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Hong Kong Law Reform Commission |
4.1 If any person is wronged by abusive debt collection activities,
that person may bring civil proceedings seeking civil remedies, which are likely
to include damages and injunctive relief. If a person suffers any personal
injury (including physical or psychological injury), pecuniary loss, or damage
to property, that person has the right to claim compensation which would put him
in the same position as he would have been in, if he had not been wronged. The
injured person may also apply to court for an injunction restraining the
commission or continuance of the wrongful act. An injunction, however, cannot
be demanded as of right, and one will not, in general, be granted where damages
would be a sufficient remedy. Civil claims may be brought under numerous heads,
and those often applicable to debt collection activities are described
below.
4.2 The tort of trespass to the person includes assault, battery and
false imprisonment. This tort has its counterpart in the criminal law. In many
situations involving this tort, the claimant has the choice of seeking redress
in tort, or under the criminal law or both.
4.3 The direct and
intentional application of unwanted physical contact on another person may
constitute the tort of battery.[95]
There is no requirement to prove that the physical contact caused or threatened
any physical injury or harm. Examples of battery from some old cases include
touching another in a rude and offensive
manner,[96] spitting in
another’s face,[97] throwing
water upon somebody,[98] or pulling
a chair from under another whereby that person falls to the
ground.[99]
4.4 As for
assault, it is an overt act indicating an immediate intention to commit a
battery, coupled with the capacity of carrying that intention into
effect.[100] In other words, an
assault is an act causing reasonable apprehension of a battery. Blackstone
defined assault as “an attempt or offer to beat another, without
touching : as if one lifts up his cane, or his fist, in a threatening manner at
another; or strikes at him but misses
him”.[101] Salmond and
Heuston took the view that words alone probably did not constitute an assault
because the intent to do violence must be expressed in threatening
acts.[102] However, Glanville
Williams believed that “a verbal threat of immediate force has all the
essential elements of an assault, particularly where it is uttered with the
intention of imposing a present restraint upon the conduct of the victim. There
is nothing in the English decisions contrary to this
view”.[103] This view
now has the support of the House of
Lords.[104] Threats may amount to
assault not only when the plaintiff and the defendant are face to face, but also
over the telephone.[105] In
Wong Kwai Fun v Li
Fung,[106] a debt collection
case, the defendant uttered threats of physical violence and death on various
occasions including in the presence of the plaintiff and his family, on the
telephone and the intercom system. The defendant had struck the plaintiff and
members of his family on previous occasions. The court held that the threats
constituted actionable wrongs and amounted to assault. It is believed that the
emphasis on acts rather than words reflects the conditions of earlier times when
means of communication were more
restrictive.[107]
4.5 “A false imprisonment is complete deprivation of liberty for
any time, however short, without lawful
cause”.[108] It
appears that neither the use of force nor any direct physical contact is
necessary to constitute false imprisonment, and neither is the plaintiff’s
present knowledge of the confinement. Well known dicta support this
view:
“It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic .... Of course, the damages might be diminished and would be affected by the question whether he was conscious of it or not.”[109]
4.6 These
dicta were approved obiter by the House of Lords in Murray v
Ministry of Defence[110] and
by the High Court of Hong Kong in Attorney General v Chan Yuen
Lung.[111]
4.7 The
action for false imprisonment allows redress to victims of unlawful
incarceration.[112] It is in line
with the importance attached to the individual’s freedom of the person and
movement as guaranteed under the Bill of Rights Ordinance (Cap
383).[113]
4.8 For assault and battery, if no actual injury has been caused, only
nominal damages can be awarded. If some actual physical injury has been caused,
damages will be assessed in accordance with law. If a plaintiff has suffered
humiliation and ridicule caused by the defendant’s intentional act or
conduct, aggravated damages may be awarded in addition to damages for the actual
injury.[114] Assessing damages
may be problematic since quantum is not as easily determinable as for personal
injury and damage to property. In William Alan Terence Crawley v the
Attorney General,[115] for
example, though the plaintiff did not suffer any physical injury, the manner of
his arrest was humiliating, and he was awarded HK$4,500 as damages, after taking
into account injury to his reputation and humiliation.
