Read the full judgment text of FACV 000004/2002 on BabelCite. This FACV judgment was delivered on 4 December 2002 before Bokhary PJ, Chan PJ, Litton NPJ, Mortimer NPJ, Lord Cooke of Thorndon NPJ.
Tort – vicarious liability – employer's liability for employee's tort during unauthorised course of conduct – doorman of hotel driving hired limousine negligently and causing injury to pedestrians – whether hotel company vicariously liable – test for vicarious liability – whether Salmond test or 'close connection' test applies – whether 'close connection' test from Lister v. Hesley Hall Ltd applies to negligence cases or only intentional wrongdoing – practice of hotel staff collecting food from outside the hotel using limousines driven by chauffeurs or 'car jockeys' – concurrent findings of fact by lower courts. The 'close connection' test formulated by the House of Lords in Lister v. Hesley Hall Ltd – under which the question is whether the employee's tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable – is adopted as the basic criterion for vicarious liability in Hong Kong for torts committed by an employee during an unauthorised course of conduct. The 'close connection' test is not confined to cases of intentional wrongdoing (such as sexual abuse, fraud, or theft); it applies to all employee torts during unauthorised conduct, including mere negligence or inadvertence. The 'germ' of the 'close connection' test is found in Sir John Salmond's own explanation in the 1st edition of The Law of Torts (1907), that a master is liable for unauthorised acts so connected with authorised acts that they may be regarded as modes (although improper modes) of doing them. On the facts, applying the 'close connection' test broadly: Mr Lo was a doorman who routinely acted as a 'car jockey' driving limousines along the same route where the accident occurred, had custody of the limousine keys, was in uniform, was acting during his working hours, and had set out from his workplace; the practice of collecting food from outside the hotel was known to and not disapproved by management and was in the hotel's business interests; therefore Mr Lo's negligent driving was so closely connected with his employment that it would be fair and just to hold the hotel company vicariously liable. Appeal allowed. The Ritz-Carlton Limited is vicariously liable for Mr Lo's negligent driving. Ming An, the MIB insurer concerned, is awarded costs against the hotel company in the Court of Final Appeal and in the courts below. The order for legal aid taxation of the injured pedestrians' own costs stands.
Legal issues: Test for vicarious liability for employee's unauthorised tort · Whether 'close connection' test applies to negligence cases, not only intentional wrongdoing · Application of close connection test to facts of negligent driving by doorman
Outcome: Appeal allowed. The Ritz-Carlton Limited is vicariously liable for Mr Lo's negligent driving, in addition to Mr Lo's own liability.