Tort Vicarious Liability

Tort vicarious liability ( NOT a duty)
Defendant is liable for the actions or omissions of the wrongdoer

because there exist a special relationship between the wrongdoer
and D -> secondary liability
Limited : defendant liable for things they didn’t do ( strictly

liable)
It is NOT a duty , it only allows someone to be liable for someone
else’s acts
=/=
1. personal primary liability ( D doing sth wrong himself)
2. D’s personal and primary liability for non-delegable duty to the

plaintiff
Home Office v Dorset Yacht Co Ltd
Elements required for vicarious liability

D and wrongdoer is in particular relationship
The wrongdoer committed the tort that is referable to the
relationship or connected to that relationship
Why vicarious liability?

Deep pockets Ensure compensation is paid
Moral dimension One who makes profit out of the action
should be liable for paying
Policy reasoning A deterrence affect as D usually have some
influence over the action and therefore
incentive to be more careful
Loss distribution Spread costs and losses
EXAMS :
-if stated ‘employee’ : tests
-if stated ‘independent contractor’ -> clear ( no need
test)
Employment ( contract of services ):

1. RELATIONSHIP
2. COURSE OF EMPLOYMENT
Employer-employee relationship Working for wages and
remuneration whether by way
of manual labour , clerical work
Contract of service v for service`
See s2(1) Employees’

Compensation Ordinance
(Cap. 282), s 2(2A) Employment
Ordinance (Cap.57).
• “employees” mean any
person...entered into or works
under a contract of
service...whether the contract is
expressed or implied, oral or in
writing.
P needs to prove employment:
-Court not bound by contract :
Wong Wai Ming v FTE Logistics
International Ltd
-Worker opts for own mpf
arrangement and accept such
designation in order to receive
higher remuneration:
Mak Ching Shan v Power Max
Design Ltd
-court will examine the
substance of the employment
arrangement and how it
operated in practice to ascertain
‘the true agreement between
the parties’
Autoclenz Ltd v Belcher
THE TEST OF EMPLOYMENT
1.CONTROL: Consider the

degree of control
2. INTERGATION/
ORGANIZATION: consider
whether the work was an
integral part of the
business
3. MUTUALITY OF
OBLIGATION: exist an
essential degree of
mutuality relationship
4. MODERN APPROACH: Overall
impression of the relationship
Control test Retains substantial control of

actual performance
Whether D exercised a higher
degree of control
LIMITATION:
-professionals and skilled
workers
Cheung Ping v Pak Kee
Transportation Ltd & Another
-usually on when, where and not
how
Integration and organization test When a person’s work is done as
an integral part of the business
Market Investments Ltd v
Minister of social security ( no
fixed working hour but part of
the organization)
Similar : Fok Kall v Wong Cheung
Hon
Li Chi fai v Sunrise Knitting
Factory Ltd
Mutuality of obligations test Essential degree of mutuality to
establish relationship
Cheung Yuen v Royal Hong Kong
Gold Club ( paid by individual
golfer but not by the club)
Modern approach : multiple test ‘overall impression’:
( 3 tests added together) relations regarding relevant
Use in exam factors
Market Investigations v Minister
of Social Security
Lee Ting Sang v Chung Chi Keung
Chan Kwok Kin v Mok Kwan &

Another : payment , equipment,
helpers
Tsang Kar Lee & ors v Rich Long

transactions Ltd & Anor:
provided container truck,
destination and time provided ,
p has no own investment, work
18 days per month
Not equal weight in any

given situation : varying in
importance from one
situation to another : Poon
Chau Nam v Yiu Siu
Cheung
Other types of employee

Casual employee Amount of control and how much the
employee belonged to the organization:
Lee Ting Sang v Chung Chi Keung
Akin to employment D can be liable for the tort of a non-
employee where their relationship has all
the essential elements of employment
relationship :
Various Claimants v Catholic Child Welfare
society
Borrowed employee Actual employer lends to a temporary
employer: who had control
Chung Yuen Yee v Sam Woo Bore Pile
Foundation Ltd
Course of employment ( liable for everything : trespass, theft,
negligence)
1a) The Salmond A wrongful act authorised by the employer:
test Prohibited conducts vs Frolic of his own
-Prohibited conducts: the doing of prohibited
act by employer does not necessarily make the
employee’s act as falling outside course of
employment
HOWEVER: when prohibition limits sphere of
employment : employer may not be liable:
Limpus v London general Omnibis Co
Rose v Plenty
-Frolic of his own

When a employee does something totally
unconnected with his job -> frolic on=f his own
-> employer not liable
Depends on degree of deviation from
work, period of absence, physical
distance, purpose off deviation
Storey v Ashton
1b) 2nd part of A wrongful and unauthorized mode of doing
salmond test the act authorized by the employer
2) The Lister test The wrongful act were so closely connected
(if salmond not with the employment that it would be fair and
satisfied) just to make the employer liable
Lister v Hesley Hall Ltd
Ming Au Insurance Co (HK) ltd v Ritz-Carlton Ltd
( need to be fair, just and closely reasonable)
Course of employment satisfied : Liability of specific actions of

employee
Fraud Whether the fraud was connected to the
employment or that of the employer benefits
Of the Due to legislations, government liabilities are
government limited
Trespass tort Whether tort was closely connected to the
employment
Liability for Whether entrusted the property to the employee
theft Morris v CW Martin & Sons Ltd
Independent Employer’s personal negligence and ratification,
contractor non-delegable duties
Independent contractor not employee : provide service, not

under employer -> contract for services
Employer not UNLESS : Non-delegable duties
vicariously liable -safe working environment
for torts -proper plant and appliance
-system of work
-competent staff
Other relationships
Principal and agent A principle is liable for the wrongs
committed by his agent
An agent usually act and represent the

principal for a particular job or action
-when principal authorized agent’s

wrongful act
-when principal ratified the agent’s
wrongful act
-when a person is not an agent, but held by
the principle as an agent and commits a
tort
Chan Tim Kwok Tai Chee
Partnership and car -Partnership in a firm is liable : ‘in ordinary
owners course of the business of the firm or with
the authority of his co-partners’ : s12 of
Partnership Ordinance (Cap 38)
-The owner will only be liable if the

purpose for lending and driving the car was
due to the task of or benefit of the owner
Kwong Kwok Kin v Observator Watch &

Jewellery Co Ltd

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Tort vicarious liability ( NOT a duty)

Defendant is liable for the actions or omissions of the wrongdoer

Limited : defendant liable for things they didn’t do ( strictly

2. D’s personal and primary liability for non-delegable duty to the

Elements required for vicarious liability

Why vicarious liability?

Employment ( contract of services ):

See s2(1) Employees’

THE TEST OF EMPLOYMENT

1.CONTROL: Consider the

Control test Retains substantial control of

Chan Kwok Kin v Mok Kwan &

Tsang Kar Lee & ors v Rich Long

Not equal weight in any

Other types of employee

-Frolic of his own

Course of employment satisfied : Liability of specific actions of

Independent contractor not employee : provide service, not

An agent usually act and represent the

-when principal authorized agent’s

-The owner will only be liable if the

Kwong Kwok Kin v Observator Watch &

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