Ribbon said:
The only 'special' criterea for proffessionals is that when you owe someone a duty of care, there is also a 'standard of care' that can be increased or diminished by the inividuals capacities. A good example is children always have a lower standard of care owed to others, and doctors, proffessionals ect. have a higher standard of care because they are proffessing to have a special skill. I am not really sure if you are headed towards tort or contract with this question, but in tort, if it was say, an extra specially hard and dangerous dance move, and she proffesses to be trained to teach it when she is not, and someone hurts themselves, the standard of care she owes is higher than the normal standard, because she has proffessed to have this special skill. In terms of contract, it would be a misrepresentation and a basis to rescind the contract or get damages if she said she was trained to teach a certain dance move (that she wasn't really) and you signed up to dance lessons on that basis.
Thanks for the help, I get what you mean but I think in a way the question which i'm trying to answer is a bit ambiguous.
the question I have states this:
“Gypsy has a standard brochure/enrollment form. The brochure provides general information about Groovation Dance Studio, as well as a schedule of available classes and tuition fees, and additional information such as clothing and footwear requirements, and extra costs such as costumes and concert levies. Students fill in their name and contact details at the top of the form, and then they are required to tick each class they wish to attend. There is no requirement or space for a signature. At the bottom of the form is the statement:
“This form must be completed and returned to Groovation Dance Studios, and your payment received prior to commencement of your first class. This contract is subject to the Groovation Dance Studio standard terms and conditions available in the office of Groovation Dance Studio”.
Once Gypsy receives the completed forms and payment, she posts a package to students comprising a folder containing a message of thanks and welcome, a discount voucher for a local dance wear shop, and a laminated membership card. On the cover of the folder is a large sticker which contains the Groovation Dance Studio standard terms and conditions, including the following statement in bold 12pt type:
“Groovation Dance Studio shall not be liable for any injury, loss or damage suffered by dance students of Groovation Dance Studio, whether caused by the negligence of Groovation Dance Studio, its servant or agents”.
Gypsy decided to put on a dance concert to showcase the talents of her students. She wanted the concert to be something out of the ordinary, with the hope of attracting more custom. Gypsy picked out several students for solo roles in the concert, including Mary-Lou, a promising young dancer who took classes at Groovation Dance Studio.
Together, Gypsy and the students choreographed a spectacular dance routine. Mary-Lou was very ambitious and urged Gypsy to include difficult and amazing dance moves for Mary-Lou to perform. Hoping to achieve something really stunning, Gypsy agreed to Mary-Lou’s suggestions, but Gypsy was not in fact sufficiently experienced to teach Mary-Lou these moves properly. Unfortunately, during the concert performance Mary-Lou performed a spectacular back flip and landed heavily on her back, seriously damaging her spine. Mary-Lou required extensive surgery, numerous steel pins, and will need years of rehabilitation. Mary-Lou’s future career in dance is now ruined and she wants to sue Gypsy for loss of future earnings as a dancer, and for all of her medical expenses. Gypsy admits that she owes Mary-Lou a duty of care and that she has breached that duty, but she argues that her liability is either eliminated or at least reduced. Gypsy’s defence is based at least in part on the term in the Groovation Dance Studio standard terms and conditions stating that she accepts no responsibility for loss or injury.”
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Well what I have so far is that firstly, the exclusion clause isn’t part of the contract and is ineffective as it was stated after the contract was entered into. Dillon v Baltic shipping.
So Gypsy is liable for negligence.
And then I was stuck as to whether Gypsy (dance teacher) would be considered a professional as it states, “Gypsy agreed to Mary-Lou’s suggestions, but Gypsy was not in fact sufficiently experienced to teach Mary-Lou these moves properly.” I was wondering whether saying that in the question would make Gypsy liable under the standard of care of professionals. This question doesn’t say anything about Gypsy professing to be trained, the main thing it said was that she specifically wasn’t trained for THAT spectacular move. I was unsure as to whether that would put her in the professional standard of care. Although in one of the prior questions it states, “Gypsy was a hip hop dancer, choreographer and dance teacher. For many years she had been teaching for other dance venues, but had a dream to branch out on her own. She wanted to take her skills to the less privileged outer suburbs”. Would using a professional standard of care be right here.
Oh and in our text we have a section dedicated to a standard of care and that criteria and a separate one for professionals. If dealing with a case concerning a professional malpractice do we only need to satisfy the professional criteria?
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another quick question: unrelated the dance question
Ok, when you have negligent mis-statement in the torts of negligence and misrepresentation in vitiating factors (contract). Do you either pursue an action in either one or can you pursue an action in both?
The difference between them is that in vitiating factors you get recission and damages but in torts you can only get damages...
right?
I wasn't too sure.
