Professional Negligence.

Understanding Negligence

Negligence is a foundational aspect of tort law and serves to regulate activities in society, providing a mechanism for compensation for accidental losses. It is an ever-evolving field, adapting to new types of activities and societal changes, always striving to reflect the popular will.

The aims of negligence law are multifaceted. It serves to provide compensation for accident victims, but not for all victims – only those who have suffered due to someone else’s faulty conduct. This system of reward and consequence not only provides a platform for compensation but serves as a deterrence, encouraging careful behavior to avoid liability. It confers the power to individuals to hold each other accountable for wrongful conduct, acting as a symbol of justice.

Negligence law also carries an educative function, reinforcing values such as individual responsibility, concern for one’s fellow humans, and respect for individual dignity. Furthermore, it provides a public forum to express empathy for those wronged and deters potentially violent forms of retribution by offering a peaceful legal recourse. It serves to check the power of industry, the professions, and government agencies, shedding light on abuses and malpractices.

The Nuances of Professional Negligence

Professional negligence represents a refinement of general negligence law, where the reasonable person standard is adjusted for those with special training and experience. Professionals, by virtue of their specialized training and experience, are held to a higher standard than the average person.

In essence, professional negligence is a failure to provide the standard of care or skill expected from a person in a particular profession. It is not about achieving perfection, but meeting the reasonable and competent degree of skill displayed by others in the same profession. This reflects an acknowledgement that professionals, by their very nature, hold a position of trust and are relied upon for their specialized knowledge and expertise.

Every recognized professional group has its own standard, a minimum to which all members must adhere. This standard varies from profession to profession, but always reflects a level of care and competence that would be reasonably expected from a professional in that field.

How Grigoras Law Can Help

At Grigoras Law, we represent both professionals defending allegations of professional negligence and plaintiffs alleging professional negligence. Our extensive experience and understanding of professional negligence law enable us to skillfully advocate for our clients and work towards achieving the best possible outcomes.

Whether you are a professional facing allegations of negligence or an individual who believes they have been harmed by a professional’s negligent conduct, we can guide you through the complex process, providing expert advice and robust representation every step of the way.

As your legal team, we understand that your case is unique, and we will meticulously examine all the facts, consult with expert witnesses, and develop a strategy that best addresses your needs and objectives.

FAQ

Disclaimer: The answers provided in this FAQ section are general in nature and should not be relied upon as formal legal advice. Each individual case is unique, and a separate analysis is required to address specific context and fact situations. For comprehensive guidance tailored to your situation, we welcome you to contact our expert team.

The term “professional” has varied interpretations, and there is no universally agreed-upon definition. However, in the context of professional negligence claims, it signifies more than just someone who is proficient in their job or a particular task. It refers to an individual or entity that possesses a degree of “special learning” or specialized knowledge in their field. This knowledge typically arises from advanced training, education, or considerable experience, often validated through certifications or licensing by professional bodies.

Furthermore, the term “professional” generally involves an aspect of intellectual skill, as opposed to mere manual labour or mental work. This means that a professional’s role should involve problem-solving, critical thinking, or specialized cognitive abilities rather than simply producing or selling commodities. For instance, a professional could be a doctor who diagnoses and treats illnesses, a lawyer who interprets and applies legal rules, or an engineer who designs and oversees complex projects.

Moreover, the service rendered by a professional typically comes from a vocation, calling, occupation, or employment that requires the application of this intellectual skill and specialized knowledge. These services are predominantly intellectual and are often subject to higher standards of conduct and ethics because of the level of trust clients place in professionals.

To clarify, while a professional is often seen as someone with a white-collar job, it’s important to note that the definition is not exclusive to these jobs. It includes any role that requires advanced learning, applies intellectual skills, and involves a higher level of trust. Hence, someone could be considered a professional in the context of professional negligence claims even if they do not fit into a traditional white-collar role, so long as they meet the criteria discussed above.

These definitions are not set in stone and can vary depending on the jurisdiction, specific laws, and even the circumstances of the case. It’s crucial to consult with a legal professional to understand how these definitions may apply in a particular situation.

