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TECHNICAL AIRWORTHINESS MANAGEMENT MANUAL

SECTION 1 LEAFLET 6

LEGAL LIABILITY OF MILITARY PERSONNEL OR GOVERNMENT OF MALAYSIA EMPLOYEES EXERCISING ENGINEERING AUTHORITY
INTRODUCTION 1. The formal system for assigning EA and recording engineering decisions under the Section 2 regulations places accountability on those staff, who make engineering decisions. This, in turn, has raised the question of the legal liability of these employees. 2. This chapter provides an overview of the law relating to negligence and civil liability as it applies to Military Personnel or Government of Malaysia Public Service (MPS) who exercise EA. This includes both members of the Malaysian Armed Forces and MPS. Specifically, it does not address: a. actions that may be taken under the relevant Crimes Act for criminal negligence, b. charges that may be preferred under of the Armed Forces Act 1972 for negligent performance of duty, or c. the liability (civil or criminal) of staff employed by contractors such as commercial AEOs or AMOs PURPOSE 3. The purpose of this chapter is to provide an overview of the law relating to negligence and civil liability as it applies to civilian employees of the SAO who exercise Engineering Authority and/or Maintenance Authority. It must be noted that where any conflicts occur between the guidance and the regulations, regulation takes precedence. LEGAL LIABILITY OF PUBLIC SERVICE EMPLOYEES Negligence 4. Negligence is the failure to exercise the degree of care that is required by law in the particular circumstances. The purpose of the law of negligence is to enable a person who has suffered damage (personal injury, property damage or economic loss) through another persons negligence to receive compensation to recoup that loss. 5. Negligence can occur by either an act or an omission. Whether particular conduct amounts to negligence depends on the facts of each particular case. To prove negligence the person bringing the claim (the plaintiff) must show that it is more likely than not that the defendants act or omission was a cause of their injuries. In summary, a person will only be liable for negligence if the following conditions are met: www.dgta.gov.my 1.6 - 1 of 3 TERHAD Rev 1 July 2013

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a. the law requires a degree of care to be exercised in the particular circumstance; and b. the person fails to exercise this degree of care; and

c. their failure to exercise the degree of care results in damage (loss) to another person. Vicarious Liability 6. In general, a person is legally responsible for damage that results from their acts or omissions. However, it is an established principle of law that where an employee, acting in the normal course of their duties, is negligent and causes damage giving rise to an action, it is the employer, not the employee that the courts will hold liable. This is called the vicarious liability of the employer and has been developed by the courts based on the principle that the employer exercises control over the duties performed by the employee and is thereby responsible for the actions of the employee. A secondary practical consideration is that the employer is in a better position than the employee to meet the liability for damages. 7. The fact that the employer (i.e. the Government of Malaysia) is vicariously liable does not mean that the employee escapes liability. The plaintiff may choose to sue either, the Government of Malaysia, the employee or both parties. Similarly, if the Government of Malaysia alone is sued, then it may seek contribution from the employee to meet all or part of any costs and damages awarded. Financial Direction 8. If an employee alone issued, then he or she is able to join the Government of Malaysia as a codefendant or to counterclaim against the Government of Malaysia. Alternatively, the Government may, in accordance with present government circular/guideline, pay the costs associated with arranging an employees defence and any damage awarded against that employee. 9. The indemnity offered by the present government circular/guideline, however, is certainly not open-ended. If a person acts irresponsibly or maliciously with culpable negligence or disregard of the Government of Malaysias interest, then the Government of Malaysia may not provide assistance under the present government circular/guideline and may in turn seek contribution and indemnity from the employee. 10. Nevertheless Government of Malaysian employees should view the protection offered by the present government circular/guideline as roughly equivalent to that provided by professional indemnity insurance. Summary 11. As long as Malaysian employees act in good faith and within the scope of both the duties expected of them, then the likely outcome of any claim of negligence will either be that:

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a. the courts will find the Government of Malaysia vicariously liable for any actions arising, or b. if an employee alone is sued for negligence, the Government of Malaysia will meet any expenses incurred in defending the claim and damages awarded, in accordance with the present government circular/guideline. This level of protection should be seen as adequate for all Government of Malaysia employees who exercise EA. 12. Although this guidance has been reviewed by The Defence Legal Service (TDLS), information is only intended to provide a general overview of the civil liability of Government of Malaysia employees in relation to claims of negligence arising from the exercise of EA and or MA. Questions of a specific nature should be directed to local legal staff at MINDEF establishments for further advice.

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