Ch.6 Special Tort Liabilities of Business Professionals

Question 1

Professional

Answer 1

Person with special skills not possessed by most individuals

Professional designation requires creation of a professional body to establish skill standards
Important characteristics of professional designation:
- Educational and training program
- System for recognition and accreditation of the person
- An oversight body

Question 2

Purpose of professional associations:

Answer 2

Protection of the public by ensuring professionals are licensed and qualified

Control and regulate their members
Duties:
- Oversight of training/education of potential members
- Ensure they meet competence level to practice profession i.e. establish competence standards
- Ensure competence levels maintained
- Discipline members who fail to maintain standards

Question 3

Contract:

Answer 3

Professional-client relationship created by contract between professional and client

Contractual duty of professional to perform specified services in return for fee

Breach of contract usually result of careless or negligent performance of professional service

Client may be able to hold professional liable

Question 4

Fiduciary Duty of Care

Answer 4

Duty to place a client’s interests above the professional’s own interests

Question 5

Tort Duty of Care

Answer 5

Professionals must maintain standard of proficiency or exercise degree of care according to profession
- Perform their duty according to accepted industry standards
- Requires skill and judgement (not perfection) - often an “art” more than an exact “science”

Question 6

Informed Consent

Answer 6

Full and understandable explanation of risks associated with a course of action, and the clear understanding by the client or patient
- Moral obligation - “right thing to do”
- Defence to tort liability (if done)
- Cause of action for plaintiff (if not done)

Standard of care often extends beyond single performance of service
- May be required to consider third parties

Negligent misrepresentation - negligent misstatements made by professional to a client
- May constitute a breach of duty of care
- Liability extends to:
– Those whom the professional knew would rely on such statements
– Third parties when professional’s expertise intended to be relied upon (and professional was aware of this fact)

Question 7

Three-part test to determine liability for negligent misrepresentation:

Answer 7

1. Whether the harm was foreseeable
2. Whether there was a relationship between the parties of sufficient proximity
3. Whether in terms of public policy and circumstances it would be just and reasonable to impose the duty on the party making the statement

Question 8

Liability

Answer 8

• General rules of professional liability apply regardless of the profession
• Certain statutes may impose extra duties for certain professions (i.e. accountants)
• Some differences exist for certain professions (i.e. solicitor client privilege for lawyers)
• Engineers more specialized and restrict their practices to areas of expertise
• Architects - liable for design flaws not construction flaws