450final notes

APPLIED SCIENCE 450Professional Engineering Practice

IntroductionW. Scott Dunbar

Course Outline

What is a profession? Legal aspects of engineering practice Ethical issues in engineering practice How engineering professionals work

Lectures can be roughly divided into these four categories.

Lectures given by practicing engineers or by members of professions that work with engineers

The Rules

Arrive on time

If you must leave before the lecture ends, do it quietly

Whispering allowed during lectures, but not conversations

The Most Important Rule

TURN OFF ALL CELL PHONES,PAGERS AND ANY OTHER

DEVICE THAT COULD MAKE A NOISE DURING A LECTURE!

A system we are working on

They have a lovely No cell phone

policy here

Reading, Assignments & Exam

Required reading Two assignments: one legal, one ethics One-two sentence answers Brief discussion of a legal or ethical case Description of decision-making case

One final exam True/False, Multiple choice Will likely include all material in course

Grade Distribution

Assignments: 2 @ 30% each 60%

Exam: 1 @ 40% 40%

You must pass the exam to pass the courseMarks deducted for late assignments

Final grade is a percentage NOT pass/fail

The Assignments:

Assignment 1: Engineering Law Assignment 2: Ethics

Required for each assignment:1 or 2 sentence answersAssignment 2: description and discussion of actual ethical decision-making situation

Submitted on-line via web site

Working on an assignment

Working in groups is encouraged, but

write as an individual

And what are we looking for?

Questions: correct answers

Do you understand the issues?

Marks off for extreme cases of bad grammar and poor sentence structure

The Exam

Randomly selected questions Questions True/False, Multiple choice Exam: Class given 24-36 hour window to

complete exam Each student given 1 hours to

complete exam once started no stopping and re-starting

Cheating in a law and ethics course

is the height of irony is unethical could have legal implications

See the following:

http://students.ubc.ca/calendar/index.cfm?tree=3,54,111,959

http://students.ubc.ca/calendar/index.cfm?tree=3,54,111,960

Web SitesAll course material can be obtained via

www.webct.ubc.ca

Click on login link if you have a CWL id and password

Your Course: APSC 450Instructor: W. Scott Dunbar

Instructions are available athttp://courses.apsc.ubc.ca/webct123.doc

Contacts

Instructor:W. Scott Dunbar [email protected]

Teaching Assistants:Ms. Jennifer ParryMs. Jemma Scoble

Term 2 section

View DVDs of lectures on your own time Assignments and exam at specified

times Managed via course web site To do this:

Make a section switch via SISC before September 20

1APPLIED SCIENCE 450Professional Engineering Practice

Professions and EngineeringW. Scott Dunbar

2What is a profession? (Bayles, 2003)

Three necessary features: Extensive education and training Provides an important service to society Significant intellectual componentOther features: Period of certification or apprenticeship Organization into groups

You are experiencing training now. Engineers require the least amount of education of all professionals to be able to practice. They do require a significant apprenticeship period similar to other professions before becoming registered.

Word intellectual may sound a bit pretentious, implying deep thought. Meant to refer to advice given about matters not understood by the average person.

During the last century, society has required a greater amount of specialized knowledge to function. This has led to the need for more professionals.

Engineers for energy, construction, software, and consumer productsAccountants, lawyers, and business consultants for financial marketsHigh degree of specialization in medicine owing to advances in medical knowledge and treatments

3A simpler definition (Davis, 1991)

A profession is a group of persons who want to cooperate in serving the same ideal better than

they could if they did not cooperate.

The code of ethics defines how the profession will do what they do

Not exclusive could include many occupations

For engineers the basic ideal would be:

Apply technical or specialized knowledge to serve society

This is a minimalist definition. However, it does have the advantage of not requiring complexity and exceptions to exclude certain professions. Thus electricians, plumbers etc registered with Applied Science Technologists and Technicians of British Columbia are professionals according to this definition. ASTTBC has the same code of ethics as APEGBC.

See http://www.asttbc.org/

4Consequences and Issues

A profession does not need societys recognition to be a profession

If society recognizes the profession, it gives it special privileges

A profession is different from a unionUnion: interests of its membersProfession: Interests of others

5Why all this privilege?Its a trade-off Society wants what professionals can do, but it

wants assurance regarding work standards and conduct of professionals

If professionals provide the assurance, then society is willing to provide sole rights to practice and autonomy

A challenge of the monopoly granted to engineering some time ago brought this response from a judge in dismissing the argument that a monopoly was against the public interest:

regulation of the professions is necessary to protect the public from quackery and the charlatans who might otherwise prey on the public.

6The Social Contract

Professionals agree to serve the needs of society regulate the provision of their services

Society agrees to allow professionals an exclusive right to practice the profession autonomy in their practice

Do lay people have the time and resources to ensure that professionals are doing their job properly?How can society harness all this talent and knowledge for its benefit?

7A distinctionConsulting professional - direct relationship to client/customer, acts on behalf of client

Examples: lawyers, doctors, consulting engineers

Scholarly professional - less direct relationship to client/customer

Examples: professors, researchers, engineers in large companies, junior lawyers in large legal firms

Different ethical problems arise for each type of professional

8Different problems

Consulting professions have more autonomy over how they do

their work are responsible to the client/customerScholarly professionals are typically directed by management are responsible to the organization

9Professional Organizations

Set standards for membership Accredit educational programs that prepare

candidates for membership Set standards of conduct Discipline members with respect to standards Advocacy and defense of the profession

Established by provincial statute to regulate a profession. Responsibilities include:

Why?Because the government does not have the resources or the expertise to regulate the professionBut it is the most effective way to ensure that professional services are provided to appropriate standardsFor doctors: BC College of Physicians and Surgeons For lawyers: BC Law SocietyFor accountants: The Institute of Chartered Accountants of British Columbia

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Quebec Bridge FailuresThe beginning of regulation in Canada

September 11, 1916August 29, 1907

A lot of mistakes were made throughout this project:This bridge was to be the longest in the world at the time, and was designed by Theodore Cooper, the most famous railway bridge engineer in North America. However, the railway company did not have enough money, so Cooper tried to design a very inexpensive bridge. Construction began using proposal drawings, which were only approximations of the final design, and weren't intended to be used for the actual bridge. It was noticed that the two cantilever arms were supporting 4000 tons more than they should have when the design was being reviewed, but by this time, the bridge had been under construction for seven months. Construction continued, since opening on time was of prime importance.

On Aug 29, 1907 the bridge failed during construction, killing 82 construction workers. A Royal Commission investigated the 1907 failure.

In 1914, a second attempt was made at construction, however on September 11, 1916, while attempting to connect a 195-metre steel span to the newly completed north and south cantilever spans, a support on the lifting apparatus fractured, plunging this new span into the river. This accident would claim a further 13 lives. Construction continued despite the demands of WW1. The bridge was completed in 1917.

11

The completed bridge today

In the 1920s, provincial statutes to license engineers appeared.

12

Self Regulation Two parts:

admission to profession discipline of members

Admission controlled by committee Discipline Committee

Reprimands, fines, expulsion for breaches of standards of practice

Committee decisions may be reviewed by courts, but seldom over-ruled.

So what about this notion of Self Regulation?Again referring to Canada, jurisdiction for the regulation of the practice of engineering was created through the British North America Act. The BNA Act defined Federal and Provincial jurisdictions, regulation of the professions was an activity reserved to the provinces. The first move toward regulation occurred in 1920. A year before the EIC proposed that the profession be regulated and proposed model legislation. This move was likely as an outcome of the concerns the leaders of the Institute had regarding some notable and spectacular engineering failures. One of which was the twice collapsed Quebec bridge. So in 1920 several associations were formed and granted provincial Acts, others followed in relatively short order. Lawyers are legally bound to follow standards.

