Ch. 13 - Common Issues in Contract and Tort

Question 1

Can a lawyer be liable to a client in tort as well as in contract for negligence on the performance of the professional services?

Answer 1

Yes. The duty in tort and in contract are two entirely separate duties AND can be held concurrently y a defendant.

Question 2

Limitation Periods

Answer 2

a period of time set by legislation within which a claim for loss must be made. Starts when plaintiff becomes aware of the damage. 2 years in BC. May depend on latent of patent defect

Question 3

Patent defect

Answer 3

an obvious defect that can be identified easily upon reasonable inspection

Question 4

Latent defect

Answer 4

often described as a hidden defect like a “bug” in software or building foundation defect that go undiscovered until a plane crashes or building collapses.

Question 5

potential protection from liability for professionals

Answer 5

1) parties to a contract can agree to a shorter or longer time period than is contained in the statute
2) parties can agree to limit liability for claims to the following:
i) a defined financial limit
ii) insurance available at the time
iii) re-performance of services
iv) combination of the above
3) each limitation statute contains “ultimate” limitation period, beyond which claims cannot be brought even for latent defects
4) defendant can purchase insurance because professional liability insurance is issued on a claims’made basis.

Question 6

Joint Liability

Answer 6

Multiple defendants & each responsible for all of the loss

Question 7

Several Liability

Answer 7

Multiple defendants & each only responsible for portion of the loss. may contain contributory negligence

Question 8

contributory negligence

Answer 8

negligence by the plaintiff

Question 9

Vicarious Liability

Answer 9

liability of one party for the fault of another. Those who profit from an activity should also be liable for losses that result from that activity. To exist, must be an employer-employee relationship and liability holds if within the course of employment. Law doesnt hold someone vicariously liable for the actions of subcontractors. Applies only to damages sustained by third parties.

Question 10

Codes & standards

Answer 10

Professional and legislation based. May be incorporated in contract and be basis for breach. Can inform extent of tort standard of care. Professionals should know up-to-date codes & standards in their respective fields or risk negligence.

Question 11

Four sets of circumstances where a professional in full compliance with the code can be held liable

Answer 11

1) professional has actual knowledge that the code requirements are inadequate
2) professional should have been reasonably aware that the code was inadequate
3) industry cannot be permitted to set it own standard and professionals should not follow such standards where they are careless
4) where design is leading edge or unique, professionals need to be aware that traditional codes may not be relevant and a different standard may apply