If a worker hurts you by accident in Malaysia, do you sue him or his boss?

There’s getting food poisoning, getting hit by a lorry, and in the feature image’s nightmare scenario – getting your car crushed by a pile driver. Being hurt by someone else’s carelessness is never fun. In most cases, you’ll need some time to recover, and you might have to take a day off. But in extreme situations, you might need medical attention and even get hospitalized (hopefully this is never the case). It could just be bad luck that you got caught up in an accident, but what if it was because of an irresponsible worker?

[READ MORE - If you bought spoilt or contaminated food, what can you do?]

If you’ve ever been the victim of a worker’s carelessness, you’d understandably be angry that you had to pay the price for their mistakes. You might want to go after the worker who injured you, but you also realize he probably has no money to pay you even if you drag him to court! Are you now stuck with an expensive medical bill you have to pay by yourself?

Firstly, you should know that in minor cases, it’s best to avoid a legal battle and settle the matter privately as it’s costly and time-consuming. But if you had to be hospitalized for a few weeks after a really bad accident, you might not know that you can actually sue the worker’s boss.

Sometimes, the boss has to take the fall for their employees

Let’s go back to the food poisoning example. The server brings you your food, which was prepared by the cook, and both of them are employed by the owner. So who should you sue?

The cook might be the one who prepared your food using unclean ingredients, or maybe the server’s hands were unclean when he handled your plate. In either case, if you end up having to sue, you should just go after the owner of the restaurant instead because of a legal rule called “vicarious liability”.

The reason for this rule is from the UK case of I.C.I. v Shatwell, that employers hire workers for their own benefit, and so must be accountable for their workers’ mistakes if others are harmed. You can also see it as bosses being responsible for their workers, and are then responsible for their workers’ actions. Or you could also be quite blunt and say that the boss has the money to compensate you, and the worker doesn’t.

There’s actually a ton of technical rules and litmus tests to determine whether the boss can be held accountable for his worker’s wrongdoings, but we’ll condense it down to a few basic rules here.

If the worker was just a freelancer, the boss might not be responsible

The general rule for vicarious liability is that bosses are only responsible for the mistakes of their employees, but not the freelancers (independent contractors) that they hire. The law uses some of the following criteria to determine if someone is considered an employee:

1. They’re under the control of the employer (they don’t call the shots over how they do their work)

2. They play a relevant part in the employer’s business (like cooking food in a restaurant, but a medicine company might not be responsible for the delivery service they hire)

3. There are safety risks to the public in their work, which stands to benefit their boss (like a repairman in charge of street lights)

If a person can be considered an employee, then their boss can be held vicariously liable for their mistakes. So if you get hurt because of an employee’s carelessness, you can go after their boss, which will give you a better chance at getting your medical bills compensated.

If a freelancer (aka independent contractor) was involved, they are usually personally responsible for any accidental harm they cause to others. They work in their own style and they are usually only involved with their employer for a one-off job - their employer is not involved in the decision-making and is not responsible. Think of grass cutters, electricians, and even consultants.

There are some exceptions like extra dangerous situations where the employers are also responsible for their freelancers’ actions - but we won’t get into those details for now.

But the boss can’t be blamed if the worker was off-duty

Bosses are not responsible for every single decision that an employee makes, especially not when they’re off-duty. If an employee is at home and he accidentally sets fire to his neighbour’s house, it would be taking it too far to say that his boss is to blame.

That’s because vicarious liability only applies when the employee makes a mistake when he’s performing his duties, or as the law calls it - when he’s in the course of employment. The legal cases about this have been rather technical and complex, but basically the employer will be responsible if:

1. The employee was doing their job carelessly

2. The employer let the employee do something illegal

3. The employee did their job in a way that was prohibited (eg. getting sales by cheating people)

4. The employee was doing something prohibited, but it was for the employer’s benefit (like hurting a customer that was mistaken as a thief)

Outside these scenarios, employees are usually considered “not on the job”. A boss can’t be responsible for his security guard if the guard suddenly starts operating the cashier counter. The important point is that employers will not be responsible for anything their employees are not allowed to do. In the case of Iqbal v London Transport Executive, a bus conductor was driving the bus and injured another employee. The bus company was not held responsible because the conductor was not supposed to be driving in the first place (the bus driver was).

In case you’re still wondering how the “course of employment” works, here are is a real incident to illustrate.

There was actually an incident in the UK where the driver of an oil tanker stopped at a petrol station to transfer petrol from the tanker into the underground tank. He might not have been thinking straight at the time, because he lit a cigarette using a match, and then threw the burning match on the floor. Needless to say, an explosion happened, and the petrol station was destroyed.

The driver’s employer was held responsible because the driver was doing his job by delivering the petrol, but did it negligently (by smoking and throwing the burning match on the floor).

Consult your lawyer to find out who you can sue

That was a little background into how the world of vicarious liability works. One thing is for sure: it isn’t easy being a boss, given that you’re legally responsible for every employee you hire.

If you do decide to sue a company for compensation, your lawyer will usually name both the employee and the employer in the legal suit, just to make sure. You’re not going to be using this rule in real life unless you’re in the legal profession, but if you ever encounter a situation where you need to sue someone for compensation, you might have a better idea of what to tell your lawyer.

[READ MORE - If your car gets damaged by valet parking, do you sue the valet company, or the shopping mall?]