Question

Commercial Law Question

Ben was an alumnus of HKU. He joined Wonder Sports Supplies Limited as a marketing assistant after graduated a year ago. Last Saturday, he took a recently marketed skateboard from his employer without permission and wanted to try it out near the HKU campus.

Ben was so excited to be back to the HKU campus again. He jumped onto the skateboard and started off despite the fact that he was not very skillful in this sport. Skateboarding on the lane in front of the HKU Residential College, Ben decided to go all the way along Bonham Road to Block D. As he was going down the slope, he started to accelerate at high speed and finally lost control. Ben skateboard ran into Tom, who was walking with his back towards the skateboard. Tom was knocked down by Ben, broke his left arm and injured his head. He was then rushed to the hospital by an ambulance.

Required:

(a)     Discuss whether Tom can bring an action against Ben for his injuries based on tort of negligence.

(b)     Explain the concept of vicarious liability. Discuss whether Tom can sue Wonder Sports Supplies Limited instead of Ben.

Answer 1

(a): Yes, Tom can certainly bring an action against Ben for his injuries based on tort of negligence. In this case Ben failed to take proper care while skateboarding. Ben failed to properly implement his duty of care while skateboarding within the campus. The campus area will, of course be brimming with students, and so Ben has an implicit duty to skateboard in a manner that will not harm any student or involve them in any accident. No reasonable care was exercised by Ben and this will lead the court to recognize negligence on his part.

(b): The concept of vicarious liability is also known as imputed liability. This concept assigns liability to an individual person who had not actually caused the harm. The presence or existence of superior legal relationship comes into picture here. The individual who did not actually caused the harm had a specific superior legal relationship with the person who caused the harm. In this case Ben is an employee of Wonder Sports Supplies Limited and acted in a negligent manner.

Considering the facts of the case the concept of vicarious liability will not apply here and Tom cannot sue Wonder Sports Supplies as Ben took the skateboard without the authorization of his employer and so Ben acted outside his authority.