In this newsletter, we will discuss a recent Court of Appeal decision on the employer’s liability towards the assault committed by one employee against another employee in the course of their employment.
On 27 August 2006, a taxi with a suspected drunken passenger on board entered the Estate without properly passing the guard at the main gate. When the Plaintiff questioned Tam on the incident, Tam reacted rudely with some swearing. At the same time, the Plaintiff noticed that Tam was not properly dressed up in his uniform. The Plaintiff took that as a breach of Tam’s duty and decided to take a photograph of Tam in order to report the matter to Kai Shing, Tam became agitated. He tried to snatch the Plaintiff’s camera and hit him with his fist. In the heat of the argument, the Plaintiff’s head was struck by Tam with a walkie-talkie. As a result, the Plaintiff sustained head injuries and subsequently commenced proceedings against Tam and Kai Shing.
Decisions of the Court of First Instance
The Plaintiff also alleged that Kai Shing was negligent and/or has breached its duties as employer. In this regard, the Court has to determine whether Kai Shing has failed to provide a safe system of work. It was held that Kai Shing could not have known or reasonably foreseen that the Plaintiff would be exposed to the danger of violence by Tam at work. Therefore, Kai Shing was not under a duty to take precautionary steps to guard the Plaintiff from such danger. In the circumstances, the Court held that Kai Shing was neither in breach of its duty as employer nor in breach of general duty of care towards the Plaintiff and dismissed the Plaintiff’s claim against Kai Shing.
Court of Appeal’s reasoning
In respect of whether there was a close connection, the Court of Appeal considered that the lower court’s approach on the scope of employment was too narrow. Reference was made to the English House of Lords decision in Lister v Hesley Hall Ltd, which held that the servant’s task shall not be dissected into its component activities and the sphere of employment must be looked at broadly. Several other examples were also considered in which employers have been held vicariously liable in appropriate circumstances for assault committed by their employees.
In the present case, Tam was on duty when he suddenly lost his temper and assaulted the Plaintiff. Specifically at that moment of time, Tam’s scope of employment required him to be subject to the supervision and discipline of the Plaintiff. Therefore, the Court of Appeal held that there was sufficient connection between Tam’s employment and his unauthorised act of assault. The Court of Appeal held that the outburst by Tam was part of the incident wholly connected with his employment and therefore satisfies the close connection test.
In respect of whether it was fair and just to hold the employer vicariously liable, the Court of Appeal considered that Kai Shing managed the Estate and provided security service in the form of security guards. The system of supervision has been put in place by Kai Shing, which carried a risk that the subordinate may react in an unauthorised way in the course of being disciplined by his superior officer. The Court of Appeal held that it was fair and just to hold Kai Shing vicariously liable because this risk can be insured against by the employer.
In the circumstances, the appeal was allowed and Kai Shing was held liable for the damages awarded to the Plaintiff in the Court of First Instance.
 Ming An Insurance Co (HK) Ltd v. Ritz-Calton Ltd  3 HKLRD 844  CACV 136/2014 and HCPI 901/2011   1 AC 215
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2015