4.9 With regard to
false imprisonment, damages are given to vindicate the plaintiff’s rights
even though no pecuniary damage has been
suffered.[116] In exceptional
cases, the courts will issue an injunction to restrain future
assaults.
4.10 The tort of intentional infliction of physical harm other than
trespass to the person is illustrated in the case of Wilkinson v
Downton.[117] The tort
covers any act or statement of the defendant which is intended to cause physical
harm to the plaintiff and which in fact causes illness or injury. Wright J
said:
“the defendant has ... wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to safety, and has in fact thereby caused physical harm to her. That proposition without more appears to state a good cause of action, there being no justification alleged for the act.”[118]
4.11 Wilkinson
v Downton was applied by the Court of Appeal in Janvier v
Sweeney.[119] This case
involved private detectives seeking letters from the plaintiff falsely accusing
her of being in correspondence with a German spy. The plaintiff suffered severe
nervous illness, and the defendants were held liable even though they could not
have foreseen the illness and had no motive to cause that illness. The decision
was based on the fact that the defendants had intentionally conducted themselves
in such manner as to terrify and frighten the plaintiff and they would be
presumed to have intended the natural consequences of their
conduct.
4.12 In Burnett v
George,[120] the plaintiff was
relentlessly harassed by a former boyfriend. It was held that an injunction to
restrain harassment by telephone calls should only be granted if there was
evidence that the health of the plaintiff was being impaired by molestation or
interference calculated to cause such impairment. In the more recent case of
Khorasandijan v Bush,[121]
the Court of Appeal held that harassment not amounting to a threat but causing
or likely to cause physical or psychiatric illness to the victim could be
restrained quia timet by injunction.
4.13 Mere shock, fear or
mental suffering is not enough; some outward and physical result of that
emotion, for example, illness resulting from nervous shock is
required.[122] In the Australian
case of Bradley v Wingnut Firms
Ltd,[123] the plaintiffs
sought an injunction to restrain the publication of a film, which was described
as a “comedy horror” and which showed the tombstone marking the
plaintiff’s family burial plot. The plaintiffs alleged that they were
“shocked and upset” by the tombstone’s association with the
film, especially given the film’s extreme and sometimes offensive nature.
The court held that a cause of action for intentional infliction of emotional
distress required a plaintiff to establish something more than a transient
reaction of emotional distress, however initially severe. That reaction must
translate into something physical, and the plaintiff had to show that the
defendant had wilfully done an act calculated to cause physical harm to the
plaintiff and to show that the shock and illness were natural consequences of
the wrongful act or default.
4.14 In Alcock v Chief Constable of South
Yorkshire Police,[124] which
concerned a claim for negligence, the House of Lords stated that in order to
establish a claim in respect of psychiatric illness resulting from shock,
something more than purely mental distress is required.
