原中環五星級麗嘉酒店（Ritz Carlton）泊車員（car-jockey）魯善德，駕駛酒店租用的平治房車外出買宵夜時，撞癱女會計員陳月呂（31歲）。案件正審前，高等法院原訟法庭法官孫國治（Seagroatt J）（2001年1月18日）和上訴法庭均裁定該泊車員擅離職守買宵夜，法官裁定職員「蛇王」，酒店毋須負責近二千萬元的賠償金，要由保險公司一力承擔故麗嘉酒店毋須就該宗意外負責。及後高院法官翟克信（Jackson J）於2002年1月7日裁定魯應賠償女事主$19,243,576，此數轉由承保強制性汽車第三者意外保險的香港民安保險有限公司支付。民安向終審法院提出上訴，並於2002年12月4日獲頒命令修訂下級法院的判決，
裁定孫國治法官的賠償命令同時亦須針對麗嘉酒店（《判案書》第31段），民安可向麗嘉酒店索回它在此案件中的所有訟費。終審法院常任法官包致金（Bokhary PJ）在《判案書》中指出，答辯人麗嘉酒店的食堂於晚間很早便關門，酒店員工慣常外出買宵夜，帶回酒店與其他員工分享，故購買宵夜不單是為員工本身，明顯地亦是為酒店的業務利益著想，令上夜班的員工得到足夠的食物進食（第29段）。另外，酒店的管理層也知道員工外出買宵夜的慣例做法，酒店身為僱主沒有反對該做法。法官續指，事發時肇事的泊車員身穿酒店制服，仍在值班，故泊車員駕車是在他工作範疇內，與他的工作職責有緊密聯繫，(close connection) 故認定作為僱主的麗嘉酒店須就該員工的疏忽駕駛負上轉承責任（vicarious liability）是公正和公平的（第30段）。有關的行為必須在受僱工作期間作出，即該僱員是在他的權限範圍之內行事，及正在履行有關受僱工作的責任，或該行為和受僱工作的責任是有連帶關係的
事發於1998年3月9日晚上，女事主與友人謝銀香行經灣仔軍器廠街及金鐘道交界時，两人同被魯所駕駛的酒店租用平治房車撞倒，陳的脊椎嚴重受創。魯當時偕同酒店門僮駕車往金鐘買宵夜。魯善德事後裁定魯莽駕駛罪成，女事主因車禍導致要坐輪椅度過下半生，結婚組織家庭的計劃告吹，考取專業會計資格的希望亦成泡影。女事主向麗嘉酒店、魯善德及民安保險索償。然而，高等法院原訟法庭及上訴庭在訴訟案正審前已先裁定，涉案的泊車員違規擅離職守，麗嘉酒店毋須負責並可退出訴訟，高院繼而裁定女事主的賠償金額為$19,243,576。（案件編號：HCPI565/1999、HCPI570/2000、HCPI658/2000、CACV353/2001、FACV4/2002）
FACV No.
4 of 2002
IN THE
COURT OF FINAL APPEAL OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 4 OF 2002 (CIVIL)
(ON
APPEAL FROM CACV NO. 353 OF 2001)
_____________________
Between:
THE MING AN INSURANCE COMPANY (HK)
LIMITED Appellant
AND
THE RITZ-CARLTON LIMITED Respondent
_____________________
Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ,
Mr Justice Litton NPJ, Mr Justice Mortimer NPJ and Lord Cooke of Thorndon NPJ
Date of
Hearing: 17 & 18 October 2002
Date of
Judgment: 4 December 2002
________________
J U D G
M E N T
________________
Mr
Justice Bokhary PJ:
Introduction
1. This
case takes us to the core of the doctrine of vicarious liability. It concerns
the true test of when an employer is vicariously liable for his employee's tort
committed during an unauthorised course of conduct. The circumstances of the
case are as follow.
2.
Sometime between 9.30 and 10.00 on the night of 9 March 1998, a Mercedes Benz
saloon car was travelling along Queensway in the direction of Wanchai. Suddenly
the car went out of control, mounted the pavement and struck two pedestrians.
They were seriously injured. The car was being driven by Mr Lo Sin Tak. He was
a doorman of a nearby hotel, The Ritz-Carlton. But the car did not belong to
his employer, The Ritz-Carlton Ltd, which operated the hotel. Rather it was a
limousine belonging to Parklane Limousines Services Ltd. Limousines and their
chauffeurs were hired from this limousine service company by the hotel company.
This was done by the hotel company in order to provide a chauffeur-driven
limousine service for its hotel guests.
3. It is
not in dispute that Mr Lo sometimes drove these limousines in the course of his
employment with the hotel company. These limousines were parked in the hotel
forecourt. If it was in the way of other vehicles, the limousine had to be
moved. And if its chauffeur happened to be off-duty at the time, the limousine
would be moved by an hotel employee acting as what has been called a "car jockey".