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For engineers

In British Columbia: APEGBC Engineers and Geoscientists Act, 1996

In Ontario: PEO Professional Engineers Act, 1990, amended

2002

In Quebec: Ordre des Ingnieurs Loi sur les Ingnieurs, 2002

14

Rest of the World

US practice regulated by state boards, registration as PE

Great Britain Chartered Engineer (CEng) title granted by Engineering Council (mobility within ECU)

South Africa similar to Canada

We are rather unique in Canada. In the US, the practice of engineering is regulated but as a government function through State Boards of Registration. In Great Britain and Europe titles are granted by various discipline focused Institutes, for example ICE. IMechE, IEEE, IStrutE, etc. However they are not empowered by the force of legislation and thus do not, strictly speaking, regulate the profession. South Africa just this year introduced a self regulating system based on the Canadian model.

15

Regulation and advocacyConflict of interest between regulation and advocacy

How can an organization simultaneously regulate and advance professional and economic interests

and be objective?

In Ontario:

Professional Engineers Ontario (PEO) regulates

Ontario Society of Professional Engineers (OSPE) advocates

See: http://www.ospe.on.ca/

For legal professionLaw Society regulates lawyersBar Association sets fees and fee policies, promotes the professions role in society

For medical professionCollege of Physicians and Surgeons regulatesProvincial medical association advocates

Separate advocacy society has been proposed in BC, but has met with resistance so far.

16

What is a Professional Engineer?

graduate from an accredited engineering program

Register as an Engineer in Training (EIT) obtain four years experience following

graduation, under the supervision of a registered professional engineer

apply for P.Eng. designation

In Canada, to register with a provincial engineering association one must

17

In Washington Statewww.dol.wa.gov/engineers/engfront.htm

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In BCwww.apeg.bc.ca

19

In 2002 the numbers across the country were (Source: CCPE)

Northwest TerritoriesYukon

British ColumbiaAlberta

SaskatchewanManitoba

OntarioQuebec

New BrunswickPrince Edward Island

Nova ScotiaNewfoundland/Labrador

0 5 10 15 20 25 30 35 40

Percentage of Total in 2002: 151,992

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By discipline in BC (August 30, 2005)Source: APEGBC

AgriculturalBiomedical

BioresourseChemical

CivilComputerElectrical

Engineering PhysicsEnvironmental

FoodForest

GeologicalGeomatics

GeophysicalIndustrial

MarineMechanical

MetallurgicalMining

Naval ArchitecturalPetroleum

SoftwareStructural

0 1000 2000 3000 4000 5000

Number of Registered Engineers

Total: 17,559

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Canadian Council of Professional Engineers (CCPE)

Formed by 12 provincial associations to set national engineering standards

Canadian Engineering Accreditation Board (CEAB) is a standing committee of CCPE that accredits engineering programs

Terms engineer, engineering, professional engineer, P.Eng., consulting engineer are official marks of CCPE

CCPE and member associations have had trouble enforcing the use of the word engineer. Thus we have Microsoft Certified Systems Engineer, recording engineers, stationary engineers, none of whom have an engineering degree or are registered as engineers with any association.

22

EnforcementFor a story concerning enforcement of the proper

use of the term engineer see

www.peo.on.ca/enforcement/Quebec_MS_April2004.pdf

Legal battles with Microsoft and other software companies

23

A Legal Note

At cocktail parties and similar social situations you are free to call yourself an engineer if asked what you do.

Do not advertise yourself as an engineer, sign any document or issue anything that implies you are a registered engineer

I studied engineering real hard. Now I am one. Can I call myself an engineer?

Yes, but be careful. Context is everything.

Liabilities who pays your insurance if things go wrong?

You can do engineering, but the work must be supervised by a registered engineer.

What is the difference between doing engineering and practicing engineering? It is a matter of public perception. The public expects practicing engineers to have certain qualifications and to adhere to certain engineering standards and to conduct themselves according to an accepted standard. Most anyone with a bit of experience can do some form of engineering, but how could the public have some assurance that it is any good. You might have slept during that course on digital logic or concrete structure analysis or, even worse, have missed all the APSC 450 lectures.

It is the same as doing medicine just because you have a degree in medicine. How is the public to know if you are qualified and follow standards set by the medical profession unless you are registered with the provincial College of Physicians and Surgeons?

Registration is required even for humanitarian work: The humanitarian group Doctors without Borders requires its medical volunteers to have a current license to practice in their home country. Some positions in the humanitarian group Engineers without Borders require registration as a professional engineer in the home country.

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Legal definition of engineering in BCEngineers and Geoscientists Act, BC

"practice of professional engineering" means the carrying on of chemical, civil, electrical, forest, geological, mechanical, metallurgical, mining or structural engineering, and other disciplines of engineering

Rule #1 of definitions:

Dont use the word to define the word

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And to be specific includes reporting on, designing or directing the construction of public utilities, industrial works, railways, bridges, highways, canals, harbour works, river improvements, lighthouses, wet docks, dry docks, floating docks, launch ways, marine ways, steam engines, turbines, pumps, internal combustion engines, airships and airplanes, electrical machinery and apparatus, chemical operations, machinery, and works for the development, transmission or application of power, light and heat, grain elevators, municipal works, irrigation works, sewage disposal works, drainage works, incinerators, hydraulic works, and all other engineering works, and all buildings necessary to the proper housing, installation and operation of the engineering works embraced in this definition

Whew!

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Legal definition of engineering in OntarioProfessional Engineers Act, Ontario

"practice of professional engineering" means any act of designing, composing, evaluating, advising, reporting, directing or supervising wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles, but does not include practising as a natural scientist;

Theres that word again!

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US National Research Council

Business, government, academic, or individual efforts in which knowledge of mathematics and/or natural science is employed in research, development, design, manufacturing, systems engineering, or technicaloperations with the objective of creating and/or delivering systems, products, processes, and/or services of a technical nature and content intended for use.

This could include everything!

And what about this word technical?

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A dangerous equationEngineering = Technology

The history of engineering is then the history of technology. Every inventor is an engineer, every

industry manager is an engineer.

Not true.

But more importantly

Why an engineer when a technologist will do?

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Its hard to define what we doThe cute and uninformative: (I forget the source)

An engineer is someone who can do for a dollar what any fool would do for ten.

Preferable: (Dunbar, any year)What engineers do is what they are seen to be doing. The profession has a special place in society and it is evolving.

This is as it should be. Allows flexibility and change, avoids stagnation

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Engineering is a social experiment Engineering uses new technologies in

products and systems developed to satisfy needs of society Engineering can be used to improve social

conditions

Products and systems are used in diverse social contexts Engineering has an impact on society in both

intended and unintended ways

Engineering as Social Experimentation Chapter 3 of Ethics in Engineering by Martin and Schinzinger

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The public perception

Professions & Professionals

Ooooh

O my

Come hither!

Aaaah Professions rank highest in prestige among occupations

32

Up and coming professions Human resources manager Social worker Journalist Paralegal Cosmetologist Pharmacist Librarian Contractor

Interesting to look at what these occupations/professions are doing

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Characteristics of up and comers

Knowledge base for occupational performance not well developed

Knowledge and service orientation of membership not uniform

An academic elite usually takes the lead in promotion of professionalism

Great efforts made to write a code of ethics

Example: John Kenneth GalbraithMember of Royal Commission investigating first Quebec bridge failureChairman of Engineering at University of TorontoStrong advocate of re-organization of technical engineering education

At the Thirty-Sixth Annual Professional Meeting of The Engineering Institute of Canada, in Montreal, on January 25, 1922, Professor H.E.T. Haultain, of the University of Toronto, was the luncheon speaker. He suggested the development of an oath or a creed to which the young graduate in engineering could subscribe, something in the form of the Hippocratic oath in the medical profession. This led to the iron ring ceremony.

