TSE NGAN HEUNG v. THE RITZ-CARLTON LTD. AND ANOTHER

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 658 OF 2000

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J U D G M E N T

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1. On the 9 March 1998 at some time between 9.30 and 10.00 p.m. both these Plaintiffs were walking on the pavement on the nearside of Queensway towards Wanchai. They were struck by a fast-moving Mercedes-Benz saloon which mounted the pavement. It was driven by the second Defendant who was employed by the first Defendant, the renowned Ritz-Carlton Hotel. How did he come to be driving a car hired by the Hotel from Park Lane Limousines as a courtesy car for the use of hotel guests? It is not disputed that the two Plaintiffs were injured as a result of the negligent driving of the second Defendant and are entitled to have their claims satisfied on the basis of full liability. The sole issue is whether the second Defendant was driving the vehicle in the course of his employment by the first Defendant as their servant or agent, or was driving outside the terms of his employment, in breach of those terms, without permission and on a trip for his own purposes.

2. As far as the Defendants are concerned this consolidated action has a somewhat chequered history. I do not need to review this as the details are set out in an earlier judgment which dealt with the interests of the two insurance companies concerned: that of the Ritz-Carlton Hotel and that of the owners of the vehicle the latter being, in fact, the "insurers concerned" for the purposes of the involvement of the Motor Insurers' Bureau being the insurers of the vehicle concerned owned by Park Lane Limousines.

3. Although both Plaintiffs' actions have proceeded neither has given evidence. On liability there is little purpose to be served as they are bound to succeed against the second Defendant. In any event they have no recollection of events since both were rendered unconscious. They cannot of course give any evidence bearing on the sole issue between the two Defendants.

4. The second Defendant was convicted of reckless driving on his own plea of guilty. He was also convicted of driving without insurance cover for third party risks. That latter fact is not however conclusive of any issue between the Defendants.

The second Defendant and his employment by the first Defendant.

5. Lo Sin Tak was employed as a doorman at the Ritz-Carlton. He was under the supervision of the Senior Bell Captain, Au Tse Pun. Mr Lo's jobs included valet parking for the hotel's customers. He might also be required to move any of the courtesy cars hired by the hotel from Park Lane Limousine Services if space was required or an adjustment in the car's position was necessitated and the chauffeur hired with the limousine had gone off duty. For such circumstances, the chauffeur was required to leave the keys at the hotel counter. If such movement was necessary to provide space or to give another vehicle the freedom within which to vacate a space, there were two routes available if a simple manoeuvre was not feasible: the short one was down Club Street into Chater Road then immediately back down the scavenger lane, into Connaught Road, then up Club Street. This is the 'round the block' route. If the scavenger lane was obstructed, or perhaps a little longer time was required, the route was down Club Street, from Chater Road into Queensway, down Arsenal Street returning along Harcourt Road into Connaught Road and then back up Club Street.

6. The practice was essentially to park the hired courtesy cars on the hotel car park which is part of the forecourt of the hotel. During the course of a visit it was easy to see how this was done. There is a greater parking area on the left of the hotel forecourt as one enters the hotel, than there is on the right. One can envisage from the layout that there may well be occasions when cars parked on a temporary basis constitute an obstruction to the flow of traffic and it is thus necessary to move them. It is not disputed that when Lo Sin Tak was performing any of the valet parking services, either in relation to customers' cars, or the courtesy cars - his position when performing such a duty was described as a 'car jockey' - he was acting in the course of his employment. This then is the overall picture of how such matters should function.

The representation of the second Defendant and the Insurer concerned

7. At the commencement of this trial on liability, Mr Warren Chan SC and Mr Paul Lam and their instructing solicitors, represented Lo Sin Tak through Ming An Insurance Company. Ming An were the insurers of the courtesy cars through Park Lane Limousines who supplied them on hire to the Ritz-Carlton. Ming An clearly had an interest identical to that of Lo Sin Tak. He wished to establish that he was driving with his employer's authority, express or implied; the Insurance Company wished to establish vicarious liability on the part of his employers. If both failed to obtain such a finding there would be a judgment against an uninsured motorist leaving the Motor Insurers Bureau to satisfy the judgment. Ming An were the insurers concerned. Their interest was the same as that of the M.I.B.

