Tort Law and Negligence
Tort Law and Negligence
Douglas Wilhelm Harder, M.Math.
Department of Electrical and Computer Engineering
University of Waterloo
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Tort Law and Negligence
Outline
This talk focuses on the liabilities of an engineer due to
negligence
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Review criminal and regulatory law
Define tort and tortfeasors
Case history for unintentional torts of negligence
Professional engineering and negligence
Limitations on liability for negligence
Other cases
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Tort Law and Negligence
Background
To understand tort, it is necessary to review crime and
offences
– Crimes define undesirable actions of individuals
– Other statutes define the relationship between individuals and
the state
– Contracts define legally enforceable agreements between
individuals
– However, it is still possible for one individual to cause harm to
another without breaking any other law
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Tort Law and Negligence
Background
The next few slides discuss the difference between
crimes described by the Criminal Code of Canada and
offences defined by other statutes
We will then look at other civil wrongs which do not fall
under either of these categories
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Tort Law and Negligence
Criminal Law
The Criminal Code of Canada defines crimes
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Requires evidence establishing beyond reasonable doubt
The finding of guilt leads to a conviction and sentence
Failure to find guilt leads to an acquittal
A conviction of an innocent person is a miscarriage of justice
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Tort Law and Negligence
Criminal Law
An example:
Used goods sold without disclosure
411. Every one commits an offence who sells...goods that have been
used...and that bear the trade-mark...of another person, without making
full disclosure that the goods have been reconditioned...for sale and that
they are not then in the condition in which they were originally made or
produced.
Punishment
412. (1) Every one who commits an offence under section 407, 408,
409, 410 or 411 is guilty of
(a) an indictable offence and is liable to imprisonment for a term not
exceeding two years; or
(b) an offence punishable on summary conviction.
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Tort Law and Negligence
Criminal Law
Another example is criminal negligence:
Criminal negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law.
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Tort Law and Negligence
Criminal Law
There are two indictable offences which result from of
criminal negligence:
Causing death by criminal negligence
220. Every person who by criminal negligence causes death to
another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to
imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Causing bodily harm by criminal negligence
221. Every one who by criminal negligence causes bodily harm to
another person is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years.
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Tort Law and Negligence
Criminal Law
The Criminal Code of Canada is available at
http://laws.justice.gc.ca/en/C-46/
The code is broken into 28 parts:
– Part 1 is the general introduction
– Parts 2-13 list offences defined as crimes
– Parts 14-28 provide for the infrastructure
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Tort Law and Negligence
Criminal Law
The parts relating to offences include:
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
OFFENCES AGAINST PUBLIC ORDER
FIREARMS AND OTHER WEAPONS
OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE
SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT
INVASION OF PRIVACY
DISORDERLY HOUSES, GAMING AND BETTING
OFFENCES AGAINST THE PERSON AND REPUTATION
OFFENCES AGAINST RIGHTS OF PROPERTY
FRAUDULENT TRANSACTIONS RELATING TO CONTRACTS AND TRADE
WILFUL AND FORBIDDEN ACTS IN RESPECT OF CERTAIN PROPERTY
OFFENCES RELATING TO CURRENCY
INSTRUMENTS AND LITERATURE FOR ILLICIT DRUG USE
XIII. ATTEMPTS — CONSPIRACIES — ACCESSORIES
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Tort Law and Negligence
Criminal Law
The balance deals with the mechanism of justice:
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
JURISDICTION
SPECIAL PROCEDURE AND POWERS
COMPELLING APPEARANCE OF ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE
LANGUAGE OF ACCUSED
PROCEDURE ON PRELIMINARY INQUIRY
INDICTABLE OFFENCES — TRIAL WITHOUT JURY
NUNAVUT COURT OF JUSTICE PART
XX.
PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONS
MENTAL DISORDER
XXI. APPEALS — INDICTABLE OFFENCES PART
APPLICATIONS FOR MINISTERIAL REVIEW — MISCARRIAGES OF JUSTICE
XXII. PROCURING ATTENDANCE
XXIII. SENTENCING
XXIV. DANGEROUS OFFENDERS AND LONG-TERM OFFENDERS
XXV. EFFECT AND ENFORCEMENT OF RECOGNIZANCES
XXVI. EXTRAORDINARY REMEDIES
XXVII. SUMMARY CONVICTIONS
XXVIII. MISCELLANEOUS
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Tort Law and Negligence
Offences Defined by Other Statutes
Other statutes define the relationships between the
individual and the state
These statutes may list further offences for breach of a
term in the statute
E.g., from the Professional Engineers Act:
Penalties
40. (1) Every person who contravenes section 12 is guilty of an
offence and on conviction is liable for the first offence to a fine of not
more than $25,000 and for each subsequent offence to a fine of not
more than $50,000.
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Tort Law and Negligence
Offences Defined by Other Statutes
There are numerous examples from the Professional
Engineers Act:
Penalties
40. (1) Every person who contravenes section 12 is guilty of an
offence and on conviction is liable for the first offence to a fine of not
more than $25,000 and for each subsequent offence to a fine of not
more than $50,000.