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"I have been fixing a lot of sloppy and dangerous work for the past two decades," says Holmes. "I think it's time to expose the work of these so-called contractors and help homeowners make informed decisions. I want to raise the bar of the construction industry and stop the slow death of craftsmanship in this country."

a gritty, close-up look at the renovation and construction process from the perspective of a frank, experienced and professional general contractor.

Holmes on HomesSee him on HGTV

Each week, construction and renovation expert Mike Holmes visits unlucky families who have been swindled or abandoned during their home improvement projects. Mike uncovers shoddy construction methods, improper techniques, and down right rip-offs. While we watch Mike uncover and fix the problems, he explains how homeowners can safeguard themselves from these unscrupulous builders and dishonest contractors. Throughout the series, viewers learn valuable lessons for their own home renovation projects such as the importance of a good contract, proper payment terms and what good craftsmanship should really look like.

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Certified Builders Association of New Zealandwww.certified.co.nz

See Code of Conduct link under Consumers section

36

So this is it Engineers organized to serve societal needs and

provide services to high standards. Code of conduct (a code of ethics) says how

they would achieve these ideals. Society accepted these ideals and granted

engineers the rights to self-regulation, an exclusive right to practice, and autonomy in their practice.

You commit yourself to the code of ethics when you register as a professional.

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Commitment to Society

Item 1, APEGBC Code of Ethics

Hold paramount the safety, health and welfare of the public, the protection of the environment and the promotion of health and safety within the workplace.

Similar statements in all engineering codes of ethics. The essential aspect is:

Place the publics needs first before your own

Lindsay KenneyLindsay Kenney

APSC 450APSC 450INTRODUCTION TO THE INTRODUCTION TO THE

LEGAL SYSTEMLEGAL SYSTEM

Gregory S. Miller, P.Eng., LLBGregory S. Miller, P.Eng., LLB

http://www.courts.gov.bc.ca/

This website contains a compendium of BC Law

Glossary of legal terms; Part 1 The Law, the Courts, the Judiciary and the Legal

Profession

o Includes Constitutional, Statute and Common Law Part 2 - The Canadian Charter of Rights & Freedoms Part 3 Criminal Law, Evidence & Procedure


Imagine There Is No LawImagine There Is No Law

No taxes, no governmentNo taxes, no government No crimes, no police, no protectionNo crimes, no police, no protection No compensation for injuryNo compensation for injury No property rightsNo property rights No consumer goodsNo consumer goods No social services (schools, hospitals)No social services (schools, hospitals)

Example: New Orleans 2005 where hurricane Katrina causes a storm surge which overtops the levies and floods the City. Electrical power, water distribution, emergency services, transportation infrastructure, etc. suddenly cease to exist. The result is chaos.


What is the law?What is the law?

a set of rules that enable people to live a set of rules that enable people to live together and respect each others rightstogether and respect each others rights

right right an ability to act with an ability to act with impugnityimpugnity privilege privilege an ability to act under an ability to act under

certain circumstances, which may be certain circumstances, which may be withdrawn by the state withdrawn by the state

So what is law? merely a set of rules that enable people to live together and respect

each others rights the body of principles recognized and applied by the state in the

administration of justice a rule of civil conduct, prescribed by the supreme power in a state,

commanding what is right, and prohibiting what is wrong. As the citizens of New Orleans found in 2005, the law has to be more than a theoretical concept. If the state is unable or unwilling to exercise its power to enforce the law, it ceases to exist as do the other rights and privileges of a civilized society. right an ability to act with impugnity privilege an ability to act under certain circumstances, which may

be withdrawn by the state;


Development of the LawDevelopment of the Law

Canadian Law is patterned after English LawCanadian Law is patterned after English Law Roman conquest in 43BC Roman conquest in 43BC LexLex RomanaRomana Withdrawal of Rome in 5th C led to rise of Withdrawal of Rome in 5th C led to rise of

decentralized government under local kingsdecentralized government under local kings Law varied from kingdom to kingdomLaw varied from kingdom to kingdom Norman Conquest in 1066 Norman Conquest in 1066 more centralized more centralized

control under an overall kingcontrol under an overall king Development of common lawDevelopment of common law

BC / Canadian law is based upon British law: The law of British Columbia was specifically acquired from the

law of England, as it existed on November 19, 1859 See (English Law Act)

Roman conquest in 43BC Lex Romana Written laws (Code); Applied across the country; Enforced by the Roman Legions;

withdrawal of Rome in 5th C led to rise of decentralized government

under local kings anybody who could field troops to enforce law was king law became what the (your) king said it was (local custom) varied from kingdom to kingdom (and, potentially, from day to

day) local custom prevailed until Norman Conquest in 1066 more

centralized control under an overall king (William the Conqueror) Originally, the King dispensed law personally Developed into what we have today: Parliament, police, courts


Sources of LawSources of Law

Constitutional LawConstitutional Law Common Law & EquityCommon Law & Equity Statute LawStatute Law Administrative LawAdministrative Law

These are the primary sources of law in BC / Canada


Constitutional LawConstitutional Law

Relationship between people and state;Relationship between people and state; Written / partly written / unwrittenWritten / partly written / unwritten Canadian Constitution:Canadian Constitution:

British North America Act (1867)British North America Act (1867) Constitution Act (1982)Constitution Act (1982)

How we, as citizens, have agreed to govern ourselves: can be entirely written in single document (eg US Constitution) Alternatively, can be a patchwork of documents (eg UK - Magna

Carta, Bill of Rights, etc.) can also be unwritten, consisting of traditions

Canadian Constitution Pre-1867, Britain ruled British North America directly; 1867 Canada established by British North America Act of British

Parliament, which divides the powers between federal and provincial governments

1982 constitution was patriated by Canada Act of British

Parliament / Constitution Act of Canadian Parliament, latter consisting of: Canadian Charter of Rights and Freedoms contents of British North America Act amending amending formula ( 7 & 50 rule) to deal with

entrenched rights and obligations result is a constitution which is entirely under our own control

section 91 gives exclusive powers to federal government trade and commerce bankruptcy and insolvency navigation and shipping

bills of exchange and promissory notes etc. all matters not given exclusively to provinces

section 92 gives exclusive powers to provinces property and civil rights matters of a local and private nature in a province licencing of certain businesses and activities solemnization of marriage

The Canadian Charter of Rights and Freedoms formerly, Parliament was supreme - could pass virtually any

laws now, Acts of Parliament have to be in accordance with Charter

so, arguably, Charter is supreme Charter is interpreted (necessarily) by unelected judiciary (part

of the separation of powers) US separation of powers is clear (executive, legislative,

judiciary) Canadian separation of powers is unclear (at federal level,

PM has control of executive and legislative and appoints the judiciary)


Common Law & EquityCommon Law & Equity

King dispensed justiceKing dispensed justice Delegated to judgesDelegated to judges Judges traveled in circuitJudges traveled in circuit stare stare decisisdecisis

Property LawProperty Law Criminal LawCriminal Law Tort LawTort Law Contract LawContract Law EquityEquity

Originally, the King dispensed law personally but later delegated

authority to trusted officials (Judges); King Henry II1 established a central judiciary post-1180AD judges went on circuit throughout England 1234AD kings judges began keeping records 1290AD decisions recorded for use by others in Year Books,

resulting in the common law (common throughout England) 1477AD introduction of printing to England, Year Books improved 16th C AD regular law reports today, legal publishers and Courts make decisions available to public Common law basis is stare decisis let a decision stand or stand

by a previous decision law developed in specific categories, to suit more complex society: property law basic to a simple system of law:

