Gentech 4em3 Legal and Regulatory Issues: L 1 Tort Law

GENTECH 4EM3
Legal and Regulatory Issues
LECTURE 1C
TORT LAW
Tort Law 1
GEN TECH 4EM3 – Legal and Regulatory Issues
Agenda
• What is a Tort
• Purpose of Tort Law
• Principals of Tort Law
• Definitions
• Types of Torts
• How Tort Law Affects Engineers
• Key Cases
• Note: Many examples in these slides are adapted from “Law for Professional
Engineers” by D.L. Marston and “Canadian Professional Engineering and
Geoscience: Practice and Ethics” as well as publicly available lecture notes
from Joel Adams, Doug Harder, and others.
Tort Law
GEN TECH 4EM3 – Legal and Regulatory Issues 2
What is a Tort
• A tort, in common law jurisdictions, is a civil wrong that
causes someone else to suffer loss or harm resulting in
legal liability for the person who commits the tortious
act.
• No contract required
• But can arise associated with contracts “concurrent
liability in tort and contract”
• Has to be “reasonable”
• You can defend against tort to say you did due

diligence to mitigate the probability and loss/harm
• Look at Engineer’s Duty of Care
Tort Law
Purpose of Tort Law
• Look after victims of torts
• Put another way “to compensate” victims of torts
• Tort law is separate from Criminal Law

• It is possible in some situations that the Crown could
charge someone under Criminal Law, and then a civil
case be brought forward by the victims under part of
tort law for compensation as well
• Engineers carry professional liability insurance

• Manufacturers often carry product liability insurance
Tort Law
Principals of Tort Law
A tort, in common law jurisdictions, is a civil wrong that
causes someone else to suffer loss or harm resulting in
legal liability for the person who commits the tortious act.
Principles of Tort Law

1. The defendant owed the plaintiff a duty of care;
2. The defendant breached that duty by his or her

conduct;
3. The defendant’s conduct caused the injury to the

plaintiff
Normally all three of the above must be satisfied

Tort Law
Tort Definitions
• Tortfeasor = person who commits the tort
• Legal Injury = Loss/wrong causes to someone due to a tort
• Injured Party = plaintiff in a tort lawsuit
• Liability = sate of being responsible for sometime
• Strict Liability = liability not depending on actual negligence or

intent to harm
• Vicarious Liability = liability where someone is help responsible

for the actions or omissions of someone else
• Concurrent tortfeasors = two or more defendants potentially

liable for single injury or claim
Tort Law
Types of Torts
• Intentional Tort
• Assault
• Battery
• False Arrest
• False Imprisonment
• Nuisance
• Trespass (entering property)
• Business or Economic (fraud, misrepresentation, etc.)
• Intentional Infliction of Mental Distress (libel, slander, etc.)
• Unintentional Tort: Negligence

• Duty of Care
• Standard of Care
• Causation
• Remoteness
Note: Definition of Torts varies slightly depending on the Country.

Tort Law
Engineer’s Duty of Care
• In tort law, a duty of care is a legal obligation which is
imposed on an individual requiring adherence to a
standard of reasonable care while performing any acts
that could foreseeably harm others. It is the first
element that must be established to proceed with an
action in negligence.
• Only take on work you are qualified to do

• Keep your skills up to date
• Exercise professional skill and judgement
• Work in your client’s best interests
Tort Law
Discussion
• What can you do as an engineer to protect yourself
against liability from torts?
Tort Law
More Discussion
What is the Engineer’s Standard of Care?
What is Strict Liability?
What is Vicarious Liability?
What are Concurrent Tortfeasors?
What is Product Liability?
What is the Duty to Warn?
What are the Consequences?
How can you Limit Tort Liability?

Tort Law
How to Approach Tort Issues
Review history of Torts
Discuss actual cases that set important precedent
Discuss Sample cases from textbook
Advice from text on how to write the PEO exam:

1. Consider the Facts – don’t fully restate in an exam
2. Give Reasons – identify issues/demonstrate
understanding of relevant legal principles
3. Format – point form okay, structure important
4. Reference key cases
Tort Law
How to Analyze a Tort Issue
Design Approach to Cases
1.Recognize the Need or Problem
2.Gather Information and Define the Problem
3.Generate Alternative Solutions (Synthesis)
4.Evaluate Alternatives (Analysis)
5.Decision Making and Optimization
6.Implementation
Also, Answer these Questions