4.15 In the Hong
Kong case of Wong Kwai Fun v Li
Fung,[125] the plaintiff
brought an action for possession of the defendant’s residential premises
on the basis of an alleged sale and purchase agreement. The defendant resisted
the claim on the ground that the property was put up as security for an
unenforceable money lending transaction in which the rate of interest amounted
to 400% per annum. One of the issues was whether damages or exemplary damages
should be awarded in view of the lender’s repeated threats of violence to
him and his family which caused the defendant to attempt to commit suicide. The
defendant felt a strong sense of guilt towards his family whom he believed would
be killed. After writing a note to the plaintiff requesting him to spare his
children, the defendant attempted suicide by swallowing a whole bottle of about
100 sleeping pills mixed with detergent and coca cola. Although the
defendant’s life was saved, he made another attempt at suicide and had to
undergo psychiatric treatment from 1987 to 1991. The court applied Wilkinson
v Downton and Janvier Sweeney, and held that damages were payable since the
requirements of the tort were met : the threats of violence by the plaintiff and
his agents or servants were calculated to be believed by the defendant who had a
reasonable basis to believe that the threats would be carried out, and the
defendant did suffer fear and depression as a result. With regard to the
question of whether exemplary damages should be awarded, the court found that
the plaintiff, with a cynical disregard for the defendant’s rights, had
calculated that the excessive interest to be made out of his wrongdoing would
probably exceed the damages at risk, which interest the plaintiff knew to be
unenforceable and illegal. The court also found that, alternatively, the
plaintiff sought to gain at the expense of the defendant his residential
property, which the plaintiff coveted, and which he could not obtain or could
not obtain except at a price greater than he was prepared to pay. The court
applied Rookes v
Barnard,[126] and held that it
was an apt case for exemplary damages to be awarded so that the plaintiff and
people like him would be apprised of the policy and attitude of the court in
dealing with such torts.
4.16 If a debt collector dispossesses the plaintiff of his chattel or
damages it, he may be liable for trespass to chattels. The act of the defendant
must be intentional, and there is no liability for accidental
acts.[127] On the other hand, the
defendant may still be liable even he does not appreciate that his interference
is wrongful. If a defendant uses a chattel, erroneously believing that it is
his, his act would still constitute trespass to
chattels.[128]
4.17 If a
plaintiff’s goods are destroyed or disposed of by the defendant, the
plaintiff is entitled to recover the full value of the
goods.[129] Full value is market
price or the cost of
replacement.[130] If a
plaintiff’s goods are merely damaged but not destroyed, the normal measure
of damages is the amount by which their value is
diminished.[131] Consequential
loss which is suffered by the plaintiff is also recoverable provided that the
loss is not too remote.[132] In
Liesbosch Dredger v The
Edison,[133] the plaintiff
recovered for loss of profits of a profit-earning chattel. In The Mediana v
The Comet,[134] the plaintiff
recovered damages for loss of use of the chattels.
4.18 A person is liable for defamation if he communicates to another
any matter which is untrue and which lowers or tends to lower a person in the
estimation of right-thinking members of society generally or which tends to make
them shun or avoid that
person.[135] Defamation may take
one of the two forms - libel or slander. Libel occurs when the defamatory
statement is made in some permanent form, usually in writing or print. It can
also be a painting or picture, effigy, caricature, advertisement or any
disparaging object.[136] Slander
is defamation communicated in a non-permanent form by spoken words, or other
sounds.[137]
4.19 It should
be noted that if the contents of a defamatory statement are true (i.e. if the
debtor is in fact indebted to the creditor) the debt collector has a complete
defence, known as justification, even if the publication was actuated by spite
or malice.[138]
4.20 It is also possible that a debt collector or a creditor could be
held liable for the tort of negligence. In Wong Wai Hing & Fung Siu Ling
v Hui Wei Lee,[139] Le Pichon
JA held, albeit obiter, that had the debtor pleaded negligence against
the creditors in that case, the court could have found that the creditor owed
the debtor a duty to take reasonable care in selecting and appointing a debt
collection agency to act for her, and that the duty of care had not been
properly discharged. In determining the existence of a notional duty of care,
the threefold test of foreseeability of damage, proximity and fairness had to be
applied. Le Pichon JA found that the notional duty of care could easily have
been established given the fine line between legitimate and illegitimate means
of recovering debts, the fact that the majority of collection agencies in Hong
Kong are poorly managed and unscrupulous, the notoriety of the illegal means the
more unscrupulous agencies resort to, coupled with the financial inducement to
the collection agency to produce
results.[140] However, Rogers
V-P, in his judgment in the same case, took the view, also obiter, that
on the judge’s findings, it would not be possible to say that it was
reasonably foreseeable that the collectors would commit acts of assault or
intimidation. Although some collectors might employ such tactics, others acted
responsibly.