1 1154AD to 1189AD

king owns all land but lends to nobles in return for military service

needs to resolve disputes re: land needs to ensure order

criminal law also basic to a simple system of law: kings peace necessary for society to function; certain activities (crimes) are outlawed, supervised and

enforced by state; contract law necessary for more developed societies: manufacturing / buying / selling not practical until rules exist; Law Merchant developed by Guilds but absorbed by royal

courts equity: direct appeal to king where common law too rigid King had inherent ability to supercede common law to give

equity Court of Chancery formed 15th C and equity rules developed

equity and common law merged in late 19th C

Supreme Court of BC is both a Common Law Court and a Court of

Equity can fairly and seamlessly apply both


Statute LawStatute Law

statutumstatutum (it is decided) (it is decided) Laws mandated by governmentLaws mandated by government Can coCan co--exist with Common Lawexist with Common Law Can codify Common LawCan codify Common Law Can override Common LawCan override Common Law

statutum latin, meaning it is decided statutes are laws mandated by government, easy to change (good and

bad) override common law / codify common law eg. Vancouver Charter / Local Govt Act eliminate govt liability

in certain situations (overriding common law); eg. Sale of Goods Act codified the common law

statute process:

1. A bill (essentially a proposed law) is presented to a legislative body (Parliament or provincial legislature).

2. A motion is made (and passed) to have the bill 'read' a first time.

3. The bill is then printed and circulated to the members to study. 4. The bill is later brought forward for debate (second reading) in

principle. 5. If the bill passes the second reading stage, it is sent to a

Committee for study and amendment on a clause by clause basis.

6. Once passed by the Committee, the bill is reported in final form by the Chair of the Committee for a third reading.

7. The bill is then debated for a final time by way of a motion to have the bill read a third time.

8. If passed by a majority vote, the bill at the federal level goes to the Senate where a similar process is followed.

9. Once a bill has been passed by the House of Commons and Senate (or a province legislature) it goes to the Governor-General (or Lieutenant-Governor, if provincial) for royal assent virtually automatic.

10. The bill becomes a law on receipt of royal assent, and effective as a law when proclaimed in force.

Common law and statute law can exist together (as in BC and Canada

generally) English Law Act was the first ordinance of the new colony of BC It stated that the law of England, as it existed on November 19,

1859 (statute and common law), was adopted as BC law; can go all the way and codify laws (as has Quebec), so all are

written; can go part way and "codify" portions of the common law (eg Sale of

Goods Act)


Administrative LawAdministrative Law

Government delegation of rule making Government delegation of rule making authorityauthority

Administrative boards and tribunals:Administrative boards and tribunals: Workers Compensation BoardsWorkers Compensation Boards Canadian Radio and Telephone Canadian Radio and Telephone

CommissionCommission Labour Relations BoardLabour Relations Board Association of Professional Engineers and Association of Professional Engineers and

GeoscientistsGeoscientists

governments create boards / tribunals by statute to deal with certain activities eg Labour Relations Board / CRTC / WCB / APEGBC

statute allows tribunals to create their own procedure

Classification of Laws substantive set out rights and duties of individuals procedural how you enforce the rights and duties public law deals with the relationship between government and

individuals private law deals with the relationship between individuals;


HEY, BE CAREFUL OUT THERE!HEY, BE CAREFUL OUT THERE!


APSC 450APSC 450TORT LAWTORT LAW



TortsTorts

Latin, meaning twisted or crookedLatin, meaning twisted or crooked Covers area of civil wrongsCovers area of civil wrongs Mostly judgeMostly judge--made (common law)made (common law) Primary Objective Primary Objective compensationcompensation Secondary Objective Secondary Objective -- deterrencedeterrence

from the Latin tortus, meaning twisted or crooked; morphed through French into English as wrong; tort law is concerned with civil wrongs as opposed to criminal wrongs;

civil - citizen v. citizen; criminal - state v. citizen;

entirely judge-made (almost); primary objective of tort law is compensation for injuries; secondary objective is deterrence (punitive damages);


Development of Tort LawDevelopment of Tort Law

Writ of TrespassWrit of Trespass 1313thth CC Responded to direct application of forceResponded to direct application of force Became the intentional tortsBecame the intentional torts Actionable Per Se Actionable Per Se no proof of damageno proof of damage

Writ of Trespass on the CaseWrit of Trespass on the Case 1414thth CC Responded to indirect application of forceResponded to indirect application of force Became the unintentional tortsBecame the unintentional torts Damage must be provenDamage must be proven

Writ of Trespass:

arose in 13th century as remedy for obvious forcible wrongs, the type of wrongs which would provoke retaliation - breach of the kings peace;

elements of trespass were force and direct and immediate injury to person, lands or goods;

actionable per se (without proof of damage); defendant has to raise issue of excuse or justification; roughly became the intentional torts; trespass to person became:

assault; battery; false imprisonment;

original fine and imprisonment were gradually eliminated, leaving damages;

Writ of Trespass on the case:

arose during the 14th century for those situations which didnt necessarily involve force and direct damage;

plaintiff has to prove wrongful intent or negligence and damage; became negligence

example of the distinction between trespass and case: A throws log over fence and hits B - trespass; log doesnt hit B, but he trips over it later - case;


Bases of LiabilityBases of Liability

IntentionIntention NegligenceNegligence Strict LiabilityStrict Liability

intention

foresight & desire of consequences (intention); foresight of probability but no desire (recklessness); requires volition (conscious choice); mistake doesnt negate; youth/mental disability will negate;

negligence:

not a state of mind; conduct measured against reasonable person;

strict liability:

simple causal connection between act and injury; applies only to ultra-hazardous activities;


Intentional TortsIntentional Torts

BatteryBattery AssaultAssault False ImprisonmentFalse Imprisonment DefamationDefamation


BatteryBattery

Intentional harmful or offensive contact Intentional harmful or offensive contact with anotherwith another

Actionable Per SeActionable Per Se Intention relates to touching, not harmIntention relates to touching, not harm

battery = intentional harmful or offensive contact with another, whether

direct or indirect; co-existent with criminal sanction; protection of bodily security is the obvious goal; avoiding societal chaos is another goal (avoiding eye for an eye

conduct); proof of actual harm is not required - the touching itself is sufficient; not necessary for skin to be touched:

clothing being worn; object being carried; horse being ridden;

intention relates to the touching, not the harm; provocation is not an excuse: victim need not even be aware of the touching at the time;

as when asleep or under anesthetic; as when a child doesnt realize what is happening;


AssaultAssault

Intentional creation of apprehension of Intentional creation of apprehension of imminent batteryimminent battery

Actionable Per SeActionable Per Se Reasonable belief of victim is sufficientReasonable belief of victim is sufficient

assault = intentional creation of apprehension of imminent battery; protection of freedom from fear of interference with bodily security; actionable without proof of damage (actionable per se); need proximity in space and time: telephone threats may not be sufficiently proximate in space; I will beat you next week may not be sufficiently proximate in time;

the actual intention of the defendant to use violence need not be proven, as

the plaintiff need only reasonably believe that he is in danger of violence; doesnt extent to a third party: telling Bob that I will beat Joe isnt sufficient;


False ImprisonmentFalse Imprisonment

Intentional wrongful confinement of Intentional wrongful confinement of another person within fixed boundariesanother person within fixed boundaries

Actionable Per SeActionable Per Se Must be complete confinementMust be complete confinement Applies to everyone (incl. police)Applies to everyone (incl. police) Police have statutory protectionPolice have statutory protection

false imprisonment = intentional wrongful confinement of another person

within fixed boundaries; protects freedom of movement; actionable without proof of damage (actionable per se); must be complete confinement:

not complete if reasonable mode of egress known to victim; victim need not be aware of the confinement at the time:

for example, a child who may not be aware; available against government officials;

police, prosecutors; Police are shielded from honest mistake by S.25 Crim code if

reasonable and probable grounds: if find committing summary offence; if reasonable and probable grounds that has, is, or about to commit

indictable offence; must state grounds for arrest unless too obvious or fleeing; ultimate charge does not have to be arresting charge;

if arrest required, give police the information and let them use their

discretion - dont want police acting as your agent because you dont have same protections;


