negligence is a breach of the tort duty of care. An expert who
proffers advice has special responsibilities. If the expert is
negligent and a party to the advice (including a third party) suffers
damages as a result then the expert will be liable for those damages
Hedley Byrne v Heller  AC 465. An agent is an
expert on purchasing, selling, and expected prices and therefore, has
a duty of care when offering such advice to clients who depend upon
such expertise. There is no requirement for a contract between the
parties for the duty of care. Exclusion clauses should be in writing,
clear, and unambiguous.
MLC v Evatt (1970) 44 ALJR 478 it was stated that a duty at
common law to use reasonable skill and care in making statements of
fact or of opinion exists not only where the maker of the statement
carries on the business or profession of giving advice of the kind
given but also where the maker of the statement, although not
carrying on the business or profession of giving such advice
generally, holds himself out as possessing the same skill and being
prepared to exercise the same skill as a person who does carry on the
business or profession generally.
not limited to representations of fact as is the case for
will extend advice and opinion.
OF DUTY OF CARE
plaintiff must establish that a duty
exists (that the defendant is under an obligation to the plaintiff)
and that a breach of that duty has occurred. Any breach of duty must
be judged against a standard
being that of the reasonable person [reasonableness test], a legal
standard). Should the defendant fail the “reasonable person”
test, then he/she is said to be in breach of a duty of care.
as Baker (1985, 114) points out, the phrase standard
used to illustrate the “standard of reasonable conduct by which the
defendant's conduct is measured”, tends to be misleading insofar as
it implies that a pre existing standard is available by which to
gauge actions of defendants in negligence cases:
fact, the court always reaches its decision by an ex
adjudication that on the actual facts of the case the defendant
acted reasonably or unreasonably. Previous decisions on similar
facts, though they show what in the past has been regarded as
reasonable or unreasonable behaviour, are decisions of fact alone and
do not bind the court in its decision in the instant case (Baker
standard of care varies with the nature of the acts (for example,
higher standards are required with more dangerous acts), and with
regard to the type of person to whom care is owed. The standard of
care expected of a person in charge of an adult group would be less
that demanded of a person in charge of say, infants. The issue is one
of whether the harm from which the plaintiff suffers was reasonably
foreseeable such that it results from a risk which a reasonable
would have taken reasonable precautions to prevent. Therefore, breach
of duty is concerned with the question whether, granted that there
was that foreseeable risk of harm, the defendant had taken reasonable
care to prevent it from occurring.
COST OF AVOIDING HARM: In the main, courts do not respond
sympathetically to arguments offered by defendants that expense and
practicality mitigate against the provision of adequate precautions.
However, the decision as to what is reasonable
in this regard must obviously take account of the defendant's means
and resources. For example, what sort of reasonable obligations
should property owners make towards trespassers?
some instances there is an interrelationship between the above
factors that must be considered in regard to breach of duty. Where
the degree of risk is insufficiently slight, the mere lawfulness of
the activity in question, the absence of other deleterious
consequences from it and the need for expensive measures to avert the
slight risk it causes, are relevant factors in establishing that
there is no breach of duty.
reasonable person test is a common test used in law. As can be seen
by the comments above it is an important test in tort as well as
contract. The person is a person of ordinary prudence, or a person
using ordinary care and skill, Such a standard is necessary otherwise
a defendant could only be judged by his/her own subjective
For example, “I did not think it was necessary for me to check
that my recommended method of finance was in fact more expensive
because of “hidden” costs than for the normal method of finance”.
courts will take into account of such factors as youth, old age,
physical/mental infirmities of a defendant, where they are considered
STANDARDS - PROFESSIONAL NEGLIGENCE
professionals are judged by the standards of generally accepted
professional practice in the industry, and in the light of knowledge
currently available to a reasonable practitioner at the time.
Although not a legally enforceable set of rules, the various codes of
ethics that professional institutes have would be evidence of
acceptable standards. How would this test apply to property
professionals, builders, valuers and architects?
