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Tort Hypothetical

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Introduction

Employers are potentially liable at common (for personal negligence and vicarious liability for employee negligence) and statutory law. At statutory law, the legislative intention must be ascertained and whether this allows a civil course of action for damages. It must be established whether a relationship of employment exists between the claimant and respondent. This can be done by referring to the Employees Compensation Ordinance[1], or by using certain common law tests - put simply: the control; integration; mutuality of obligations - and multiple test. Employers have four non-delegable duties[2] to: employ competent staff; provide a safe place of work; adequate equipment and a safe system of work. Subsequently, it needs determining whether the accident happened during employment and whether the employer breached his duties. Vicarious liability is strict, determined according to the existence of a relationship of employment between defendant and tortfeasor and that the tortfeasor's negligence occurred during employment - determined by the close connection test.
Sufficient causation between the breach and accident needs to be shown, primarily by using the 'but for' test. Defences to employer's liability include volenti non fit injuria and contributory negligence.

GIC

Colpo was already compensated per the ECO so determining statutory liability is unnecessary. Prior compensation does not prevent Colpo a claim at common law, as in Lung Yui Man v Yee Hing Kee Plumbing Works Company Ltd & Anor[3], Li DJ said:

“...neither the filing of the form nor the payment of compensation under the ECO can operate as estoppel or admission...”

It requires establishing whether an employer/employee relationship existed between Colpo and potential defendants: GIC, SC, JG or SL. Despite the accident being reported to the Labour Department by JG and...

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