Close Connection Test
Both the Court in the first instance and the Court of Appeal held that the driving of the limousine by the doorman to collect the food at the time of the accident was an unauthorized act and the Hotel was not vicariously liable for the doorman’s negligence because the doorman had been acting beyond the scope of his employment.
The case went to the Court of Final Appeal. Although the doorman’s use of the limousine to collect food was unauthorized by the Hotel, the Court of Final Appeal allowed the appeal and held that such act was still within the scope of his employment with the Hotel.
The test for vicarious liability is that employers were liable for the torts committed by their employees in the course of their employment. 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.
It was found by the Court of Final Appeal that the “unauthorised mode” limb of the test can give rise to difficulty. The question to be asked is whether the employee’s unauthorized tortuous act was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable.
The Court of Final Appeal considered that the concept of employment was not a narrow one and must be viewed broadly when applying the “close connection” test. In regard to vicarious liability, the nature of the employment was not to be ascertained merely by attempting to tabulate the employee’s duties. It was necessary to stand back and see how the employer’s activities were actually carried out and how they exposed the public to the risk of tortious harm caused by the employee.
In this case, the practice of collecting food from outside was not only a purpose of the Hotel’s staff but of the Hotel itself for it was obviously in the interests of the Hotel that its staff were adequately fed. Therefore, under the then prevailing practice, collecting food outside the Hotel was properly to be regarded as incidental to the employment of the Hotel’s staff involved and the doorman’s negligence was so closely connected with his employment that it was fair and just to hold the Hotel vicariously liable.
Under these statutory provisions, the employer will be liable for the violation of personal data privacy, discrimination and harassment committed by his employees unless the employer can prove that he took such steps as were reasonably practicable to prevent the employee from doing that wrongful act.
In B å°çä¸çéåæéå ¬å¸ HKCU 1206, the Plaintiff, a female employee of the Defendant, was sexually harassed by another male employee of the Defendant. The Court held that the Defendant is liable to the Plaintiff for the sexual harassment committed by its male employee relying on the above statutory provision.
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.
|For enquiries, please contact our Insurance & Personal Injury Department:|
|T: (852) 2810 1212
F: (852) 2804 6311
Published by ONC Lawyers © 2013