Q.
a) Describe professional negligence. (10 marks)
b) Distinguish between Tort and Contract. (10 marks)
(20 marks, 2014 Q4)
A.
a) Read specific posting on Professional Negligence Cases here. James MacNaughton Papers Group Ltd v Hicks Anderson (1991).
To start of, we define 'professional negligence'.
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty.
The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialized set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
Above definition is taken from Wikipedia - Professional Negligence in English Law.
[There are various tests to qualify what is breach of duty. There is certain standard to follow. Of course, professional means specialized and hence, higher expectation and standard. Thus, if a ordinary people would have a skill of '50%', a professional would be expected to perform the same skill at '80% and above'.
Therefore, if such high expectation is found to be at fault, the breach of trust to such contract is claimable for damage.]
See earlier posts on:
Ref:
Wikipedia search 'Professional Negligence', available at
http://en.wikipedia.org/wiki/Professional_negligence_in_English_law
[Own account]
b) Distinguish between tort and contract.
Read a summary of difference between tort and contract from another post here.
What Are Contract Laws? What Are Tort Laws?
Contract law is that body of rules that govern contractual agreements between persons or merchants. A contract is basically an agreement between parties outlining their duties and responsibilities to one another. Contracts can be formed for nearly any type of interaction. So, contract laws may address various transactions for the sale of goods and services. Contract laws outline what a person can or cannot include in a contract, and what the remedies are if a party breaches their contractual duties.
In contrast, tort laws govern situations where one person has harmed or injured another person. Tort laws cover violations where the party intentionally harmed the other person, such as in a battery claim. Tort laws also address incidents where the party may be held liable even if they did not act intentionally, such as in negligence claims or strict liability claims. Tort laws usually result in the liable party paying the victim monetary damages to compensate for their losses.
What Are Some Similarities between Tort Laws and Contract Laws?
Contract laws and tort laws share many similarities. At the most basic level, both contract and tort laws usually deal with a duty that has been breached.
With contract violations, the breach has to do with the duties that have been named in the contract. For example, a contract may state that one party has the duty to pay the other for repair services, and the other party has a duty to perform the services. If either party fails to perform their duties, contract laws will prescribe a suitable remedy for the breach.
Most tort violations also involve some sort of breach of duty. For instance, personal injuries usually occur because the liable party has breached their duty not to harm another person. Other types of relationships may create a duty of care, such as when shopkeepers have a duty to maintain their premises so that they are safe for patrons.
Damages awards can be obtained in both contract and tort violations. These are monetary payments made by the liable party in order to make up for any losses that result from their breach.
What Are the Differences between Contract and Tort Laws?
There are several fundamental differences between contract and tort laws. One of the most important differences is the issue of consent. In a contract, the parties must enter into the agreement knowingly and without being coerced. In order for the contract to be valid, each party must consent to the outcome of the contract as stated in the document.
This means that one party cannot force the other to enter into the contract without their consent. Therefore, damages in a contract claim usually have to do with a mistake or a misunderstanding between the parties, since they are typically aware of what they dealing with in the contract.
On the other hand, the interaction in a tort is never based on consent. Torts generally involve an intrusion by one party into the safety, health, profit, or privacy of the victim. In fact, if the victim consents to the tortious conduct, it can serve as a defense that will prevent them from recovering damages.
This difference with regards to consent is reflected in the way that courts award damages. For contracts, the purpose of a damages award is to restore the parties to their position before the breach occurred. In a torts claim, the damages are usually awarded to compensate the victim for their loss. Punitive damages are sometimes awarded in a tort suit in order to punish the defendant. Punitive damages are rarely issued in a contracts claim.
Can a Person file a Contract claim and a Tort Claim in the Same Lawsuit?
Generally speaking, contract claims and tort claims are so different that they must be filed separately. For example, suppose that one party breached a contract, and the other party became angry and assaulted the person who breached the contract. The breach of contract issue must be heard in one lawsuit, and the assault claim must be dealt with separately.
On the other hand, there are situations where a tort claim and a contract claim can be so intertwined that they may be heard in the same lawsuit. Usually the tort must affect the subject matter of the contract in order for them to be filed “concurrently” or at the same time. An example of such a concurrent filing is breach of contract and simultaneous fraud. This is where the breach of contract is based on the fraudulent conduct of one of the parties.
Ref:
Peter Clarke, LegalMatch Content Manager. Legal Match, available at
http://www.legalmatch.com/law-library/article/contract-and-tort-law.html#sthash.ZMHAfp10.dpuf