Understanding Torts: Key Concepts in Engineering Law

School

McMaster University**We aren't endorsed by this school

Course

ENGINEERIN ENG 4A03

Subject

Law

Date

Dec 10, 2024

Pages

Uploaded by shararararar

ENGINEERINGLAW– TORTSPARTII1

DEFINITION OFTORTAn intentional or unintentional injury (other than a breach of contract) to the victim’sbodymindpropertypocketbook2

STRICTLIABILITYApplies in the context of an unnatural use of land or buildings, or hazardous activities and productsThe defendant may be found strictly liable if injury occurs even though precautions were taken.African Lion Safari3

CONTRIBUTORYNEGLIGENCEIf a plaintiff is partly or solely the cause of his or her own injury, the amount of compensation will be reduced accordingly.4

VOLUNTARYASSUMPTION OFRISKA plaintiff who has participated in an activity knowing that injury might result may be said to have assumed the risk voluntarily.The defendant must establish thatthe plaintiff knew about the risk and understood itthe plaintiff had a choice to avoid the risk but instead voluntarily assumed itthe defendant was not in breach of any statutory duty from which the injuries flowed5https://www.youtube.com/watch?v=JV9JJvRk46Y&t=70s&ab_channel=LeagueandWilliamsLawyers

VICARIOUSLIABILITYEmployers are responsible for the torts of employees which occur while they are performing their duties.Failure to correct a problem such as incompetence of an employee may also result in vicarious liability.Data Breach and Vicarious Liability6

NEGLIGENCE“Negligence is the careless causing of injury to another or to the property of another.”The following three elements are essential to a successful negligence claim:defendant must owe a duty of care to the plaintiff;defendant must be shown to have breached that duty of care; anddefendant’s breach of the duty of care caused injury to the plaintiff.7https://www.youtube.com/watch?v=HTinpq3nf9U&ab_channel=CBCNews%3ATheNational

A TEST FOR DETERMINING THE QUESTION OF NEGLIGENCEAsk and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence.8

RIGHT TO ASSUME OTHERS' GOOD CONDUCTEvery person who is exercising ordinary care, has a right to assume that every other person will perform his her duty and obey the lawRIGHT TO ASSUME OTHERS' NORMAL FACULTIESA person who is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing, in the absence of reasonable cause for thinking otherwise9

NEGLIGENCEELEMENT1:IS A DUTY OF CARE OWED?The court’s first question in any negligence action is: “Did the defendant even owe a duty of care to the plaintiff?” 10

DONOGHUE V. STEVENSONOR:THESNAIL IN THEGINGERBEERPlaintiff drank a bottle of ginger-beer, which a friend had bought from a retailer and given to herAfter she drank a significant portion of the beverage, she discovered the remains of a snail in the bottleShe claimed this caused her “shock and severe gastro-enteritis”Did the manufacturer owe the lady a duty of care?11

DONOGHUE V. STEVENSONISSUE:“The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.” 12

DONOGHUE V. STEVENSONDECISION:A manufacturer owes a duty of care to the ultimate purchaser/consumer of a product in situations where the product is designed to get into the hands of the purchaser/consumer without intervening inspection or modification.13

DONOGHUE V. STEVENSONEFFECT OF CASE:This decision significantly changed the law of product liabilityPrior to this case, it was generally held that manufacturers owed no duty of care to ultimate consumers as they did not sell directly to the consumers14

TRIDENTCONSTRUCTION V. W.L. WARDROPANDASSOCIATESConstruction of a sewage disposal plantContractor sought engineering servicesThere was no contractEngineer held liableDecided that “circumstances in which a reasonable man so asked would know he was being trusted or that his skill or judgment was being reliable on, and such person then chooses to give the requested advice or information without clearly disclaiming any responsibility for it, then he accepts a legal duty”15

B.C. RAIL V. CP CONSULTING(1988)Some contracts contain provisions which expressly define the standard of care In these cases design professionals will be liable for deficiencies resulting from conduct which falls beneath this standardIn B.C. Rail v. C.P. Consulting Services Ltd. the contract with the consulting engineers contained the following:“The Consultants covenant to perform their services hereunder with reasonable skill, care and diligence and in accordance with the standards of care practised by leading international consulting engineers engaged on similar projects providing similar services.”16

B.C. RAIL V. CP CONSULTING(1988)The judge held that through the contractual warranty: [the engineers] assumed a two-fold standard of care:the common law measure of reasonable skill, care and diligencean additional standard tested by measuring their performance against the practice of `leading international consulting engineers'....He held that the test of negligence in this case was not whether the engineers had met the standard of care of the ordinary engineer but whether they had met the more stringent standard of care expressly assumed in the warranty17

HEDLEYBYRNE V. HELLER(1964)The most significant case to date as far as professionals are concernedThe plaintiffs had, without contract, requested information about a client from their bank.On the favourable report provided by Heller, the plaintiff extended additional credit for advertising for the clientThis resulted in a £17,000 loss for the plaintiff18

NEGLIGENCEELEMENT2:WAS THE DUTY BREACHED?In the law of negligence, the law places a duty on everyone to take reasonable care to avoid causing foreseeable injury to another.The law determines if a person took reasonable care by imposing a standard of reasonable careon persons. A person breaches the duty if his or her conduct falls below this standard of reasonable care.19