DefamationDefamation

A false statement about a person to A false statement about a person to his/her discredithis/her discredit

Publication to third person requiredPublication to third person required Truth is defenceTruth is defence Libel Libel written / recordedwritten / recorded

Actionable Per SeActionable Per Se Slander Slander oraloral

Proof of damage requiredProof of damage required

a false statement about a man to his discredit;

can be caused by referring to someone as a liar, crook, drunk, traitor;

standard: what ordinary decent folk in the community, taken in general would

feel;

interpretation: natural and ordinary meaning:

particular characteristic or activity may yield defamatory meaning; calling unionist a scab might be defamatory, manager not;

the time and place of the publication may make a difference; calling someone a communist during the McCarthy era;

the form of the communication:

words: actions eg. defamation by drawing;

who may be defamed:

living people; non-natural persons:

corporations, partnerships; professional associations; municipal corporation; school board; trade union;

defamation must be communicated to a third person for it to be actionable; every participant in the publication is liable - those who prepared the libel

and those who distributed and disseminated the libel; publication takes place when the words complained of are heard or read; apology:

publication of a full apology at the earliest opportunity is a means of mitigating the damages;

Defences

justification: truth is a complete answer to an action for defamation, falsity presumed;

absolute privilege: The smooth functioning of society requires that full and frank statements be made at certain times without fear of prosecution for defamation. Such occasions are: judicial proceedings; parliamentary proceedings; executive communications;

covers ministers of the Crown; may not cover civil servants;

does extend to spousal communications;

qualified privilege: conditional immunity attaching to certain occasions if the otherwise

defamatory statements are made without malice; four main types of occasions:

protection of ones own interest: akin to self-defence; must be limited to that reasonably necessary to respond to the

original attack; common interest or mutual concern: moral or legal duty to protect anothers interest:

eg comments made by a father to a daughter concerning the daughters prospective husband;

public interest: eg members of the public in reporting crimes to the police;

malice: will defeat the claim of qualified privilege; will affect the assessment of damages; the plaintiff must prove malice once a claim of privilege has been

accepted by the judge;

ill-will or indirect motive; excess of privilege:

if the words are clearly outside the scope of the privilege, liability will attach;


Unintentional TortsUnintentional Torts

Strict LiabilityStrict Liability NegligenceNegligence NuisanceNuisance


Strict LiabilityStrict Liability

The person who, for his own purposes, The person who, for his own purposes, brings on his land and collects and brings on his land and collects and keeps there anything likely to do keeps there anything likely to do mischief if it escapes, must keep it in at mischief if it escapes, must keep it in at his peril; and if he does not do so, is his peril; and if he does not do so, is prima facie answerable for all the prima facie answerable for all the damage which is the natural damage which is the natural consequence of its escapeconsequence of its escape

Rylands v. Fletcher The person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiffs default; or perhaps, that the escape was the consequence of vis major, or the act of God

the theory has been held not to apply to: overflow of domestic hot water heater; overflow of home plumbing systems; overflow from a sprinkler system; fire used for domestic purposes;

the theory has been held to apply to: over flow of water industrial and commercial uses; fire used for industrial or commercial purposes; fire used in unusual ways:

to thaw frozen pipes; to smoke out a rat;

poisonous fumes from a fumigation activity;


NegligenceNegligence

ABC RuleABC Rule Duty of care existsDuty of care exists There has been a breach of that dutyThere has been a breach of that duty Damage has resulted from the breachDamage has resulted from the breach

Duty

how does a Court decide, in a particular case, whether a duty is owed by the defendant to the plaintiff? The Court looks to the neighbour principle from Donoghue v. Stevenson;

The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyers question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

BC v. RBO Architecture [1994] B.C.J. No. 1297 Architect engaged by owner to provide design Engineer engaged by architect to provide subconsulting Engineer (and its employees) can be liable to owner in tort

Dha v. Ozdoba [1991] B.C.J. No. 303 Engineer is liable to employer for competence of design Municipality may also be liable (to employer) for approval of plans

Sergius v. Janax Design & Drafting Services Ltd. [1992] B.C.J. No. 302 Sergius purchased a house with a defective foundation This was a pure economic loss for which no duty of care was owed by

the foundation engineer

Cooper v. Hobart 2001 SCC 79 A duty of care requires both foreseeability of damage and proximity

Fiduciary duty is different (see Landview Construction v. Simic

Engineering [1994] B.C.J. No. 113 the 3 criteria which must be met in order for a fiduciary relationship to

exist:

1. Fiduciary has the scope to exercise discretion or power; 2. Fiduciary can unilaterally exercise that power so as to affect the

beneficiarys interests; 3. Beneficiary is peculiarly vulnerable to the fiduciary holding that

power.

Typically applies to: Lawyers; Trustees; Physicians; Spiritual advisors; Etc.

Breach

to determine b, one must first ascertain the nature and quality of the duty owed - this is the standard of care;

the standard of care is set by law objectively:

what would the reasonable person have done? some subjectivity in recognition that children, mentally disabled,

professionals, etc. may owe a different amount of care (a different standard of care);

experts/professionals:

the reasonable person test is modified to the person of average competence exercising a particular calling;

every recognized professional group has its own individual standard to which all members of the profession must conform;

specialists may be required to conform to the standard of like specialists;

Hilton Canada Inc. v. S.N.C. Lavalin Inc. [1999] N.S.J. No. 188 the engineer inspected a structure prior to purchase and concluded that

no major structural defects existed; corrosion of the steel beams supporting the structure discovered later; an engineering firm can be liable for the acts of its non-professional

employees if the standard of structural engineers is not met; if the standard of care at the time of the inspection was such that the

corrosion might not have been found, there is no breach;

White Rock Lodge Properties v. BC Hydro [1993] B.C.J. No. 515 geotechnical engineers did not identify a weak, thin layer of clay in the

foundation soils; A slide, thought to be the result of this layer, caused damage and delay

in the construction of a condominium; No breach of duty, because it couldnt be shown that average

geotechnical engineers would have identified;

Causation

the but for (also called the sine qua non) test is the most common means of determining causation-in-fact:

but for the negligence of the defendant, the damage would not have occurred;

Metropolitan Toronto Condominium Corp. No. 902 v. Macklingate Development Inc. [1998] O.J. No. 6229 Defendant may have breached Building Code in the installation of

fireplaces in condominiums Such a breach is not conclusive of connection with damage, so

negligence not proven Stanco Projects v. British Columbia 2004 BCSC 1038 Tendering case Engineer breached law of tendering by bid shopping BC (Engineers client) liable to contractor for such Engineer not liable to BC in negligence because BC did not rely

upon the Engineer in making the tender award (no causation) multiple causes;

can cause problems for the but for test: if two or more parties set independent fires which then engulf

the plaintiffs house, each could say that the result would have occurred without their conduct;

the substantial factor test: if the acts of two people are both substantial factors in

bringing about the result, then liability is imposed on both;

Two Negligent Defendants (Onus): where two defendants have acted negligently and one only has

caused a loss to the plaintiff, but the plaintiff is unable to prove which caused the loss, both will be considered to have caused the loss unless one can exculpate himself;

this principle does not apply where the plaintiff has been contributorily negligent;


NuisanceNuisance

The The unreasonableunreasonable interference with the interference with the use and enjoyment of land by its use and enjoyment of land by its occupieroccupier

Unreasonable Unreasonable guagedguaged by:by: Type and severity of harmType and severity of harm Character of localeCharacter of locale Abnormal sensitivityAbnormal sensitivity Utility of conductUtility of conduct

in the most general terms, nuisance involves the unreasonable interference

with the use and enjoyment of land by its occupier or some right by the public;

damage must be proven; damage is typically indirect, in the sense that it does not arise from the

direct application of force; the focus of the tort of nuisance is the type of harm that is suffered, rather

than some narrow form of prohibitive conduct; liability flows to those who create the nuisance or allow it to continue.


