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AM MOHAMUD (IN SUBSTITUTION FOR A MOHAMUD (DECEASED)) v.
WM MORRISON SUPERMARKETS PLC* [2016] 4 CLJ 329
SUPREME COURT, UNITED KINGDOM
LORD NEUBERGER OF ABBOTSBURY PSC; BARONESS HALE OF RICHMOND DPSC; LORD DYSON MR; LORD REED JSC; LORD TOULSON JSC
2 MARCH 2016
[2016] CLJ JT(5)

TORT: Vicarious liability - Principles and doctrine - Tests - The 'close connection' test - Whether an improvement upon the 'Salmond's formula' - Whether still sustainable and constituting good law - Whether to be broadened to 'representative capacity' test - Employee assaulting third party pursuant to deliberate act of misconduct - Whether employer vicariously liable

* Published by courtesy of Supreme Court of the United Kingdom (www.supremecourt.uk)

NOOR HAMID MOHD NOOR & SATU LAGI lwn. SALSURIANI ISMAIL [2016] 1 SMC 59
MAHKAMAH SESYEN, KOTA BHARU
ADLI ABD GHALIB HS
[SAMAN NO: A52-5-03-2014]
9 APRIL 2015

TORT: Kacau ganggu - Pemotongan bekalan elektrik - Kelakuan tuan tanah mengarahkan pemotongan bekalan elektrik - Sama ada penghuni premis mengalami kacau ganggu akibat tindakan tuan tanah - Sama ada status milikan hartanah masih belum diputuskan secara muktamad - Sama ada tuan tanah mempunyai pengetahuan bahawa pihak plaintif masih menghuni premis tersebut - Sama ada aktiviti kehidupan penghuni terganggu - Sama ada ganti rugi yang dipohon dibenarkan

Legal Network Series

CLJ 2016 Volume 4 (Part 3)

SUPREME COURT UK

AM Mohamud (In Substitution For A Mohamud (Deceased)) v. WM Morrison Supermarkets PLC
Lord Neuberger Of Abbotsbury PSC, Baroness Hale Of Richmond DPSC, Lord Dyson MR, Lord Reed, Lord Toulson JJSC
(Tort - Vicarious liability - Principles and doctrine - Tests - The 'close connection' test) [2016] 4 CLJ 329 SC [UK]

COURT OF APPEAL

Bohari Jaya & Ors v. Naim Land Sdn Bhd & Ors
Lim Yee Lan, Varghese George, Idrus Harun JJCA
(Native Law And Custom - Land dispute - Native customary rights - Whether NCR over land established) [2016] 4 CLJ 353 [CA]

JMJ Food & Beverages Sdn Bhd v. Mohamad Zukrillah Ismail & Ors
Abang Iskandar, Nallini Pathmanathan, Zamani A Rahim JJCA
(Tort - Trespass - Damages - Search and seizure - Whether raid in accordance with s. 40 Trade Descriptions Act 2011) [2016] 4 CLJ 368 [CA]

Okeke Nwabunike Christopher & Anor v. PP
Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Kamardin Hashim J
(Criminal Procedure - Appeal - Trafficking in dangerous drugs - Whether nexus between accused persons and drugs established) [2016] 4 CLJ 407 [CA]

Zulhasnimar Hassan Basri & Anor v. Dr Kuppu Velumani P & Ors
Alizatul Khair Osman, Abdul Aziz Abdul Rahim, Varghese George JJCA
(Tort - Negligence - Medical negligence - Whether there was breach of duty by defendants - Liability - Whether hospital vicariously liable) [2016] 4 CLJ 416 [CA]

HIGH COURT

Klass Corporation (M) Sdn Bhd v. MKRS Management Sdn Bhd
Lee Swee Seng J
(Civil Procedure - Amendment - Defence - Application after commencement of trial - Whether bona fide) [2016] 4 CLJ 438 [HC]

Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
Hashim Hamzah J
(Contract; Tort; Evidence - Breach of agreement - Interpretation of terms used - Negligence - Duty of care - Admissibility of exhibit - Failure to locate original exhibit - Adverse inference) [2016] 4 CLJ 455 [HC]

