PRM SEM 02 - 07. Torts Negligence and Liability Flashcards
Contracts and Torts:
Tort law involves an “injury” that someone might suffer through the actions (or inactions) of another, who don’t necessarily have any relation through contract or otherwise, with that
person.
The injury doesn’t have to be physical or even financial, it can be any sort of loss or damage, to one’s person, property, reputation or interests.
And the injury can be intentional or unintentional, through action, inaction, accident or negligence.
When you are legally responsible, then you are liable.
The person suffering injury or damages seeks a “remedy’’ or compensation through tort law and the parties are said to have a tortious relationship.
There are few good definitions but generally tort law involves establishing the circumstances of injury and responsibility or liability.
Torts: Civil Law and Statute Law
The vagueness around tort law is because it is (like contract law and property law), part of civil
law. Civil law is different from statute law:
Statute law is governed by legislation, laws and regulations established by Parliament through Acts, and breaches of these laws are dealt with in court, between state and individual, with reference to written laws. Criminal law is an area of statute law. The police are often involved. Examples affecting architects or clients might be fraud, theft, criminal damage etc
Civil law has been built up through the decisions of courts over hundreds of years and is also called case law or common law. Civil law operates between individuals (although the government can sue or be sued in civil law too). The police are not involved in civil matters (such as most arguments about money and obligations in an agreement between two people)
Courts also interpret statutes.
Torts that affect Architects:
See the attached table “Torts Compared with Crimes and Contracts”.
Remember the difference between tortious and contract law / liability:
In contract law the parties have an agreement between them.
In tort law the parties have a duty of care towards each other as all members of society do.
See the attached table “Range of Torts”.
Examples affecting architects might be trespass, defamation, nuisance (interfering with the
enjoyment of land or life: eg sound, vibration, flooding) or negligence.
Negligence is explored below.
(A note on flooding nuisance. You are not responsible for natural water flow off your land
flooding a neighbour, you are if you have modified_ the flow of water through changing ground
levels, water flow, building, paving etc)
Not all court decisions in relation to a tortious claim result in monetary damages. The court’s
decision can involve an injunction, meaning a party has to desist from (stop) an action eg that
is causing a nuisance.
Architects need to take care to watch their risk and liability.
Most of the issues in which architects have legal problems involve tort law rather than
breaches of written or unwritten agreements or contracts.
Torts: Recent Legislation:
In the last 50 years statute law has increasingly affected tort law. An example is the Accident Compensation Act (first enacted 1972, subsequently amended).
In other countries a citizen can sue another for damages after physical injury eg if they slip over on a building’s stairs. In New Zealand the state compensates us· for accident but as a result we generally lose the right to sue the responsible party for damages. But litigation (sueing) would have cost us (the plaintiff) time and money to achieve compensation.
Tort law (and contract law) is constantly changing with court cases and decisions, and
legislation that might limit or modify obligations, liability and remedies.
NZIA Practice Notes frequently update the profession on these changes as they affect our risk
and standard of good practice (and if you don’t read them you are probably negligent!}
The Tort of Negligence:
The plaintiff (complainant, person sueing) must prove:
- That the defendant owed the plaintiff a duty of care
- That the defendant breached that duty
- That the defendant’s breach caused the plaintiff to suffer loss.
Loss or injury can be personal (physical, psychological, to ones reputation), to property or financial.
See the attached page “Negligence”.
Duty of Care:
We all owe a duty to take reasonable care to avoid acts or omissions that we should reasonably foresee would be likely to cause loss to our “neighbour”. Neighbour here legally means any person who we should foresee as likely to be affected.
For architects that includes the client, building users and future owners and users of the building.
The key phrase, or “test” as lawyers say, is reasonable foreseeability.
Torts: Architects Duty of Care
Architects are most likely to be affected by claims for property damage (both your client’s or a neighbour’s) and financial loss, rather than personal injury due to the ACC Act and scheme.
An architect can also be liable for their advice, even if not involved in a formal relationship with a client!
Likewise consultants might not have a contractual relationship with the client or architect but will have a tortious relationship, duty of care and liability.
Architects have a duty of reasonable care (as do other professionals: doctors etc).
Note the words “reasonable” as opposed to “high” or “best” or “expert”.
However a greater degree of skill and care can be expected of a specialist.
You need to advise the client when this is necessary. Not advising a client is a breach of duty of care!
You are not liable in a situation when knowledge is not common, when it is state of the art or new.
But you are liable when you don’t know something but it is common knowledge to the rest of the profession.
Breach of Duty of Care:
Generally these complaints are heard in the High Court before a judge. It takes a lot of time and money to bring a case as well as defend a case in the High Court, involving solicitor and barrister fees and fees for expert witnesses.
Determining breach of duty of care Involves determining:
* The standard of care necessary
* Whether the defendant met that standard
To establish the first point, in actual cases, this involves getting expert witnesses (eg· architects) involved to give evidence on what they regard as “reasonable care” and reasonable practice in the particular circumstances.
And this will depend on what the current professional or industry standards are.
To establish the second point involves a factual enquiry looking at evidence to see whether the defendants practice met that standard of care.
Expert Witnesses
Must be expert in their area or profession. This can be disputed!
Unlike factual witnesses they can give an opinion based on their best knowledge.
However they are there to attest what would be normal in the profession, what would be reasonable skill and care expected from a skilled professional. Not what is best practice.
Torts Negligence and Liability: Time Limits
In these times of leaky buildings, time limits are constantly being affected by case law decisions, but generally proceedings must be commenced within 6 years of the cause of the action.
However the Building Act s393 provides a 10 year longstop limit to litigation saying 10 years
from the act or omission.
But in addition the Weathertight Homes Act “stops time” so once someone lodges a claim
under that Act, then parties can be drawn in to proceedings at a later date without any
limitation concerns!
The journal Building Today has examples of this at www.buildingtoday.eo.nz/MagazineArticle.aspx?id=361
Relief or Remedy:
Generally plaintiffs are seeking monetary damages as a remedy.
They may also seek costs (of the action eg lawyers and consultants fees).
However the court’s decision can involve relief through an injunction, meaning a party has to
desist from or stop an action eg that is causing a nuisance.
Sometimes courts can hold urgent sessions to hear a plaintiff seeking an injunction.
