From the given case, the plaintiff can directly elect to recover damages from the resort under vicarious liability since there is a relationship between the employer and an independent contractor. The general rule is that the employer can not be held liable for the torts of his independent contractor. This was illustrated in the case of ; IN PUDBURY V HOLLIDAY & GREENWOOD 1912 An employer of a Contractor engaged to fix windows, negligently left a hammer lying on a window sill. A gust of wind caught the window which, as it moved, knocked the hammer into P, a passer-by . D was not held liable since the tort was committed by an employee of their independent contractor. But there are exceptional circumstances where an employer can be held liable for the torts of his independent contractor and these exceptions are: 1. Where the employer retains his control over the contractor and personally interferes and makes himself a party to the acts which cause the damage. 2. Where the contracted thing is itself a tort for instance in the decided case of; ELLIS v SHEFFIELD CONSUMERS GO, 1853 The defendants who had no authority to dig up the streets ,employed a contractor to open trenches in the street.
The contractor left a hip of stones uncleared in the road over which the plaintiff fell and was injured. Held that the defendants were liable for the consequences of their unlawful act. 3 where the contracted thing to be acted is likely in the ordinary course of events is likely to cause damages to other people?s property or prove nuisance 4 where the employer was negligent in the hiring of the independent contractor. For example in the decide case of PAINE V FLETCHER, 1868 an employee off the defendant company was killed due to the screening of a kiosk containing transformers which had been build by reputable contractors for the defendants. Held that the dependants were still liable for the torts committed by the independent contractors. 5 where the liability is absolutely independent of negligence as it was well seen in the decided case of , RYLANDS V FLETCHER, 1868 In this case, Rylands had employed independent contractors to construct a reservoir on his land adjoining that of Fletcher. Due to the contractors negligence, old mine shafts leading from Rylands?
land to Fletcher?s were not blocked. When the reservoir was filled, the water escaped through the shafts and flooded in the plaintiff mines. Rylands was held liable in damages. In considering all this exceptions, the plaintiff can recover the damages fro the resort simply because: By the resort sponsoring the rides and making adverts to the dudes , he retained his control over the contractor and actually interfered personally and made himself part to the act that caused damage. The plaintiff could not have gone for this rides was it not that they were influenced by the resort. Secondly the resort will be held liable for the incompetence of Rex and Tex. This is because the plaintiff expected the resort to perfectly take them to the rides but he employed an independent contractor who imperfectly performed the duty. Thirdly the liability to the resort was absolutely independent of negligence. this is because Rex and Tex were aware of the danger involved but they did not exercise any reasonable care to save the danger as such they breached the duty and suffered an injury . 2.The resort can only seek reimbursement from Tex and Rex depending on the terms implied in their employment agreement. Although the concept of vicarious liability is based on the general rule that it is fair for employers to compensate injured persons since employees have meager means and as such where there is a master servant relationship the master is always liable for the torts committed by his employees in the course and scope of his duties. The master or the employer can claim compensation from the negligent employee. Therefore considering the relationship between the resort and Tex and Rex, then the resort will go further and claim compensation from Rex and Tex. this was seen in the case of. LISTER V RAMFORD ICE AND COLDSTORAGE CO LTD, 1957 L,a lorry driver employed by the company, reversed his lorry negligently and knocked down his own father, who was also employed by the same company. The father recovered damages for the company for the negligent acts of its employees. The company however succeeded in recovering damages from Land L had broken his obligation to the company to take reasonable care in the performance of his duties.
Q3, ignorance can not be defence in order to avoid damages the only defence Tex can make which will absolve him from liability include; he took necessary steps to ensure that the client new the dangers of using their horses. Therefore, trying to say that it was Rex?s ideas will be admitting they be responsible for their activities. This so because in order for damages to be awarded the following must be ascertained a. The damage must be caused to a substantial extent by the defendant?s conduct. b. The damage must be sufficiently closely related to the negligent act, i.e. it must not be too remote. c. In cases of identifiable psychiatric illness the courts nay award damages if such illness reasonably foreseeable, but considerations of public policy limit the scope of such damages. d. If the damage is economic loss unaccompanied by any injury to person or property a ?special relationship?, based on reliance, must exist between the plaintiff and the defendant (HEDLEY BYRNE V HELLER (1964). ADDITIONAL INFORMATION The additional information I will need to make this case complete is the amount of economic loss incurred due to negligence of duty by the parties.
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