a private limited company to provide armed personal bodyguards.

• GMP had entered into a service contract with the 1^st Defendant [the Guard] (who did not appear before the Appellate Court) to be their employee.

• GMP then assigned the Guard as a personal security guard or “bodyguard” for an individual named, Dato Ong Teik Kwang.

• Due to the nature of its employment, GMP provided the Guard with an automatic pistol.

• On 1^st December 2016, during the course of his employment, the Guard had used the said pistol and shot Dato Ong Teik Kwang and several other civilians, including the Respondent, Mohamad Amirl Amin (“Amirul”) who were passing through the Tun Dr Lim Chong Eu Highway in Penang.

• Amirul had sustained the gunshot injury to the chest which led to nerve injuries coupled with Post-Traumatic Stress Disorder (PTSD). Subsequently, Amirul filed a claim in tort against the Guard and GMP, for vicarious liability.

• After a full trial, the High Court found in favour of Amirul’s claim. Dissatisfied with the High Court’s decision, GMP appealed against the High Court’s decision.

• By a majority decision, the Court of Appeal affirmed the High Court’s decision. Hence this present appeal. 

• In dismissing the Appeal, the Federal Court was of the view that Amirul need only prove a few factors to determine if GMP is vicariously liable;

        (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.  

• The Federal Court held that GMP, being the employer was the registered owner of the firearms with the carry and use licence issued by the Home Minister. Therefore, it was GMP who equipped the Guard with the pistol, thus creating the risk.

• Further to that, GMP was responsible for selecting and employing the Guard to function as a personal bodyguard thus enabling him to carry the said firearm.

• The Federal Court noted that the Guard’s actions may have been unauthorised by his employer but the Guard’s actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable.

• In conclusion, the Guard’s wrongful act was not independent from the task he was employed to do so by GMP.