Moving a limousine sometimes involved driving it out of the forecourt and along
a number of roads before returning it to the forecourt. Sometimes this involved
using a scavenger lane and simply driving around the block. If the scavenger
lane was blocked, a longer route would be taken. The longer route included
driving along Queensway in the direction of Wanchai. Driving along that road in
that direction happens to be what Mr Lo was doing when the accident happened.
4. Mr Lo
sometimes acted as a "car jockey". But the courts below concurrently
found as a fact that he was not acting as a "car jockey" at the time
of the accident. It appears that the hotel staff, or some of them, did not much
care for the food served at the hotel canteen. Moreover the canteen closed
early in the evening. So there developed a practice whereby, when time was
available, hotel staff would leave the hotel premises to collect food bought
from elsewhere and bring such food back to the hotel for themselves and their
colleagues.
5. Hotel
staff sometimes collected food while out on an errand for the hotel. At other
times they left the hotel for the specific purpose of collecting food. On some
occasions they did this by taxi. On other occasions they did this by limousine,
having succeeded in persuading the chauffeur to drive them to collect food. But
there is no evidence that prior to the incident giving rise to the present
case, any member of the hotel's staff had ever driven a limousine to collect food.
6. As to
what happened on the night of the accident, the courts concurrently found the
following facts. A bellboy was going out to collect food. The chauffeur of the
limousine later involved in the accident had gone off-duty, leaving the keys
with Mr Lo. The limousine was parked in the hotel forecourt. Mr Lo drove the
bellboy in the limousine to collect food. That is what he was doing when the
accident happened.
7. It is
no longer in dispute that Mr Lo is liable to the injured pedestrians in the
tort of negligence. The only question is whether his employer, the hotel
company, is vicariously liable to them for his negligent driving.
8. At
the trial, Mr Lo took no interest in the proceedings. In those circumstances,
The Ming An Insurance Co. (HK) Ltd was, on its own application, joined as a
defendant. This was because Ming An is the "insurer concerned" under
the Motor Insurers Bureau ("MIB") scheme. If the hotel company is not
vicariously liable, its own insurers would not be responsible to satisfy the injured
pedestrians' judgments against the apparently impecunious Mr Lo, who would then
be an uninsured driver. And Ming An, as the insurer concerned, would then have
to shoulder that responsibility. The fact that the contest is between two
insurers is irrelevant in itself. But the fact that the injured pedestrians'
judgments will not be empty whichever way the appeal is decided could be seen
as having the advantage of eliminating any fear on anyone's part that a hard
case might make bad law.
9.
Seagroatt J held that the hotel company is not vicariously liable. So he
entered judgment for the injured pedestrians against Mr Lo but not against the
hotel company. The Court of Appeal (Rogers VP and Woo and Le Pichon JJA) upheld
his decision. As I have explained, Ming An would have to satisfy the injured
pedestrians' judgments against Mr Lo if, as the courts below concluded, the
hotel company is not vicariously liable. By leave of the Court of Appeal, Ming
An appeals to us against that conclusion.
Reasoning
of the courts below
10. In
holding that Mr Lo "was acting outside the scope of his employment",
Seagroatt J gave this reason: "He had no authority to drive off one of the
hired courtesy cars in the existing circumstances". The Court of Appeal
upheld Seagroatt J's decision, taking the view that driving a limousine for any
purpose other than as a "car jockey" was beyond the scope of Mr Lo's
employment.
The
purpose of the journey
11. Ming
An submits that the hotel company would be vicariously liable for Mr Lo's negligent
driving even if the purpose of the journey was to collect food. But Ming An
submits that, in any event, Seagroatt J was not entitled to find that the
journey had been made for that purpose. This is because, Ming An submits, there
were gaps in the evidence and a number of matters which were material to the
question of the journey's purpose but on which Seagroatt J had omitted to make
findings of fact. Be that as it may, the finding that the journey had been made
for the purpose of collecting food is a concurrent finding of the courts below.
As explained in Sky Heart Ltd v. Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 at pp
333F-338B, this Court will not review concurrent findings of fact save in very
special circumstances.
12. The
concurrent finding which Ming An attacks is not a finding reached in the
absence of evidence. There was evidence that the limousine was not blocking any
vehicle. That, coupled with the bellboy's presence in the limousine, suggested
that Mr Lo was not driving as a "car jockey" on this occasion. And
that in turn left a viable basis for inferring, in all the circumstances, that
the journey had probably been made for the purpose of collecting food. After Mr
Michael Thomas SC for Ming An had outlined his argument on this part of the
appeal, we indicated at the hearing that the appeal had to proceed on the
footing that the collection of food had been the journey's purpose. And the
appeal then proceeded accordingly.
Test for
vicarious liability
13. The
doctrine of vicarious liability, by which employers are in certain
circumstances held liable for torts committed by their employees, was developed
by the judges for the purpose of providing the victims of tort with recourse
against persons who have the means to satisfy awards and on whom it would be
just to fix liability to do so. This purpose is the doctrine's raison d'être.
But what about the doctrine's content? This brings us to the test for
determining when employers are liable for torts committed by their employees.
