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Torts - Negligence [Module 4B]· Elements of negligence - test for negligenceo Owing a legal duty of care§ Required the defendant to act carefully toward the plaintiff§ Exists if the defendant is required to use reasonable care to avoid injuring the plaintiffo Breach of legal duty of care§ Breached the standard of care by acting carelesslyo Breach causing in fact the damageso Doctrine of remoteness of damage· Defences to the tort of negligenceo Voluntary assumption of risk§ Was guilty of contributory negligence that caused or contributed to the injury§ Voluntarily assumed the risk of being injured by the defendant§ Was injured while engaged in some form of illegal behaviour· Tort of professional negligence v. negligence in generalo Professional negligence refers to a negligence that is committed by a professional person§ Banker, lawyer, or accountanto Example, a physician is expected to provide better care than a barista in a medical emergency· When agents owe fiduciary dutyo Requires an agent to act in good faith and in the best interests of the principalo Key requirements are that the agents avoid situations in which their personal interests conflict with the best interests of their principalso Ex. If I was appointed to negotiate a contract for the sale of my principal’s land, I could not sell that land to myself (conflict of interest) since I would be the seller and the buyer I could be tempted to favour my own interests over the principals (selling at a lower price)· Content of the duty & consequences of breach*o Agent must disclose to their principal any info that may be relevant to principals interests
§ Ex. If you are appointed to buy cars, you must reveal any bargains that you findo Agent cannot personally profit from the unauthorized use of information or opportunities that arise as a result of the agency relationshipo Agent cannot compete with principal.· Fiduciary duty - what is and what is a breach of fiduciary duty*o May be breached even if the principal did not suffer any lossBusiness OrganizationsSARAH· Legal nature of a sole proprietorshipA form of business organization in which one (2) human being (3) owns all the business assets AND(4) is personally responsible for the business’s debts and other liabilitiesNo separation between the business and the proprietor (owner)· Advantages & disadvantages of a sole proprietorshipAdvantages:• Simple to set up and therefore very inexpensive to establish• Easiest form of business to manage (one person makes all the decisions)• Easy to dissolveDisadvantages:• Unlimited personal liability for the owner• Only way to raise money for business is owner’s own capital or loan from a third party• No one else but sole proprietor to make key decisions• Business profits are taxed in the hands of the sole proprietor at his or her own personal income tax rate, which is a progressive rate of tax (i.e., goes up percentage wise as level of profits increase)• On death, capital gains tax and probate fees are triggered related to the value of the business