4.21 In deciding whether the duty of care has been properly
discharged, the standard of care is to be determined objectively. Le Pichon JA
mentioned the following facts as relevant in deciding that the duty of care
would not have been discharged in Wong Wai Hing & Fung Siu Ling v Hui Wei
Lee: the process of selection adopted by the creditor was no more than
looking up an advertisement in a popular newspaper, the absence of an address,
telephone and fax numbers in the letter of appointment and agreement, the
collection agent was remunerated purely on a contingency basis, and no enquiries
were made regarding the credentials of the collection agency, such as its size,
its clientele, how long it had been established and its modus
operandi.
4.22 Liability for torts committed by others can arise in three
situations. The first is where there is a master and servant relationship. The
second is an employer’s liability in certain limited circumstances for
torts committed by an independent contractor. And the third is where a
principal is vicariously liable for torts committed by an agent.
4.23 The employer is liable for the torts of the employee so long as
they are committed in the course of the employee’s employment. The nature
of the tort is immaterial and the employer is liable even where liability
depends upon a specific state of mind and his own state of mind is
innocent.[141] In the context of
debt collection, if a debt collector is the employee of ABC Ltd, and a tort is
committed by the debt collector in the course of his employment, then both ABC
Ltd and the debt collector are regarded as joint
tort-feasors.
4.24 Difficult questions may arise as to whether or not a
person is an employee of another. There are various tests to determine the
matter. The classic test for distinguishing an employee from an independent
contractor is the ‘control’ test, i.e. the employer’s right to
control the method of doing the
work.[142] The inadequacy of the
‘control’ test was brought out in a series of
cases.[143]
4.25 The
deficiencies of the ‘control’ test have led to attempts to formulate
other criteria. In Stevenson, Jordan & Harrison Ltd v Macdonald &
Evan[144] Denning LJ
suggested the so-called ‘organisation’ or ‘integration
test’, and said:
“under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.”[145]
4.26 The
more modern approach is to abandon the idea of a simple test and to take a
‘multiple factor’ approach by taking into consideration all aspects
of the relationship.[146] In
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National
Insurance,[147] after a full
review of the authorities, it was held that a contract of service exists
if:
“(i) the servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master;
(ii) he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master;
(iii) the other provisions of the contract are consistent with its being a contract of service.”
4.27 In
Market Investigations Ltd v Minister of Social
Security,[148] Cooke J set out
a non-exhaustive list of factors to be taken into account, in addition to that
of control, including whether the worker provides his own equipment, whether he
hires his own helpers, what degree of financial risk he takes, what degree of
responsibility for investment and management he has, and whether and how far he
has an opportunity of profiting from sound management in the performance of his
task.[149] This approach was
approved by the Privy Council in Lee Tin Sang v Chung Chi
Keung.[150]
4.28 Where
the relationship of employer and employee exists, the employer is liable for the
torts of the employee only if they are committed in the course of the
employee’s employment. The most frequently adopted
test[151] is given by
Salmond,[152] namely that an act
is deemed to be done in the course of employment,
“if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them.”
4.29 Even
if the act in question is expressly prohibited by the employer, he may still be
liable, and the test stated in the previous paragraph will have to be applied.
In Limpus v London General Omnibus
Co.[153] notwithstanding
express instructions not to race with, or obstruct other omnibuses, the driver
of the omnibus obstructed the plaintiff’s omnibus and caused a collision.
The defendants as employers were held liable for the damage caused to the
plaintiff’s omnibus. In C.P.R. v
Lockhart,[154] an employee was
authorised to use his own car on certain jobs, provided his car was properly
insured. The employee caused damage whilst driving an uninsured car for the
purposes of his work. The Privy Council held that, despite the employer’s
express prohibition on the use of an uninsured car, the employers were liable
for the damage caused. This should be contrasted with a case where there is
express prohibition as to the sphere of employment rather than the mode of
carrying it out. In Kooragang Investments Pty Ltd v Richardson & Wrench
Ltd,[155] the employer was not
liable because the employee had been expressly prohibited from carrying out
valuations for a particular group which was not then a client of the employer.
