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Prepared by Douglas Peterson, University of Alberta 6-1 Part 2 – The Law of Torts Chapter 6 Special Tort Liabilities of Business Professionals
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© 2006 McGraw-Hill Ryerson Limited 6-2 Overview Professionals Who is one? Professional standards and associations Professional client relationship How it arises Fiduciary Duty of Care Tort Duty of Care Various professionals
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© 2006 McGraw-Hill Ryerson Limited 6-3 The Professional Professional a person with special skills not possessed by most individuals These special skills distinguish professional from others Usually has an accompanying professional body (self- regulating body) A system of accreditation, educational and training
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© 2006 McGraw-Hill Ryerson Limited 6-4 Standards 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
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© 2006 McGraw-Hill Ryerson Limited 6-5 Professional-Client Relationship Created: By contract Contractual duty of professional to perform services Negligent performance is a breach of contract Implied By providing services
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© 2006 McGraw-Hill Ryerson Limited 6-6 Duty Fiduciary Duty Duty to place a client’s interests above the professional’s own interests Distinguishes a professional from others Avoid conflicts of interest Tort Duty of Care professionals must perform their duty according to the accepted industry standards Determined by the self regulating body
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© 2006 McGraw-Hill Ryerson Limited 6-7 Standard of Care Standard Professional must perform their duties according to the standard of skill, knowledge, and judgment of the reasonable, average doctor Industry standards established by expert opinion (i.e. peers) “As at” the time of the alleged negligence
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© 2006 McGraw-Hill Ryerson Limited 6-8 Specific Standard of Care Specific Situations Specialist vs. generalist Locations – rural vs. city Situation – emergency room vs. roadside accident Error vs. Negligence Standard does not require perfection Not all errors are negligence
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© 2006 McGraw-Hill Ryerson Limited 6-9 Informed Consent Definition Full 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)
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© 2006 McGraw-Hill Ryerson Limited 6-10 Who is owed a Duty? Question of law Two Determinations Relationship Client/patient No duty generally owed to a third party Reliance On the professional by the person
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© 2006 McGraw-Hill Ryerson Limited 6-11 Negligent Misrepresentation Negligent misstatements May constitute a breach of the standard of care Scope of liability extends to those whom the professional knew would rely on such statements and was intended to be relied upon
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© 2006 McGraw-Hill Ryerson Limited 6-12 Negligent Misstatements Threefold Test(determines liability) 1. Whether the harm was foreseeable 2. 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
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© 2006 McGraw-Hill Ryerson Limited 6-13 Professionals Liability General rules of professional liability apply regardless of the profession Certain 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 expertise Architects – liable for design flaws not construction flaws
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© 2006 McGraw-Hill Ryerson Limited 6-14 Summary Professional One who possesses specialized knowledge or skill Usually regulated by self governing body who determines negligence Professional liability may arise under contract but usually under the tort of negligence or a breach of fiduciary duty
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