How is this a Legal issue? What part?
Do engineers accept greater responsibility than others?
Tort Law
Tort Law Key Cases
1. Donohue v. Stevenson
2. Hedley Byrne v. Heller & Partners
3. Wolverine Tube
4. Brown v. York
5. Canama v. Huffman
6. SEDCO v. Kelly
7. Edgeworth v. Lea
8. Winnipeg Condos v. Bird
Tort Law
Donohue vs. Stevenson
[1932] A.C. 562 - Case from the UK
Plaintiff became ill by drinking a bottle of ginger beer
Reportedly found a snail (decomposed) in bottle
No privity of contract existed between consumer and manufacturer
House of Lords found that the manufacture still had a legal duty to
the ultimate consumer
THIS IS THE CASE THAT STARTED TORT LAW!
Tort Law
Hedley Byrne
[1964] A.C. 465
One of the most important cases for professionals!
Plaintiff was an advertising agent that asked their bank about the credit
rating of another company
The defendants (other bankers) told the bank that the credit was okay but
“without responsibility”
The advice was bad and the plaintiffs lost money
Plaintiffs lost – BUT the House of Lords said that the second bank would
have been liable if they hadn’t disclaimed responsibility
Tort Law
Hedley Byrne - Commentary
“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 that special skill.” – text (Marston, pg. 37)
How does this apply to engineers?
Increased scope of damages available in tort actions to financial

loss, as well as property and injury
Focused attention on services by professionals with “special skill”
(such as engineers)
Tort Law
Wolverine Tube v. Noranda et al.
[1994] 21 O.R. (3d) 264
Noranda sold property to Wolverine after having a consulting firm (A.

D. Little) perform a property assessment which they passed on
to Wolverine
The report included a detailed disclaimer that included no

responsibility for third party use, including damages made based
on the report
The property (and the advice) was bad and Wolverine sued
everybody but ADL was saved from Wolverine and Noranda by
the disclaimer
Tort Law
Trident v. Wardrop
[1979] 6 W.W.R. 481
Hedley Byrne applied to engineers in Manitoba
An engineer was held liable to a contractor without privity of contract

because of an unsuitable design and no clear disclaimer of
responsibility
“I have no difficulty in fixing the professional engineer with a duty of

care towards the person who is to follow the engineer’s design,
to ensure that the plans are workable, for breach of which duty
the engineer may be made accountable.”
Tort Law
Brown & Huston v. City of York et al.
[1983] 5 C.L.R. 240
Consulting engineers omitted important information relating to a soils report

and ground-water levels
Contract stated that the contractor also had to inspect by personal

examination
Contractor relied on engineer’s report – whoops!
Contractor partly responsible, but the engineers were found 75% responsible
under Hedley Byrne
Tort Law
Canama v. Huffman et al.
[1983] 5 C.L.R. 149
Contractor submitted plans for a barn (over a manure pit) to an

engineer at the Dept of Agriculture
The engineer was not a paid consultant, but the contractor often
relied on his advice of the years
The contractor left the plans on the desk of the engineer, who
replied:
“Good set of plans. I like the detail. Wish I could spend that
amount of time on each project. Keep up the good work.”
What happened…
Tort Law
Canama vs. Huffman et al - Commentary
…and then things went bad…..and then worse!
Two major structural problems in the plans: bad positioning of the

rebar (too far from middle) and a lack of a rebar schedule
Engineer argued that they did not know they were being consulted
Court found them 50% liable because when “being held to account
for negligence, it is not what we subjectively feel or think but
what our conduct objectively makes the other person believe we
feel or think.”
Contractor was also found 50% guilty of failing to meet a reasonable

standard of care for a design-builder – but on appeal the
responsibility of the engineer was upped to 75%!!!
Tort Law
SEDCO v. Kelly
[1988] 4 W.W.R. 221 (Sask. QB)
SEDCO contracted with an architect who contracted with mechanical

engineers (defendants) for HVAC
The building was built for Hospital Laundry Services (co-plaintiffs)

but cooling system was faulty
HLS claimed losses due to taking “heat breaks”
Because the engineer’s knew it would be used by a laundry

company, they were found to have breached their required duty
of care and found liable for economic losses by HLS
Tort Law
Edgeworth v. Lea
[1994] 107 D.L.R. (4th) 173
Important Supreme Court decision overturned an earlier BC court

decision
“Liability for negligent misrepresentation arises where a person

makes representation knowing another may rely on it, and the
plaintiff in fact relies on the representation to its detriment.”
Confirmed that an engineering firm preparing drawings and

specifications can be liable in tort to a contractor, even without a
contractual relationship
Firm had exemption but didn’t cover liability of the firm

Should have gotten a better lawyer!!!
Tort Law
Winnipeg Condos v. Bird Construction
1974: Winnipeg Condos builds a building
1978: Converted to a condo
1982: condo’s Board concerned about cladding

Consultants advise that it is structurally sound
1989: storey-high section of cladding (20’) fell from the ninth storey level to
the ground.
Replacement costs estimated at $1.5 million
Tort Law
Winnipeg Condos v. Bird Construction - Commentary
1995: Supreme Court Rules (overturns lower court)
Judge was concerned about “liability in an indeterminate amount for an

indeterminate time to an indeterminate class” (from an older case)
But he found the original contractor guilty anyway

“Key inquiry is foreseeability, not privity.”
“duty of care…commensurate w/ industry standards”
“owes duty of care to those who will use his product”
Liable for repair of defects to “non-dangerous state”
Tort Law
Tort Review – Strict Liability
Fault not only necessary for some “tortish” laws made by legislators (e.g.,
worker’s compensation)
Strict Liability
Manufacturer of product is liable even without error
Traditionally only in the US
Could extend to Canada through legislation
Tort Law
Tort Review – Vicarious Liability
When someone is held responsible for another
Employers can be held liable for employees