Doctors are held to a standard of care akin to that of lawyers — they are required to act like a reasonably prudent professional in their field. Historically, their duty was purely contractual, but it has now evolved to include tort liability as well. Importantly, while physicians have a duty to treat their patients diligently, they don’t offer any implicit guarantee of successful outcomes and cannot be viewed as insurers. The key premise is that they should undertake an “honest and intelligent exercise of judgement” informed by their training and professional knowledge. It is understood that doctors can make mistakes; however, if a mistake stems from negligence and fails to meet the “accepted standards of the day,” the physician could face civil liability.

Consider the role of specialists in the medical field. These practitioners, due to their additional training and professed superior skills, are held to a higher standard of care than general practitioners. Their obligation is to exercise the level of skill expected of an average specialist in their respective field. However, like all doctors, specialists are not expected to achieve perfection. If a treatment or operation doesn’t result in the desired outcome but aligns with accepted medical practice for that specialty, the specialist may not be held liable. On the flip side, specialists can be held liable for overt errors, like administering excessively high treatment doses or failing to act judiciously.

While specialists are held to an elevated standard of care, the same is not eased for novices or interns in the field. Even though they may lack experience, these practitioners are expected to meet the standard of a reasonably prudent medical practitioner. The legal system emphasizes that the expected degree of skill does not fluctuate based on a doctor’s experience. Therefore, if an intern misrepresents themselves as a fully qualified doctor, they must meet the standard of care required of a fully qualified doctor.

Another key aspect of professional negligence in the medical field involves seeking a specialist’s advice. A general practitioner must recognize their limitations and should involve a specialist when deemed necessary by a reasonably prudent physician. If a general practitioner fails to involve a specialist when it would be advisable to do so, they could be held liable for negligence.

Furthermore, doctors often rely on other medical personnel, such as nurses and hospital staff, in treating their patients. While they can usually rely on these individuals to act reasonably, the doctor cannot blindly delegate responsibilities. If a patient suffers due to the negligence of the medical staff, the doctor may or may not be held liable, depending on the circumstances and the extent of the doctor’s involvement.

The process of establishing negligence is complex. The burden of proof falls on the patient, who must demonstrate that the doctor’s conduct was substandard and amounted to negligence. Proving this can be challenging as doctors usually have more information about what transpired and are generally respected members of society. However, liability can be established for mistakes such as misdiagnosis, improper suturing, misuse of medical equipment, wrong organ removal, and other negligent practices.

Finally, it’s essential to distinguish negligence from a mere error of judgment. A doctor is not automatically liable for every mistake; the error must result from a lack of reasonable care or competence. If the doctor made an honest and intelligent decision that later turned out to be incorrect, but a reasonable professional in the same situation could have made the same decision, it may be considered a simple error of judgment and not negligence.

In summary, the question of a doctor’s liability for negligence is multifaceted, involving an assessment of the standard of care, their professional role, the involvement of other personnel, and the nature of their errors. It involves a complex balance between the expectations of patients and the realities of medical practice, with the law aiming to ensure fairness for both parties.

A lawyer can be found liable for negligence based on several factors.

Primarily, a lawyer is expected to perform duties with the competence of an “ordinary prudent solicitor.” This means the lawyer must exercise a reasonable amount of knowledge, skill, and care in executing client-related tasks. If a lawyer’s ignorance or error is such that a competent solicitor wouldn’t have made it, the lawyer may be held liable for negligence. While it’s not necessary for a lawyer to know every law related to their client’s issues, they must possess sufficient knowledge of the fundamental principles applicable to the case.

Negligence liability was traditionally founded on contract, but it has evolved to include tort liability. Thus, a lawyer may now be liable either in contract or in tort to their client. In some circumstances, third parties, who may not be clients, can also sue lawyers for negligence. This shift has meant that it’s possible to launch a concurrent claim in contract and tort. The plaintiff can choose to claim in either contract or tort, based on whichever would be more favourable under the statute of limitations.

However, a lawyer’s duty is not absolute. It’s confined to providing careful, non-negligent advice on matters of law. It doesn’t constitute a form of insurance against loss. For instance, if a lawyer provides an opinion on a legal question and later proven incorrect, this doesn’t automatically equate to negligence. The standard of care for lawyers is intentionally set not to be too burdensome to avoid a surfeit of crippling lawsuits against the profession.