Uba Urus Bina Asia Sdn Bhd v. Quirk & Associates Sdn Bhd & Anor
Mary Lim J
(Civil Procedure; Arbitration - Stay of suit pending reference to arbitration - Whether court functus officio once order for stay perfected) [2016] 4 CLJ 468 [HC]

SUBJECT INDEX

ARBITRATION

Stay of proceedings - Application - Stay of suit pending reference to arbitration - Order of stay granted without conditions - Court directed defendant to refer dispute to arbitration or forgo its right to arbitrate during subsequent case management - Whether court functus officio once order for stay perfected - Whether subsequent directions during case management null and void - Arbitration Act 2005, s. 10(1), (2)
Uba Urus Bina Asia Sdn Bhd v. Quirk & Associates Sdn Bhd & Anor
(Mary Lim J) [2016] 4 CLJ 468 [HC]

CIVIL PROCEDURE

Amendment - Defence - Application to amend defence after commencement of trial - Whether explanation for delay reasonable - Whether application bona fide - Whether application prejudicial on other party - Whether other party could be compensated with costs - Whether application tactical manoeuvre to disguise counterclaim
Klass Corporation (M) Sdn Bhd v. MKRS Management Sdn Bhd
(Lee Swee Seng J) [2016] 4 CLJ 438 [HC]

Stay of proceedings - Application for - Stay of suit pending reference to arbitration - Order of stay granted without conditions - Court directed defendant to refer dispute to arbitration or forgo its right to arbitrate during subsequent case management - Whether court functus officio once order for stay perfected - Whether subsequent directions during case management null and void - Whether appropriate case for court to exercise revisionary powers and prevent substantial injustice - Courts of Judicature Act 1964, ss. 32, 33, 34, 35 & 36
Uba Urus Bina Asia Sdn Bhd v. Quirk & Associates Sdn Bhd & Anor
(Mary Lim J) [2016] 4 CLJ 468 [HC]

CONTRACT

Breach - Agreement - Agreement to provide services of 'static' guards - Whether understood to mean stationary - Whether service provider breached terms of contract when guard failed to patrol - Whether service provided breached agreement
Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
(Hashim Hamzah J) [2016] 4 CLJ 455 [HC]

Terms - Express terms - Interpretation of terms used - Agreement to provide services of 'static' guards - Whether understood to mean stationary - Whether court could impose implied terms into contract - Whether guard required to patrol
Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
(Hashim Hamzah J) [2016] 4 CLJ 455 [HC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Dangerous Drugs Act 1952, s. 39B(2) - Accused persons convicted for trafficking in 712.5g methamphetamine and sentenced to death - Drugs found in room occupied by accused persons - Whether arrested together - Whether had joint possession of drugs - Whether had full knowledge of drugs - Whether had control and custody of room and drugs - Common defence that drugs belonged to another man arrested together with accused persons - Whether defence probable - Whether there was nexus between accused persons and drugs - Whether conviction and sentence safe
Okeke Nwabunike Christopher & Anor v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Kamardin Hashim J) [2016] 4 CLJ 407 [CA]

EVIDENCE

Adverse inference - Failure to call witness - Whether important witness - Whether withholding of evidence arose - Whether adverse inference should be drawn - Evidence Act 1950, s. 114(g)
Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
(Hashim Hamzah J) [2016] 4 CLJ 455 [HC]

Exhibit - Admissibility of - Failure to locate original exhibit - Whether measures taken to search and to produce original exhibit satisfactorily explained - Whether copy of exhibit could be admitted in evidence in court - Evidence Act 1950, s. 65
Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
(Hashim Hamzah J) [2016] 4 CLJ 455 [HC]

NATIVE LAW AND CUSTOM

Land dispute - Native customary rights ('NCR') - Claim for - Whether location of NCR land identified - Whether 'Map/Plan X' formally admitted as evidence - Whether fundamental threshold evidentiary requirement met - Plaintiffs relied on material introduced by defendants to prove claimed NCR land - Whether 'fall back' approach condoned by courts - Whether plaintiffs established that NCR over land had been created before
1 January 1958
Bohari Jaya & Ors v. Naim Land Sdn Bhd & Ors
(Lim Yee Lan, Varghese George, Idrus Harun JJCA) [2016] 4 CLJ 353 [CA]

