part 2 – the law of torts chapter 6 – special tort liabilities of business professionals...
TRANSCRIPT
Part 2 – The Law of Torts
Chapter 6 – Special Tort Liabilities of
Business Professionals
Prepared by Michael Bozzo, Mohawk College
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ProfessionalsWho is one?Professional standards and associationsProfessional client relationship
How it arisesFiduciary Duty of CareTort Duty of CareVarious professionals
Overview
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Professional A person with special skills not possessed by most
individualsThese special skills distinguish professionals from
othersUsually has an accompanying professional body
(self-regulating body)A system of accreditation, educational and trainingMay find themselves liable to third parties
The Professional
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Purpose Protection of the public by ensuring professionals are
licensed and qualified Professional associations ensure the above
Right to revoke or prevent a member from practicing Establish standards of competence Review membership conduct and practice complaints Often provide negligence insurance to their members
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Standards
Created:By contract
Contractual duty of professional to perform services
Negligent performance is a breach of contractImplied
By providing services
Professional-Client Relationship
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Fiduciary DutyDuty to place a client’s interests above the
professional’s own interestsDistinguishes a professional from othersAvoid conflicts of interest
Tort Duty of CareProfessionals must perform their duty according to
the accepted industry standardsHeld to the standard of a professionalDetermined by the self regulating body
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Duty
StandardProfessional must perform their duties
according to the standard of skill, knowledge, and judgment of a professional of like training and experience
Industry standards established by expert opinion (i.e. peers)
“As at” the time of the alleged negligence
Standard of Care
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Specific SituationsSpecialist vs. generalistLocations – rural vs. citySituation – emergency room vs. roadside
accident Error vs. Negligence
Standard does not require perfection○ Not all errors are negligence
Specific Standard of Care
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DefinitionFull and understandable explanation of
risks associated with a course of action, and the clear understanding by the client or patient○ If not done a cause of action○ If done – a defense○Moral obligation (the right thing to do)
Informed Consent
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Question of lawTwo Determinations
Relationship Client/patient No duty generally owed to a third party
Reliance On the professional by the person
Who is owed a Duty?
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Negligent misstatementsMay constitute a breach of the standard of
careScope of liability extends to those whom
the professional knew would rely on such statements and whether statement intended to be relied upon
Negligent Misrepresentation
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Threefold Test (determines liability)1. Whether the harm was foreseeable2. Whether there was a relationship
between the parties of sufficient proximity
3. Terms of public policy it would be just and reasonable to impose the duty on the party making the statement
Negligent Misstatements
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Liability General rules of professional liability apply
regardless of the professionCertain 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 expertiseArchitects – liable for design flaws not
construction flaws
Professionals
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ProfessionalOne who possesses specialized knowledge
or skillUsually regulated by self governing body
who determines negligenceProfessional liability may arise under
contract but usually under the tort of negligence or a breach of fiduciary duty
SUMMARY
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