There are also different standards for general practitioners and specialists. A specialist, given their extra training and knowledge, may be held to a “reasonably competent specialist standard,” and this distinction is now recognized in the Canadian legal profession. However, this doesn’t mean less is expected from inexperienced beginners. They’re held to the same standard as a reasonable solicitor from the first day of their practice.

A solicitor’s conduct is typically assessed against the customary practices of solicitors in the same or similar communities. The extent of a solicitor’s duty is determined by the work undertaken, rather than by their circumstances. Thus, a lawyer’s negligence or non-negligence is a question of degree, and there’s often a borderland between these two states.

It’s crucial to remember that for a lawyer to be held liable for negligence, their negligence must cause some loss. This liability can arise in cases where a solicitor fails to take a routine step or neglects to provide essential information or advice, abuses a confidential fiduciary relationship, or makes negligent referrals.

However, not every error or mistake leads to liability. If an error is made on a complex legal issue or if the error did not cause any harm or loss, no liability is usually imposed. Also, if the lawyer follows the ordinary practices of the profession, they’re largely protected from negligence claims.

The complete immunity from tort liability for lawyers in litigation, once upheld in England, has been rejected in Canadian law. A negligence suit can be brought against a lawyer for the conduct of a civil case in court. Public policy in Canada doesn’t recognize exclusive immunity for lawyers engaged in court work from actions for negligence by their former clients.

In summary, a lawyer can be found liable for negligence if they fail to meet the standard of an “ordinary prudent solicitor,” if their negligence results in some loss, and if they breach their duty to act competently, prudently, and diligently. Liability can also arise if a lawyer abuses a confidential fiduciary relationship or makes negligent referrals. However, not all errors or omissions result in liability, especially if they’re on complex legal issues, or if they do not cause harm or loss.

In the context of professional negligence, the issue of whether an employer can be held liable for the negligent actions of their professional employee falls under the legal principle known as vicarious liability. Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, specifically under the respondeat superior (let the superior answer) doctrine. Essentially, under this doctrine, an employer can be held liable for the negligent actions or omissions of its employee, when such actions occur in the course of their employment.

Vicarious liability stems from master-servant law but has been extended and modified to apply to a variety of employment and quasi-employment relationships. The exact boundaries of vicarious liability are not entirely fixed, and it can potentially extend to non-employment relationships like principal/agent relationships, the relationship between law firms and lawyers, between an apartment building owner and a non-employee building manager, among others. The general rule, however, is that for vicarious liability to be established, the tortfeasor must be acting on behalf of the organization or employer.

The justification for applying vicarious liability in an employment context was succinctly summarized by Chief Justice McLachlin of the Supreme Court of Canada in B. (K.L.) v. British Columbia, who explained that when an employer creates a risk and that risk materializes and causes injury, it is fair that the organization that creates the risk should bear the loss. This is because employers are often in a position to reduce accidents and intentional wrongs through efficient organization and supervision.

However, it is important to note that this vicarious liability does not typically extend to independent contractors. Independent contractors are generally considered to be operating their own business, and thus the employer or hiring party does not have the same degree of control over them as they would over an employee. Therefore, the organization hiring the contractor is not typically held liable for the contractor’s actions. The primary factors in assessing the nature of the relationship include the level of control, whether the worker provides their own equipment, hires their own helpers, the degree of financial risk taken by the worker, their degree of responsibility for investment and management, and the worker’s opportunity for profit.

That being said, a contractor’s independence does not completely preclude the possibility of vicarious liability. Workers can have considerable independence and still act on behalf of their employer. Many skilled professionals perform specialized work that is far beyond the abilities of their employers to supervise, and yet they may reasonably be perceived as acting on behalf of these employers.

Furthermore, an employer can also be vicariously liable where the tortfeasor is the employer’s agent and where the agent is acting within the scope of their actual or apparent authority. This can even include the relationship between a corporation and its director or directing mind.

Finally, it’s important to understand that even if an employee is transferred or loaned to another employer, or if a job is delegated to an independent contractor, the original employer may not be able to escape vicarious liability. Similarly, in a mixed employment setting where some persons are employees and some are independent contractors, the employer will be vicariously liable with respect to the damages apportioned to the employee only. Also, the non-profit status of an employer will not alter the policy basis for the operation of vicarious liability.

