Part 2 – The Law of Torts Chapter 6 – Special Tort Liabilities of Business Professionals Prepared by Michael Bozzo, Mohawk College © 2015 McGraw-Hill Ryerson Limited 6-1

 Professionals  Who is one?  Professional standards and associations  Professional client relationship  How it arises  Fiduciary Duty of Care  Tort Duty of Care  Various professionals Overview © 2015 McGraw-Hill Ryerson Limited 6-2

 Professional  A person with special skills not possessed by most individuals  These special skills distinguish professionals from others  Usually has an accompanying professional body (self-regulating body)  A system of accreditation, educational and training  May find themselves liable to third parties The Professional © 2015 McGraw-Hill Ryerson Limited 6-3

 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 © 2015 McGraw-Hill Ryerson Limited 6-4 Standards

 Created:  By contract  Contractual duty of professional to perform services  Negligent performance is a breach of contract  Implied  By providing services Professional-Client Relationship © 2015 McGraw-Hill Ryerson Limited 6-5

 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 Held to the standard of a professional Determined by the self regulating body © 2015 McGraw-Hill Ryerson Limited 6-6 Duty

 Standard Professional 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 © 2015 McGraw-Hill Ryerson Limited 6-7

 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 Specific Standard of Care © 2015 McGraw-Hill Ryerson Limited 6-8

 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) Informed Consent © 2015 McGraw-Hill Ryerson Limited 6-9

 Question of law  Two Determinations  Relationship  Client/patient  No duty generally owed to a third party  Reliance  On the professional by the person Who is owed a Duty? © 2015 McGraw-Hill Ryerson Limited 6-10

 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 whether statement intended to be relied upon Negligent Misrepresentation © 2015 McGraw-Hill Ryerson Limited 6-11

 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 Negligent Misstatements © 2015 McGraw-Hill Ryerson Limited 6-12

 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 Professionals © 2015 McGraw-Hill Ryerson Limited 6-13

 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 SUMMARY © 2015 McGraw-Hill Ryerson Limited 6-14