4- Lecture IV (Tort Law).pdf

8/13/2019 4- Lecture IV (Tort Law).pdf

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November 13th, 2013

HUMA 901: Law and Ethics forProfessional Engineers

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Faculty of Engineering and Material Science

Tarik A. Youssef Ph.D, P.Eng

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Lecture IV:

Tort Liability


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Tort Liability

Tort Liability:

Overview

Fundamentals of Tort Law

The Engineers standard of care Development of Tort Law

Strict Liability

Vicarious Liability

Concurrent Tortfeasors Other relevant torts


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Tort Liability

Tort Background and Definition: The term has become

more familiar in the engineering community as a result of

the increasing frequence of claims against professionals

(Engineers included). The term generally refers to a

private or civil wrong injury , one that involves negligenceand that may arise independently of a contract. Torts are

best understood by looking at some examples, and by

examining the principles the courts apply to determine if

tort liability exists (examples will be made available in

separate word files)


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The fundamental purpose of TortLaw is to compensate

the victims of torts. Punishment of negligent wrongdoers

is not a purpose of tort law. If the circumstances of the

tort also constitute criminal activity, punishment of the

criminal will be governed by the Criminal Code. Principles of Tort Law: To analyze whether or not tort

liability arises in a given situation a certain formula

has to be followed.

Fundamental Purpose & Principles of Tort Law


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Principles of Tort Law (Contd): To satisfy the court

that compensation should be made, the plaintiff in a tort

action must substantiate that:

the defendant owed the plaintiff a duty of care

the defendant breached that duty by his own conduct;

The defendants conduct caused an injury to the plaintiff.

If any of the essential aspects above is not

substantiated to the satisfaction of the court theplaintiff will not succeed.

Principles of Tort Law


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A significant factor in a tort action is the establishment of the

standard of care required of the defendant. For example,

suppose a court is required to determine whether an engineer has

been negligent in the performance of engineering services. The

court must apply some standards to determine whether the

engineers conduct was negligent.

The standard applied is based on the premise that engineers have

a duty to use the reasonable care and skill of engineers of

ordinary competence. This reasonable care is measured by

applicable professional standards of the Engineering profession at

the time the services are performed.

The Engineers Standard of Care


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DEVELOPMENT OF TORTLAW

There have been many significant tort case decisions. Two of the most significantcases to date have been the 1932 decision in Donoghue v. Stevenson and the 1963decision in Hedley Byrne & Co. Ltd. V . Heller & Partners Ltd. Both cases weredecided by Englandshighest court, the House of Lords.

Donoghue v. Stevenson was a very important decision in the evolving field of

products liability. The plaintiff became ill after consuming the bottle of gingerbeer, which had been given to plaintiff by a friend. The bottle of ginger beerreportedly contained a decomposed snail. The House of Lords determined that themanufacturer was under a legal duty to the ultimate consumer to take reasonablecare that the ginger beer was from any defect likely to cause injury to health.(Note that no contract existed between the plaintiff consumer and themanufacturer.)

Hedley Byrne is probably the most significant case to date, as far as professionalsare concerned generally. In Hedley Byrne, the plaintiffs were advertising agentswho asked their bankers to inquire into the credit rating of a company with whichthe plaintiffs had business dealings.

Development of Tort Law


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DEVELOPMENT OF TORTLAW

The plaintiffsbankers then made inquiries of the defendants, who bankers for thecompany about whom credit information was being sought. The defendant bankersnegligibly reported that the companysfinancial position was favorable, but expresslystipulated that such advice on credit worthiness was without responsibility. Theplaintiff proceed to do business with the company, relying on the advice of thebankers.

As a result, the plaintiff eventually lost 17,000. The House of Lords held that,had there not been an express disclaimer of responsibility from the defendant bank,the defendant bank would have been liable to provide compensation to the plaintifffor the financial loss that resulted from the defendant bankers negligentmisrepresentation.

Implicit in the decision of the House of Lords was the belief that, where one personrelied on the special skill and judgment of another, and when the second person knewof that reliance, the second person was duty bound to take reasonable care inexercising the special skill.

