4. Tom works as a lorry driver for Sam.

The previous week, Tom was ordered by Sam to deliver

vegetables to Melaka. The delivery was made under a contract of carriage with Syarikat Bendi
Ranum in Rawang. During the delivery of the vegetables, Tom had asked his nephew Blu, who had
just finished the SPM examination, to drive the lorry while accompanying him to Melaka. Tom
intended to train Blu to become a lorry driver so that in future he could work with Sam. Tom’s action
was known to Sam but Sam had never admonished Tom so far, even though Sam had warned all his
workers not to bring any helper whilst on duty. When they approached Seremban, Tom told Blu to
turn into the town from the highway. Tom intended to deliver a parcel to his aunt who lives in
Seremban. When in Seremban, Blu did not stop at a traffic light. As a result he collided with Mona’s
car. The car was badly damaged and Mona suffered injuries to her head. Since the lorry was not
badly damaged, Tom continued their journey to Melaka. When they arrived in Melaka, Tom made a
mistake of delivering the vegetables to Syarikat Bayam Merah. Actually, Tom was supposed to
deliver them to Syarikat Bayam Hijau. The manager of Syarikat Bayam Merah accepted the delivery
even though he was aware that Tom had made a mistake. The manager immediately sold the
vegetables on the same day. Discuss the tortious liabilities that might arise from the events above.

In this case, the parties involved are Mona as the plaintiff and Sam as
the defendant and Syarikat Bayam Hijau as the plaintiff and Sam as the
defendant. The issues arise are:
i) Whether Sam is liable under vicarious liability under the tort of
negligence to Mona for the negligent driving of Blu
ii) ii) Whether Sam is liable under vicarious liability under the tort
of negligence to Syarikat Bayam Hijau for the negligently
delivered the vegetables to other company
The first issue in this case is whether Sam is liable under vicarious
liability under the tort of negligence to Mona for the negligent driving
of Blu. The sub issue is whether Sam is an employee or an
independent contractor of Tom. There are three tests that can used to
determine it but in Malaysia, the control test is preferred. According to
the case of Zedtee Sdn Bhd v Maduraya Sdn Bhd, the plaintiff was
an independent contractor employed to extract timber from Area 1.
The defendant obtained a license to extract timber from Area 2 and it
employed Bawan as an independent contractor to extract timber for it.
Bawan encroached into Area 1 and had cut and felled over 600
pieces of timber logs. Bawan supplied and maintained all labors,
toolsm equipment, fuels, machinery and materials in discharging his
obligations to the defendant. The court relied on the case of
Honeywill Ltd v Larkin Bros which held that the determination of
work and control over method of work indicates a servant or agent but
if the employer, while prescribing the work to be done, leaves the
manner of doing it to the control of the latter is an independent
contractor. If the person is an employee, the employer will have
control over him but not the independent contractor.
In this case, Tom was ordered by Sam to deliver the vegetables and
he himself did not provide the lorry for the delivery. Tom also
controlled the details of the work because Sam couldn’t decide
himself which company he was delivering to but based on the
instruction of Sam. Although Tom did ask his nephew, Blu to drive the
lorry but he did not hire him for the job, as he wanted to train him to
become a lorry driver in the future. Thus, there is a special
relationship between Sam and Tom, Tom is the employee of Sam.
The second sub issue is whether Tom was acting inside his course of
employment when all the workers were warned by Sam not to bring
any worker whilst on duty. According to the case of Rose v Plenty, a
worker acting against the instructions of his employer, employed a
thirteen years old boy to help them deliver and collect milk bottles.
The boy suffered injuries due to the negligence of the worker and the
employer was held vicarious liable as the prohibition only affected the
manner or method in which the worker was to perform his duties as a
milkman, and the tort occurred while he was delivering milk, which
was what he was employed to do. Based on another case of Zakaria
b Che Soh v Chooi Kum Loong, the plaintiff was a driver with a
research institute in Ipoh. After sending the director home, he drove
home for lunch and an accident occurred on the way. The court found
the state government liable. Even though the purpose of that trip did
not have anything to do with his employer, but it was something was
expected to be done in the course of his employment and thus the
accident occurred within the course of his employment. The test is
that whether the conduct of the worker is reasonable and it is not too
remote from the contemplation of both parties to take act out the
employment. In this case, although the workers were warned not to
bring any worker while they were on duty, but the fact that Tom was
bring Blue out for duty was known to Sam but he did not admonish
Tom. Furthermore, the accident happened when Tom intended to
send a parcel to his aunt, but it was expected that during the delivery
of the vegetables, things might occur if the employee was negligent in
driving. Tom was doing for his own benefit but it was still within his
course of employment because right after the sending of the parcel,
they were still heading to Melaka for the delivery as it was what Tom
was employed to do which was to drive the lorry. Due to the negligent
driving of Blu, Mona suffered injury and she can claim against Tom
for vicarious liability.

The second issue is Whether Sam is liable under vicarious liability

under the tort of negligence to Syarikat Bayam Hijau for the
negligently delivered the vegetables to other company. The
commission of a careless act may still be within the course of
employment provided the worker is not ‘on a frolic of his own’ and the
employer will be held liable if the employee is careless with regard to
the mode of doing authorized work. According to the case of Lim Ah
Tong v Ang Yau Chee, the plaintiff’s son was killed due to the
careless driving of D1, who was on an errand for his employers, D2.
The court held that since the journey was undertaken for the benefit
of the employers, they were vicariously liable for the negligence of
D1.
In this case, driving the lorry to deliver the vegetables was what Tom
was employed to do in the first place. He was negligently delivered
the vegetables to the wrong company which was Syarikat Bayam
Merah but he was supposed to deliver to Syarikat Bayam Hijau.
Although the manager was the one who accepted the vegetables and
sold it on the days caused some loss to Syarikat Bayam Hijau, but if
Tom was delivering to the right place, such thing would not have
happened. Thus, Tom was still acting in the course of his employment
although he was careless in delivering the vegetables. Syarikat
Bayam Hijau could take an action against Sam for vicarious liability
as he is the employer of Tom.