DALAM MAHKAMAH RAYUAN, MALAYSIA (APPEAL JURISDICTION) RAYUAN SIVIL NO.: N-04-322-09/2012
PROJEK LEBUHRAYA UTARA-SELATAN
BERHAD … PERAYU
PERMAS FORWARDING AGENCY SDN BHD … RESPONDEN
(IN THE CIVIL APPEAL No: 11(B) -6-2011 AT HIGH COURT OF
MALAYA AT SEREMBAN
PERMAS FORWARDING AGENCY SDN BHD … PLAINTIF
PROJEK LEBUHRAYA UTARA-SELATAN
BERHAD … DEFENDAN
RAMLY BIN HAJI ALI, HMR DAVID WONG DAK WAH, HMR MOHD ZAWAWI BIN SALLEH, HMR
DAVID WONG DAK WAH JCA
1. This appeal raises a short and interesting point of law and that is whether an employer is vicariously liable for non-payment of road
tolls in the context of sec 8(2) of the Federal Roads (Private Management) Act 1984.
2. The factual matrix upon which the issue of law arises is this. The Respondent was sued by the Appellant in respect of unpaid tolls amounting to RM19,654.00 in the Magistrate Court. The Appellant is granted a concession to construct and maintain the North-South Expressways and is also authorized to collect tolls from users of the Expressways. It is undisputed that the employees had used the Expressways and through their usage avoided and failed to pay the relevant tolls payment amounting to RM18,654.00
3. The Appellant succeeded in their claim before the Magistrate Court. However on appeal to the High Court, the Magistrate Court’s decision was reversed and it is the High Court decision which is the subject of this appeal.
Magistrate Court’s reasons:
4. The learned Magistrate found that the Respondent was responsible for the act of their employees premised on sec 8(2) of the Federal Roads (Private Management) Act 1984 and the principle of vicarious liability.
High Court decision:
5. The High Court reversed the decision of the Magistrate Court on the following grounds:
i. It is not the intention of sec 8(2) of the Federal Roads (Private Management) Act 1984 to affix liability on the owners of vehicles for tolls not paid by the drivers using the highways.
ii. The principle of vicarious liability is not applicable in this matter as there is no proof that the Respondent had authorized its employees not to pay the tolls.
Our grounds of decision:
6. The issue as set out in the opening paragraph calls upon us to interpret sec 8(2) of the Federal Roads (Private Management) Act 1984 in the context of the Act itself.
7. It is trite law that a statute should be read as a whole. What that means is simply that each clause in a statute is to be ‘construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute’ ( see per Lord Davey in Canada Sugar Refining Co. Ltd v. R  AC 735 at p. 741).
8. In our view the relevant provisions of the Federal Roads (Private Management) Act 1984 are these:
Section 2 (1):
“It shall be lawful for the Minister responsible for works by order published in the Gazette to authorise any person who has agreed to construct, re-construct, upgrade, repair or maintain any road, bridge or ferry which has been declared or is to be declared a Federal road, bridge or ferry under the Federal Roads Ordinance 1959 or which is in any Federal Territory to demand, collect and retain tolls for such period as may be specified in the order for the use of such road, bridge or ferry by any person or class of vehicles
Section 8(1) and (2):
“(1) Any person who uses or attempts to use any road, bridge or ferry in respect of which an order under section 2 has been made without payment of the tolls prescribed in the order shall be guilty of an offence and shall, on conviction, be punished with a fine of not less than two thousand ringgit and not more than five thousand ringgit.
(2) Notwithstanding subsection (1) tolls due and payable by virtue of an order made pursuant to section 2 may be recoverable by action at law by the person so authorised under the said section.
(3) Section 173A of the Criminal Procedure Code shall not apply in respect of an offence under subsection (1).
(4) In every case in which the offender is sentenced to pay the fine under this section the Court passing the sentence shall direct that in default of payment of the fine the offender shall
be imprisoned for a period not exceeding one year, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence.”
9. Sec 8(2) is a section which empowers the Appellant to recover the unpaid tolls by way of a civil action irrespective of any criminal proceeding which may be brought against the person using the road. In another word, this section exists independent of sec 8(1) which empowers the relevant authority to charge the person who had used the road and failed the relevant tolls.