In Iqbal v London Transport
Executive,[156] a bus
conductor was ordered to get an engineer to move a parked bus. Although the bus
conductor was expressly prohibited from driving buses, he attempted to drive the
bus himself, and the court found that his acts were outside the course of his
employment. The effect of any prohibition placed by the employer actually
depends on analysis of the nature of the employee’s duties, the
prohibition, and what actual breach of the prohibition is
committed.[157]
4.30 In
circumstances where the employer either expressly or by implication gave the
employee a discretion which he must exercise in the course of his employment,
the employer will be liable for the wrongful exercise of such a
discretion.[158] If tasks have
been delegated to the employee in very general terms, then the implication is
that the employee is granted the discretion to decide how the tasks may best be
completed.[159]
4.31 An
employer would be able to avoid liability if it is shown that the employee was
acting “on a frolic of his
own”,[160] that is, doing
something totally unconnected with his job. The question depends on the degree
of deviation by the employee.[161]
In Dyer v Munday[162] a
hire-purchase furniture dealer sent its employee to recover certain furniture.
The employee was prevented from doing so by a third party, who was then
assaulted by the employee. The court held that the employee remained within the
course of his employment, and the employer was liable for the assault because
the assault was committed in furtherance of the employer’s business, and
not for the employee’s private
purposes.[163]
4.32 Whether
or not an act is done in the course of employment may be a difficult question of
fact[164] and much depends on the
circumstances of the case.
4.33 The employer has been held liable in the
following cases:
4.35 As a general rule, an employer is not liable for the tortious
acts of an independent contractor in the course of execution of the work, except
where the employer has authorised the wrongful act. The law has, however,
imposed liability on employers in some circumstances. If the law imposes on an
employer a strict or absolute duty, often described as
‘non-delegable’ duty, then he is liable even though the immediate
cause of the damage is the contractor’s wrongful act or
omission.[172] Such
‘non-delegable’ duties may arise either by statute or at common law.
Liability will also exist in relation to dangerous operations in the vicinity of
a highway and also in respect of acts which are considered to be extra
hazardous.[173] As for
‘extra-hazardous’ acts, it appears from Honeywill and Stein Ltd v
Larkin Bros Ltd[174] that a
‘non-delegable’ duty exists whenever an independent contractor is
employed to perform an ‘extra-hazardous’ act. Difficulty, however,
arises in determining what constitutes ‘extra-hazardous’. According
to Slesser LJ, ‘extra-hazardous’ acts were “acts which, in
their very nature, involve in the eyes of the law special danger to others; of
such acts the causing of fire and explosion are obvious and established
instances”.[175] There is
an unavoidable degree of uncertainty surrounding this issue because what might
be inherently hazardous previously may no longer be so regarded given
technological advancement.