TORT

Negligence - Duty of care - Breach of duty - Agreement to provide services of 'static' guards - Whether understood to mean stationary - Whether service provider breached duty of care when guard failed to patrol
Metropolis Security Services Sdn Bhd v. Ansell Industrial & Specialty Gloves (M) Sdn Bhd & Anor
(Hashim Hamzah J) [2016] 4 CLJ 455 [HC]

Negligence - Medical negligence - Breach - Allegation of - Infant born with severe prenatal asphyxia and transient multi organ failure - Whether there was breach of duty on defendants' part in handling pregnant patient when she collapsed due to severe bleeding - Whether there was delay in caesarean section that caused infant to be born with birth defects - Whether patient was in labour at time of admission to hospital - Whether probable cause of collapse in patient due to uterine rupture or placenta percreta - Whether there was sufficient judicial appreciation of evidence by trial judge
Zulhasnimar Hassan Basri & Anor v. Dr Kuppu Velumani P & Ors
(Alizatul Khair Osman, Abdul Aziz Abdul Rahim, Varghese George JJCA) [2016] 4 CLJ 416 [CA]

Negligence - Medical negligence - Liability - Infant born with severe prenatal asphyxia and transient multi organ failure - Whether there was breach of duty on defendants' part in handling pregnant patient - Whether trial judge analysed evidence of facts on every action taken by nurses and doctors in hospital - Whether hospital vicariously liable
Zulhasnimar Hassan Basri & Anor v. Dr Kuppu Velumani P & Ors
(Alizatul Khair Osman, Abdul Aziz Abdul Rahim, Varghese George JJCA) [2016] 4 CLJ 416 [CA]

Trespass - Damages - Appellant operating non-halal restaurant - Display of banner and brochures advertising about Ramadhan buffet - Whether halal status of restaurant questionable - Search and seizure - Enforcement officers seized banner and brochures from restaurant - Whether raid was in accordance with s. 40 Trade Descriptions Act 2011 - Whether appellant misled customers into believing that restaurant served halal food - Whether caused confusion among Muslims - Entire raid televised and screened nationwide - Whether respondents' actions mala fide - Whether appellant suffered damages
JMJ Food & Beverages Sdn Bhd v. Mohamad Zukrillah Ismail & Ors
(Abang Iskandar, Nallini Pathmanathan, Zamani A Rahim JJCA) [2016] 4 CLJ 368 [CA]

Vicarious liability - Principles and doctrine - Tests - The 'close connection' test - Whether an improvement upon the 'Salmond's formula' - Whether still sustainable and constituting good law - Whether to be broadened to 'representative capacity' test - Employee assaulting third party pursuant to deliberate act of misconduct - Whether employer vicariously liable
AM Mohamud (In Substitution For A Mohamud (Deceased)) v. WM Morrison Supermarkets PLC
(Lord Neuberger Of Abbotsbury PSC, Baroness Hale Of Richmond DPSC, Lord Dyson Mr, Lord Reed, Lord Toulson JJSC) [2016] 4 CLJ 329 SC [UK]

LNS Article(s)

1. MAGNA CARTA AND COMPENSATION CULTURE* ^{[Read excerpt]}
   LORD DYSON, MASTER OF THE ROLLS [2016] 1 LNS(A) xl

[2016] 1 LNS(A) xl



UNITED KINGDOM

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MAGNA CARTA AND COMPENSATION CULTURE*

LORD DYSON MASTER OF THE ROLLS

(1) Introduction^[1]

1. My first idea was to give a lecture about the so-called Compensation Culture: what is it and should we be concerned about it? That is a topical subject which the organisers of the lecture thought would be of interest. But as we all know, 2015 is the 800^th anniversary of Magna Carta and it was pointed out to me that the Bodleian Library has no fewer than 4 of the 17 surviving pre-1300 engrossments of Magna Carta? So I was asked whether I could introduce a Magna Carta theme into my lecture? I did not want to give up on Compensation Culture. Hence the somewhat Delphic title of the lecture "Magna Carta and the Compensation Culture". The title was the easy bit.