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Tort Law and Negligence
Offences Defined by Other Statutes
Notice the wording is standardized:
Idem, use of term “professional engineer”, etc.
(2) Every person who is not a holder of a licence or a temporary licence
and who,
(a) uses...“professional engineer”...as an occupational or business designation;
(a.1) uses...“engineer”...that will lead to the belief that the person may engage in the practice
of professional engineering;
(b) uses a term, title or description that will lead to the belief that the person may engage in
the practice of professional engineering; or
(c) uses a seal that will lead to the belief that the person is a professional engineer,
is guilty of an offence and on conviction is liable for the first offence to a
fine of not more than $10,000 and for each subsequent offence to a fine of
not more than $25,000.
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Tort Law and Negligence
Offences Defined by Other Statutes
An example from the Pay Equity Act:
Intimidation prohibited
9. (2) No employer, employee or bargaining agent...shall intimidate,
coerce or penalize, or discriminate against, a person,
(a) because the person may participate, or is participating, in a
proceeding under this Act;
(b) because the person has made, or may make, a disclosure
required in a proceeding under this Act;
(c) because the person is exercising, or may exercise, any right
under this Act; or
(d) because the person has acted or may act in compliance with this
Act, the regulations or an order made under this Act or has
sought or may seek the enforcement of this Act, the regulations
or an order made under this Act.
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Tort Law and Negligence
Offences Defined by Other Statutes
The penalty for contravening this section is provided
later in the statute:
Offences and penalties
26. (1) Every person who contravenes or fails to comply with
subsection 9 (2) or subsection 35 (5) or an order of the Hearings
Tribunal is guilty of an offence and on conviction is liable to a fine of
not more than $5,000, in the case of an individual, and not more than
$50,000, in any other case.
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Tort Law and Negligence
Punishment versus Compensation
In all of these cases, a party found guilty of an offence is
punished by means of a sentence or fine
– In all cases, the offender is punished
In some cases, however, there will also be an injured
party who has suffered a loss as a result of the offence
– There must be a means of the injured party to claim for damages
– In some cases, the party may not even be guilty of an offence
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Tort Law and Negligence
Punishment versus Compensation
Consider the following actions:
– During a relationship dispute, Alex locks Bailey in a basement
causing Jessie to miss a day of work
– Chris P.Eng., overlooks a regulation in designing a building
resulting in Dakota being fined for a by-law violation
– Hayden keeps a rubbish heap in his backyard in suburban
Waterloo which prevents Jessie from enjoying an aroma-free
evening on the deck
– Kelsey makes false statements about Leslie which injures that
person’s reputation
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Tort Law and Negligence
Punishment versus Compensation
In these examples
– Alex falsely imprisoned Bailey but Bailey also lost a day’s wages
– Chris was guilty of professional misconduct but Dakota had to
pay the fine and had to correct the issue
– Hayden’s rubbish heap may or may not break local by-laws, but
there is a general agreement that people should be allowed to
enjoy their real property
– There is no statute preventing Kelsey from making false
statements, and yet Leslie could lose business over these
statements
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Tort Law and Negligence
Tort Law
There is a body of law which is primarily designed to
deal with the compensation of an injured party
– The word “tort” is the Norman word for “wrong”
• You are welcome to substitute the word if it helps
– The person committing the tort is said to be the tortfeasor
– Tort law may be based on both common law and statute law
– A significant portion of tort law relevant to engineering is based
on common law
• An understanding of precedent cases is critical
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Tort Law and Negligence
Tort Law
Torts are divided into two separate categories:
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Intentional torts
Nuisance torts
Economic torts
Negligence torts
We will discuss the first three so that we can understand
the last
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Tort Law and Negligence
Intentional Torts
Intentional torts occur when the defendant injures the
plaintiff with intent
This requires demonstrating:
– The defendant performed the action leading to the damages
– The defendant acted with knowledge the action would cause the
injury
Such injuries are not insurable: the tortfeasor is liable for
the damages
It is possible to classify these as torts against
– The body, property, and the individual
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Tort Law and Negligence
Intentional Torts
Torts against the body include:
– Assault
– Battery
– False imprisonment
Torts against property include
– Trespassing
– Conversion of property
Many of these are statutory torts in that they are
described by legislation
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Tort Law and Negligence
Intentional Torts
Torts against the individual include
– Defamation
• Libel when written or broadcast
– from libellus, the diminutive of liber, or little book
• Slander when spoken or transitory
– Invasion of privacy
– Abuse of process
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Tort Law and Negligence
Economic Torts and Nuisance
Economic torts:
– Examples include fraud, conspiracy, restraint of trade
– Often covered in statute law, e.g., Competition Act
Nuisance:
– Persons are entitled to the “quiet enjoyment” of their real
property
– Often covered in municipal by-laws
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Tort Law and Negligence
Negligence
Almost all of the torts under intentional, economic, and
nuisance require positive action on the part of the
defendant
In practicing their profession, engineers may cause injury
to another party as a result of a mistake
– The mistake may not have been intentional but when is the
engineer liable for the error?