HEY, BE CAREFUL OUT THERE!HEY, BE CAREFUL OUT THERE!

1APPLIED SCIENCE 450Professional Engineering Practice

Tort Law in PracticeW. Scott Dunbar, P.Eng.

2Some legal terminology

Legal cases are denoted

X v Y

X is the plaintiff, Y is the defendant

If Y appeals the ruling of the case X v Y

Y is the appellant and X is the respondent

The appeal case is referred to as X v Y but the date will be later than the original case

3The ABC test for negligence

a duty of care was owed by the defendant to the plaintiff;

there was a breach of the duty of care; and

damages were caused by the breach of the duty of care (causation)

There is no significance to the order in which these are considered

As an engineer you could be either a defendant or a plaintiff. More likely you or your company will be a defendant.

4The Standard of Care

For engineers, the standard can be established by Precedent the methods used by other

engineers, written standards, or testimony of experts

Duty of Care Standard of Care

5Liability in Tort

P

C

Duty of care

Breach of duty

Causation

lawsuit

6BC Rail v. Canadian Pacific Consulting1988

CPC contracted to build OCS for BCR in 1982 CPC subcontracted design of OCS in two tunnels Available data showed large volumes of water in

tunnels, high humidity, and presence of H2S

OCS Overhead Contact System

7Water + sulfur stress corrosion

System commissioned in late 1983 March 1984 OCS fails in Wolverine Tunnel May 1985 OCS fails in Table Tunnel

8Allegations: CPC consortium negligent

did not investigate conditions in tunnel did not recognize that conditions in tunnel

could lead to OCS failure did not have the expertise necessary to design

OCS under these conditions did not provide a system with 50 yr life

Basically Did not exercise required standard of care

9And the standard of care is

in accordance with the standards of care practiced by leading international consulting engineers engaged on similar projects providing similar services. (quoted from contract)

Judgment for plaintiff: $3,435,315

for re-design and replacement of OCS and extra operating costs incurred

10

But

In 1990 CPC appealed saying Copper would have been used for the contact

wires even if corrosive conditions in tunnels were known

Several OCS replacements may occur during operation normal cost of operation

Damages reduced by cost of contact wire

11

Third party liability for professionals

Professional P liable to client C in contract and tort

P liable to third party X in tort only

All liabilities apply simultaneously and are not mutually exclusive

contract

tort

P

XC

It is possible for the client to sue the professional in both tort and in contract, but this is rare. There may be advantages to suing in tort rather than contract. It depends on the terms of the contract. See BG Checo International Ltd. V. BC Hydro and Power Authority (1993), 99 D.L.R. (4th) 577 (S.C.C)

12

Donoghue v. Stevenson 1932

August 26, 1928, Mrs Donoghue and a friend go to Wellmeadow caf in Paisley, Scotland

Friend buys her a float - ice cream and ginger beer. Some ginger beer remains in bottle

Friend pours remaining ginger beer onto float and out comes a decomposed snail

13

The legal conditions at the time

Cant sue owner of caf since ginger beer was bought by and served to the friend

Cant sue manufacturer no relationship

Friend cannot sue because he did not suffer damages

Sue the friend some issues with this

Suing the friend would cost Donoghue money which she didnt have. If the lawsuit were successful, the friend could not recover because he did not suffer damages fast way to lose a friend.

There is also speculation that Mrs. Donoghue and her friend, a male, were not supposed to be seen together

14

The Wellmeadow caf and the bottle

Donoghue became sick

Sued the manufacturer - Stevenson

15

And the result was

Scottish court did not find in favor of Donoghue

Appealed to English court who overturned the Scottish court decision

Donoghue awarded 500

16

Before and after the case

Minchella Stevenson

The friend

contract

Before After

Minchella Stevenson

The friend

contract

Donoghue

tort

Before the case Minchella, the caf owner, owed a duty of care to his customer to serve products free of poisons, May Donoghues friend, and Stevenson, the manufacturer, owed a duty of care to Minchella to ensure that the contents of the bottle were free of decomposed snails and other poisonous substances. Donoghuehad no recourse. However, the case rendered Stevenson liable to Minchella and to Donoghue because it was reasonable to foresee that Donoghue, a third party, could share a bottle of ginger beer and thus be affected by the manufacturers actions.

17

Lord Thankerton

the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer.

One origin of third party liability

18

Lord Atkins neighbour principle

Two concepts: Proximity Foreseeability

And who are these third parties?

persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question

19

Hedley Byrne v Heller & Partners (1963)

Hedley Byrne Easipower

Heller & Partners

HB asks their bankers to ask Heller for opinion on creditworthiness of Easipower

HB bankers

potential client

20

The letter

CONFIDENTIAL

For your private use and without responsibility on the part of this bank or its officers

Dear Sir:

In reply to your inquiry we advise that Easipower Ltd is a respectably constituted company, considered good for its ordinary business obligations. Your figures are larger than what we accustomed to see.

Yours truly

Heller & Partners

21

And so

HB takes on Easipower as client begins to pay for advertizing time

Easipower becomes insolvent HB sues Heller claiming that letter was

negligent misrepresentation breach of duty of care breach of duty to use skill and knowledge

Negligent misrepresentations may also include the failure to disclose significant matters.

22

Results of trials

Original trial no contract between defendant and HB no duty of care

Appealed to House of Lords who said:

if there was a foreseeable relationship between the maker of a statement and the receiver of the statement, then there could be liability for the economic loss.

But the disclaimer in the letter relieved Heller of a duty of care

In other words, no voluntary acceptance of responsibility no duty of care

23

Thus we have

Donoghue v. Stevenson giving rise to third part liability for actions

Hedley Byrne v. Heller giving rise to third party liability for written or oral communications

24

Hodgins v. Hydro-Electric Commission of Nepean (Ontario) (1972 and 1975)

Hodgins wants house addition for an indoor swimming pool

Winch, electrical contractor, suggests electrical heat for the addition. Takes plans to Nepean HEC

Runions, a technician of Nepean HEC, makes a heat loss calculation to determine the annual cost

Very interesting case which illustrates ABC test and how standard is established

25

Off the deep end

Electrical consumption for 80F

50,500 kWhActual22,700 kWhEstimated

Based on annual cost estimate Hodgins decides to use electricity to heat addition

Of course, the pool is a heat sink

Hodgins sues Nepean HEC in 1972

26

The relationships

contract

indemnified as employee

vicarious liability

tort

Hodgins

NepeanHEC

Winch

Runions

The third party

27

In 1972 the judge said:

There was no suggestion by Runions that he made his heat loss calculation on the basis of the room having a floor rather than a swimming pool, and there was no qualification that he had no experience in calculating heat loss in a room containing a swimming pool,

Runions was in breach of that duty of care spoken of in the Hedley Byrne case

Judgment for the plaintiff (~$5000 + costs)

28

In 1975 Nepean HEC appealed

Runions calculated the heat loss in the same manner as anyone similarly expert in the art would have done in 1967.

That the estimate was incorrect is not questioned, but it is not sufficient that the plaintiff establish merely that the Runionsestimate was wrong, he must go further and establish that the incorrect estimate resulted from a lack of skill, competence or diligence

Appeal allowed, action of 1972 trial dismissed

29

Questions and Issues

Runions knew that the room was to contain a swimming pool

But heat loss calculation was made assuming baseboard heaters, not elevated radiant heaters baseboard heaters near a pool??

Manager of OEL: Runions could have said: We have no experience with rooms with pools So why didnt he say so?