8. On the second day of this trial it was clear from the position outlined by Mr Chan that Lo Sin Tak was no longer interested in taking part in the trial. He had told his solicitors such and it became clear that he was not cooperating with them and their position had become impossible. Accordingly Mr Warren Chan SC and Mr Lam and their instructing solicitors sought leave to withdraw and cease to act respectively. It was inevitable and I gave leave. Then, as anticipated, Mr Chan applied on the instructions of the same firm and Ming An Insurance Company for Ming An Insurance Company to be joined as third Defendant. The application was made under Order 15 rule 6. Mr John Bleach SC for the first Defendant sought to oppose this though I think that this was essentially a tactical opposition. The circumstance had changed significantly since I refused an identical application some months ago. Undoubtedly Ming An had an interest. It was now necessary in order that such interest could properly be protected that Ming An be made a party. There was a real risk that, unrepresented, the issue could go against them by default. I had no hesitation in granting it.

The case of Ritz-Carlton against Lo Sin Tak

9. In short the hotel's case was that Mr Lo went off on a frolic of his own, unauthorised, knowing he was not authorised, for his own purpose and/or the interest of another staff member. In order to see how this case is framed it is necessary to examine closely the circumstances of that evening. To that end we all visited the hotel forecourt and entrance at 8.00 a.m. on the second day of trial and in Court reviewed the security video film recording movements on a substantial part of that forecourt over the relevant time. I have watched the video through on three occasions. It is a highly significant record.

10. It needs analysis against statements made by Mr Lo - two to the Police and another, earlier this year, for the purpose of these proceedings. In his first statement to the Police he stated that the vehicle he was driving had earlier been left on the pavement outside the hotel car park by the chauffeur who had asked him to park it on the hotel car park when a space became available. At about 9.40 p.m. a space did become free and he drove the vehicle, which he said was outside and beyond the entrance to the car park, the long way round from Chater Road to Queensway intending to go down Arsenal Street into Connaught Road back into the hotel car park. He was however involved in the traffic accident in Queensway. It was after the journey began that he noticed a bell boy, who was in fact Kwok Sze Lun, taking a rest in the front seat. Lo made no mention of being unable to take the short "round the block" route.

11. In his second interview with the Police it was put to him that he had taken the courtesy car without authority. He maintained that he had authority and that it was necessary to move it to relieve congestion caused by parked vehicles. If he had not done so, the vehicle would have been ticketed by the Police. Therefore he drove around and was going to use the opportunity to buy some food. He declined to answer questions relating to whether the buying of food was in accordance with a company request or a decision of his own, and why Kwok Sze Lun was in the vehicle on the journey.

12. About 2 1/2 months after the accident he was interviewed again but gave no worthwhile information. He suggested that at the time of the accident his speed was 50 k.p.h. That may have been the speed at the time when the two Plaintiffs were struck. His speed before that moment had been excessive and dangerous.

13. The first of his two statements prepared for the purpose of these proceedings is dated 23 February 2000. Much of it is concerned with the authorised activities of the 'parking-jockeys'. It is unnecessary to repeat the detail but before relating what happened as a variation on his earlier story to the Police he had viewed, as we all now have, the security video-recording. It also emerged that prior to his employment by Ritz-Carlton he had been employed by Parklane Limousines as a chauffeur.

14. He said he was confused about the position from which he had driven the Mercedes when giving a statement to the Police. It was now accepted by him that the car had been parked on the forecourt at right angles to the hotel front and with two cars on its left side. It was facing out towards Club Street.

15. In short he drove it out and around because it was obstructing the free flow of cars. After he had moved the car about a metre Kwok Sze Lun ran towards the car shouting (or motioning) for him to stop and he did so. Kwok jumped into the car. Lo said Kwok wanted to drive round to get some snacks for the supervisor and other jockeys. The buying of food for night snacks was something the hotel and supervisor permitted. However his own reaction to Kwok was that if it could be done on the journey and traffic allowed he would let him out to buy food. In view of the rainy weather however he had already decided before the accident that he would not stop for food.

16. Earlier he described the two routes available: "round the stock" using the scavenger lane, and the Queensway route which he described as the most regularly used. The former route he said was not often used because the scavenger lane was narrow and it was often obstructed.

17. The second statement is a detailed consideration of provision for staff meals and the practice and mechanics of fetching food from outside particularly later in the evening.

18. None of the contents of these statements has been given in evidence by Mr. Lo because he has not attended court of his own volition nor responded to the service of a subpoena upon him by the third Defendant. Therefore his version or versions have not been given on oath or tested by cross-examination. It remains simply evidence of what he has said to other people on different occasions.

