Faculty of Engineering and Material Science

HUMA 901: Law and Ethics for Professional Engineers

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Lecture IV: Tort Liability

Tarik A. Youssef Ph.D, P.Eng November 13th, 2013

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Table of Contents

Business Organizations:
The Basic forms of business organizations worldwide

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

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

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 negligence and 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)

Tort Liability (Continued)

Tort Liability may arise from automobile accidents; transportation of hazardous cargoes; from the sale of

unsafe products, and from the negligent performance of

professional services. No privity of contract is required for tort liability to exist. Even services performed

gratuitously without a contract can give rise to

liability in tort if the services are performed negligently.

It is possible that Tort liability and Liability for

breach of contract occur together, depending on the circumstances and terms of the contract (aka

Concurrent Liability)

Fundamental Purpose & Principles of Tort Law

The fundamental purpose of Tort Law 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.

Principles of Tort Law

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 the

plaintiff will not succeed.

The Engineers Standard of Care

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.

DEVELOPMENT OF TORTLAW

Development of Tort Law

There have been many significant tort case decisions. Two of the most significant cases to date have been the 1932 decision in Donoghue v. Stevenson and the 1963 decision in Hedley Byrne & Co. Ltd. V . Heller & Partners Ltd. Both cases were decided by Englands highest 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 ginger beer, which had been given to plaintiff by a friend. The bottle of ginger beer reportedly contained a decomposed snail. The House of Lords determined that the manufacturer was under a legal duty to the ultimate consumer to take reasonable care that the ginger beer was from any defect likely to cause injury to health. (Note that no contract existed between the plaintiff consumer and the manufacturer.)

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

DEVELOPMENT OF TORTLAW

Development of Tort Law (Continued)

The plaintiffs bankers then made inquiries of the defendants, who bankers for the company about whom credit information was being sought. The defendant bankers negligibly reported that the companys financial position was favorable, but expressly stipulated that such advice on credit worthiness was without responsibility. The plaintiff proceed to do business with the company, relying on the advice of the bankers. 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 plaintiff for the financial loss that resulted from the defendant bankers negligent misrepresentation. Implicit in the decision of the House of Lords was the belief that, where one person relied on the special skill and judgment of another, and when the second person knew of that reliance, the second person was duty bound to take reasonable care in exercising the special skill.

STRICT LIABILITY

Strict Liability
The discussion of torts to this point has emphasized the concept of fault; we have concentrated on cases where the conduct of the party that caused the injury was unsatisfactory in terms of duty owed. However, our legislators have sometimes found the application of the concept of fault inadequate for the purpose of compensating injured parties. For example, workers compensation legislation recognize that fault is not necessary if compensation is to be provided. All employers are expected to make contribution on behalf of employees and if an employee negligibly injures himself or herself, compensation is provided according to provincial workers compensation legislation.

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

VARIOUS LIABILITY

Vicarious Liability
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, Englands Court 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 to withstand the pressure of settling.

VARIOUS LIABILITY

Vicarious Liability (Continued)

Building by laws required that the buildings foundation to be approved by a local building inspector before construction continued. The inspector failed to make proper inspection before giving approval. The local building authority that employed the inspector was held liable to a subsequent purchaser of the house of the inspectors negligence. In his reasons for judgment, the judge examined the question of the liability of the inspector.

CONCURRENT TORTFEASORS

Concurrent Tortfeasors
At times, torts concur to produce the same damage. It is possible for more than one party to be liable in such a tort action. The defendants are said to be concurrent tortfeasors. An example is the 1979 decision of the British Colombia Court of Appeal in Corporation of District of Survey v. Carol-Hatch et al. An architect had designed a new police station, and had engaged a firm of engineers to perform structural design services. The building eventually underwent extensive structural change because of settlement problems. The problems could have been avoided had proper soils tests been conducted. After examining two shallow test pits, the engineers had recommended to the architect that deep soils tests to be taken. But the architect had rejected the recommendation, and the engineers had submitted a soils report to the owner on the basis of a superficial examination of the shallow test pits only. Both the architect and the engineers were held liable to the owner.

CONCURRENT TORTFEASORS

Concurrent Tortfeasors (Continued)

The Appeal Court agreed with the trial judges appointment 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 be taken.

OTHER RELEVANT TORTS

Other relevant torts:

There are many different classifications of torts. Some of the other 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 untrue statements publicly made by the defendant. If the statements are made in writing, the tort is referred to as libel; if the statements are verbal, the tort 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 the comfortable and convenient enjoyment of the plaintiffs land. Nuisance, as a tort, is growing in potential application, particularly as environmental issues have become extremely high profile.

OTHER RELEVANT TORTS

Other relevant torts (Continued):

For example, in 1972, the British Colombia Supreme Court decided Newman et al. v. Conair Aviation Ltd. Et.al. The defendant aviation companys insecticide spray drifted onto lands for which the spray was not intended and nominal damages were awarded. Another example is the 1974 decision of the Ontario Court of Appeal in Jackson et. Al. v. Drury Construction Co. Ltd. Blasting operations by a contractor resulted in fissures opening up in the granite bedrock. The fissures allowed material in a barnyard to escape into the percolating waters feeding the plaintiffs well. The Court of Appeal concluded that the contractor should be liable.

Thank-You slide

Thank You !