14. For
a long time, the English courts applied ? and the Hong Kong courts following
suit likewise applied ? the test commonly called the Salmond test. This is the
test first formulated in Salmond: The Law of Torts, 1st ed. (1907) at p.83 and
still to be found in Salmond & Heuston on the Law of Torts, 21st ed. (1996)
at p.443. The Salmond test operates thus. Employers are liable for torts
committed by their employees in the course of their employment. And an
employee's tort is deemed to have been committed in the course of his
employment if it is either (a) something authorised by his employer or (b) an
unauthorised mode of doing something authorised by his employer.
15. The
"unauthorised mode" limb of the Salmond test can give rise to
difficulty. And in Lister v. Hesley Hall Ltd [2002] 1 AC 215 the House of Lords
adopted a new test. Under this new test, the question is whether the employee's
tort was so closely connected with his employment that it would be fair and
just to hold his employer vicariously liable. Lister's case was one in which
the warden of a boarding house attached to a school had sexually abused pupils
residing in the boarding house. At p.230C Lord Steyn said: "The question
is whether the warden's torts were so closely connected with his employment that
it would be fair and just to hold the employers vicariously liable". At
p.237G Lord Clyde spoke of "a sufficient connection between the acts of
abuse which [the warden] committed and the work which he had been employed to
do". Lord Hutton (as one sees at p.238B) simply agreed with Lord Steyn's
speech. At p.245G Lord Millett said: "What is critical is that attention
should be directed to the closeness of the connection between the employee's
duties and his wrongdoing and not to verbal formulae". That makes a majority
for the "close connection" test.
16. By
speaking of a majority formed by Lords Steyn, Clyde, Hutton and Millett, I am
not implying that Lord Hobhouse of Woodborough, who reached the same result,
did so for reasons irreconcilable with the "close connection" test.
Lord Hobhouse of Woodborough proceeded (as one sees at p.242A-B) on the basis
that "the fundamental criterion ... is the comparison of the duties
respectively owed by the servant to the plaintiff and to his employers".
But he concluded his speech (as one sees at p.243B) by allowing the appeals for
not only the reasons which he gave but also those given by Lord Steyn. This
does not suggest to me that Lord Hobhouse of Woodborough felt unable to
reconcile his fundamental criterion with the "close connection" test.
17. The
"close connection" test is in substance the test pioneered by the
Supreme Court of Canada in Bazley v. Curry (1999) 174 DLR (4th) 45 and Jacobi
v. Griffiths (1999) 174 DLR (4th) 71. The application of the Salmond test by
the English Court of Appeal in Trotman v. North Yorkshire County Council [1999]
LGR 584 led to what I respectfully regard as an unsatisfactory result. And
Trotman's case was not favoured by the Supreme Court of Canada in Bazley and
Jacobi's cases, and was overruled by the House of Lords in Lister's case. But I
am disposed to believe that in at least most of the past cases the application
of the "close connection" criterion would not have led to results
different from the ones reached by applying the "mode" criterion of
the Salmond test. Indeed, I notice that the learned editor of Winfield &
Jolowicz on Tort, 16th ed. (2002) takes the view (as one sees at p.720, para.
20.14) that the description in Lister's case of the "unauthorised
mode" limb of the Salmond test as simplistic is harsh. And he suggests (ibid.)
that the facts of Lister's case could be accommodated "within the
traditional test as it had been applied to matters like fraud and theft".
18.
Nevertheless I do not find the "unauthorised mode" limb of the
Salmond test easy to understand unless one has the benefit of Sir John
Salmond's explanation cited by Lord Steyn in Lister's case at pp 223H-224A.
This explanation, with the emphasis supplied by Lord Steyn, is that "a
master ... is liable even for acts which he has not authorised, provided they
are so connected with acts which he has authorised, that they may rightly be
regarded as modes ? although improper modes ? of doing them". With such
emphasis, this explanation is, as Lord Steyn observed at p.224B, the
"germ" of the "close connection" test.
19. By
" close connection" is meant a connection between the employee's
unauthorised tortious act and his employment which is so close as to make it
fair and just to hold his employer vicariously liable. I consider close
connection to be an intellectually satisfying and practical criterion for
vicarious liability. It imposes vicarious liability when, but only when, it
would be fair and just to do so. And it provides a workable concept, namely a
sufficiently close connection, for determining in each case whether doing so
would be fair and just. The case before us is of negligent driving by an
employee. Bazley, Jacobi and Lister's cases, on the other hand, involved
employees who betrayed the trust reposed in them by their employers. The
employees in those cases sexually abused children at institutions which their
employers operated. Trotman's case was similar, involving the sexual abuse of a
pupil by a deputy headmaster during a school trip abroad. Does this mean that
close connection is a criterion suitable only to cases like Trotman, Bazley,
Jacobi and Lister's cases?
20. In
answering this question, I begin by noting that the basic test for vicarious
liability has never varied according to whether the employee's tort involved
mere inadvertence or something worse.
21.
