Chapter 12 and 13 TORT - Lecture is based on \"Practical law of architecture, engineering, and geoscience PDF

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Lecture is based on "Practical law of architecture, engineering, and geoscience by Brian M. Samuels" Book...

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CHAPTER 12 and 13 TORT Tort 

A breach of duty to care for another party where the breach causes injury or loss to that party for which the law provides a remedy, independent of whether two parties involved have a contract

Modern law of negligence developed out of a famous English case called “Donoghue v. Stevenson” (in the book) Torts have two (2) categories: 1. Unintentional a. Negligence b. Negligent Misrepresentation 2. Intentional a. Fraud b. Trespass c. Defamation Most of the claims against architects, engineers and geoscientists are framed in negligence.

Test for Negligence Plaintiff must prove the following: 1. Defendant(s) owed the Plaintiff a duty of care 2. Defendant(s) breached that duty a. Did not meet the applicable “standard of care” 3. Plaintiff suffered a loss or damages 4. Breach of the duty of care was the cause of the plaintiff’s loss These elements also form the basis for important defences against negligence claims.  Defendant only need to prove that any one of the elements does not exist to defeat the claim.  If none of the above elements exist= NO RECOVERY

DUTY CARE  The least settled area of the law o Generally, professionals have a duty to care for everyone who is closely and directly affected by their acts that they ought reasonably to have them in contemplation.  Based on the principle of reasonable foreseeability o At the time he/she committed the negligent act, could the Defendant have reasonably foreseen that the plaintiff might suffer losses or damages as a result of their actions?  Example o Architect and engineers owe duties of care to the owner of a project, even where there is no contractual relationship between themselves and the owner o i.e. lack of privity of contract does not affect existence of duty of care.  Just because you don’t have a contract, it doesn’t mean that you cannot claim. It doesn’t eliminate your right to sue.  Sometimes the delivery model that we use will dictate what our duty of care will have o Design build model  Designers are duty to the owner, not to the contractor  If design=problem, owner sue designer and not contractor  Example: o Engineer designing the building should reasonably foresee that if the deign if performed negligently, a tenant might be injured in the event of a collapse. Therefore, a tenant injured in such a collapse would be owed duty of care by the engineer. Engineer owes him a duty of care o If geoscientist prepares a confidential report for a client, and that report is subsequently relied upon by a third party (i.e. investor), that third party may have difficulty proving that the geoscientist owed him or her a duty of care, even if that report was prepared negligently  Foreseeability would be difficult to prove in light of the report’s confidential nature.  Many engineers, architects and geoscientists include a specific disclaimer in reports to the effect that the report may not be relied upon by third parties.  Floodgates problem o The situation which the courts have feared that too much litigation might occur as a result of the tort concept.

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Courts have limited the scope of duty of care in this way with respect to the following issues: o Does an auditor preparing financial statements owe a duty to public investors? o Does an architect owe a duty to a contractor to point out construction error? o Does a design professional owe a duty to a contractor for errors in the plan and specifications? o Does a designer owe a duty of care to construction workers with respect to safety issues? o Does a contractor owe a duty to subsequent purchasers for construction defects? o Is a non-contracting party owed a duty for pure economic loss, that is, where no physical damage or injury has happened?

DUTIES OF CARE FOR ARCHITECTS AND ENGINEERS Both architects and consulting engineers owe a duty of care to protect owners, even if there is no contract between them. For Example: Surrey (District) v. Carroll-Hatch and Associates  Structural Engineer had no contract with the owner; rather, architect hired him o Engineer became concerned about the soil conditions and warned the architect o However, the engineer failed to tell the owner and was found liable for failure in his duty of care. o American courts have reached the same conclusion o Thus, liability may exist with or without the existence of a contractual relationship. Does the designer, who prepares plans and specs for a bid, owe a duty of care to the successful bidder for losses caused by errors in those plans and specifications?  Yes. The duty of care was owed by the design firm to the bidder. o It is because of the fact that the bidding period is too short to allow bidders to conduct a thorough review of the accuracy of the engineering work o Also, duplication of the work would be costly o Thus, bidders must be able to rely on those who supply info for them. o Reference: Edgeworth Construction Ltd. v. N.D> Lea & Associates Ltd. FIDUCIARY DUTIES  Heightened duty of care  Generally found where o One party can exercise discretion/power over another party o Fiduciary can unilaterally excise power/discretion and affect beneficiary’s legal or practical interest o Beneficiary is particularly vulnerable to/at mercy of fiduciary.  Doesn’t usually arise between arm’s length commercial parties. o i.e. Lac Minerals v international Corona o Involves negotiating about mining