Hodgins knew it was a problem. Mr. Scott (a PEng) of Ontario Electrical League said that it was known that pools could cause a difference but that methods for calculating heat loss in rooms with pools were not well developed.

30

Re qualification of estimateOne judge in the appeal said:

failure to qualify [the estimate] is not of itself a separate item of negligence but gives rise to responsibility on the part of the person giving the opinion and his employer where the opinion is given carelessly or there is a failure to exercise such care in giving the opinion as the circumstances may require.

In other words, failing to qualify is not negligence, but careless qualification is.

Its even more complicated. Another judge said that qualification cannot so limit the plaintiffs reliance on the estimate as to render it useless.

31

Respectfully, I disagree

Failure to provide information is a well-established tort

Calculations may be correct, but to use a method known to be incorrect indicates a a lack of skill

32

The learned intermediary

R M

TP

contract

contract tort tortL

A manufacturer M sells a product to retailer R which sells it to purchaser P. The product is defective and injures P and a third party T. P can sue R in contract and R can sue M for its loss, also in contract. P and T can sue M in tort. T might also be able to sue R in tort, if R should have discovered the defect. A learned intermediary L may be present who, based on information from M, would inform R, P and possibly T of problems or dangers associated with the use of the product.

33

Frozen Soil?

Freezer room in plant froze water in underlying soil created a little permafrost zone

After demolition of plant, soil thawed. Foundation of new building failed near location of refrigerator. Owners sued.

Defendants argued soil freezing was not the problem could not happen and not to that extent. Owners lost.

3-4 m

Meat-packing plant

Most everybody has experienced the effects of freezing water in a confined space the container may break.What happens to frozen fruit after it thaws?This case shows the need to relate simple everyday things to what happens in more complex situations.

34

Lake Peigneur, Louisiana

Texaco drilling at edge of Lake Peigneur

Nov 21, 1980, early morning, drill begins to tilt

Drill finally collapses and disappears into water

Whirlpool forms and the entire lake drains into underlying Diamond Crystal salt mine.

Buildings of Live Oak Gardens on Jefferson Island slid into lake

35

Lawsuits for sure!!!

Diamond Crystal sued Texaco because water had dissolved all the salt in the mine rendering it worthless

Texaco counter-sued saying they had asked about the location of the mine but received no answer

Live Oak Gardens sued both Diamond Crystal and Texaco

A woman who worked in the mine sued Texaco for $1.45M for injuries suffered while escaping from the mine

In the end Texaco and drilling company paid:

$32M to Diamond Crystal

$12.8M to Live Oak Gardens

36

Strict Liability

Liability without intent or negligence

Typically involves maintenance, handling and transport of dangerous chemicals, materials or

animals

Strict liability applies despite precautions taken

In Canada, negligence is applied but standards of care for dangerous activities are very high

Strict liability less common in Canada, but it is coming.

37

Rylands v. Fletcher (1868)

Fletcher had earth-fill dam built on his property to contain reservoir

Dam failed and flooded plaintiffs coal mine

Dam builders negligent for building dam over old mine shafts that led to the mine

38

The legal conditions at the time

Dam builders were not sued because they were not employees of Fletcher vicarious liability not available

Third party liability not available

Strict liability imposed on defendant

39

A watershed case in the US

1980: Chevron Chemical Co dumps 3.5M gallons of fertilizer wastes and storm-water runoff into San Francisco Bay

Paid $25,000 to state water regulators to settle monetary claims arising from discharge thinks this is end of story

40

California Fish and Game Code 5650

Do not deposit substances deleterious to fish, plant, or bird life into state waters.

A criminal statute that specifies a six month prison term for violations

State argued that Chevron was strictly liableHoly

#@%!

41

Summary Three-part test for negligence Standard of care must be evident

Advice or design does not have to be correct Qualification of advice may be necessary

Professional liability: to clients in tort and contract may be liable to third parties in tort

Strict liability applies for dangerous materials

All three parts of test must be present for negligence, namelyDuty of careBreach of duty of careBreach led to damage

Extent of third party liability depends on proximity of relationship and purpose of advice

42

But the important messages are:

The legal system works only with evidence

There are rules about what evidence is admissible and how it is admitted

In legal situations, engineers must be able to communicate equally well in technical and non-technical language

APSC 450 Professional Engineering Practice

Third Party Liability As shown in the diagram below, a professional P can be liable to a client C in contract and tort and to a third party X in tort. Furthermore, these liabilities apply simultaneously and are not mutually exclusive.1

contract

tort

P

X

C

While it may be easy to understand how a professional such as an engineer could be liable to a client in contract and in tort, it is perhaps difficult to understand how liability to a third party could arise. What are the circumstances? Who could these third parties be? A bit of legal history, in the form of two landmark twentieth century cases, helps to understand how the concept of third party liability arises and how it has evolved. These two cases will be presented below. Donoghue v. Stevenson

During the evening of August 26, 1928, Mrs. May Donoghue and a friend went to the Wellmeadow Cafe in Paisley, Scotland. Her friend ordered a ginger beer and ice cream from the cafe owner, Francis Minchella who poured some of the ginger beer into a tumbler to make an ice cream float. Mrs. Donoghue drank the float from the tumbler. When her friend poured the remainder of the ginger beer into the tumbler, a decomposed snail came out of the bottle. As a result of consuming the ginger beer, Mrs. Donoghue became ill and sued the manufacturer. The bottle of ginger beer was not filled at the cafe and was sealed with a metal cap to maintain the aerated quality of the ginger beer. Based on this, it was clear that the snail had got into the bottle at the factory where the ginger beer was manufactured. The bottle was opaque so that there was no way the cafe owner, Mrs. Donoghue or her friend could see the contents. This proved to be an important factor in the case.

1 It is possible for the client to sue the professional in both tort and in contract, but this is rare. There may be advantages to suing in tort rather than contract. It depends on the terms of the contract. See BG Checo International Ltd. V. BC Hydro and Power Authority (1993), 99 D.L.R. (4th) 577 (S.C.C)

APSC 450 Professional Engineering Practice 2 Third Party Liability

This picture shows the Wellmeadow cafe soon after 1900. (Source: http://www.scottishlawreports.org.uk/resources/keycases/dvs/mrs-donoghue-journey.html)

The manufacturer, David Stevenson, said he was not responsible because the beer was not served to Mrs. Donoghue; rather it was served to her friend who bought it from the cafe owner, Minchella. Under the law at that time, the manufacturer was right. There had been two earlier English cases involving mice in beer bottles (!) in which it was found that the beer manufacturers owed no duty of care to the consumer. Manufacturers only owed a duty to the retailer, implied by a sales contract, that the product is not defective. In turn, the retailer owed a similar implied duty to the purchaser. In this case it was Mrs. Donoghues friend who purchased the ginger beer and thus Mrs. Donoghue had no recourse. Suing her friend was presumably not an option. In part, based on this, the Scottish court did not find in favor of Mrs. Donoghue. However, the case finally went to the English House of Lords who overturned the decision of the Scottish court. There were many reasons for the decision and much discussion by five Lords, two of whom dissented. The opaque bottle formed the basis of one of the key arguments for applying a duty of care of the manufacturer to any potential consumer. Mrs. Donoghue was awarded 500 in damages. As she was a declared pauper, this was a considerable sum to her. What happened to her after the trial and what became of Stevenson and his ginger beer operation is not known.2

2 See http://www.scottishlawreports.org.uk/resources/keycases/dvs/donoghue-v-stevenson.html for an interesting history of this case.


