WATERLOO ELECTRICAL AND COMPUTER ENGINEERING Tort Law and Negligence 1 WATERLOO ELECTRICAL AND...

WATERLOOELECTRICAL AND

COMPUTER ENGINEERING

Tort Law and Negligence

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Douglas Wilhelm Harder, M.Math.

Department of Electrical and Computer Engineering

University of Waterloo




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Outline

This talk focuses on the liabilities of an engineer due to negligence– 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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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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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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Criminal Law

The Criminal Code of Canada defines crimes– 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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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that the goods have been reconditioned...for sale and that they are not then in the condition in which they were originally made or produced.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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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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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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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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Criminal Law

The parts relating to offences include:II. OFFENCES AGAINST PUBLIC ORDER

III. FIREARMS AND OTHER WEAPONS

IV. OFFENCES AGAINST THE ADMINISTRATION OF LAW AND JUSTICE

V. SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT

VI. INVASION OF PRIVACY

VII. DISORDERLY HOUSES, GAMING AND BETTING

VIII. OFFENCES AGAINST THE PERSON AND REPUTATION

IX. OFFENCES AGAINST RIGHTS OF PROPERTY

X. FRAUDULENT TRANSACTIONS RELATING TO CONTRACTS AND TRADE

XI. WILFUL AND FORBIDDEN ACTS IN RESPECT OF CERTAIN PROPERTY

XII. OFFENCES RELATING TO CURRENCYINSTRUMENTS AND LITERATURE FOR ILLICIT DRUG USE

XIII. ATTEMPTS — CONSPIRACIES — ACCESSORIES




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Criminal Law

The balance deals with the mechanism of justice:XIV. JURISDICTION

XV. SPECIAL PROCEDURE AND POWERS

XVI. COMPELLING APPEARANCE OF ACCUSED BEFORE A JUSTICE AND INTERIM RELEASE

XVII. LANGUAGE OF ACCUSED

XVIII. PROCEDURE ON PRELIMINARY INQUIRY

XIX. INDICTABLE OFFENCES — TRIAL WITHOUT JURYNUNAVUT COURT OF JUSTICE PART

XX. PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONSMENTAL DISORDER

XXI. APPEALS — INDICTABLE OFFENCES PARTAPPLICATIONS 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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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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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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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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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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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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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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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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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

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

Torts are divided into two separate categories:– 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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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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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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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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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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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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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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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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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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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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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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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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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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Limiting Liability in Tort for Negligence

A few cases, however, have demonstrated that individuals may protect themselves from liability




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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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References

[1] Gordon C. Andrews, Canadian Professional Engineering and Geoscience-Practice 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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Copyright and Disclaimer

• 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,

Douglas Wilhelm Harder, MMath

[email protected]

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