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Thursday, 29 July 2010 |
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Contractor's legal guide - tort principles
Tuesday, 20 May 2003
A tort is a wrong committed against another for which the law will compensate. The most common torts which you may come across are:
(a) Negligence;
(b) Defamation;
(c) Assault;
(d) Deceit;
(e) Trespass
The tort of negligence is a tort that we will spend some more time looking at. The tort arises when the following 4 elements are proven:
(a) There is a duty of care owed by one person to another.
(b) There is a standard of care for that sort of relationship.
(c) There is a breach of that standard of care.
(d) Loss or damage is suffered by a party which is foreseeable and proximate. The object of any award of damages is to put the person damage in the same position as if the damage had not been suffered.
As you can see it is not a consensual relationship as per contract.
In an IT environment the duty of a party instructed to take a back up who fails to do so is an interesting example.
Answering the above questions in turn and inventing some further facts, the following analysis arises:
(a) Did the person owe a duty? It depends on the scope of the engagement.
(b) What is the standard of care? Should the person have verified the backup? Depends on the circumstances.
(c) Did the person not verify the backup in breach of that obligation if it existed?
(d) Was loss or damage suffered which was foreseeable? The data was lost and took 3 weeks to re-key (foreseeable). The data was lost and a major contract was lost because an important document could not be produced on demand (possibly not foreseeable).
You can now see that liability can arise for both contract and tort in different circumstances. We still have not covered the difference between an employee and a contractor - we will though.
This information is provided courtesy of White SW Computer Law
White SW Computer Law (wcl@computerlaw.com.au)
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