Employee can still be held responsible in some cases
Employers should provide professional insurance
May seem “unfair” to employer, but point of tort law is compensate the victim
– not to punish
Edgeworth case also found that the firm was liable not the individual
employees (engineers)
May depend on where the reliance is focused
Tort Law
Tort Review – Concurrent Tortfeasors
When more than one party and/or one tort contributes to damages
Example includes Surrey v. Carrol-Hatch

Engineers worked for architect
Prepared tests and advised that more should be taken
Architect rejected the recommendation
Both were found liable to the owner:
60% Architect
40% Engineers
Watch out for “Joint and Several Liability”

Even if one party is found to be 80% liable, if they don’t have the money the
plaintiff may try to go after the missing money from the 20% liable person
The reasoning behind this is to make sure that injured party is compensated
Is this fair?
Tort Law
Tort Review – Products Liability
Not “strict” in Canada like in the US (yet!)
Applies principle of negligence

Manufacturer could not have foreseen the defect
Based on state of the technology at the time
Sale of Goods Act and other statutes exist that may override common law
Products must “be fit the purpose for which their sold”
Restrictions or requirements on warrenties/disclaimers
Tort Law
Tort Review – Standard of Care and Duty to Warn
Risk of injury is inherent in many products
Manufacturers must warn the consumer of danger through

appropriate labelling
George Ho Lem v. Barotto Sports et al.

George bought a shot-shell reloading machine from a store and
was instructed in its use
George didn’t read the manual and didn’t realize the
consequences
George’s gun chamber burst on firing and George was hurt
George sued the store and the manufacturer
Manufacturer had duty to warn and court ruled that it did
Tort Law
Let’s end with a Tort Case Example:
Lambert v. Lastoplex
A Mechanical Engineer purchased two cans of lacquer sealer made
by one of the defendants to seal his rec room floor
Cans had three separate caution statements to warn about
flammability (“inflammable”)
Next room over (door separating) had a natural gas furnace and a
natural gas water heater – both with pilot lights
Went to work with open cans of lacquer sealer. The fumes travelled
to the next room, came in contact with the pilot lights, and a large
explosion and extensive damage occurred
Supreme court found in favour of the Engineer….here is why:
Other company’s had much clearer labelling
Also, as a Mechanical Engineer he was not held to a higher standard
since it was the manufacturer’s duty was owed to any person
Tort Law

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GENTECH 4EM3

Legal and Regulatory Issues

• You can defend against tort to say you did due

• Tort law is separate from Criminal Law

• Engineers carry professional liability insurance

Principles of Tort Law

2. The defendant breached that duty by his or her

3. The defendant’s conduct caused the injury to the

Normally all three of the above must be satisfied

• Legal Injury = Loss/wrong causes to someone due to a tort

• Injured Party = plaintiff in a tort lawsuit

• Liability = sate of being responsible for sometime

• Strict Liability = liability not depending on actual negligence or

• Vicarious Liability = liability where someone is help responsible

• Concurrent tortfeasors = two or more defendants potentially

• Unintentional Tort: Negligence

Note: Definition of Torts varies slightly depending on the Country.

• Only take on work you are qualified to do

What is Strict Liability?

What is Vicarious Liability?

What are Concurrent Tortfeasors?

What is Product Liability?

What is the Duty to Warn?

What are the Consequences?

How can you Limit Tort Liability?

Advice from text on how to write the PEO exam:

Also, Answer these Questions

Plaintiff became ill by drinking a bottle of ginger beer

Reportedly found a snail (decomposed) in bottle

No privity of contract existed between consumer and manufacturer

THIS IS THE CASE THAT STARTED TORT LAW!

One of the most important cases for professionals!

The advice was bad and the plaintiffs lost money

How does this apply to engineers?

Increased scope of damages available in tort actions to financial

Noranda sold property to Wolverine after having a consulting firm (A.

The report included a detailed disclaimer that included no

Hedley Byrne applied to engineers in Manitoba

An engineer was held liable to a contractor without privity of contract

“I have no difficulty in fixing the professional engineer with a duty of

Consulting engineers omitted important information relating to a soils report

Contract stated that the contractor also had to inspect by personal

Contractor relied on engineer’s report – whoops!

Contractor submitted plans for a barn (over a manure pit) to an

…and then things went bad…..and then worse!

Two major structural problems in the plans: bad positioning of the

Contractor was also found 50% guilty of failing to meet a reasonable

SEDCO contracted with an architect who contracted with mechanical

The building was built for Hospital Laundry Services (co-plaintiffs)

HLS claimed losses due to taking “heat breaks”

Because the engineer’s knew it would be used by a laundry

Important Supreme Court decision overturned an earlier BC court

“Liability for negligent misrepresentation arises where a person

Confirmed that an engineering firm preparing drawings and

Firm had exemption but didn’t cover liability of the firm

1978: Converted to a condo

1982: condo’s Board concerned about cladding

1995: Supreme Court Rules (overturns lower court)