4.36 Whether or not a principal is vicariously liable for torts
committed by an agent in the absence of a “master and servant”
relationship is less clear, and the issue was examined by the Court of Appeal in
a debt collection context in Wong Wai Hing & Fung Siu Ling v Hui Wei
Lee.[176] It should be noted
that the court gave leave to the defendant to appeal to the Court of Final
Appeal against the decision. However, the defendant failed to comply in time
with the conditions imposed on the granting of leave and the appeal was not
proceeded with. The defendant, a creditor, believing she was entitled to be
repaid C $150,000 by the plaintiff, employed a debt collection agency to collect
the debt for her. The defendant found the name of the collection agency from an
advertisement in a popular Chinese newspaper. The written contract stipulated
that “Party B agrees to collect the debt wholly by lawful means. ... if
any illegal means is used or if any criminal liability is incurred, Party A
shall not be held responsible”. Remuneration was on a contingency basis
at 35% of whatever amount recovered. The collection agents committed acts of
intimidation and assault in the course of attempting to collect the debts. The
plaintiff sought damages and an injunction against further assault and
intimidation. The Court of Appeal held that the defendant was liable for the
torts of intimidation and assault which were committed by the collection agent
by word of
mouth.[177]
4.37 In the
judgment, Rogers V-P referred to Atiyah’s Vicarious Liability in the
Law of Torts, 1967 which discerned three different theories in relation to
whether a principal is liable for the torts of an agent. Rogers V-P said
that:
“First, there are those who assert that the law recognises a general principle of vicarious liability for the torts of an agent. Then there are those, comprising the majority of English writers who deny the relevance of the category of agents altogether. The third main theory is that, while there is no general principle of liability for agents there are certain exceptional cases, in particular those where one who delegates to another the function of representing him in the course of a transaction of a consensual, but not necessarily contractual, nature is liable for torts committed.”[178]
4.38 Rogers
V-P went on to say that:
“An extensive review of the authorities and of the textbooks has led me to the conclusion that whilst there is no general principle of liability for agency that is because the term agent can be used to cover a variety of different situations. To a large extent each case must be considered separately to determine whether the agent is truly acting in an independent way such that his actions as a contractor might be truly viewed as independent of the principal, or whether his actions are so intimately representative of the principal that the principal cannot be divorced from them. In the latter case I consider that the law imposes liability on a principal for torts committed by an agent.”[179]
4.39 Rogers
V-P further said that:
“The defendant had asked Yue Hoi to represent her. She was not specific as to the methods that would be employed by Yue Hoi and its employees, including Mr Kwong. It can only be inferred that they would use such tactics as persuasion, embarrassment and even harassment. As the judge himself noted harassment is not illegal. Thus approaches to the plaintiffs, their employers and their staff could be said to be part of the expected armoury of the debt collector. In acting as a debt collector, Yue Hoi and its staff were empowered to collect the debt. Yue Hoi and its staff were representing the defendant when the plaintiffs were approached and spoken to. In my view, therefore, Mr Kwong and Mr Chan were doing that which the defendant had asked them to do, namely, to use colloquial terms, make such a nuisance of themselves that the 1st plaintiff would pay Yue Hoi, who would receive the money on behalf of the defendant. In a general sense that was the task that they were engaged to do.
...
The only question which remains, therefore, is whether the instructions and directions which the defendant gave, that only legal means were to be used, were sufficient to take Mr Kwong’s and Mr Chan’s conduct outside the scope of that which Yue Hoi and its servants had been engaged to do. ... But what seems to be critical is whether the directions given by the defendant, to use only legal means, limited the sphere of employment i.e. the class of acts which could be done or merely regulated the conduct within that sphere i.e. the mode in which those acts could be done. ... In my view, the undertakings given to the defendant were undertakings as to the mode of carrying out the debt collection, they did not restrict the sphere of employment or the class of acts which could be done.”[180]
4.40 Le
Pichon JA was of the view, with Keith JA agreeing that, a principal could be
liable for the wrongful acts of its agents under the principles set out in
Colonial Mutual Life Assurance Society Ltd v Producers and Citizen’s
Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 (“the
Colonial Mutual principles”). In the Colonial Mutual case, the appellant
had engaged R as a canvasser and agent under an agreement. R was not an
employee but an independent contractor. The agreement expressly prohibited the
agent from using defamatory language or writing. The agent, however, in
attempting to obtain business for the appellant made defamatory statements
concerning the respondent which was another assurance company. Gavan Duffy CJ
and Starke J (citing Barwick v English Joint Stock Bank (1867) LR 2 Ex 259 and
Lloyd v Grace, Smith & Co [1912] AC 716) held that a person:
“... is liable for another’s tortious act ‘if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent’s authority.’ It is not necessary that the particular act should have been authorized : it is enough that the agent should have been put in a position to do the class of acts complained of ...”
Dixon
J (with whose judgment Rich J agreed), also found against the appellant.
