SAYURI TAKAKURA v. KAI SHING MANAGEMENT SERVICES LTD. and Another

IN THE COURT OF APPEAL

1997, No. 85
(Civil)

______________

_______________

_______________

J U D G M E N T

_______________

Mortimer, J.A. (giving the judgment of the Court):

1. This is an appeal against the decision of the judge below ordering that paragraph. 7 of the plaintiff's Statement of Claim be struck out. That paragraph reads:

"The aforementioned incident was carried out in the course of the Second Defendant's employment."

The background

2. The plaintiff returned to her flat late one evening to find that she left her key behind. She was unable to get into her flat and so she went down to the lobby to seek assistance in order to telephone her husband in the flat and wake him. She approached the security guard at the premises. In due course her husband was awoken. When she was returning to the lift to get to her flat the security guard came up to her and indecently assaulted her.

3. It was said successfully below that the allegation that the security guard's employer was vicariously liable on the basis that the offence was carried out in the course of the security guard's employment simply could not possibly succeed. It is to that which I turn.

What are the facts?

4. On what facts ought this Court and the court below decide the matter? The answer is those facts which are pleaded and none other, for we do not know what facts will be proved at trial other than the allegations made in the pleading.

5. The pleading is simple. It says that the 2nd defendant was employed by the 1st defendant as a security guard at the premises. That the plaintiff was resident at the premises. That at 12.30 am on 8th July 1996 the plaintiff returned home to discover that she had forgotten her keys and was unable to enter her flat. That she endeavoured to wake her husband but was unable to do so and so made her way to the security desk in the lobby where the 2nd defendant, the security guard, was on duty. She requested his assistance to allow her to use the telephone. She spoke to her husband and asked him to unlock the door and then waited for the elevator. While she was waiting for the elevator the security guard indecently assaulted her. Finally, there is an allegation that incident was carried out in the course of the security guard's employment.

The issue

6. The question whether any act is done in the course of a defendant's employment is a question of fact, not a question of law. There is no dispute about the law. I do not propose to set it out.

7. The question, therefore, is: could a security guard ever commit an indecent assault in the course of his employment? If the answer to that is yes, it is possible the facts to be proved which show that he did commit an indecent assault in the course of his employment, then it seems to me, this appeal must be allowed, however remote that possibility.

8. Here the court simply does not know what facts will come out at trial. It is suggested that we should read the statement to the police made by the plaintiff. For my part, I do not think we can look at that in deciding this matter. We must look simply at the pleadings. The pleadings are general. They allege that this incident was carried out in the course of the security guard's employment and the facts in support are, so far as this Court is concerned, at large.

9. It is perhaps better that I say no more about the matter. The facts remain to be determined at trial. Those facts may or may not demonstrate that this was an indecent assault which was committed in the course of something that the security guard was employed to do. Of course, he was never employed to commit an indecent assault, but is not the test. It was, of course, for his own personal gratification. But that does not answer the matter either.

Conclusion

10. As we are unaware of the detailed facts, with some reluctance, I would allow this appeal and set aside the order of the judge in the knowledge that there is only a remote chance that it will be established that this incident was carried out in the course of the 2nd defendant's employment.

Godfrey, J.A.:

I agree.

Cheung, J.:

I also agree.

Mortimer, J.A.:

In those circumstances the appeal is allowed.