DUTY TO WARN  May form part of a person’s duty of care under the circumstances  Not in every case  Professionals have a duty to warn of impending damage to persons and/or property  Must take reasonable- and sometimes more than reasonable- actins to prevent damage/ injury  Required to take action even if it is outside your scope of work  You have to warn if someone did something wrong. Court will not let you get away with it STANDARD OF CARE  The level of skill and care expected of a reasonable and prudent person in similar circumstances.  Expert evidence may be required to establish: o What was my duty of care owed by the Defendant(s)? o Did the defendant(s) conduct meet the standard of care?  Specialists/ experts have a higher standard of care o If you represent yourself as a specialist or expert, even if you are not one, you will be measured against the raised standard of care o Why? Because they are viewed to be experts and they expect you to have a higher knowledge and skill CODES AND STANDARDS  Industry standards, applicable laws, and codes relate to the standard of care  Codes/ Standards set the minimum requirements for the work  Violation of codes/ standards is usually a breach of contract at minimum, plus may result in negligence claim. CAUSATION  In addition to meeting applicable legal test for a tort, must also prove “causation” o Would the damage or loss or injury have occurred “but for” the act of the defendant(s)?  Example: But for person X spilling coffee on the ground and failing to wipe it up, person Y would not have slipped and fallen  Example: But for person B making person X late for work, which resulted in person X rushing down the hallway, person X would not have spilled his coffee, and person Y would not have slipped and fallen  Standard of proof is on a balance of probabilities o More likely than not

LOOT CAUSED BY BREACH  Damages awarded by the court attempt to put the innocent party back in the position they would have been in, had no negligence occurred  Remoteness o Damages that are unexpected and unusual, such that they are beyond control CLAIMS FOR PURE ECONOMIC LOSS  Money is only issue o i.e. claims for loss profit, delay, misrepresentation, libel, slander  Historically barred, but now allowed for breach of contract (i.e. delay claims) and for certain torts (i.e. negligent misrepresentation) REDUCING THE RISK OF NEGLIGENCE CLAIMS  Contractually o Limitations of Liability Clauses o Clauses excluding responsibility for inadequacy of design  Other methods (common sense) o Be careful with work o Don’t hold yourself as qualified to do work you don’t know how to do o Follow established procedures o Continuing education o Peer review o Make sure govt standards are not unreasonable TORTIOUS MISREPRESENTATION INNOCENT MISREPRESENTATON  Plaintiff must show o False statement was made, unknowingly and not recklessly o Plaintiff relied on the false statement o Plaintiff’s reliance on the false statement was reasonable o Plaintiff suffered damages as a result of that reliance  May be entitled to rescission in some circumstances  Misrepresentation must be material NEGLIGENT MISREPRESENTAITON  Plaintiff must show o False statement was made recklessly or negligently o The other steps are the same as Innocent misrepresentation  Lack of causation is an EFFECTIVE DEFENSE

FRAUDULENT MISREPRESENTATION  Representation that is untrue  Aka FRAUD  Defendant makes the representation either: o Knowing the representation is untrue, or o Indifferent as to whether it is true  Defendant makes the representation in order to induce the Plaintiff to act on the representation  Plaintiff relies on false info that was a fraud OMISSION MISREPRESENTAITON  Subset of fraudulent misrepresentation but it is specific  This can lead to recission depending on circumdtances  There is a duty to disclose in this TRESSPASS  Unauthorized entry onto “land” of another  Strict liability tort o Don’t have to prove intention  Reciprocal encroachment agreements PRODUCT LIABILITY  Two categories o Product not manufactured in accordance with specs o Product manufactured in accordance with specs, but those specs are inadequate  Manufacturers also have duty to warn  Learned intermediary defence CONCURRENT LIABILITY IN CONTRACT & TORT  Parties to a contract can also owe each other duties in tort  Plaintiff can sue the Defendant(s) for breach of contract and torts in the same action LIMITATIONS PERIOD  General limitation period o 2 years from date of breach  Limitations Defence  Discoverability Rule o When the plaintiff knew or reasonably ought to have known that they had a cause of action  Latent Defect vs Patent Defects

POTENTIAL PROTECTIONS FROM LIABILITY  Parties can agree to a shorter limitatins period as part of a contract  Can agree to limiting the quantum of liability o I.e. only liable for up to $10,000  Insurance  If service= bad, full refund= expect JOINT and SEVERAL LIABILITY  Apportionment of liability o Court finds out how much of the loss/ damages are attributable to each of the parties  Several Liability o Each party is only responsible for paying the losses/ damages that they are found liable for  Joint Liability o Each party is responsible for paying up to the entire amount of the losses, regardless of how much they are responsible for  Contributory liability o Negligence by plaintiff

JUDGE finds $100,000 of damages.  Defendant A is found 25% responsible  Defendant B is found 75% responsible  Defendant B goes bankrupt during Trial

Def A Def B Plaintiff gets

Several Liability $25 000 $0 $25 000

Joint Liability $100 000 $0 $100 000

VICARIOUS LIABILITY  Responsibility of party for actions/ inactions of another party o Employers and their employees o Does not apply to independent contractors  Employers only vicariously liable for employees, while the employee is carrying out their employment duties  Employers may be able to recover from negligent employees  Note: Employees can be used personally for negligence, even when the negligence happens when they are carrying out their employment duties...