19. Kwok Sze Lun, the bell boy who travelled with Lo, did give evidence. He explained the practice of obtaining night snacks from outside and I have little difficulty in accepting that there was such a practice. I do not doubt, as Wilson Leung Tat-kei explained, hotel catering for staff, which may even have consisted of "left-overs" and other food, was probably less than appetising and there had been for some time a reliance on food brought in freshly cooked from outside. The circumstances under which such food was obtained and the means used to that end were, I also accept, governed by rules or regulations, not all of which were written. There was a requirement that staff be present to fulfil essential duties at all times and the needs of customers were not always predictable whatever the hour of the evening. Any arrangements to obtain food from outside were "ad hoc" and subject to the hotel's priorities.

20. He spoke of asking the Park Lane chauffeurs to bring in meals for members of the staff and sometimes a member of the staff would go out with a chauffeur to get meals in conjunction with hotel duties. He made it clear that when such a member of the staff did this he was sometimes instructed to do it, that they had to report any intention to do so, and in any event if the trip with the chauffeur was solely to get food, then the senior or supervisor had to be notified.

21. On the night in question he was the only bell-boy on duty. There were only two valet parkers (or 'car jockeys') on duty of whom the second Defendant was one.

22. He denied having got into the car driven by the second Defendant, in order to get some rest. This was in any event a most implausible aspect of his original story to the Police. It is highly likely that this explanation was concocted both to help Kwok Sze Lun as well as Lo Sin Tak. This is certainly what he was saying as far as his own position was concerned. He maintained a story which had him, quite coincidentally, jumping into the vehicle as the second Defendant was about to move it, there having been no prior discussion or request to go and get some food. He said he did not raise this matter until he got into the car, and was uncertain whether Lo Sin Tak would agree to this.

23. More importantly, he said that he thought his senior or supervisor would agree to his going on this errand even though he was the only one on duty. It was clear that he had not obtained permission. He said that on other occasions he had not done so.

24. Although it seems to have been the practice that when food was to be obtained from outside the hotel it was shared amongst all, as if by inference to suggest that all concerned acquiesced in such a food gathering exercise, it would not be right to conclude that all, particularly those in a senior or supervisory capacity, were prepared to condone irregular actions such as that, on this occasion, done by Kwok Sze Lun, even though the latter suggested his actions, though done without permission, were not disapproved of afterwards.

25. The baggage master on duty that night was Wilson Leung Tak Kei, a relative by marriage of the bell-boy Kwok Sze Lun. Mr Leung was in charge of the bell-boys and also had authority over the valet-parkers. He confirmed that it was usual for members of the staff to seek meals from outside the hotel. This was achieved by staff going by taxi specifically for that purpose, or by asking a Park Lane chauffeur if he was willing to do so but the need or practice was governed by the hotel's requirements.

26. Undoubtedly Mr Leung was in a potentially difficult and embarrassing situation. Kwok Sze Lun was linked with his family. He himself and others shared in the food brought back. His disciplinary or at least supervisory authority, could be seen to be compromised by reason of this. When it had happened he assumed permission had been given even though it was not he who had been asked. On that particular evening he was not aware that the bell-boy and Lo Sin Tak had gone out for food - or for any other reason. He would not have given them permission in view of the limited staff at that time of night. I found him a very candid and honest witness. Some of the questions I asked were clearly designed to see how open he was prepared to be. Some of his answers were capable of putting him in a questionable light yet he did not flinch from giving them. I am however satisfied that he did not give either Lo Sin Tak or Kwok Sze Lun express or implied permission on that occasion. I am also satisfied that his recognition of his obligations and the hotel's priorities meant that he would not have given permission if asked and furthermore that if he had any inkling of what the two of them were about he would have made it clear that they were not to go.

The case of Lo Sin Tak that he was acting in the course of his employment.

27. The explanation put forward by him was clearly designed to suggest that, when he was driving the car, it was part and parcel of his usual employment. Even his story, allegedly to protect Kwok Sze Lun was self-serving. Its purpose was to indicate that the two of them did not have a common intent and that when it was put to him, he rejected the request to stop for food.

28. The evidence in the video film is conclusive in a number of respects. The Mercedes courtesy car in its position on the hotel forecourt did not constitute an obstacle for traffic proceeding through that forecourt. It is clear that such traffic moved with ease and with no apparent restriction. The car, when driven by Lo Sin Tak, was seen to pull out a few feet from its parking position, stop for a few seconds apparently to let someone (Kwok Sze Lun) into it, and then drive off. The film also showed that the scavenger lane was free from obstruction and therefore that the short 'round the block' route was available. There was therefore no need to move the car and if some adjustment had been necessary to give a temporary exit for any other parked car, the short 'round the block' trip was sufficient for that purpose.