– Can liability for a tort be unintentional?
– Until 1932, the answer in common-law countries was “no”
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Tort Law and Negligence
Negligence
The 1932 case of Donoghue v. Stevenson :
– The plaintiff’s friend purchased a dessert with ginger beer
– The plaintiff drank some of the ginger beer
– The friend, when pouring her drink, discovered a decomposed
snail in the opaque bottle
– The plaintiff became sick
For liability:
– The plaintiff had no contract with the manufacturer
– The plaintiff did not even purchase the ginger beer and therefore
had no contractual relationship with the proprietor
– The purchaser did not get sick
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Tort Law and Negligence
Negligence
Never-the-less, the House of Lords determined that the
manufacturer, Mr. Stevenson was liable in tort to Ms.
Donoghue
This introduced a new liability: a liability for negligence
not resulting from an intention on the part of the
tortfeasor
This has since evolved into:
– The common-law liability for negligence
– The statute law of product liability
We will focus on negligence
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Tort Law and Negligence
Negligence and the Professional Engineer
Common law has, over time, evolved the criteria for
determining liability in tort for negligence:
1. the defendant owed the plaintiff a duty of care,
2. the defendant breached that duty by his or her conduct, and
3. the defendant's conduct caused the injury to the plaintiff
If any one criterion is not met, the tort action will fail
Reminder: the purpose of tort law is to compensate the
injured party for damages
– It is not meant to punish the tortfeasor—other laws including
criminal and regulatory laws deal with punishment
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Tort Law and Negligence
Negligence and the Professional Engineer
It is certainly true that an engineer has a duty of care to
not only his or her clients, but also those who may be
affected by the actions of the engineer
From Halsbury’s Laws of England:
– It is trite law that an engineer is liable for incompetence,
carelessness or negligence which results in damages to his
employer and he is in the same position as any other
professional or skilled person who undertakes his professional
work for reward and is therefore responsible if he does or omits
to do his professional undertaking with an ordinary and
reasonable degree of care and skill.
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Tort Law and Negligence
Negligence and the Professional Engineer
This is reflected in the definition of professional
misconduct:
– 72. (2)(a) For the purposes of the Act and this Regulation,
“professional misconduct” means negligence,
that is, an act or an omission in the carrying out of the work of a
practitioner that constitutes a failure to maintain the standards
that a reasonable and prudent practitioner would maintain in the
circumstances.
Thus, the engineer who fails to maintain this standard is
guilty of negligence and is concurrently liable in tort and
in contravention of the Regulations
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Tort Law and Negligence
Negligence and the Professional Engineer
If allegations of negligence are presented to the
Complaints Committee, they may forward the allegation
to the Discipline Committee:
– Powers of Discipline Committee
28. (4) Where the Discipline Committee finds a member of the
Association or a holder of a certificate of authorization, a
temporary licence, a provisional licence or a limited licence guilty
of professional misconduct or to be incompetent it may, by
order,...
It lists 11 penalties allowing for any combination of them
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Tort Law and Negligence
Negligence and the Professional Engineer
Even if no injury is caused to the party to which the
engineer owes a duty of care, the incident may still be
reported to the Complaints Committee
If the party injured as a result of negligence also has a
contract with the engineer, the engineer could be liable
– In tort for negligence
– For breach of contract
– For professional misconduct
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Tort Law and Negligence
Limiting Liability in Tort for Negligence
A few cases, however, have demonstrated that
individuals may protect themselves from liability
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Tort Law and Negligence
Summary
This talk covered the liabilities in tort of an engineer due
to negligence
– Review criminal and regulatory law
– Tort and tortfeasors
– Liability in tort for negligence requires
• Duty of care
• Breach of that duty
• An injury resulting from that breach of duty
– The professional engineering has good reason to avoid
negligence
– Liability may be limited by disclaimers in certain cases
– Other cases
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Tort Law and Negligence
References
[1] Gordon C. Andrews, Canadian Professional Engineering and GeosciencePractice and Ethics, Nelson Education Ltd., 2009.
[2] Professional Engineers Act General R.R.O. 1990, Regulation 941.
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900941_e.htm
[3] Professional Engineers Act General R.R.O. 1990, Regulation 941.
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900941_e.htm
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Tort Law and Negligence
Copyright and Disclaimer
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These slides are Copyright © 2010 by Douglas Wilhelm Harder.
All rights reserved.
These slides are made publicly available on the web for anyone to use
No warranty is given that any information in these slides is correct
The use of these slides in studying for the PPE is fully at your own risk
If you choose to use them, or a part thereof, for a course at another
institution, I ask only three things:
– That you inform me that you are using the slides,
– That you acknowledge my work, and
– That you alert me of any mistakes which I made or changes which you make,
and allow me the option of incorporating such changes (with an
acknowledgment) in my set of slides
Sincerely,
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Douglas Wilhelm Harder, MMath
dwharder@alumni.uwaterloo.ca
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