It is possible for two employers to be jointly vicariously liable for the tortious acts of an employee if they both exerted sufficient control over that employee. Additionally, some duties are “non-delegable” and, if so, the original employer cannot avoid vicarious liability by delegating the responsibility to an independent contractor.

In conclusion, an employer can indeed be held liable for the negligent actions of a professional employee under the principle of vicarious liability. However, whether or not vicarious liability applies to any given case depends on the nature of the relationship between the employer and the employee, the degree of control the employer has over the employee’s actions, and whether the negligent act was committed within the scope of the employee’s duties.

A dentist can be considered negligent when they fail to fulfill their professional obligations to a patient in a way that results in harm to the patient. The negligence is determined through a legal process which involves assessing several key factors:

A) Duty of Care

A dentist has a duty of care towards their patients, which arises when the dentist-patient relationship is established. This duty continues throughout the period of treatment. If a dentist’s negligent actions during treatment cause harm to the patient, the dentist could be held responsible, even if the effects of the negligent act are not immediately noticeable.

Dentists are typically free to refuse treatment to a patient, but there are exceptions. For instance, a dentist must continue treating dental emergencies for a patient they’ve dismissed until that patient can secure treatment from a new professional.

Ethical issues can arise if a dentist discontinues treatment without good reason or for discriminatory reasons. A dentist may be considered negligent if a patient is harmed due to the termination of care. This is especially true if the dentist doesn’t provide sufficient notice or make suitable arrangements for the transfer of care to another professional when discontinuing treatment, such as in the event of retirement.

B) Standard of Care

The standard of care for a dentist is determined by what a reasonable dental professional would do in a given situation.

Reasonable Dental Professional: The “reasonable dental professional” is a practitioner who exercises a degree of care and skill that could be reasonably expected of a prudent professional in their field. Dentists are held to this standard due to their specialized training and the expectation of competency when performing dental tasks.

Applicable Standard: The actual application of this standard involves assessing all the relevant circumstances to determine whether the dentist created an unreasonable risk of harm. A successful outcome of a procedure or treatment does not necessarily mean the dentist met the standard of care, nor does an unsuccessful outcome necessarily mean the dentist failed to meet it.

The dental professional’s judgment and level of knowledge at the time of the procedure are considered when evaluating negligence, not with the benefit of hindsight. If a substantial opinion in the profession supports the judgment of the dentist, even if they were wrong, it may be considered an error of judgment, not negligence.

Custom and Practice: How a dentist’s conduct aligns with standard practices in their field also contributes to the evaluation of negligence. If the dentist’s conduct aligns with the industry’s customary practices, they’re unlikely to be found negligent. However, even if a dentist’s conduct deviates from the norm, they won’t necessarily be found negligent unless their conduct was one that no professional of ordinary skill would have taken with ordinary care.

C) Injury

For a successful dental negligence claim, the patient must show that they have suffered a legally recognized injury or loss. This could be temporary, like pain or limitations to chewing, speech, or aesthetic alterations, or permanent injuries that cause a lasting detriment to physical or psychological function. A patient can also bring a claim for “pure psychiatric injury,” which may arise when a patient suffers significant psychiatric damage without any physical injury.

D) Causation

The patient must prove that their injury or loss was caused by the dentist’s breach of the standard of care. They must show that without the dentist’s negligent conduct, the unfavourable outcome would likely have been avoided.

The dentist’s conduct may have combined with other factors to cause the patient’s injury, but it must have been necessary for the injury to occur. For instance, if a patient had an existing condition, and the dentist’s negligent treatment led to further damage, they could be held liable for that damage.

E) Remoteness

The final element of negligence is that the injury must have been reasonably foreseeable to result from the dentist’s breach of the standard of care. This means that the injury must not be too unrelated to the negligent conduct.

For example, a dentist is expected to foresee that a breach of the standard of care could lead to physical harm. If physical harm does occur, the dentist could be liable, whether the harm is mild or severe.

If a patient’s condition worsens due to a pre-existing condition or susceptibility, the dentist could still be held liable under the “thin skull” doctrine. However, if an unforeseen event unconnected to the dentist’s conduct causes or worsens a patient’s injury, the dentist may not be held liable.

These are the key elements that define dental negligence under Canadian law. However, as always, it’s important to note that the specific circumstances of a case can significantly impact the determination of negligence.