Secondly, I note that the cases discussed in the speeches in Lister's case are
by no means confined to cases of intentional wrongdoing. Certainly cases of
vicarious liability for fraud (Lloyd v. Grace, Smith & Co. [1912] AC 716),
theft (Morris v. CW Martin & Sons Ltd [1966] 1 QB 716) and misfeasance in
public office (Racz v. Home Office [1994] 2 AC 45) are discussed. But so are
cases of vicarious liability for negligence such as Canadian Pacific Railway
Co. v. Lockhart [1942] AC 591, Ilkiw v. Samuels [1963] 1 WLR 991, Williams v. A
& W Hemphill Ltd 1966 SC(HL) 31 and Rose v. Plenty [1976] 1 WLR 141.
22.
Thirdly, it is nowhere stated in the speeches in Lister's case that different
tests for vicarious liability are to be applied depending on whether mere
inadvertence or intentional wrongdoing is involved. To the contrary, Lord Clyde
said this at pp 236G-237A:
" Cases which concern sexual
harassment or sexual abuse committed by an employee should be approached in the
same way as any other case where questions of vicarious liability arises. I can
see no reason for putting them into any special category of their own."
(Emphasis supplied)
It is
also of significance that in adopting the "close connection" test in
Lister's case, Lord Steyn was influenced not only by Bazley and Jacobi's cases
but also by (as one sees at pp 226E-227D) what Scarman LJ (later Lord Scarman)
said in a negligence case, namely Rose's case. And earlier in his speech Lord
Steyn had said (at p.225E) that although William's case was one of negligence,
the reasoning behind Lord Pearce's analysis of the position there threw light
on the problem under consideration in Lister's case.
23.
Fourthly, there is this point. Until the House of Lords decided Lloyd's case in
1912, it was thought that there could be no vicarious liability unless the
employee acted, or at least intended to act, for the employer's benefit. As
Lord Wilberforce observed when delivering the Privy Council's advice in
Kooragang Investment Pty Ltd v. Richardson & Wrench Ltd [1982] AC 462 at
p.472G: "it took the decision of the House of Lords in [Lloyd's case] to
dispel the suggestion that there was no liability of the employer for frauds or
wrongs committed for the benefit of the employee". This makes it unlikely
that Sir John Salmond had betrayal of trust by employees in mind when he
explained in 1907 that the alternative limb of his test covered unauthorised
acts "so connected" with authorised acts as to be modes ? although
improper modes ? of doing them. Yet it is in this explanation that Lord Steyn
found the seed from which the "close connection" test has grown. So
it would be odd if the "close connection" criterion were now confined
to cases which Sir John Salmond is unlikely to have had in mind when he planted
that seed. The intentional wrongdoing cases did the most to expose the
limitations of the Salmond test, and they were the ones which inspired a new
test. But that does not mean that the inadvertence cases should be denied the
benefit of this new insight.
24. Fifthly
and finally, the "close connection" criterion impresses me as
inherently just and fair for all cases of tort committed by an employee while
engaged in an act not authorised by his employer. It would be odd if the
employer ever escaped vicarious liability even though there was ? or were ever
fixed with vicarious liability even though there was not ? so close a
connection between the employee's tort and his employment as to make it fair
and just to hold the employer vicariously liable. The concept is a simple one
which ought not to be complicated by reading other requirements into it as a
matter of law. Delivering the judgment of the Supreme Court of Canada in
Bazley's case, McLachlin J (now the Chief Justice of Canada) laid down a number
of principles which the courts should be guided by in determining whether an
employer is vicariously liable for an employee's unauthorised, intentional
wrong in cases where precedent is inconclusive. The first of these principles
is that the courts should openly confront the question of whether liability
should lie against the employer, rather than obscuring the decision beneath
semantic discussions of 'scope of employment' and 'mode of conduct'." The
"close connection" test confronts that question in that way. There is
no conclusive precedent to the contrary. And inadvertence cases, just as much
as intentional wrongdoing cases, must not be obscured beneath semantics.
25. For
all the foregoing reasons, I regard close connection as the basic criterion for
vicarious liability in regard to all torts committed by an employee during an
unauthorised course of conduct, whether intentional wrongdoing or mere
inadventence is involved. This is not to say that this criterion is to be
treated like a statutory formula. Its application is always to be undertaken in
context. I dare say that the requisite connection will prove in practice to be
more readily found in certain types of case than in others. But the basic
criterion having been applied, the disposal of each case will always turn
ultimately on its own facts and the particular considerations which they raise.
This is saying no more than what Lord Eldon LC famously intervened to observe
in the course of the argument in Gee v. Pritchard (1818) 2 Swans. 402 at p.414;
36 ER 670 at p.674, namely that doctrines ought to lay down "fixed
principles" while "taking care that they are to be applied according
to the circumstances of each case".
Applying
the "close connection" criterion
26.
