Professional 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 [1964] 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.

See duty of agent.

In 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.

Therefore, negligent misrepresentation is not limited to representations of fact as is the case for fraud, and innocent misrepresentations but will extend advice and opinion.

negligent misrepresentation


A plaintiff must establish that a duty of care 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 of care 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.

However, as Baker (1985, 114) points out, the phrase standard of care 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:

In fact, the court always reaches its decision by an ex post facto 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 1985, 114).

The 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 than 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 person 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.

THE 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?

In 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.


The 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 standards. 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”.

However, courts will take into account of such factors as youth, old age, physical/mental infirmities of a defendant, where they are considered relevant


Property 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?


In 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.

Res 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 negligence (res ipsa loquitur) and the plaintiff need not give direct proof that the defendant was negligent). Mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence. However, certain conditions are necessary for the rule to apply.


Since damage is an 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.

Causation, concerns the factual question 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 produce.


The concepts of duty of care and remoteness of damage 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.

CONTRIBUTORY 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.


An 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.


This defence is also called volenti nonfit injuria (ie to a willing person there is no injury), or volenti for short. Volenti is a complete defence in the sense that, should it prove successful, the defendant is completely exonerated from negligence. Hence, with volenti (unlike contributory negligence) blame and damages are not apportioned.

Volenti 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.


A 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 volenti as the property manager entered the property at “his/her risk”.


The final tort to be considered here is that of defamation which covers the twin torts of libel and slander:

LIBEL: In common law libel refers to anything committed in a form of a permanent character and visible to the eye. For example, an article that defames a person is libel.

A 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 person's professional standing as well as social standing. At 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: Slander refers to anything temporary and merely audible. A property manager that is overheard defaming a tenant is committing slander.

There 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 knowing something to be true and proving it are two different things).

Given the costs of litigation, prudence dictates that the property professional scrupulously takes care about what one says and writes.


Length: 1000 words

You 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.

As 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?