Tort of Negligence, Professionals, 5 Basis of Liability

Question 1

Tort of negligence is about

Answer 1

Standard of conduct

Question 2

Standard of behaviour or conduct provision, what is expected of society

Answer 2

people must live up to this in all activities of society

Question 3

how is someone liable in negligence

Answer 3

failed in living up to standard of behaviour (conduct) which is applicable to all aspects of society

Question 4

6 elements to establish tort of negligence

Answer 4

1. defendant conduct is negligent
2. claimant suffers damage
3. damage suffered must be caused by negligent conduct of defendant
4. duty recognized by law to avoid damage
5. conduct of defendant proximate cause of loss
6. conduct of plaintiff cannot bar recovery or should not be contributor to negligence or voluntarily assume risk

Question 5

is intention required in court of negligence? Why?

Answer 5

No, it is presumed

Question 6

first element to establish tort of negligence - defendant conduct is negligent , Standard of care breached: what does the law say?

Answer 6

law places duty on every person to conduct all activities taking reasonable care not to injure others or property

Question 7

What is the standard of care and who retains it

Answer 7

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

Question 8

second element to establish tort of negligence - Damaged suffered by plaintiff (2 types)

Answer 8

economic harm or intentional infliction of mental suffering

Question 9

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

Answer 9

“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

Question 10

fourth element to establish tort of negligence - duty of care to whom standard of care owed

Answer 10

however negligent defendant is, not liable until they owe a duty to other person

Question 11

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

Answer 11

Neighbour Principle, whom we owe a duty to limited extent

Question 12

fifth element to establish tort of negligence - conduct of defendant proximate cause of loss

Answer 12

damage must be a reasonably foreseeable consequence of the act

Question 13

sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> Contributory Negligence

Answer 13

if the individual contributed to their own injury than the plaintiff could not succeed, even if they were 1% responsible

Question 14

sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> modern law and contributory negligence statute judge duties (2)

Answer 14

allocate responsibility and liability

Question 15

sixth element to establish tort of negligence - plaintiff should not bar recovery:
-> Volenti

Answer 15

Plaintiff should not put themselves in or assume risks in certain hazardous activity

Question 16

Traditional Professional Examples

Answer 16

accountant, lawyer, doctor, engineer, dentist etc

Question 17

Jobs not really professionals

Answer 17

sport player, professors

Question 18

2 aspects professional occupation has in common

Answer 18

1. governed by self regulating society
2. created by statute

Question 19

Textbook definition of professional

Answer 19

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

Question 20

Textbook definition of how clients view professional

Answer 20

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

Question 21

Restall definition of professional

Answer 21

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.

Question 22

5 Basis of Liability

Answer 22

1. Criminal
2. Professional
3. Contractual
4. Fiduciary
5. Tort

Question 23

Criminal Liability and how courts deal with it?

Answer 23

held criminally for ones acts like theft, murder. Court deals with member and delegate body does as well

Question 24

Professional Liability

Answer 24

breach of code of conduct of organization or violate regulations. Can be disciplined

Question 25

Contractual Liability

Answer 25

implied promise that the service of the professional will be rendered with due care and any break and be rewarded with damages

Question 26

Contractual Liability
- what statute allows you to sue?
- what does it outline?

Answer 26

sue because statute of limitations which determines time limit you must issue a lawsuit within

Question 27

Contractual Liability and tort liability, which law or jurisdiction?(2)

what is safest way for jurisdiction governs

Answer 27

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

Question 28

Fiduciary Liability
What are they
What should they perform with
How is it representative if they don’t perform properly

Answer 28

someone in position of trust,
care or skill and good faith.
Does side deals and arrangements without party knowing

Question 29

Tort Liability 2 types

Answer 29

Intentional and Negligence

Question 30

Why is tort grounds for negligence more popular? (5)

Answer 30

1. profession more complex
2. economic pressure for professionals to take on more clients -> lead to errors, competition
3. clients more sophisticated -> don’t accept word of professionals
4. Professionals insured, tendency for court remedies to become inflated
5. Normal rules of negligence applied to professionals when previously had exceptions

Question 31

Normal rules of negligence applied to professionals when previously had exceptions: - Role of Donoghue vs Stevenson
- what principle?
- describe principle

Answer 31

1. Neighbour Principle
2. allow others to sue even if they are not a client as the decision made negatively impacts them

Question 32

Ross V Contors
what was the case
what principle does it reflect

Answer 32

1. Solicitor wrongly filed will and missed out on benefactors, missed beneficiary sued for negligence
2. Reflects neighbour principle

Question 33

Standard of care basic rule with professional

Answer 33

professional must exercise the same degree of skill and possess same level of knowledge as is generally expressed as a member of that profession

Question 34

What was a fallback that people said with standard of care and professionals

Answer 34

screwed up their job trying to do something above their specialties, would say others would do the same if in same position

Question 35

Hodgins V Hydro-electric commission ration decidendi with standard of care

Answer 35

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