The potential to be sued when reporting a professional to their regulatory body is a concern that many individuals share. This situation is especially difficult for regulatory bodies when professionals threaten to sue those who may report them. These threats can deter individuals from filing complaints or cooperating with investigations.

However, it’s important to note that individuals who report to a regulator are legally protected from defamation actions, assuming the complaint pertains solely to relevant information. There is a legal doctrine known as “absolute privilege” that protects individuals who file complaints against a registrant to their respective regulatory body from being sued, even if the complaint is made with malicious intent.

That being said, the nature of this privilege isn’t absolute. For instance, the case of Hampton Securities Ltd. demonstrated that the privilege may be defeated if the report is made with malice. In this case, Ms. Dean successfully sued Hampton Securities for defamation based on the malicious statements the company made to IIROC.

A similar situation may occur when reporting to the police results in a criminal prosecution. While there don’t seem to be any reported decisions directly addressing this issue, it’s possible that someone could be held liable for malicious prosecution if the report they file with a regulatory body leads to disciplinary action.

Importantly, expert witnesses are protected by absolute privilege in relation to the opinions and evidence they provide to a regulatory body. This protection extends to any action, regardless of how it is framed.

Notably, while it is generally possible for individuals to be sued for reporting a professional to their regulatory body, this is largely dependent on the specific circumstances of each case. Some cases, like Hay v. Platinum Equities Inc. and Schut v. Magee, have concluded that reports made to professional disciplinary bodies are protected by absolute privilege, regardless of whether the statements were made maliciously.

However, other cases, such as Duke v. Puts, have found that individuals can be held liable for defamation if they provide irrelevant, defamatory information to a regulatory body. The defendant, Dr. Puts, was ordered to pay damages for defamation as some of the statements made had no reference to the complaint against the physician and were deemed irrelevant.

Therefore, while you are generally protected by law when you report a professional to their regulatory body, it is important to ensure that your complaint is based on relevant information and is made in good faith. If the complaint is malicious or includes irrelevant, defamatory information, you may be held liable for defamation.

Yes, architects and engineers can be liable to a third party for physical damage if such damage is a result of their negligence. This principle is embedded in a long-standing recognition in law of the duty of a person engaging in an activity to take reasonable steps to prevent physical harm to others from that activity. Consequently, if an architect’s or engineer’s negligent design or negligent control of a building operation results in physical damage to the person or property of a third party, they may be held liable for that damage.

This principle of liability applies both during the course of the construction as well as after the work is completed and handed over to the owner. In other words, if a structure collapses after completion due to the negligence of the architect or engineer, resulting in injury to people or damage to their property, the architect or engineer could be held accountable.

This liability was traditionally limited by the requirement of privity of contract. However, this requirement has been eroded over time. For example, the landmark case of Donoghue v. Stevenson removed the requirement of privity of contract as a prerequisite for liability in negligence, thus expanding the potential for liability to third parties.

Nevertheless, it’s worth noting that architects and engineers have rarely been found liable to contractors or their employees for damage suffered by them. The general understanding is that the contractor is responsible for their chosen methods of construction and for the safety of the site. As per the common law view, and upheld in several jurisdictions including Canada, an architect or engineer overseeing work pursuant to a contract with the owner doesn’t owe a duty to the contractor or subcontractors to instruct them on how they should accomplish their work.

This principle does not mean that architects and engineers are entirely exempt from liability related to a contractor’s construction techniques. There have been instances where architects and engineers were held liable for physical loss or damage due to negligent supervision. For example, the High Court of Australia in the case of Florida Hotels Ltd. v. Mayo held the project architect responsible for the injury of a workman because the architect did not provide clear instructions about a key construction procedure.

In summary, the extent of an architect’s or engineer’s liability for physical damage or injury suffered by the contractor or the contractor’s employees largely depends on the extent of their supervisory role. If their role is merely to assure that the contractor’s work complies with the plans and specifications, they will not usually be held liable for injuries due to unsafe construction methods. However, if they assume a duty to supervise the construction procedures to be used by the contractor, they could potentially be held liable. As such, it is essential that architects and engineers tread carefully to ensure they do not inadvertently assume responsibility for the safety of construction procedures, thereby exposing themselves to potential liability.

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