Tort of Negligence, Professionals, 5 Basis of Liability Flashcards
Tort of negligence is about
Standard of conduct
Standard of behaviour or conduct provision, what is expected of society
people must live up to this in all activities of society
how is someone liable in negligence
failed in living up to standard of behaviour (conduct) which is applicable to all aspects of society
6 elements to establish tort of negligence
- defendant conduct is negligent
- claimant suffers damage
- damage suffered must be caused by negligent conduct of defendant
- duty recognized by law to avoid damage
- conduct of defendant proximate cause of loss
- conduct of plaintiff cannot bar recovery or should not be contributor to negligence or voluntarily assume risk
is intention required in court of negligence? Why?
No, it is presumed
first element to establish tort of negligence - defendant conduct is negligent , Standard of care breached: what does the law say?
law places duty on every person to conduct all activities taking reasonable care not to injure others or property
What is the standard of care and who retains it
whether a reasonable person would foresee danger or harm to another or their property and whether the steps taken if any to avoid this danger or harm were reasonably sufficient
Retained by courts
second element to establish tort of negligence - Damaged suffered by plaintiff (2 types)
economic harm or intentional infliction of mental suffering
third element to establish tort of negligence - claimant/plaintiff suffers damage by negligent conduct of defendant
- type of test -> 2 names
- what is the test
“but for” or “sine qua non” test
accident would not have occurred but for the defendant’s negligence. Then his conduct is A cause of the injury
fourth element to establish tort of negligence - duty of care to whom standard of care owed
however negligent defendant is, not liable until they owe a duty to other person
fourth element to establish tort of negligence - duty recognized by law to avoid damage
Example: Donahue v. Stevenson established what principle and brief definition of the principle
Neighbour Principle, whom we owe a duty to limited extent
fifth element to establish tort of negligence - conduct of defendant proximate cause of loss
damage must be a reasonably foreseeable consequence of the act
sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> Contributory Negligence
if the individual contributed to their own injury than the plaintiff could not succeed, even if they were 1% responsible
sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> modern law and contributory negligence statute judge duties (2)
allocate responsibility and liability
sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> Volenti
Plaintiff should not put themselves in or assume risks in certain hazardous activity
Traditional Professional Examples
accountant, lawyer, doctor, engineer, dentist etc
Jobs not really professionals
sport player, professors
2 aspects professional occupation has in common
- governed by self regulating society
- created by statute
Textbook definition of professional
skills described as having significant intellectual content, draw on rules affecting practice of their profession. Certified to offer their services to public under system of licensing administered by governing body
Textbook definition of how clients view professional
having specialized knowledge and skill that they are prepared to pay for and rely on. Want standards created so they know dealing with credible purpose
Restall definition of professional
occupation regulated by delegate body that is created by statute. Delegate body set standards for minimum education, furthering education, can discipline those in profession.
Directors of the body (occupation) are elected by members of the profession.
5 Basis of Liability
- Criminal
- Professional
- Contractual
- Fiduciary
- Tort
Criminal Liability and how courts deal with it?
held criminally for ones acts like theft, murder. Court deals with member and delegate body does as well
Professional Liability
breach of code of conduct of organization or violate regulations. Can be disciplined
Contractual Liability
implied promise that the service of the professional will be rendered with due care and any break and be rewarded with damages
Contractual Liability
- what statute allows you to sue?
- what does it outline?
sue because statute of limitations which determines time limit you must issue a lawsuit within
Contractual Liability and tort liability, which law or jurisdiction?(2)
what is safest way for jurisdiction governs
tort law is sight of tort, contract it looks at proper law of contract
safest way is put in contract when law will govern conduct
Fiduciary Liability
What are they
What should they perform with
How is it representative if they don’t perform properly
someone in position of trust,
care or skill and good faith.
Does side deals and arrangements without party knowing
Tort Liability 2 types
Intentional and Negligence
Why is tort grounds for negligence more popular? (5)
- profession more complex
- economic pressure for professionals to take on more clients -> lead to errors, competition
- clients more sophisticated -> don’t accept word of professionals
- Professionals insured, tendency for court remedies to become inflated
- Normal rules of negligence applied to professionals when previously had exceptions
Normal rules of negligence applied to professionals when previously had exceptions: - Role of Donoghue vs Stevenson
- what principle?
- describe principle
- Neighbour Principle
- allow others to sue even if they are not a client as the decision made negatively impacts them
Ross V Contors
what was the case
what principle does it reflect
- Solicitor wrongly filed will and missed out on benefactors, missed beneficiary sued for negligence
- Reflects neighbour principle
Standard of care basic rule with professional
professional must exercise the same degree of skill and possess same level of knowledge as is generally expressed as a member of that profession
What was a fallback that people said with standard of care and professionals
screwed up their job trying to do something above their specialties, would say others would do the same if in same position
Hodgins V Hydro-electric commission ration decidendi with standard of care
If you take on a task outside/above your specialty, then you are held liable to the degree of that specialist and not your normal
