Negligence & tort

Study notes

Negligence is the tort that matters most to salespersons: saying or doing the wrong thing during a transaction can make the agent — and the agency — liable.

What you must know

• The claimant must show a duty of care, a breach of the standard of care, causation, and damage that is not too remote.
• Duty of care is founded on proximity (the neighbour principle) — foreseeable plaintiffs affected closely and directly.
• Professionals are measured against the standard of a reasonably competent member of their profession, not the average person.
• Negligent misstatement liability needs a special relationship of reliance — squarely applicable to property agents advising buyers.
• Defences include contributory negligence and voluntary assumption of risk.
• Vicarious liability: an estate agent (employer) is generally liable for negligence committed by its salesperson in the course of agency work.