Table of Contents
Believe it or not, recent studies that have been carried out have found tortuous activities to constitute part of our integral lives. Despite the name, tort, it presents us with something to ponder on, something that implies to almost everything that happens in our daily lives. From the definition of the term, tort may refer to a civil wrong doing in which an individual seeks compensation for the damages that may have occurred. There are numerous examples of torts such as battery, assault, negligence and false imprisonment. In a number of instances, torts can either be classified to as either being intentional or unintentional or due to negligence. The result of an act being classified to as either intentional or unintentional will depend highly on how the case is pursued in litigation terms and the damages that results from the tort that was committed.
Torts that are intentional refer to exactly to how they sound, this means that the tortfeasor was aware of the consequences of his actions, i.e. what the results of the actions would lead to specific results. For instance, harming a person may not a necessity but the one doing the tort is aware of the consequences of the actions taken. The same is to battery and assault. There are three core elements that must be identified in every action before it is termed to as tortuous. Firstly, the plaintiff must be in a position of establishing that the defendant was under an obligation of acting in a specific way. Secondly, there must be a demonstration by the plaintiff that there was a breach of contract by the defendant as a relation of failing to conform to specific guidelines. Lastly, there must be prove by the plaintiff that loss or injury was caused directly by the defendant's breach.
From the case that has been presented, it is clear that there is a breach of contract. The employer relied heavily on the professionalism of the contractor. This means that when she contracts cowboys contractors she is well informed that the person she has approached is a professional and therefore expects her work to be carried out in a professional manner. This means therefore that anything that happens during the course of the work can not be blamed on the employer.
Cowboy Contractors is assumed by the employer to be a professional and certified firm. In this regard, the employer assumes that once she contracts them, whoever will be sent to carry out a specific duty must be well suited for that specific activity. Despite the firm being a plant hire firm it assumes full responsibility of whatever happens.
The firm knowing very well that the person operating the machine was lacking the know how of operating the machine. This means that the issue of ignorance can not be used as defense in front of the law. Therefore, Julie stands a good chance of being compensated for the damages caused by Tony despite her not going through the leaflet that contained the terms that the firm was operating under. A civil wrong has happened as a result of negligence on the part of the contractor who despite knowing the lack of knowhow tony had in the operation of the machine went ahead and sent him to the client who had contacted them.
There are a number of circumstances that a person can be held responsible for the actions taken. Such a liability can either be termed to as unintentional, intentional and through a fault that he was not totally in control of. In such circumstances, a person may be held responsible for mistakes that were committed by others, for instance in the case presented above between Julie and cowboys contractors. In this case, Cowboys Contractors will be held responsible fro the damages caused by tony against Julie. Although cowboys contractors is not a party to the tort that has been caused by Tony. This is commonly termed to as a vicarious liability.
The relationship that is assumed to exist between Cowboys contractors and Tony is that of a master and a servant. This form of relationship exists when a person employs an individual to carryout a certain activity and in which the servant is directly under the directions of the master who is the employer in respect to how the specific work shall be carried out. If a person is in a position of controlling the way a specific activity is done, then there is the creation of a master-servant relationship.
This thus implies that whatever torts that are committed by the servant during the performance of specific activities that have been directed by the master, the master shall be accountable for them. This are the torts arrived at during the course of the employment. There arises a question of fact as to whether the tort is committed during the course of the servant's employment. When such a question arises, there are a number of principles that can be referred to. Through these principles, it can be said if the tort committed was in the course of the servant's employment or not.
a) An omission or a wrongful act that is expressly implied or directed by the master.
b) An omission or a wrongful act that represents an unauthorized manner through which activities were done or done.
c) An unauthorized or wrongful act that is directly ratified by the master.
There is an exemption of a vicarious liability and the master may be excluded from the compensation of taking all the blame if the servant was acting under his purposes and not under the order the employer. In such case the servant may be termed to as being on his own frolic.
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Despite the general rule governing the tort law stating that the person who authorizes the act to be wholly responsible for the damages and loss caused, the vicarious liability excludes them from this. Under this liability, an individual's liabilities are defined. Through this act, the employer is said to be on the wrong if the actions are done within the employment course. The vicarious liability as it has been indicated is a question of fact and it can sometimes be said to be immaterial if the act was authorized or not. An employer is only exempted from taking up the blame if it is proved that the employees act under their own frolic or if the way the employee acted was unconnected with the employer.
From the case above it is clearly stipulated that Tony was acting under the directions of the employer. Despite there being a clause that depicted him to lack the skills of using the machines, he was clearly directed on what to do by the employer. This thus means that though Julie did not read the clause indicating his lack of skills, the employer is held accountable for the damages he caused and thus must compensate the losses. Julie could have read the clause but could still be tied because the machine was under the control of tony. She assumed that if the employer was able to let Tony bring the machines, then he had the skills necessary of operating them.