Seagroatt J's decision was given before, but the Court of Appeal's decision was
given after, the House of Lords decided Lister's case. The Court of Appeal
accepted that the present case was covered by Lister's case. And it took the
view that Seagroatt J had in effect applied the "close connection"
test. But one sees from Seagroatt J's judgment that he, having concluded that
Mr Lo "had no authority to drive off one of the courtesy cars in the
existing circumstances", felt that it was therefore "unnecessary to
consider the law in detail". Nor, it would seem, did he feel it necessary
to consider any other facts in detail or, indeed, at all. He seems to have
focused exclusively on the question of authority. In his own judgment, Rogers
VP, with whom the other members of the Court of Appeal agreed, said that the "use
of the car to drive a bellboy to buy food was equally outside the acts which
[Mr Lo] had been employed to do, as if he took the car for a joy-ride to the
New Territories". This leaves out of account the practice of collecting
food from outside the hotel, which is what Ming An relies on for its argument
on close connection. The issue of close connection is therefore at large, and
it becomes this Court's duty to apply the "close connection"
criterion to the material circumstances of this case.
27.
Nowadays the concept of employment is not a narrow one, and it must be viewed
broadly when applying the "close connection" criterion. As Lord Clyde
said in Lister's case at p.234D, "in considering the scope of the
employment a broad approach should be adopted". In regard to vicarious
liability, the nature of the employment is not to be ascertained merely by
attempting to tabulate the employee's duties. It is necessary to stand back to
see how the employer's activities were actually carried out and how that
exposed the public to the risk of tortious harm caused by the employee.
28. On
this occasion a "car jockey" was driving a limousine for the purpose
of collecting food. And it would appear that "car-jockeys" were not
authorised to drive limousines for that purpose. But the fact remains that,
albeit for a different purpose, "car jockeys" routinely drove
limousines in the course of their employment ? even, as it happens, along the
route where the accident occurred. And it is also a fact that, albeit while
driven by their chauffeurs rather than "car jockeys", limousines were
sometimes used for the purpose of collecting food.
29.
Precisely how the practice of collecting food was operated is unknown to the
Court. I doubt that it was entirely clear to the hotel company's staff. My
impression is that it was an evolving practice which had a grey area. But the
practice existed. And the important thing is that collecting food was a purpose
not only of the hotel's staff but also of the hotel company itself. For it was
obviously in the business interests of the hotel company that its staff be
adequately fed despite the inadequacy of its canteen. Indeed ? although I do
not consider it necessary to come to a conclusion on it ? the hotel company may
well have been under a duty to provide its staff with a reasonable opportunity
to obtain acceptable sustenance. However that may be, I think that under the
then prevailing practice, collecting food was properly to be regarded as
incidental to the employment of the hotel staff involved. All things
considered, I am satisfied that Mr Lo's tort was so closely connected with his
employment that it would be fair and just to hold the hotel company vicariously
liable.
30. In
addition to the facts which I have just mentioned, there are other facts relied
upon by Ming An. These include the fact that Mr Lo was in uniform during the
journey in question, the fact that the accident happened during his working
hours and the fact that he had set out from his place of employment. I do not
consider these additional facts as important as the other facts which I have
mentioned. But if it were necessary, these additional facts, too, could be
deployed in support of the conclusion that Mr Lo's tort was so closely
connected with his employment that it would be fair and just to hold the hotel
company vicariously liable. Their tendency is towards that conclusion.
Result
31. In
the result, what Seagroatt J ordered in favour of the injured pedestrians will
stand. In addition, I would allow this appeal to order that what Seagroatt J
ordered in favour of the injured pedestrians will be ordered against the hotel
company too. The order for legal aid taxation of the injured pedestrians' own
costs will stand. I would award Ming An costs against the hotel company here
and in the courts below.
Mr
Justice Chan PJ:
32. I
agree with the judgment of Mr Justice Bokhary PJ.
Mr
Justice Litton NPJ:
33. I
agree with Mr Justice Bokhary PJ's judgment.
34. The
application of the close connection test in Lister v. Hesley Hall Ltd [2002] 1
AC 215 to the facts of a particular case is a matter of degree. As this Court
is differing from the unanimous judgment of the Court of Appeal on such a
matter, I will add a few words of my own.
35. As
stated in Winfield and Jolowicz on Tort 16th ed. (2002) at para.20.9 the
underlying idea is that the injury done by the servant must involve a risk
sufficiently inherent in or characteristic of the employer's business that it
is just to make the employer bear the loss.
36. Here
the servant Mr Lo Sin Tak was employed as a doorman at the hotel. The
expression "doorman" is not self-explanatory and the scope of his
everyday work has not been clearly defined in the material before the court.
There is no suggestion in the evidence, or in the findings of the courts below,
that it was confined to the moving of cars to and from the hotel forecourt. The
nature of his work was wider and more ambiguous. The evidence indicates that
from time to time "hotel staff" would have gone out in a limousine -
driven by one of Parklane Limousine Service's drivers - to get food for a
"night snack", not only for himself but also for the "forecourt
staff". This might well have included Mr Lo. When this happened, the
baggage master Mr Wilson Leung Tat-kei, who had some authority over Mr Lo,
would, as likely as not, have shared in the food. Hence, there grew up the
practice, impliedly authorized, of collecting food from outside the hotel.