10. Hence we are not in agreement with the contention of learned counsel for the Respondent when he submitted that to affix liability of the Respondent would amount to making the Respondent criminally liable for the acts of its employee. It is of course trite law that prima facie a master cannot be made criminally liable for acts of its servants.
11. Be that as it may, we agree with contention of learned counsel for the Respondent that whether the Respondent should be responsible for the unpaid tolls, regard must be given to the wordings of the provisions set out above. Sec 8(2) is the primary provision and it makes mention of an order made pursuant to section 2. Reading sec 2 in its natural meaning, there is little doubt in our mind that the concessioners (in this case the Appellant) are empowered only to levy tolls on person who uses such road or in other words, the duty to pay is affixed on the users of the roads.
12. It is also our view that had the legislature wanted to affix statutory liability on owners of vehicles using the roads, clearer words would have used and that can be done by easily defining the word ‘user’ to include the registered owners of the vehicles. Further since there may be criminal element ramifications if we were to interpret the word ‘user’ to include the registered owner, we decline the invitation of the learned counsel Appellant to adopt his interpretation.
13. Further to accede to the interpretation advanced by the Appellant would have great ramification to the public at large as all registered owners would be liable for debts incurred by the drivers of the vehicles which acts they had not authorized or aware of. That by any definition would lead to inconvenience, injustice, absurdity or unreasonableness. In construing any legislation, the general presumption is that legislature’s intent is to ensure legislations enacted by them avoid such consequences. (see Mangin v Inland Revenue Commissioner (1971) 1 All ER 179.
14. Another instructive case is that Vacher & Sons, Limited v London Society of Compositors (1913) AC 107 where Lord Atkinson in the House of Lords said this:
“It is no doubt well established that, in construing the words of a statute susceptible of more than one meaning, it is legitimate to consider the consequences which would result from any particular construction, for, as there are many things which the Legislature is
presumed not to have intended to bring about, a construction which would not lead to any one of these things should be preferred to one which would lead to one or more of them. But, as Lord Halsbury laid down in Cooke v. Charles A. Vogeler Co (1901) AC 102 at 107, a Court of law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships’ House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievous.”
Lord Esher in Reg. v. The Judge of the City of London Court
(1892) 1 QB 273 at page 290 states the principle thus:
“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity. In my opinion, the rule has always been this – if the words of an Act
admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretationSo that if in this case the words in this section are plain and are not controlled by other portions of the statute, the contention that to interpret them according to their natural and ordinary meaning would result in placing trade unions above the law is, for the purposes of the judicial decision of this case, entirely irrelevant. We have nothing to do with it. I think the language is plain, and therefore abstain from expressing any opinion on the character of the enactment or the results it will bring about.”
15. In our present appeal, there are of course no express words in the Federal Roads (Private Management) Act 1984 evincing any intention to make registered owners of vehicles liable for unlawful acts of their employees or agents. Hence it would be improper to infer that intention as proposed by the Appellant when that interpretation would give rise to an unreasonable and unjust legislation which would contravene the general presumption against legislating unfair laws.
16. Learned counsel for the Appellant in his submission places much emphasis on the principle of vicarious liability and urges us to apply it in the context of the circumstances before us. Learned counsel also referred us to the case of Hollis v Vabu Pty Ltd 207 CLR 21,
a decision of the High Court of Australia. We have read the judgment and are of the view that it is distinguishable as it related to a breach of a tortious liability (negligence) by the employee. Unlike in this appeal we are concerned with breach of a statutory liability and as such the common law principle of vicarious liability cannot be imported into an area of law which is covered by a statute. As pointed out earlier, only clear words within the legislation itself can affix liability on the Respondent.
17. Finally our interpretation set out above would not breach one of canons of construction of legislation and that is to ensure that all the provisions in the Act as a whole are consistent to each other.
18. For reasons stated above, we dismissed the appeal with costs of RM5000.00 to the Respondent and ordered that the deposit to be refunded to the Appellant.
Dated: 24th July 2013 (DAVID WONG DAK WAH)
Court of Appeal Malaysia
For the Appellant : Mathew Thomas Phillip with T Thiru Tetuan Sivamohan Rajendran & Co.
For the Respondent : Harpal Singh K Pasupathy with Reny Rao Tetuan A. J. Ariffin, Yeo & Harpal
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision.