Professional Engineering Practice Tort Law Image credit: PCStuff 03:50, 31 July 2006 (UTC)

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Tort law To compensate a party that has suffered damages as a result of “intentional or unintentional” wrongdoing Intentional: nuisance, defamation (libel – written, slander – verbal), “occupier’s liability” Unintentional: negligence

Tort law 3 Key principles, to be proven “on a simple balance of probabilities” (not beyond reasonable doubt): Defendant owed the plaintiff a “duty of care” Defendant breached that duty by his/her conduct Defendant’s conduct caused injury to the plaintiff No need for a contractual relationship

Legal precedence for Tort law Donoghue vs. Stevenson Mrs. Donoghue drank a bottle of ginger beer in a café in Paisley, Renfrewshire, given to her by a friend. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr. Stevenson, even though she had no contractual relationship with him. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers

Legal precedence for Tort law Hedley Byrne Hedley Byrne were an advertising company. They received a large order from a customer, so wanted to check the customer’s creditworthiness before proceeding with it. They asked for a report from the customer’s bank, Heller & Partners Ltd. Heller & Partners replied in a letter that was headed "without responsibility on the part of this bank“ that the customer was "considered good for its ordinary business engagements". The letter was sent for free. The customer went bankrupt, and Hedley Byrne lost £17,000 on the contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements, and, in any case, liability was excluded. The court decided that the Bank would have been responsible due to reliance on their “special skill”, but bank advice came with clear disclaimer, so no claim.

Legal precedence for Tort law Wolverine Tube vs. Noranda and Arthur Little. Noranda requested an audit for environmental compliance of some properties it owned, from Arthur D. Little. Arthur Little submitted a proposal stipulating that because of time constraints, the work was to be done on a best-efforts basis, and that reports were not to be used outside Noranda’s organization without written permission. The audit report was prepared and provided to Noranda, and included the following disclaimer: “This report was prepared by Arthur D. Little of Canada, Limited for the account of Noranda, Inc. The material in it reflects Arthur D. Little's best judgment in light of the information available to it at the time of preparation. Any use which a third party makes of this report, or any reliance on or decisions to be made based on it, are the responsibility of such third parties. Arthur D. Little accepts no responsibility for damages, if any, suffered by any third party as a result of decisions made or actions based on this report.” Image credit: Brian Stansberry

Legal precedence for Tort law Wolverine Tube vs. Noranda and Arthur Little. Noranda had actually wanted the report quickly, in order to sell its properties, but had not informed Arthur Little of this. Noranda provided the report to Wolverine Tube, and in the sale agreement warranted that it was not in breach of any environmental statute except as disclosed in the reports from Arthur Little. After purchase, Wolverine tube discovered environmental breaches on the properties, and sued Noranda and Arthur Little The courts found that Arthur Little did not owe Wolverine Tube a duty of care, due to the clear disclaimers Image credit: Brian Stansberry

Legal precedence for Tort law Canama Contracting Ltd. v Huffman et al., 1983 A contractor had a government engineer friend, whose advice he had occasionally relied on The contractor passed on a design of a barn to be built over a manure pit. The engineer discussed it by phone, and also looked at the plans and sent a message: “Good set of plans. I like the detail. Wish I could spend that amount of time on each project. Keep up the good work.” The engineer failed to note some errors in the plan, however, and part of the walls failed as a result The engineer claimed that he was not under the impression he was being consulted by the contractor The court found that the engineer did refer to the plans as “good”, which would consequently “lull the contractor into thinking the plans were adequate.” The contractor was relying on the engineer’s “special skill” even though there was no consideration and the engineer did not realize he was being relied upon – the engineer needed to add a disclaimer to his “advice”. Image credit: Hugh Lee

Legal precedence for Tort law Winnipeg Condominium Corp. No. 36 v Bird Construction Co. Bird construction build some condominiums, which had a flaw in the masonry work. This flaw was not discovered by the initial owner of the building. Winnipeg condominium corp. subsequently bought the building. At some point thereafter, the flaw resulted in some of the building’s cladding falling from the 9th story. Winnipeg Condos had to make significant repairs to the outside cladding of the building, and sued Bird to recover the costs, even though they had no contractual relationship The court decided Bird had a duty of care to subsequent purchasers who suffered financial loss as a result of repairing a latent defect that could give rise to a “real and substantial danger” to the inhabitants. This could be seen to go against the doctrine of “caveat emptor” – the person entering into a contract needs to satisfy themselves of the terms. It deals with the fact a contractor is responsible to “subsequent purchasers” where a failure to take reasonable care in construction would create defects that pose a substantial danger to the health and safety of the occupants. The decision was furthered in Vargo v. Canmore where the defects had not materialized yet but could in future, and could then lead to real and substantial danger. Image: Kcumming at English Wikipedia

Tort case format Introduction Analysis Decision What does Tort law address? Case history. Need for contractual relationship? Three key principles. Analysis Who were the parties involved (plaintiff, defendants)? Were the three principles met? Decision Decide whether the plaintiff’s damages are recoverable from the defendant(s)

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