This, as Mr Justice Bokhary PJ has explained in his judgment, was a purpose not
only of the hotel's staff but of the hotel as well, for it was obviously in the
interests of the hotel that the "forecourt staff" should be
adequately fed during the night shift. Then there is this fact, that Mr Lo had,
quite legitimately, access to the keys for the limousines left on the forecourt
: They might even have been left in his actual custody. The course of his work
as a doorman was such that he was required to drive the limousines from time to
time, to make space in the forecourt, so no questions would have been raised
when he drove a limousine out of the forecourt onto the public roads : which he
regularly did : an act necessarily involving some risk to other road users.
Once this point is reached, the closeness between the Mr Lo's work as a doorman
and his reckless driving which caused the injuries to the pedestrians becomes
apparent.
37. The
trial judge found that he was "in a hurry to complete his journey"
and if he had been on a "legitimate journey" there would not have
been the need for the "extreme haste" as described by the independent
witness. This was in effect a finding by the trial judge that, at the time of
the accident, he was engaged upon an "illegitimate" act : and the
only such act consistent with the evidence was that found expressly by the
Court of Appeal : that Mr Lo was driving the limousine, accompanied by the
bell-boy Mr Kwok Sze-lun as his passenger, on his way to get food for a
night-snack. Assuming that this was a prohibited act - as it undoubtedly was,
since he was only authorized to drive the limousine for the purpose of parking
- does this take the case outside the ambit of the principles set out in
Lister's case? The answer to this question lies in the court's approach : Does
the court take a broad approach to the nature of the employment or is the
court's focus essentially upon the employees' duties at the time of the
tortious act? This is a question of law.
38. As
Mr Michael Thomas SC, counsel for The Ming An Insurance Co. (HK) Ltd submitted,
this branch of the law has been in a state of evolution for some time, and the
tendency has been toward more liberal protection of innocent third parties :
see Lord Wilberforce in Kooragang Investment Pty Ltd v. Richardson and Wrench
Ltd [1982] AC 462 at 471 H and in particular at 472 A where Lord Wilberforce
said :
"At the same time recognition has been
given by the law to the movement which has taken place from a relationship -
akin to that of slavery - in which all actions of the servant were dictated by
the master, to one in which the servant claimed and was given some liberty of
action."
39. In
answering the question "does the prohibition limit the sphere of
employment or does it only deal with conduct within the sphere of
employment" under the old Salmond test, Diplock LJ (as he then was) said
in Ilkiw v. Samuels [1963] 1 WLR 991 at 1004 that the matter must be looked at
broadly; the court should not "dissect the servant's task into its
component activities". It can be said that the twin cases in the Supreme
Court of Canada, Bazley v. Curry (1999) 174 DLR (4th) 45 and Jacobi v.
Griffiths (1999) 174 DLR (4th) 71, and Lister's case itself, have pushed this
broad approach even wider.
40.
Looked at in this light, it can be seen that Rogers VP in the present case took
a somewhat narrow approach when he said : "... [Mr Lo's] employment gave
him the opportunity to obtain the keys and make use of the car for his own
private purposes. The use of the car to drive a bell-boy to buy food was
equally outside the acts which he had been employed to do, as if he took the
car for a joy-ride in the New Territories". Likewise Woo JA when he said :
"[Mr Lo] was employed and certainly
authorised to drive the Parklane cars to avoid obstruction, and apart from that
limited purpose, he was not allowed to drive those cars at all. He might be
permitted to go outside the hotel to buy food, but that was not a duty within
his employment. At the material time, he was not driving for the hotel's
business or purposes or performing any part of his duties towards the hotel or
towards the hotel guests that the hotel had entrusted upon him to perform."
41.
This, in the light of the two Canadian cases and Lister's case, is taking too
narrow a view of the nature of Mr Lo's employment.
42. That
having been said, I confess to having considerable sympathy for the Court of
Appeal's views in the present case, for if one focused simply upon Mr Lo's
duties at the time of the accident, it is difficult to conclude that he was, in
using the limousine to get food, acting in discharge of those duties. In the
course of counsel's arguments during the hearing I found my mind wavering
several times on this vital point. This case, in my judgment, lies at the
borderline of cases where the law imposes vicarious liability on the employer.
It may well be right, as Mr Bleach SC, counsel for the hotel has argued, that
the close connection test is not new but rather a development of the old
Salmond test, since the "germ" of the close connection test, as Lord
Steyn observed at 224B in Lister's case, is to be found in the Salmond test
itself : that "a master ... is liable even for acts which he has not
authorized, provided they are so connected with acts which he has authorized,
that they may rightly be regarded as modes - although improper modes - of doing
them". Hence, in seeking an answer to the question "Is the servant's
wrongful act so closely connected with his employment that it would be fair and
just to hold the employer vicariously liable?" it must be remembered that
the issue is not free standing, and matters such as the servant's duties at the
time when the tort occurred, whether he was acting in the interests of the
employer or solely for himself, et cetera, are still relevant. And, casting
one's eyes a little wider, the court should also have regard to the business
activities of the employer broadly speaking and ask if the risk which gave rise
to the damage (here the servant's reckless driving of someone else's limousine)
was created by those activities : If they were, that was a risk which the
employer could have insured against. Balancing these various factors I have, in
the end, come firmly to the view that this appeal should be allowed. I concur
in the orders proposed by Mr Justice Bokhary PJ.