2. On Christmas Eve 1166, Henry II’s youngest son John was born at Beaumont Palace in this great city. The Palace no longer exists, but set into a pillar on the north side of Beaumont Street is a stone which bears the inscription “near to this site stood the King’s Houses later known as Beaumont Palace”. John was not a good king. According to one historian he was not even a good ‘bad’ king’. Unlike his Angevin predecessors who were ‘effective tyrants’, John did not even qualify to earn that doubtful accolade. As we approach the end of 2015, we do not need to be reminded that the most enduring consequence of John’s reign is Magna Carta.

. . .

* Lord Dyson, Master Of The Rolls, The High Sheriff Of Oxfordshire's Annual Law Lecture (13 October 2015). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/2015/10/high-sheriffs-speech.pdf).

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2. COMMON ACTUS & MENS REA ^{[Read excerpt]}
   DR. ABRAHAM MATHEW* [2016] 1 LNS(A) xli

[2016] 1 LNS(A) xli



MALAYSIA

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COMMON ACTUS & MENS REA

DR. ABRAHAM MATHEW*

S. 38 on the Penal Code provides that where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. By s. 34, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone. In other words each of several persons liable for an act done by all, in like manner as if done by him alone.

S. 34 of the Code carves out an exception from the general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the “common intention” to commit the offence. The phrase “common intention” implies a prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time. The common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances existing thereto.^[1]

In law, common intention requires a prior meeting of the minds and presupposes some prior concert. Proof of holding the same intention or of sharing some other intention, is not enough. There must be proved either by direct or by circumstantial evidence that there was:^[2]

. . .

* LLB (Hons)(Lon), LLM (UKM), Ph.D (UKM) Advocate & Solicitors (Malaya).

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CLJ Article(s)

1. MANDATORY INSURANCE BUT NOT GUARANTEED COMPENSATION ^{[Read excerpt]}
   CHARLES NICHOLSON* & CHERYL NICHOLSON** [2016] 4 CLJ(A) xxi

[2016] 4 CLJ(A) xxi



MALAYSIA

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MANDATORY INSURANCE BUT NOT GUARANTEED COMPENSATION

CHARLES NICHOLSON* & CHERYL NICHOLSON**

Introduction

In the field of motor insurance, the Malaysian Parliament has enacted provisions under Part IV of the Road Transport Act 1987 to make it mandatory for motor vehicle users to have in force a policy of insurance in respect of the risks of bodily injury and death to third parties.

This article examines the current position of the law on compulsory third party insurance and highlights the legal challenges that courts are confronted with in interpreting legislative provisions to determine the scope of their applications when tasked to resolve disputes between claimants for guaranteed compensation under the scheme and insurers seeking to rely on these provisions to avoid liability. It focuses on the rights of passengers under the mandatory insurance scheme and the duty of the insurer to satisfy the judgment sum under s. 96 of the Road Transport Act 1987.

Compensation Under Compulsory Third Party Insurance Scheme

A contract of insurance is described as a contract whereby one party (the insurer) in consideration of a sum of money called the premium agrees to indemnify another (the insured) against a loss which the insured may suffer upon the occurrence of a specified uncertain event or to pay a certain definite sum of money on the happening of the particular event. The contract is entered into with reference to the occurrence of some specified event, the happening of which involves some element of uncertainty.^[1] Similarly, a motor insurance policy effected by a motorist is essentially a contract between the policy holder and the insurer. At common law, only a person who is a party to a contract is entitled to sue on the contract. This rule of privity of contract was restated by Lord Haldane in Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd:

In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.^[2]

. . .

* University Tunku Abdul Rahman, Faculty of Accounting and Management, Malaysia.

** Taylor's University, Taylor's Business School, Malaysia.

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