Development of Tort Law (Continued)


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The discussion of torts to this point has emphasized the concept of fault; we haveconcentrated on cases where the conduct of the party that caused the injury wasunsatisfactory in terms of duty owed. However, our legislators have sometimes foundthe application of the concept of fault inadequate for the purpose of compensatinginjured parties. For example, workerscompensation legislation recognize that fault isnot necessary if compensation is to be provided.

All employers are expected to make contribution on behalf of employees and if anemployee negligibly injures himself or herself, compensation is provided according toprovincial workerscompensation legislation.

Products liability in North America: In the United States, a manufacturer may bestrict liable for any damage that results from the use of the product even thoughthe manufacturer was not negligent in producing it. Canadian products liability lawshas not yet adopted this strict liability concept, but the law appears to bedeveloping in that direction.

STRICT LIABILITY

Strict Liability


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Our courts have long recognized the concept that the employer is vicariously liable

for the negligent performance of an employee. If an employer commits a tort for the

Damage caused. This concept may appear onerous as far as the employer is

concerned, but it is consistent with the basic premise of tort law; its purpose is to

Compensate the injured party. The employer provides compensation because it is

presumed that the employer is in a better financial position than the employee.

In 1972, EnglandsCourt of Appeal decided the case of Dutton v. Regis United

Building Co. Ltd. Foundations laid by the builder of a house were discovered to be

inadequate to carry the load of the building, and damage resulted. The house had

been built on a rubbish deposit and the foundations should have been deeper towithstand the pressure of settling.

VARIOUS LIABILITY

Vicarious Liability


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VARIOUS LIABILITY

Building by laws required that the buildings foundation to be approved by a localbuilding inspector before construction continued. The inspector failed to makeproper inspection before giving approval.

The local building authority that employed the inspector was held liable to asubsequent purchaser of the house of the inspectors negligence. In his reasonsfor judgment, the judge examined the question of the liability of the inspector.

Vicarious Liability (Continued)


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CONCURRENT TORTFEASORS

At times, torts concur to produce the same damage. It is possible for more thanone party to be liable in such a tort action. The defendants are said to beconcurrenttortfeasors.

An example is the 1979 decision of the British Colombia Court of Appeal inCorporation of District of Survey v. Carol-Hatch et al. An architect had designeda new police station, and had engaged a firm of engineers to perform structuraldesign services. The building eventually underwent extensive structural changebecause of settlement problems. The problems could have been avoided hadproper soils tests been conducted. After examining two shallow test pits, theengineers had recommended to the architect that deep soils tests to be taken.

But the architect had rejected the recommendation, and the engineers hadsubmitted a soilsreportto the owner on the basis of a superficial examinationof the shallow test pits only. Both the architect and the engineers were heldliable to the owner.

Concurrent Tortfeasors


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CONCURRENT TORTFEASORS

The Appeal Court agreed with the trialjudgesappointment of fault 60 % to

the architect and 40 % to the engineers in the circumstances. The court held

that the architect and the engineers were concurrent tortfeasors; they had

breached their duty to warn the owner that additional soils tests should betaken.

Concurrent Tortfeasors (Continued)


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OTHER RELEVANT TORTS

There are many different classifications of torts. Some of theother torts that may be relevant to engineers include:

1. The tort of defamation, which is further divided into two classifications: libel

& slander. In essence, the reputation of the plaintiff is damaged by untruestatements publicly made by the defendant. If the statements are made inwriting, the tort is referred to as libel; if the statements are verbal, thetort is referred to as slander. If statements damage a reputation are true,no liability arises.

2. The tort of nuisance, designed to alleviate undue interference with thecomfortable and convenient enjoyment of the plaintiffs land. Nuisance, as atort, is growing in potential application, particularly as environmental issueshave become extremely high profile.

Other relevant torts:


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OTHER RELEVANT TORTS

For example, in 1972, the British Colombia Supreme Court decided Newman etal. v. Conair Aviation Ltd. Et.al. The defendant aviation companys insecticidespray drifted onto lands for which the spray was not intended and nominaldamages were awarded.

Another example is the 1974 decision of the Ontario Court of Appeal in Jacksonet. Al. v. Drury Construction Co. Ltd. Blasting operations by a contractorresulted in fissures opening up in the granite bedrock. The fissures allowedmaterial in a barnyard to escape into the percolating waters feeding theplaintiffswell. The Court of Appeal concluded that the contractor should beliable.

Other relevant torts (Continued):


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