Professional Liability

Question 1

What is tort?

Answer 1

A tort is a wrongful act other than a breach of contract that results in injury to another body’s person, property, dignity or reputation and which is recognised by statute or common law as a legitimate basis for liability. A tort can be a crime. However, tort law is not criminal law. Tort law gives a victim a civil remedy in the courts.

Question 2

What is professional negligence?

Answer 2

Failure to perform to the standards of the profession
Failure to act as a skilled professional claiming to have those skills
Where a professional person fails to perform to the standards required of them, resulting in their client suffering damage or loss. The standard of care for professional people is that of the ordinarily skilled person exercising and claiming to have those special skills. LI code of conduct standard 6 – carry out professional work with care, conscientiously and with regard to professional and technical standards.

Question 3

What liabilities does a landscape architect have?

Answer 3

• under Tort (for any other civil wrong in the absence of a contract)
• under Contract (for breaches of the agreement)
• as a member of a practice
• as an employer or employee
• statutory liability
• as an occupier
• vicarious liability
• liability as a professional.

Question 4

How would you assess whether or not a landscape architect had acted negligently?

Answer 4

1. Is there a Duty of Care?
2. Is there a breach of that Duty of Care?
3. Was there consequential damage?

Question 5

What is the difference between suing in tort or in contract?

Answer 5

Contract is a legal agreement between two parties that is backed up and can be remedied by the law.

A tort is in the absence of a contract and can be between two or more parties.

Question 6

What are the differences in liabilities for negligence and debts in a limited company and partnership?

Answer 6

Limited company
Share holders are not personally liable except for the amount of their unpaid shares. Directors cannot be held responsible for the torts of the company or other directors, only their own torts.

Partnership
When acting on behalf of the partnership, the actions of one partner binds the partnership and the other partners. Members can therefore be held liable for the torts of another member. Their personal assets are at risk.

Question 7

How long are you liable for in contract and in tort?

Answer 7

Generally 6 years (Tort)
Under seal 12 years (Contract)
Latent defects 15 years
Personal injury 3 years

Question 8

What is the meaning of reasonable care?

Answer 8

Ordinary citizens, standard of care = that of the ‘reasonable man’

Professionals = that of the skilled man exercising and claiming to have that special skill

Landscape Architects = “The landscape consultant will use reasonable skill, care and diligence in accordance with the normal standards of the profession” (LCA Part 3: Conditions of Appointment)

Question 9

In what ways is a landscape architect legally responsible?

Answer 9

As a professional person, a Landscape Architect has a responsibility to have sound working knowledge in all areas of the law applicable to their work. This is underpinned in the Code of Conduct st.6

Question 10

Who do LAs owe a duty of care to?

Answer 10

• Society
• Environment
• Client
• Landscape Profession/LI
• Company/organisaton -employer/employee
• other professionals-consultants/contractors

Question 11

What is a duty of care?

Answer 11

• an understanding to act as a member of the profession -with due diligence, skill & care
• every professional owes a duty of care to anybody who might reasonably rely on their services or advice
• the same duty of care is owed whether or not a fee is charged even if it is for an obviously secondary function or service

Question 12

What areas of the law of tort do LA need to be familiar with and why?

Answer 12

• tort is a wrongful act or omission - with legal implications
• Applies in absence of contract
• Duty of care
• Duty of care as a professional

Question 13

Types of nuisance?

Answer 13

• Public
• private
• Interference: physical injury/substantial interference with property - only if unreasonable then classed as nuisssance: courts consider te view that the disinterested member of the public would take of the situation

Question 14

easements

Answer 14

= rights which one landowner may acquire over the land of another
=wayleaves
e.g. construction work involves consideration

positive e.= when a dominant owner has the right to do something on someones else’s land
megative = allows a dominant owner to prevent the servient owner from doing sth. on the servient’s land eg. gas

Acquisition of e.

• Implied/Express grant or reservation
• of necessity
• by statute
• be precription over 20y

Question 15

restrictive covenants

Answer 15

• restricts the servient owner’s use and enjoyment of his own land
• must benefit the dominant owner’s land
• e.g not to build over a certain height
• =negative
• it benefits the covenantee
• the burden is on the convenantor and runs with the land sucessors in title
• Client & LA may be jointly liable for the tort of conspiracy i.e. agreeing to do an unlawful act

Question 16

How can action be professional negligence?

Answer 16

Normal negligence is the omission to do what a reasonable person would do or to do what reasonable person would not do.
• exercise reasonable care in your actions
• its assess in according to a model - which includes :
- duty of care
- breach
- actual cause - proximate cause
- damages
All of the above elements need to be present for an action to be considered negligent.
Donoghue V Stevens (ginger beer)

Question 17

Would you still be liable for the results of the opinion you offered for free to somebody?

Answer 17

Yes, you should always be very careful when you’re giving your opinion or advice to someone even if there is no contractual relationship between you two. It would still be difficult to prove in court if there is no relative written evidence of this advice, but you might still get in trouble if there is a slight evidence of you actually getting involved in it.

Question 18

What is Vicarious liability in tort?

Answer 18

A person is liable for his own torts but his employer may be jointly and severally liable if tort is committed in course of his employment.
Vicarious liability arises from the master/servant relationship.

3 conditions: 1. has to be a tort, 2. has to be employment relationship 3. act has to be committed in course of employment

Question 19

What is Strict liability in tort?

Answer 19

Liability which does not depend on actual negligence or intent to harm. The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous.
Rylands v Fletcher case

Question 20

What are the different types of Tort in the Landscape Architect’s interest?

Answer 20

• Negligence: a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances.(e.g Physical injury, harm to property, economic loss.Defamation[Libel=written / Slander=oral])
• Nuisance: an unlawful or unreasonable interference with a person’s land. This is a tort of how land is used. It concerns how people’s interest in land is affected. It also involves physical damage to property. Example: Roots/branches/enjoyment of own land.
• Trespass: Trespass to land does not require proof of damage for it to be actionable in the courts. If the damage is caused by a trespasser, a charge of criminal damage can ensue. Example: An overhanging crane can constitute trespass.
• Strict liability: relevant to the ESCAPING of substances from one’s land to another. The classic case of Rylands vs Fletcher.Example: The underground escape of contaminated water through mines to someone else’s land.
• Vicarious liability: comes from the Master-Servant relationship. Example: I’m drafting a drawing and a senior colleague only checks it. He’s also responsible for the work that I’ve produced if a claim is against us.

Question 21

Which actions from a Landscape Architect might give rise to liability claims?

Answer 21

If not carried out with reasonable care, the Landscape Architect can be liable for:

• Negligent survey
• Incompetent design
• Inadequate inspection
• Negligent financial advice
• Negligent legal advice
• Negligence in certifying payments.

Question 22

What is Trespass in tort?

Answer 22

Trespass in English law is an area of tort law broadly divided into three groups: to the person, to goods and to land.
Trespass to land may be defined as the intentional or negligent entering or remaining on or directly causing any physical matter to come into contact with land in the possession of another.

Question 23

When might a landscape architect come across nuisance law?

Answer 23

• protection of a persons use of his/her own land and land over which there is a PRoW

Question 24

What are Landscape Professional liabilities and duty of care?

Answer 24

In contract (e.g. breach of contract)
Statutory (e.g. under planning legislation or H&S leg)
Vicarious (For employees) As a professional (e.g. exercise of reasonable skill and care)
In tort (negligence, libel, nuisance, trespass)
Jointly & Severally (Part of a team)