All employment contracts contain an implied term that the employer will take every reasonable precaution regarding the staff's safety at work and that the employee will not be exposed to the risk of injury or damage, especially in cases where the employer knows, or ought to know, of such a risk.
If, for instance, an employer is aware that a particular member of staff tends to be physically aggressive, and should be able to foresee that there is a danger that this employee might assault someone, the company may be liable for negligence if it fails to take steps to address this.
An employer may, under certain circumstances, also be held liable for an unauthorised act by an employee, if the act is closely connected to the employment and the court finds it fair and just for the employer to be held accountable.
The above issues were under consideration in the case of Ling Man Kuen v Chow Chan Ming & Another (2006). The court heard that the plaintiff had been employed as an assistant engineer, training to be a safety officer, in work related to the installation and maintenance of lifts and escalators.
The facts of the matter revolved around an incident at work where Mr Ling's colleague Mr Chow, who was the first defendant in the case, complained to him that he had provided him with some inaccurate specifications, which prevented Mr Chow from carrying out the job at hand. Mr Ling's failure to provide correct measurements could be ascribed to his lack of experience.
A heated argument broke out between Mr Ling and Mr Chow, resulting in a physical altercation and in Mr Ling being seriously injured. It later transpired that, a few years prior to the incident, Mr Chow had been convicted of assaulting a former colleague.
Following the incident, Mr Ling sued both Mr Chow and his employer. His claim against the employer was for vicarious liability for the acts of the first defendant, breach of contract and negligence. Mr Ling alleged that the employer had failed to take reasonable measures to protect him from a violent attack by Mr Chow and that it had exposed him to an unnecessary risk of being injured.
The employer contended that the assault, a criminal act, was an impulsive act of violence by Mr Chow in response to an uncooperative work attitude by Mr Ling, and that it was not designed to advance his work or the employer's business. The employer therefore submitted that it should not be held vicariously liable.
The court adopted a test to examine whether the assault arose out of, or was closely connected with Mr Ling's employment and whether it would be fair to hold the employer vicariously liable for Mr Chow's act.
In determining whether the employer was vicariously liable, the court took into account factors such as the time of the incident and whether the parties were acting within the scope of their employment. Given that the incident occurred at the workplace and that Mr Chow was acting within the scope of his employment when he went to discuss the specifications with Mr Ling, resulting in the verbal exchange and physical altercation, the employer was held vicariously liable for Mr Chow's act. Regarding his claim for negligence, Mr Ling contended that Mr Chow had previously been convicted for assaulting a colleague and that the employer had been negligent by assigning him to work with Mr Chow.
The court ruled that Mr Chow's previous conviction had taken place a few years earlier and that there were no circumstances to give rise to a foreseeable risk of injury to Mr Ling. The court consequently held that Mr Ling could not establish a case of negligence against the employer.
|Q & A on vicarious liability and negligence|
|Q1 ||What are the heads of claim for which employers can be held vicariously liable?|
|A1 ||These are not limited. As long as the test of vicarious liability is satisfied, employers may be liable. Examples include discrimination and harassment by employees. |
|Q2 ||Can an employer be liable for acts or omissions by independent contractors?|
|A2 ||The general position is that an employer is only vicariously liable for acts or omissions by its employees. However, in some cases where an individual is engaged as an independent contractor, the court may view that person as an employee "in practice but not necessarily ordained by law". |