Mr
Justice Mortimer NPJ:
43. I
also would allow this appeal for the reasons given by Mr Justice Bokhary PJ. I
add a few observations on my own approach, particularly as we differ from the
Court of Appeal.
44. The
submissions of counsel have focused upon Lister v. Hesley Hall Ltd (HL(E))
[2002] 1 AC 215. This important decision was not available to Mr Justice
Seagroatt at first instance but had been reported before the proceedings in the
Court of Appeal. The House of Lords articulated for the first time the
"close connection" test for examining the circumstances in which an
employer ought to be held vicariously liable for his employee's unauthorized
tortious acts.
45. I
agree with Mr Justice Bokhary PJ's summary of the test. In order to satisfy the
test a plaintiff must show that the employee's tortious act was so closely
connected with his employment that it is just and fair to hold the employer
vicariously liable.
46. In
reaching their conclusions in Lister's case Lord Steyn (with whom Lord Hutton
agreed) and Lord Millett acknowledge the assistance they derive from the
judgments of the Canadian Supreme Court in Bazley v. Curry 174 DLR (4th) 45 and
Jacobi v. Griffiths 174 DLR (4th) 71 in which the test was enunciated. It is to
be noted however that each member of the Committee reaches his conclusion that
the close connection test is correct by "employing the traditional methodology
of English law", as Lord Steyn puts it at p.230 C. Each finds its origin
in the passage in Sir John Salmond (Salmond, Law of Torts, 1st ed (1907)) at
pp.83-84 :
"But a master, as opposed to the
employer of an independent contractor, is liable even for acts which he has not
authorized, provided they are so connected with acts which he has authorized,
that they may rightly be regarded as modes - although improper modes - of doing
them."
He then
supports and develops the test by tracing the authorities up to the present
day.
47. The
test is particularly apt in cases such as Lister where the employee has
committed tortious acts which are also serious criminal acts, but it is of
general application. As a guide to its application, however, Lord Steyn warns
of the necessity to avoid "the pitfalls of terminology". Lord Millett
is of like view at p.245G :
"But the precise terminology is not
critical. The Salmond test, in either formulation, is not a statutory
definition of the circumstances which give rise to liability, but a guide to
the principled application of the law to diverse factual situations. What is
critical is that attention should be directed to the closeness of the
connection between the employee's duties and his wrongdoing and not to verbal
formulae."
48. With
these caveats in mind it is useful to note how Lord Steyn applies the test at
230 B-D :
"Employing the traditional methodology
of English law, I am satisfied that in the case of the appeals under
consideration the evidence showed that the employers entrusted the care of the
children in Axeholme House to the warden. The question is whether the warden's
torts were so closely connected with his employment that it would be fair and
just to hold the employers vicariously liable. On the facts of the case the
answer is yes. After all, the sexual abuse was inextricably interwoven with the
carrying out by the warden of his duties in Axeholme House."
Lord
Hobhouse notes at 241 F :
"Whether or not some act comes within
the scope of the servant's employment depends upon an identification of what
duty the servant was employed by his employer to perform."
So
previous authority is not overruled. Their Lordships explain and develop the
common law in this field. The consequence is that nearly all previously
reported cases would be decided the same way. Among the few exceptions is
perhaps Crook v. Derbyshire Stone Ltd [1956] 1 WLR 432 but, for my part, I
doubt whether this case was correctly decided.
49. I
mention the traditional approach of their Lordships in Lister with the passage
in Lord Steyn's speech where he refers to the two Canadian Supreme Court
decisions at 230B in mind:
"Wherever such problems are considered
in future in the common law world these judgments will be the starting
point".
This
should not be taken as an invitation to judges and counsel to dwell upon the
examination of policy in those cases. This cannot have been the intention. It
is a reference to the high value of these judgments in advancing thought on the
underlying policy and jurisprudence of vicarious liability. This is not in
doubt and will be the subject of much valuable academic comment and analysis in
the future. Lister's case and the judgments in the instant appeal are
appropriate starting points in this jurisdiction.
50. Even
in the detailed consideration undertaken in Lister's case Lord Steyn at 230B
finds it "unnecessary to express views on the full range of policy
considerations examined in those decisions". Lord Clyde is more specific
at 237B :
"The careful and comprehensive
discussion of the problem by McLachlin J was presented in the context of policy
considerations, but the essence of the decision seems to me to lie in the
recognition of the existence of a sufficient connection between the acts of the
employee and the employment. This in turn was explored by reference to various
factors by reference to which the strength of the connection can be established.
... These two decisions seem to be consistent with the traditional approach
recognized in this country."
