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Lecture

MGSC30H3 Lecture Notes - Professional Negligence In English Law, Fiduciary, Informed Consent


Department
Management (MGS)
Course Code
MGSC30H3
Professor
J.Rybak

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Chapter 6
The Professional
Professional: a person with special skills not possessed by most individuals
o the possession of these skills distinguish the professional from other business persons or service providers in the
sense that the person who engages the services of the professional will normally rely on the professional’s
expertise to perform services that they cannot or do not wish to perform themselves
Professional Standards and Professional Associations
Professional standards include the oversight of training and education of potential members to ensure that they meet a
competence level to practice the profession, to ensure that competence levels are maintained, and to discipline members
who fail to maintain the standards of competence or the standards of the association.
The Professional-Client Relationship
Contract
The professional person agrees to perform certain specified services for the client in return for a fee.
A professional under contract impliedly promises to perform the services, and failure to do so would constitute a breach of
contract
Client may be able to hold the professional liable for any foreseeable loss that client suffered as a result of the
professional’s breach of the contract
Breach of contract are a result of careless or negligent performance, or even if professional enters a contract and doesn’t
perform the service
Fiduciary Duty of Care
Fiduciary Duty: a duty to place a client’s interest above the professional’s own interests
o Avoid any conflict of interest with those of the client
o May arise where a professional agrees to perform a service without a fee
The professional must also ensure that his or her role or interest in the transaction is fully explained and brought to the
attention of both parties
Tort Duty of Care
The person who claims to be a professional must maintain the standard of proficiency or exercise the degree of care in the
conduct of his or her duties that the profession normally imposes on its members
A successful negligence suit against a profession must show that the practitioner failed to meet the standard
Informed Consent
One of the obligations upon professionals acting in fields which can create tort liability is the obligation to explain
procedures and obtain consent to action from the party who will be affected by the professional service
Informed consent: Professional must provide a full and understandable explanation of possible risks resulting from the
action, and the client must provide a corresponding clear statement that he or she understands those possible results and
still consents to the action
o if something less than informed consent is given, the professional is exposed to full liability for foreseeable harm
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