Recognizing that normally an independent contractor carries out his work not as
a representative but as a principal, he nevertheless held that:
“... when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity ... in performing these services for the [principal, the agent] does not act independently, but as a representative of the [principal], which accordingly must be considered as itself conducting the negotiation in his person.”
In such a situation, the effect was that the appellant:
“... in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorised him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. ...”
4.41 Le
Pichon JA held that the case before the court appeared to be on all fours with
Colonial Mutual, and said:
“The principle of law that can be distilled from that case is that a principal may be liable for the torts of his agent where the agent was not acting in an independent capacity but in a representative one standing in the place of his principal and the very service to be performed consisted in standing in the principal’s place. The liability is therefore personal rather than vicarious. The function entrusted is that of representing the person who requests its performance, not merely in a transaction with others but is an activity where others can be seen to be closely affected. That which gives rise to liability must be done for and on behalf of another, which is not the same as saying simply that it is for his benefit or at his request. See per Eveleigh J in Nottingham v Aldridge [1971] 2 QB 739 at 752C.”[181]
4.42 Victims of abusive debt collection activities may also have a
civil cause of action pursuant to the Personal Data (Privacy) Ordinance
(Cap 486).[182] This is
discussed in the next chapter.
[95] Clerk & Lindsell,
Torts, 17th edition at
12-05.
[96] Cole v Turner
(1704) 6 Mod 149.
[97] R v
Cotesworth (1704) 6 Mod
172.
[98] Pursell v Horn
(1838) 8 A & E 602.
[99]
Hopper v Reeve (1817) 7 Taunt
698.
[100] Clerk &
Lindsell, cited above, at
12-12.
[101] Bl Com iii,
120.
[102] Salmond &
Heuston, Law of Torts, (20th edition) at page
127.
[103] Glanville Williams,
Assault and Words, (1957) Criminal L Rev 219,
224.
[104] R v Ireland
& Burstow, [1998] AC 147, per Lord Steyn at
162.
[105] Barton v
Armstrong [1969] 2 NSWR
451.
[106] [1994] 1 HKC
549.
[107] D K Srivastava
& A D Tennekone, The Law of Tort in Hong Kong, 1995 at page 56.
[108] Clerk & Lindsell,
cited above, at 12-17.
[109]
Meering v Grahame-White Aviation Co (1919) 122 LT 44 per Atkin
LJ.
[110] [1988] 1 WLR
692.
[111] (Unreported) HC
Crim App 220 of 1989. Cited by D K Srivastava, cited above, at page
63.
[112] Fleming, The Law
of Torts, (8th edition 1992), at page
27.
[113] Article 5(1) :
“Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived
of his liberty except on such grounds and in accordance with such procedure as
are established by law.” Article 5(5): “Anyone who has been
the victim of unlawful arrest or detention shall have an enforceable right to
compensation.”
[114]
Rookes v Barnard [1964] AC
1129.
[115] [1987] HKLR
379.
[116] Clerk &
Lindsell, cited above, at
12-80.
[117] [1897] 2 QB 57.
The case involved a practical joke in which the defendant falsely informed a
woman that her husband was badly injured in a traffic accident. The woman
suffered serious nervous shock which affected her for weeks. It was held that
the defendant was liable on the ground that where a person makes a false
statement which is intended to be acted on, he must make good damage naturally
resulting from its being acted on. An objective test is applied to determine
the defendant’s
intention.
[118] At
58-59.
[119] [1919] 2 KB
316.
[120] [1992] 1 F.L.R.
525.
[121] [1993] QB 727. In
this case, the plaintiff, whose friendship with the defendant had broken down,
claimed injunctive relief in respect of her complaints that the defendant had
assaulted her, made threats of violence against her, and pestered her with
unwanted phone calls. To the extent that this case developed the tort of
private nuisance to protect someone without an interest in the land affected, it
was overruled by the House of Lords in Hunter v Canary Wharf Ltd. [1997]
2 WLR 684.
[122] Clerk &
Lindsell, cited above, at
12-15.
