Malaysian court upholds civil liability for security firm after employee-bodyguard shot, killed own client

With attenuated liability theories arising from contemporary gun violence proliferating—in lawsuits against parents, schools, sellers, and government—a case of vicarious liability for gun violence in Malaysia caught my attention.

In October 2022, the Malaysian Federal Court affirmed a liability award to a shooting victim against the security firm that employed the shooter.

In 2016, businessman Ong Teik Kwong, whom police investigated for ties to organized crime but never charged, was in a car in George Town, Penang Island, Malaysia, when he got into an argument with his bodyguard, Ja'afar Halid. Halid shot and killed his client Ong, then proceeded to shoot seven other people, killing two.

One of the surviving shooting victims was the plaintiff in the instant case, Mohamad Amirul Amin Bin Mohamed Amir. A news videographer for Radio Televisyen Malaysia, Amirul was passing on a motorcycle and stopped to aid one of the victims. He told the courts that he did not know Halid was armed. Halid shot Amirul. Star TV News reported the lower court outcome in 2019.

Halid was tried, convicted and sentenced to death by hanging. I can find no subsequent report of whether or when execution occurred.

Amirul meanwhile won compensation against GMP Kaisar Security upon a theory of respondeat superior, or vicarious liability running through employment. The Malaysian legal system is a hybrid of colonial common law and customary and Islamic law. The law of obligations with regard to respondeat superior is substantially a product of British common law, and the key test for respondeat superior is the same: An employer may be held liable for the acts of an employee within the scope of employment.

My torts class and textbook introduce respondeat superior in the study of negligence, when many theories of vicarious liability become salient. It's important for students to learn, though, that respondeat superior is not a negligence doctrine. It operates irrespective of culpability.

That said, it's often difficult for plaintiffs to prove respondeat superior liability when an employee commits an intentional act, especially a criminal act of violence. Criminal violence is not usually part of someone's job, so the employee-perpetrator acts outside the scope of employment.

That's what makes the Malaysian case interesting. On the one hand, as a bodyguard, Halid had one of those rare jobs in which committing an act of violence, even a murder, might come within the scope of employment. On the other hand, Halid killed the very man he was supposed to protect.

Those facts suggest that the case would fail upon the usual analysis. But the lower and higher Malaysian courts focused on the carrying of a firearm rather than on the act of killing. In Malaysia, unlike the United States, there is no right to bear a firearm. Licenses are attainable, but the system is restrictive.

Federal Court Judge Harmindar Singh Dhaliwal reasoned:

Now, Jaafar's actions may have been unauthorized by his employer but the pertinent question to ask is whether Jaafar'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. On the facts of this case and for the reasons we have already stated, the answer must be yes. To put it in another way, Jaafar's wrongful act was not independent from the task he was employed to do.

Relying on a Canadian precedent, the court offered a further rationale that squares well with the scope of civil liability in American tort law.

The Supreme Court of Canada ... explain[ed] that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is a risk to another or to others within the range of apprehension.

The above-referenced cases arising from gun violence in the United States involve direct liability, not vicarious liability. They allege that the defendants were themselves negligent, and that their negligence proximately caused the later intentional shootings. The causal link is not easily proved.

Despite the distinction, there is a common concept animating the imposition of liability upon the attenuation of employment and upon the attenuation of causation. Scope of employment posits essentially that the pursuit of the employer's ends, if not the culpability of the employer, proximately resulted in the employee's injurious act.

All the same, the Malaysian Federal Court's conclusion would be difficult to reach on comparable facts in the United States. With gun possession a matter of license rather than right, it was easier for the Malaysian court than it would be for an American court to focus on the entrustment of the firearm rather than the use of it. As a matter of strict vicarious liability, rather than direct negligence, an American court would not be persuaded easily to effect the same shift in focus.

The case is GMP Kaisar Security v. Amirul, Civ. App. No. 02(f)-44-07-2021(P), [2023] 1 MLRA 99 (FCJ Oct. 18, 2022).