Law of Tort
This article covers the general principles of the law of tort and focuses on those areas of interest to an estate agent especially negligence, occupiers' liability and vicarious liability.
What is Tort?
Tort simply means ‘a wrong’. The main principle of tort in law is the compensation of a person who has been wronged by another. Tort protects certain interests of one person against certain types of wrongful conduct by another. In order to bring an action in tort, the wrong must fit into one of the specified situations covered by the law of tort, which include:
- Human behaviour that the law classes as wrongful
- That behaviour hurts the interest of another
- The person suffering the wrong can seek redress in the civil courts, as torts are civil wrongs.
Negligence
Negligence is where something is done without the usual or expected standard of care or skill which causes some damage or injury to people or property. A case of negligence has three essential elements:
- A duty of care must be owed: if one can reasonably foresee that if they are careless in carrying out a work role another will suffer loss, injury or damage. A duty of care is owed to all sellers and buyers or prospective buyers.
- There must be a breach of that duty: if the work is not carried out to a reasonable standard. In this instance, that is the standard of an ordinary, competent estate agent which may be determined by codes of conduct.
- There must be damage, harm or loss caused as a result of that breach: this may include physical damage to people or property, economic loss (e.g. providing an extremely inaccurate market appraisal) or psychological damage where this amounts to a medically recognised illness (e.g. depression).
If negligence occurs, the party harmed by the negligence will be able to recover damages. The aim of which is to put the party in the position they would have been in had the negligence not occurred.
Occupiers’ Liability
Anyone who occupies property, the ‘occupier’, may be sued in negligence for not taking sufficient care of people on their premises. The occupier is the person with control of the property and could therefore be the estate agent. Legislation requires the occupier to keep visitors, including children, safe. It states the occupier is only liable if they know or ought to have known there was some danger and that the visitor might come into contact with the danger.
The legislation requires visitors, not premises, should be safe from harm or damage and liability can be limited by using warning signs which must be easily seen by visitors and may be linked to a physical barrier such as a tape or chain e.g. when decorating offices.
Vicarious Liability
Vicarious liability arises where there is an employer and employee relationship such that the employer will be liable for the torts (or wrongs) committed by the employee in the course of employment. Vicarious liability does not apply when independent contractors are engaged.