[123] [1993] 1 NZLR
415.
[124] [1992] 1 AC
310.
[125] [1994] 1 HKC
549.
[126] [1964] AC
1129.
[127] National Coal
Board v Evans (JE) & Co [1951] 2 KB 861. Clerk & Lindsell, cited
above, at 13-161.
[128] Clerk
& Lindsell, cited above, at
13-161.
[129] Wilson v
Lombank, [1963] 1 WLR
1294.
[130] Hall v
Barclay [1937] 3 ALL ER
620.
[131] Clerk &
Lindsell, cited above, at
13-162.
[132] As
above.
[133] [1933] AC
449.
[134] [1900] AC
113.
[135] Clerk &
Lindsell, cited above, at 21-01 and
21-12.
[136] As above,
at 21-06.
[137] As above,
at 21-28.
[138] Alexander v
North Eastern Rly Co (1865) 6 B & S
340.
[139] [2001] 1 HKLRD 736.
This case is further discussed later in this
chapter.
[140] See page 42 E
– Q.
[141] Clerk &
Lindsell, cited above, at
5-20.
[142] As above, at
5-05.
[143] As above, at
5-07.
[144] [1952] 1 TLR
101.
[145] As above, at page
111.
[146] Clerk &
Lindsell, cited above, at
5-09.
[147] [1968] 2 QB
497.
[148] [1969] 2 QB
173.
[149] As above, at
185.
[150] [1990] 2 AC
374.
[151] Clerk &
Lindsell, cited above, at
5-21.
[152] Salmond and
Heuston on the Law of Torts (20th edition, 1993) at page
457.
[153] (1862) 1 H & C
526.
[154] [1942] AC
591.
[155] [1982] AC
462.
[156] (1973) 16 KIR 39,
CA.
[157] Clerk &
Lindsell, cited above, at
5-25.
[158] As above, at
5-31.
[159] As above, at
5-34.
[160] Joel v Morrison
(1834) 6 C & P 501 at page
503.
[161] Clerk &
Lindsell, cited above, at
5-30.
[162] [1895] 1 QB
742.
[163] The case may also
be analysed on the basis of the wrongful exercise of the discretion vested in
the employee. See Clerk & Lindsell, cited above, at
5-34.
[164] Clerk &
Lindsell, cited above, at 5-21 and
5-33.
[165] Poland v
Parr [1927] 1 KB 366.
[166]
Lloyd v Grace, Smith & Co [1912] AC
716.
[167] Morris v C W
Martin & Sons Ltd [ 1965] 2 All ER
725.
[168] Reily v Ryan
[1991] 1 LRM 449.
[169]
Deaton v Flew (1949) 79 CLR
370.
[170] Keppel Bus Co
Ltd v Sa’ad bin Ahmad [1974] 2 All ER
700.
[171] Warren v Henlys
Ltd [1948] 2 All ER
935.
[172] Clerk &
Lindsell, cited above, at
5-47.
[173] Per Rogers V-P
in Wong Wai Hing & Fung Siu Ling v Hui Wei Lee, cited
above.
[174] [1934] 1 KB
191.
[175] As above, at
197.
[176] [2001] 1 HKLRD
736.
[177] Rogers V-P held
that the defendant was not liable for the act of spraying red paint at the
plaintiff’s place of work. “In my view the spraying of red paint
at the plaintiff’s place of work cannot on any footing be considered to be
part of the work undertaken by the debt collector unless it is considered that
once a debt collector is engaged, any tactics employed by him fall within what
would be contemplated as a normal course of conduct by a debt collector. I
would categorise the spraying of red paint as one of physical violence.
Obviously if a triad is engaged, such tactics may be contemplated. But this is
not such a
case”.
[178] At 748
G.
[179] At 749
G.
[180] At 756 H – 757
G.
[181] At 770
F.
[182] Section 66.