29. The evidence to be culled from the statement of witness Fun Chi King Johnson is quite significant, and describes the speed of the Mercedes driven by the second Defendant as being over 90 k.p.h. when it passed his own vehicle on the offside near the United Centre. It then zig-zagged across from the fourth lane to the first lane, overtaking vehicles and then moved back to the fourth lane. After more overtaking it switched back to the first lane. Then it went out of control striking the pedestrian railing (and it would appear the Plaintiffs). It "bounced" back to the second lane where it came to a stop.

30. What weight am I to give to this account given to the Police by an independent witness? It is, of course, extremely difficult for another motorist to give accurate estimates of speed but he can give reliable impressions. It is clear that he was describing the dangerous or reckless manoeuvres of a motor car. He had the impression of excessive and dangerous speed and I have no reason to question the validity of his conclusions - excessive speed, reckless manoeuvres culminating in a loss of control of the vehicle. He was describing the Mercedes car driven by the second Defendant.

31. All this indicated that the second Defendant was in a hurry to complete his journey. If he was on a legitimate journey there would be no need for such extreme haste. It all indicates a desire to accomplish the journey, and anything else incidental to it, as quickly as possible. This is entirely consistent with the need to be back at the hotel as quickly as possible before his (or their) absence was noted and/or before there was a demand for their services within the hotel.

32. None of these inferences raised, has been displaced by any evidence from or on behalf of the second Defendant.

Conclusions

33. I have no doubt that the second Defendant was acting outside the scope of his employment. All that he did and the adverse inferences irresistibly to be drawn from all that he has said and from all other incontrovertible evidence leads inexorably to this conclusion. He had no authority to drive off one of the hired courtesy cars in the existing circumstances. His previous employment by Park Lane Limousines may have created a certain arrogance or indifference on his part which led him to adopt an attitude that no one would question a quick, harmless (so he thought) trip on his part. He was wrong in principle and events exposed his contrived story or excuse.

34. In these circumstances, it is unnecessary to consider the law in detail. The line of cases from Canadian Pacific Railway Co. v. Lockhart 1942 AC 591; Harvey v. O'Dell 1958 2 QB 78; Nottingham v. Aldridge 1971 2 QB 739 and others, are consistent in their application of the principle. Eveleigh J (as he then was) recalled Lord Denning's reference to the law imposing "vicarious liability for reasons of social policy" [Launchbury v. Morgans 1971 2 QB p.245] in his judgment in Nottingham v. Aldridge but even that degree of flexibility, as society and its hazards evolved, did not alter the approach of the Judicial Committee of the Privy Council in the Canadian Pacific Railway Co. case as cited by McNair J in Harvey v. O'Dell:

".... If the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of his employment but has gone outside of it."

35. The case of Irwin v. Waterloo Taxi-Cab Company Limited 1912 3 KB 588, cited by Mr Sakhrani, is not pertinent to this issue, and its decision, in no way inconsistent with the general principles, turned on the particular facts of that case.

36. There will be judgment for both Plaintiffs against the Defendant, Lo Sin Tak, with costs. There will be judgment for the Defendant Ritz-Carlton Limited against both Plaintiffs but with an order that Ming An, the third Defendant pay the costs of Ritz-Carlton Limited, in accordance with Ming An's requirement that their actions be pursued against Ritz-Carlton. Mr Bleach, at the outset, stated that Ritz-Carlton would not pursue its application to strike out the second Plaintiff's action (570 of 2000). The second Plaintiff will have her costs of and occasioned by that application, such costs to be paid by Ming An.

37. On the assumption that logic and reason prevail and Ming An or the M.I.B. will meet the Plaintiffs' judgment and costs it is not necessary for me to make a specific order against Ming An. However, these orders are nisi orders although some of them do not need to be so I anticipate the parties can resolve any technical problems. Agreed adjustments to any such orders can be made without formal hearing.

38. I think I should record one further matter in fairness to Mr Wilson Leung, the baggage master of Ritz-Carlton Limited, consistent with what I indicated to Mr John Bleach SC at the end of the trial. Mr Leung was suspended without pay by Ritz-Carlton after the accident and whilst the matter was investigated. He was in charge of both Lo Sin Tak and Kwok Tse Lun and I can well understand why he was suspended given the circumstances. However I am satisfied he was not at fault and is an honest, straightforward man. It would be harsh, indeed unjust, if he has not had his pay for those two weeks restored. I anticipate he will in any event have lost patrons' gratuities over that two week period, a loss itself which he in no way deserved.