BROWN& HUSTONLTD. V. THECORPORATIONOF THECITY OFYORKContract involved construction of an underground pumping stations for the cityEngineers omitted detailed information from the tender package but referred to the original reportContractors sued successfully but were held partially responsible (25%) because he did not ask about the soils report or learn the precise meaning of the information20

CANAMACONTRACTING VSHUGGMAN(1983)Contractor was designing a barn over a manure pitPeriodically contractor would contact a P.Eng. working for the Ministry of Agriculture for design adviceContractor phoned the P.Eng. and dropped plans on his deskDesign was inadequateOriginally 50-50 responsibility to the P.Eng. and the contractorOn appeal the responsibility went 75-25 to the P.Eng and contractor21

NEGLIGENCEELEMENT3:DID THE BREACH CAUSE DAMAGES? CAUSATION& REMOTENESSFor an action in negligence to succeed, the plaintiff must show that the duty of care that was owed to him or her was breached and that the breach of duty was the cause of the injury.A person’s conduct will not be considered to be the cause of injury if the injury is too remote, i.e. if the injury is not reasonably foreseeable. 22

WINNIPEGCONDOMINIUM VSBIRDCONSTRUCTION(1995)Professionals who design buildings owe a duty of care to subsequent owners for foreseeable defectsThe building was built in 1974In 1989 a section of cladding from the 9thfloor fell offRemoval and replacement of the cladding cost $1.5 millionEven though no contract existed between the original professional and current owners the suit was successful23

CONCURRENTTORTFEASORSIt is possible for more than one party to be liable in an actionCorporation of District of Surrey v. Carrol-Hatch et al.An architect designed a police station and engaged an engineering firm to perform the structural designEngineers suggested deep soils tests but were turned down by the architectSoils report based on two shallow test pitsThe building settledThe damages were apportioned 60% the architect and 40% the engineers24

REMEDIES INTORTLAWWhen a person is injured as a result of a tort, the law compensates the injured party. The compensation that the injured party receives is generally called damages.Categories of damages include:General damagesSpecial damagesPunitive or exemplary damagesNominalOther remedies (in addition to “damages”) include things like specific performance and injunctions. 25

CIVILLAW ANDCRIMINALLAWAlthough the largest difference between civil law and criminal law is that civil law is between two parties, and criminal law is between society and one person, civil law does have more differences.The reason for civil law is to repay the victim and make their life as close to what it would have been before the crime or tort. Usually the plaintiff is seeking a certain amount of monetary claim to ensure their safe future.26Law App

DUTY TOWARNA manufacturer must warn the consumer of any dangerous potential of the product by appropriate labelling.There is a high standard of care imposed on a manufacturer (Lambert v. Latoplex Chemicals)27

ECONOMICLOSSHedley Byrne decision set a precedent for economic loss resulting from negligent adviceEconomic loss in products liability in the absence of physical injury was not awarded until 1973Rivtow Marine Ltd. V. Washington Iron Works28

PROPERTYProperty is divided intoReal propertyPersonal property or chattelTangible personal propertyIntangible personal propertyThe latter includes intellectual property...29

INTELLECTUALPROPERTYIntellectual property is divided into:Rights concerning the reproduction of worksIndustrial property rightsRights concerning the reproduction of worksCopyrightIndustrial property rightsPatentsTrademarksIndustrial designTrade secrets30

INTELLECTUALPROPERTYIn Canada, legislation of copyrights and patents is a federal power (paraphrased):Legislative Authority of Parliament of Canada91. It shall be lawful for the Queen to make Laws for the Peace, Order, and good Government of Canada; and it is hereby declared that the exclusive Legislative Authority of the Parliament of Canada extends to the Subjects next hereinafter enumerated; that is to say,22.Patents of Invention and Discovery.23. Copyrights.31

COPYRIGHTCopyright gives the creator of an original work the exclusive right to its production, reproduction, performance or publicationCopyright is generally in force for the life of the author plus anywhere from 50 to 100 yearsTerm of copyright6. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.32Evolutionof Copyright Laws

COPYRIGHTWhat can be copyrighted?From the Act:PART ICopyright and moral rights in worksPART IICopyright in performer’s performances, sound recordings and communication signals and moralrights in performers’ performances33

MORALRIGHTSWhat are moral rights?Despite being able to sell a copyright, the original author should still have the right to be attributed, to require the integrity of the work and with what the work is associatedFor example, would you want a photograph you took associated with an advertisement for a hate group?34

PATENTS OFINVENTIONA patent is a contract between an inventor and the publicFrom Latin, patere means “to lay open”It is an agreement whereby the inventor makes the design available for public disclosure in return for a fixed period of time during which the inventor has exclusive rights to that invention35

PATENTS INCANADAIn Canada, patents are covered under the Patent Act“invention” means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matterA patent expires 20 years following the day it was filed36

PATENTS INCANADAAn invention is not patentable if it has either been disclosed or is known to the publicIn Canada and the United States, relative novelty allows the invention to be disclosed or known for no more one year prior to filingIn Europe, absolute novelty does not allow any form of noveltyInteresting note:In a 1945 letter, Arthur C. Clarke gave such a complete description of a geostationary tele-communications satellite that when Bell Labs tried to patent the idea in 1954, it was refused37