OF NEGLIGENCE AND RES IPSA LOQUITUR
actions for negligence the burden of proof is on the plaintiff to
establish his/her case “on the balance of probabilities”, and the
plaintiff usually relies upon direct evidence to achieve this. But in
some cases direct evidence may be lacking (for example, where
injuries occur to young children), in which case res
ipsa loquitur may
come to aid of the plaintiff.
ipsa loquitur entitles
the court to “infer the commission of negligence by the defendant
on proof of certain facts. The facts themselves, therefore, speak of
ipsa loquitur) and
the plaintiff need not give direct proof that the defendant was
negligent). Mere proof of an occurrence causing injury itself
evidence of negligence. However, certain conditions are necessary for
the rule to apply.
MUST BE DAMAGE
integral element of liability of negligence no cause of action can
accrue until damage occurs. Further, not only must there be damage
(injury/harm of some legally acceptable form), but the damage must be
caused by the defendant's fault, and as discussed above, the damage
must be proximate and not too remote.
concerns the factual
of whether the relation between the defendant's breach of duty and
the plaintiff's damage is one of cause
and effect. Remoteness
raises the question as to the extent to which the defendant should
answer for the consequences which his/her conduct has helped to
concepts of duty
comprise two judicial techniques which circumscribe liability for
negligence. In addition, there are two formal defences which need to
be pleaded and proven by the defendant.
NEGLIGENCE: Arises from the plaintiffs failure to take reasonable
care for his own safety and well being which contributes, at least in
part, to his subsequent injury.
example of contributory negligence is Hasaganic
v Minister of Education (1973)
5 SASR 554 in which a teacher in a school for mentally retarded
children tripped over a wire whilst attempting to prevent a child
from climbing a tree in the school playground. As a result she was
injured and the court held the school negligent. But the teacher was
found guilty of contributory negligence for failing to see the wire
in an environment with which she had some familiarity. Liability was
apportioned 80% to the school and 20% to the teacher.
ASSUMPTION OF RISK
defence is also called volenti
nonfit injuria (ie
to a willing person there is no injury), or volenti
is a complete defence in the sense that, should it prove successful,
the defendant is completely exonerated from negligence.
(unlike contributory negligence) blame and damages are not
may be deemed'
(inferred from the plaintiff's conduct) or based on express
agreement, but the consent must be genuine and in no sense coerced or
resulting from economic necessity. Volenti
is sometimes invoked by employers where employees have been injured
in dangerous environments, or by drug affected drivers, sued by
injured passengers as a result of negligent driving. In order to
establish the defence, the plaintiff must be shown not only to have
perceived the existence of danger, for this alone would be
insufficient, but also that he fully appreciated it and voluntarily
accepted the risk.
property manager enters a premises to collect rent after being warned
by the managing agent that there is a fierce dog in the yard and it
is better to make an appointment with the tenant so that the dog can
be controlled. The property manager ignores this advice and is bitten
by the dog. In this situation the agent can plead the defence of
as the property manager entered the property at “his/her risk”.
final tort to be considered here is that of defamation which covers
the twin torts of libel and slander:
In common law libel refers to anything committed in a form of a
the eye. For example, an article that defames a person is libel.
defamatory statement may be defined, in general terms at common law
as one that is of a kind likely to lead ordinary decent folk to think
less of a person about whom it is made. Further, it need not impute
any moral blame to the plaintiff. It is enough that the plaintiff is
'dishonoured'. Hence, to call someone 'insane' can constitute
defamation. We should also appreciate that defamation protects a
well as social
common law, a defamatory claim may be committed by an attack on the
skill or competence of an architect, real estate agent or a valuer.
Slander refers to anything temporary
property manager that is overheard defaming a tenant is committing
are 3 defences against defamation: justification; privilege; fair
comment. At common law it is a complete defence against an action for
defamation using justification.
This is showing that the statement complained of is true, (though
to be true and proving
are two different things).
the costs of litigation, prudence dictates that the property
professional scrupulously takes care about what one says and writes.
have established a new real estate agency in the outer suburbs of a
large city. Briefly list and describe the torts (as covered) above
that may apply to the day to day operation of your agency.
part of your agency practice you are providing potential sellers with
a “free appraisal” of their home. Further, you advertised
yourself as the “appraisal expert in (this suburb)”. What are the
dangers under tort in this area of your professional activities?