In principle of vicarious liability, to make an employer liable for a wrong committed by an employee, the plaintiff must establish that: 1. defendant is an employee ( as opposed to an independent contractor); and 2. The defendant committed the wrong in the course of his or her employment.
First, the court will apply different tests to determine the existence of an employer-employee relationship. These include the control test, the organization and integration test, the economic reality test and the mutuality of obligations test. In this case, we could use the ‘control test’ and the modern approaching test ‘the economic reality test’ to examine the whole issue. Similar to case Chan Ming v. Wayfine Investment Ltd 2 HKLRD E12, Cathy received an order of delivery, she had indicated what goods were to be loaded in the restaurant and where to be left in the delivery destination(the food buyer). So, Cathy would be an employee.
In Lee Ting Sang v. Cheung Chi Keung and AnotherHKCA 315 and Chan Kwok Kin v. Mok Kwan Hing & another , the court applied the ‘the economic reality test’ to examine the existence of an employer-emplyee relationship. Likewise, Cathy drives the motorcycle which provided by the fast food restaurant; She doesn’t hire any her own helper; She doesn’t take any financial task on her person takes; She has no responsibility for the investment and the investment. Therefore, the fast food restaurant would be her employer.
Second, the court has to prove that the wrongful act of Cathy was done in the employee’s course of employment. A wrongful act is done within the course of an employee’s employment if it is either 1. a...