A critical commentary about the Federal Court decision of Kerajaan Malaysia v Lay Kee Tee  1 MLJ 1 concerning its interpretation of section 5 and 6 of the Government Proceeding Act 1956 and its impact on vicarious liability claims against the Government.
The doctrine of separation of powers is a fundamental rule of governance and administrative law in this country. Although the doctrine is not followed strictly, the basic idea is adhered to especially in relation to the role of the legislature and the judiciary.
The doctrine basically means that the powers vested in the executive, legislative and judicial arm of the government remain separate from each other to avoid any potential abuse or concentration of power in one person or body.
In brief, the executive is responsible for the carrying out of the administrative functions of the government within the constitutional and legal framework of the country. The legislature is responsible for the creation of law. And the judiciary is responsible for the interpretation and application of the law.
In the decision of Kerajaan Malaysia v Lay Kee Tee  1 MLJ 1, the Federal Court interpreted sections 5 and 6 of the Government Proceedings Act 1956 (GPA56) to mean that in a tortious claim against the government, the government officer responsible for the alleged tortious act must also be made a party to the proceedings. Following from this, that government officer’s liability must be established first before the government can held vicariously liable.
Sections 5 and 6 GPA56 reads as follows:
“5. Subject to this act, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government.
“6. (1) No proceedings shall lie against the government by virtue of s. 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default would have lain against such officer personally.
“(2) Any written law which negatives or limits the amount of the liability of any public officer in respect of any act, neglect or default committed by that officer shall, in the case of proceedings against the Government under section 5 in respect of such act, neglect or default of such officer, apply in relation to the government as it would have applied in relation to such officer if the proceedings against the government had been proceedings against such officer.”
Section 6(1) GPA56 is clear; where a plaintiff successfully establishes that a government officer has committed a tort then the government will be liable. Nowhere in that provision or anywhere else in the Act is there an insistence that the government officer responsible for the tort must be named as a party in the proceedings. The key word in section 6(1) GPA56 is “would have lain“. This strongly suggests a hypothetical scenario that the court would have to consider and decide.
Section 6 merely codifies the common law position in relation to vicarious liability. If the legislature intended to require a government officer be named in a tort-based claim against the government they could have easily said so in the following manner:
“In any action in tort against the government, the government officer responsible for the alleged tortious act must be named as a party to the suit.”
Or if they wanted to be more cryptic:
“No proceedings shall lie against the government by virtue of s. 5 in respect of any act, neglect or default of any public officer, unless proceedings for damages in respect of such act, neglect or default have been laid against such officer personally.”
The role of the judiciary is simply to determine an issue of fact, namely, whether a government officer has committed a tortious act. It is their role to interpret the law as it stands; not to supplement the law as they please.
A plain and even purposive reading of sections 5 and 6 GPA56 clearly suggest that naming the government officer is not a requirement under the Act. Even if we consider interpreting the provisions utilizing the mischief approach, the court is really stretching the meaning of the law beyond recognition.
But let us consider further the consequence of the Federal Court’s decision on the parties. Is the failure to include the government officer really fatal to the Plaintiff’s claim? The answer can be found in Order 15 Rule 6(1) and (2) Rules of the High Court 1980 (RHC) which provides as follows:
“(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.
(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or an application-
(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b) order any of the following persons to be added as a party, namely-
(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter;
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.
(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause of matter.”
What this procedural provision provides is that even if you fail to include someone to the proceedings who should have been included that is not a reason for your claim to fail.
There are also other rules of procedure that provide that any technical non-compliance ought not to be deemed as material or fatal. For instance: Order 1A RHC, Order 2 Rule 3 RHC, Order 102 Rules of the Court of Appeal and Order 134 Rules of the Federal Court. It is clear from Order 15 Rule 6(1) RHC that a failure to include a party is not fatal to the proceedings which supports my submission that a non-joinder is a mere breach of procedural technicality.
The Federal Court offered only 2 sentences in their judgment to defeat the plaintiffs’ action:
“In this respect, I agree with the appellants that this is not just a case of joining wrong parties but bringing an action against the wrong parties. The four appellants are the sole parties here and if the action is dismissed against them there are no other parties against whom the case can proceed.”
The Federal Court failed to appreciate the issue it was supposed to deal with. The issue of misjoinder of party never arises as no party was wrongly named in the suit. The issue is of non-joinder of party and this was never addressed.
Aside from all the above, the law concerning vicarious liability has never made it mandatory that an agent be named as a party before the principal can be made liable: see Majlis Perbandaran PP v Lim Soo Seng  1 MLJ 162.
A related but important issue arising from the case of Lay Kee Tee is that prejudice and injustice surely was brought upon the Plaintiffs. This case concerned a representative action against the government and other government health agencies for their alleged inaction or slow reaction in containing the spread of the JE/Nipah virus. Due to the government’s slovenly action, some of the plaintiffs’ contracted the disease and others suffered deaths of their guardians as a direct result of succumbing to the disease.
The government agencies applied to strike out the Plaintiff’s claim on the ground that the primary tortfeasor was not named as a party in the suit. The Senior Assistant Registrar allowed the application. This was confirmed by the High Court Judge but reversed on appeal to the Court of Appeal. The Federal Court however affirmed the High Court decision and struck out the Plaintiffs’ claim. They would not have to file a fresh suit provided that the limitation period has not expired. If it has then they have no further recourse against the government.
There is another principle of jurisprudence that was overlooked; that is the principle of legal certainty. The Government Proceedings Act was enacted in 1956 and came into force in 1958. Sections 5 and 6 have never been amended since. The legislature had over 50 years to make it clear that the government officer be named as a party in a tort-based suit against the government but they did not do so.
For these reasons, the Federal Court has exceeded its jurisdiction and usurped the role of the legislature by making it a requirement that the immediate tortfeasor must be named as a party to the suit in a tort-based claim against the government. Tragically, the Federal Court ought to have regard to justice on the particular facts of this case which would have been to make a simple order allowing the Plaintiff’s to add the government officer as a party to the suit instead of simply throwing the Plaintiffs’ case out and possible leaving them with no recourse to justice. After all, Order 15 Rule 6(2) RHC allows the Court to do so on its own motion without requiring an application by the Plaintiffs.
LB: Darren is a legal assistant in a small firm based in Kota Kinabalu, Sabah. He takes an interest in politics, social justice, democracy and good governance. He is especially interested in the history and future of Sabah. As all junior lawyers do, he hopes to be a dependable lawyer in the very near future.
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