Lord
Hobhouse (who agreed with the reasons of Lord Steyn) takes an even more
positive view which I think appropriate. He approaches Bazley's case in this
way at 242 B-D :
"The second limb of the classic
Salmond test is a convenient rule of thumb which provides the answer in very
many cases but does not represent the fundamental criterion which is the
comparison of the duties respectively owed by the servant to the plaintiff and
to his employer. Similarly, I do not believe that it is appropriate to follow
the lead given by the Supreme Court of Canada in Bazley v. Curry 174 DLR (4th)
45. The judgments contain a useful and impressive discussion of the social and
economic reasons for having a principle of vicarious liability as part of the
law of tort which extends to embrace acts of child abuse. But an exposition of
the policy reasons for a rule (or even a description) is not the same as
defining the criteria for its application. Legal rules have to have a greater
degree of clarity and definition than is provided by simply explaining the
reasons for the existence of the rule and the social need for it, instructive
though that may be. In English law that clarity is provided by the application
of the criterion to which I have referred derived from the English
authorities."
51. I
turn to the instant case. The application of the "close connection"
test involves a consideration of two matters. The first is whether it is
established that at the time of the negligent driving Mr Lo was acting within
the scope of his employment (however this concept is expressed). The second is
whether his negligent driving was so closely connected with his employment as
to be "fair and just" to hold his employer, the Hotel, vicariously
liable.
52. The
real issue for our consideration is whether it is shown that he was acting
within the scope of his employment when driving the car at the time of the
accident. If so, the close connection between his employment and the negligent
driving is so obvious that it is clearly fair and just to hold the hotel
vicariously liable.
53. But
the decision whether Mr Lo was acting within the scope of his employment when
he was driving the car is not easy. This is demonstrated by the division of
judicial opinion upon the facts which were found. However the speeches in
Lister's case and the authorities cited therein are of great assistance. First,
the "pitfalls of terminology" must be avoided. Particular descriptions
applied to Mr Lo's employment or duties may not be helpful but Diplock LJ's
judgment in Ilkiw v. Samuels [1963] 1 WLR 991 at 1004 (approved by each of
their Lordships in Lister) provides valuable guidance :
"... the matter must be looked at
broadly, not dissecting the servant's task into its component activities - such
as driving, loading, sheeting and the like - by asking : what was the job on
which he was engaged for his employer? and answering that question as a jury
would."
54. Lord
Clyde expresses a similar view at p.234D :
"... in considering the scope of the
employment a broad approach should be adopted".
55. As a
doorman, Mr Lo was required to act as a "car-jockey". At times, this
involved taking the limousine which he was driving at the time of the accident
along the same route. At the relevant time the keys of limousine were in his
custody and he could decide when it was necessary for the vehicle to be moved
and driven.
56. When
he moved the car to drive it on the occasion of the accident it was not causing
an obstruction. There was no necessity to move it but he drove it taking a
bell-boy on an errand to collect food. There is no evidence that a bell-boy had
been driven for this purpose by a "car-jockey" before, but there was
a practice of staff going out to collect food driven by the chauffeurs of the
limousines when they were on duty. The practice of going out for food was known
to the management. It was not disapproved and undoubtedly was, in part, for the
employer's benefit.
57. It
remains a matter of degree. It was Mr Lo's duty to drive the limousine along
the route taken when it was necessary to move it. He had the keys and it was
his duty to move and drive the vehicle when it was necessary to do so. It was
not "necessary" for him to move the car on this occasion but he was
driving along the same route with the bell-boy to collect food : an activity
known to the employer and not disapproved. Relevant, but not decisive, the
collection of food was in the employer's interest. The combination of
circumstances was new but the activity was the same, he was in uniform and it
was within his working hours. The inherent risk that he would drive the vehicle
in these circumstances is apparent. (See Lord Millett's consideration of the
facts in Lister at 250D.)
58.
Answering Diplock LJ's question as a jury would and considering the matter
broadly, the driving was part of the job on which Mr Lo was engaged for his
employer. On these special facts I would hold that Mr Lo was acting within his
authority and within the scope of his employment when he drove negligently. The
vicarious liability of the Hotel is established.
Lord
Cooke of Thorndon NPJ:
59. I
agree with the judgment of Mr Justice Bokhary PJ.
Mr
Justice Bokhary PJ:
60. The
Court is unanimous. What Seagroatt J ordered in favour of the injured
pedestrians will stand. In addition, the appeal is allowed to order that what
Seagroatt J ordered in favour of the injured pedestrians will be ordered
against the hotel company too. The order for legal aid taxation of the injured
pedestrians' own costs will stand. Ming An is awarded costs against the hotel
company here and in the courts below.
(Kemal
Bokhary)
Permanent
Judge
(Patrick Chan)
Permanent
Judge
(Henry Litton)
Non-Permanent
Judge
(Barry
Mortimer)
Non-Permanent
Judge
(Lord Cooke of Thorndon)
Non-Permanent
Judge
Representation:
Mr
Michael Thomas SC and Mr Godfrey Lam (instructed by Messrs Ip Kwan & Co.)
for the appellant, Ming An
Mr John
Bleach SC, Mr Mohan Bhawarney and Ms Roxanne Ismail (instructed by Messrs
Fairbairn, Catley, Low & Kong) for the respondent, the hotel company
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