Tort Law:
Vicarious Liability
Douglas Wilhelm Harder, M.Math. LEL
Department of Electrical and Computer
Engineering
University of Waterloo
Waterloo, Ontario, Canada
ece.uwaterloo.ca
dwharder@alumni.uwaterloo.ca
© 2013 by Douglas Wilhelm Harder. Some rights reserved.
Vicarious Liability
Outline
An introduction to the engineering profession, including:
– Standards and safety
– Law: Charter of Rights and Freedoms, contracts, torts, negligent
malpractice, forms of carrying on business
– Intellectual property (patents, trade marks, copyrights and
industrial designs)
– Professional practice
• Professional Engineers Act
• Professional misconduct and sexual harassment
– Alternative dispute resolution
– Labour Relations and Employment Law
– Environmental Law
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Vicarious Liability
Employee Performance
Suppose an employee is negligent and someone is
harmed as a result
– Who is responsible for the tort?
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Vicarious Liability
Inspections
Consider the case of Dutton v Bognor Regis United
Building Co. Ltd., 1972
– A house was built on a rubbish deposit
– This will result in settling, but this can be dealt with through
larger foundations
– By-laws required that the foundation be approved by a building
inspector
– The inspector failed to make an proper inspection
– Part of the building collapsed
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Vicarious Liability
Inspections
In Dutton v Bognor Regis United Building Co. Ltd., 1972,
the court found
– The inspector was responsible
– The local building authority, however, was liable for the damages
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Vicarious Liability
Inspections
In Dutton v Bognor Regis United Building Co. Ltd., 1972,
the court found
“It is at this point that I must draw a distinction between the
several categories of professional men. I can well see that in the
case of a professional man who gives advice on financial or
property matters—such as a banker, a lawyer or an
accountant—his duty is only to those who rely on him and suffer
financial loss in consequence. But in the case of a professional
man who gives advice on the safety of buildings, or machines, or
material, his duty is to all those who may suffer injury in case his
advice is bad.”
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Vicarious Liability
Inspections
In Dutton v Bognor Regis United Building Co. Ltd., 1972,
the court found
“If [an engineer] designs a house or a bridge so negligently that it
falls down, he is liable to everyone of those who are injured in
the fall: see Clay v A.J. Crump & Sons Ltd. None of those
injured would have relied on the architect or the engineer. None
of them would have known whether an architect or engineer was
employed or not. But beyond doubt, the architect and engineer
would be liable. The reason is not because those injured relied
on him, but because he knew, or ought to have known, that such
persons might be injured if he did his work badly.”
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Vicarious Liability
Inspections
In Dutton v Bognor Regis United Building Co. Ltd., 1972,
the court determined the council would bear the loss:
“First, Mrs. Dutton has suffered a grievous loss. The house fell
down without any fault of hers. She is in no position herself to
bear the loss. Who ought in justice to bear it? I should think
those who were responsible. Who are they? In the first place,
the builder was responsible. It was he who lid the foundations
so badly that the house fell down. In the second place, the
council’s inspector was responsible. It was his job to examine
the foundations to see if they would take the load of the house.
He failed to do it properly. In the third, the council should answer
for his failure. They were entrusted by Parliament with the task
of seeing that houses were built properly. They received public
funds for the purpose... Their shoulders are broad enough to
bear the loss.”
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Vicarious Liability
Vicarious Liability
Vicarious liability is the doctrine that an employer is liable
for the negligent performance of an employee
Therefore, if an employee in his or her role has a duty of
care to another party and that employee breaches that
duty of care, the employer will be vicariously liable for
any damages
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Vicarious Liability
Vicarious Liability
The overriding point is that the injured party should be
compensated for the harm, and the employer is most
suited to ensure this occurs
Consequently, any engineers employing others should
obtain adequate professional insurance
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Vicarious Liability
Employee Liability
Employees, however, can also be liable in tort, as in
Northwestern Mutual Insurance Co. v J.T.O’Bryan & Co.,
1974, where:
– An insurance company asked the agent O’Bryan to remove an
unused warehouse that had already been vandalized from a
policy, a request that is standard in the industry
– The first request by letter was dated January 12th, 1970
– After two letters followed by two weeks of telephone calls, finally,
an employee of the agent assured Northwestern that the risk
would be removed and later was removed
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Vicarious Liability
Employee Liability
Employees, however, can also be liable in tort, as in
Northwestern Mutual Insurance Co. v J.T.O’Bryan & Co.,
1974, where:
– Had the employee said nothing, or had the employee given a
disclaimer, Northwestern would have simply cancelled the policy
themselves
– Northwestern was required to pay $22 372 when the warehouse
was damaged by arson on July 13th
– Northwest claimed breach of contract with O’Bryan and
negligence on the part of both O’Bryan and the employee
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Vicarious Liability
Employee Liability
In Northwestern Mutual Insurance Co. v J.T.O’Bryan &
Co., 1974, the court found:
– The employee was found to owe a duty of care to Northwestern
for “inexcusable negligence”
– The breach of this duty of care was the cause of the damage
– The employer was held vicariously liable
– Had the employee not been found guilty of tort, Northwestern
could sue for only a breach of contract—a contract that likely had
limitation clauses that would not allow Northwestern to recover
all of its losses
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Vicarious Liability
Employee Liability
In the case of Edgeworth Construction Ltd. v N.D. Lea &
Associates Ltd., 1993, the plaintiff also claimed that the
engineers who sealed the documents owed a duty of
care
– By sealing the documents, that establishes a duty of care on any
who rely on that document
– This would not make them directly liable, but rather, the liability
would thus be spread between three parties: the contractor for
not doing due diligence, the engineering firm, and its employees,
and by vicarious liability, the engineering firm would be
responsible for any negligence on the part of its employees
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Vicarious Liability
Employee Liability
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In the case of Edgeworth Construction Ltd. v N.D. Lea &
Associates Ltd., 1993, the court found the seal does not
establish a duty of care:
“The only basis upon which [the engineers] are sued is the fact
that each of them affixed his seal to the design documents. In
my view, this is insufficient to establish a duty of care between
the individual engineers and [Edgeworth Construction]. The seal
attests that a qualified engineer prepared the drawing. It is not a
guarantee of accuracy. The affixation of a seal, without more, is
insufficient to found liability for negligent misrepresentation.”
Vicarious Liability
Employee Liability
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In the case of Edgeworth Construction Ltd. v N.D. Lea &
Associates Ltd., 1993, the court found the seal does not
establish a duty of care:
“The only basis upon which [the engineers] are sued is the fact
that each of them affixed his seal to the design documents. In
my view, this is insufficient to establish a duty of care between
the individual engineers and [Edgeworth Construction]. The seal
attests that a qualified engineer prepared the drawing. It is not a
guarantee of accuracy. The affixation of a seal, without more, is
insufficient to found liability for negligent misrepresentation.”
Vicarious Liability
References
[1]
[2]
[3]
D.L. Marston, Law for Professional Engineers, 4th Ed., McGraw Hill, 2008.
Julie Vale, ECE 290 Course Notes, 2011.
Wikipedia, http://www.wikipedia.org/
These course slides are provided for the ECE 290 class. The material in it reflects
Douglas Harder’s best judgment in light of the information available to him at the
time of preparation. Any reliance on these course slides by any party for any other
purpose are the responsibility of such parties. Douglas W. Harder accepts no
responsibility for damages, if any, suffered by any party as a result of decisions
made or actions based on these course slides for any other purpose than that for
which it was intended.
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