The original Stevenson bottle. As pleaded in the case, the bottle is brown and opaque, rendering

impossible the intermediate examination of its contents. (Source: http://www.scottishlawreports.org.uk/resources/keycases/dvs/mrs-donoghue-journey.html)

Extension of the Duty of Care

The most significant result of this case was the extension of the duty of care. Prior to the case, the duty of care was confined to a very narrow set of circumstances which typically included an act that caused physical injury to an individual or property. Emotional harm, economic loss, and harms caused by the written word or acts of omission were not considered. These were Victorian times during which considerable emphasis was placed on self-reliance and social responsibility. Duties of one party to another arose from voluntary agreements between the parties. If there was no legal duty of care, as in a contract, the common law was reluctant to impose one. A judge in and earlier (1929) case, Mullen v. Barr & Co. (1929 S. C. 461), in which a mouse was found in a bottle of beer, made a statement that typified the attitude and approach taken to the duty of care

In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem a little short of outrageous to make them responsible to members of the public for the conditions of the contents of every bottle which issues from their works. It is obvious that, if such responsibility attached to the defenders, they might be called on to meet claims of damages which they could not possibly investigate or answer.


Buyer beware seemed to be the guiding principle. However, there also seems to be a desire to avoid the potential for chaos associated with a multitude of claims of a duty of care to any member of the public who consumes the beer. In Donoghue v. Stevenson, the judge Lord Atkin narrowed the potential range of liability by his neighbour principle:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

The narrowing of the duty of care occurs in two ways: through the notion of proximity persons who are closely and directly affected and the concept of forseeability ought reasonably to have them in contemplation as being affected. The idea that proximity gives rise to a duty of care was not new but proximity extended beyond mere physical proximity where acts could cause personal injury or property damage. However, the issue of whether a duty of care arises because one can foresee people being affected by ones actions was a new concept. The drawing below shows the relationships between the parties before and after the case.

Minchella Stevenson

The friend

contract

Before After

Minchella Stevenson

The friend

contract

Donoghue

tort

Before the case Minchella, the caf owner, owed a duty of care to his customer to serve products free of poisons, May Donoghues friend, and Stevenson, the manufacturer, owed a duty of care to Minchella to ensure that the contents of the bottle were free of decomposed snails and other poisonous substances. Donoghue had no recourse. However, the case rendered Stevenson liable to Minchella and to Donoghue because it was reasonable to foresee that Donoghue, a third party, could share a bottle of ginger beer and thus be affected by the manufacturers actions. One of the judges, Lord Thankerton, explained the mechanism by which this third party liability arises in this case:


The special circumstances from which the appellant claims that such a relationship of duty should be inferred may, I think, be stated thus - namely, that the respondent, in placing his manufactured article of drink upon the market, has intentionally so excluded interference with, or examination of, the article by any intermediate handler of the goods between himself and the consumer that he has, of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer is entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the consumer. [italics added]

In other words, there was no way anyone, not Minchella, not May Donoghues friend, and not May Donoghue herself, could inspect the contents of the bottle without opening it and draining it into some container other than the one containing the ice cream. Should every consumer be required to do this? The manufacturer has thus placed himself in a direct relationship with any potential consumer. This case is one origin of third party liability, although there were previous cases involving defective products and concerns about the liability of manufacturers. It is a product liability case where the actions of a manufacturer are called into question. In 1963 the following case was tried in England and gave rise to third party liability of professionals or others with specialized knowledge for their written or oral communications. Hedley Byrne & Co. v. Heller & Partners Ltd.

Hedley Byrne & Co were advertising agents who were considering Easipower Ltd. as a potential client. However, Hedley Byrne had doubts about Easipowers financial status and asked their bankers to obtain a statement of Easipowers financial position from Heller & Partners who were merchant bankers with whom Easipower had an account. Specifically Hedley Byrne asked whether Easipower were trustworthy to the extent of 100,000 per year. Heller & Partners replied as follows:

CONFIDENTIAL For your private use and without responsibility on the part of this bank or its officers

Dear Sir: In reply to your inquiry we advise that Easipower Ltd is a respectably constituted company, considered good for its ordinary business obligations. Your figures are larger than what we accustomed to see. Yours truly Heller & Partners

Hedley Byrne did not communicate directly with Heller but its bankers informed them of the contents of the letter, including the disclaimer of responsibility at the top. As a result Hedley Byrne accepted Easipower as an account and placed extensive advertising space and time for it, running up a balance of several thousand pounds. Shortly afterwards Easipower became


insolvent and went into liquidation, able to pay only a small portion of its debt to Hedley Byrne. Hedley Byrne sued Heller for the resulting loss claiming that Hellers response to the request for information was a negligent misrepresentation of Easipowers creditworthiness, that is, Heller breached both the duty of care and the duty to use their skill and knowledge. Notice that Hedley Byrne had no contractual relationship with Heller. For this reason, in the original trial it was held that the defendants owed no duty to Hedley Byrne. The following year, 1964, the case went to the House of Lords where it was stated that if there was a foreseeable relationship between the maker of a statement and the receiver of the statement, then there could be liability for the economic loss. Thus Heller did indeed owe a duty of care to Hedley Byrne; they should have foreseen that its statements would be used by the customer of the bank requesting the information. However, in this particular case, there was no liability as there had been a disclaimer attached to the statement, so there was no voluntary assumption of responsibility. Although Heller was not required to pay damages, Hedley Byrne established the principle of liability to third parties for negligent misrepresentation and forms the basis for the liability of professionals to third parties. The Principle of Third Party Liability for Engineers

A general statement of the third party liability principle is difficult to formulate but the main points of the principle with respect to engineering professionals are:

Proximity: There is a physical or logical connection between the engineers acts or statements and a third party such that the acts would affect the third party or the statements would be relied upon by the third party.

Foreseeability: The connection is foreseeable and brings the engineer into a special direct relationship with the third party.

The third party may be known to the engineer but this is uncommon. More likely the third party may be a group of individuals whose identities are not known. Examples include consumers of a product designed by the engineer or contractors submitting tenders (offers to build) that rely on the design made by the engineer.


APSC 450APSC 450CONTRACT LAWCONTRACT LAW



Contract LawContract Law

A contract may be defined as an agreement A contract may be defined as an agreement between two or more persons that is between two or more persons that is enforceable at law. enforceable at law.

Comes into existence when the parties have Comes into existence when the parties have established all of the elements to make it established all of the elements to make it enforceable.enforceable.

Differs from tort law in that the parties are free Differs from tort law in that the parties are free to define their own rights and duties, as to define their own rights and duties, as between themselves, which the law will then between themselves, which the law will then enforce.enforce.

A contract may be defined as an agreement between two or more persons

that is enforceable at law; A contract comes into existence when the parties have established all of

the elements to make it enforceable; Contract law differs from tort law in that the parties are free to define

their own rights and duties, as between themselves, which the law will then enforce;

Originally, breach of promise was treated as a moral matter governed by Ecclesiastical Courts but it is now a matter of law;

Contract law is based upon bargain theory each party gains some

benefit;


Engineering ContractsEngineering Contracts

Professional ServicesProfessional Services EmploymentEmployment Goods and servicesGoods and services

Tip not all contracts are required by law to be in writing but all should be in writing for evidentiary purposes;

Engineers seem reluctant to reduce their contracts to writing These are the types of contracts that engineers can expect to see:

o Professional services agreements;

o Employment contracts;

o Goods and services contracts;


Contract LawContract Law

Elements of Valid ContractElements of Valid Contract Intention to create legal relationshipIntention to create legal relationship OfferOffer AcceptanceAcceptance ConsiderationConsideration Capacity to ContractCapacity to Contract LegalityLegality

FormForm EnforceabilityEnforceability PrivityPrivity Performance / DischargePerformance / Discharge BreachBreach

these are the essentials to contract law; without these a Court will not enforce the contract (ie no contract);


IntentionIntention

Promise is essential to a contract but Promise is essential to a contract but not all promises are enforceablenot all promises are enforceable

Intention to be bound separates Intention to be bound separates gratuitous promises from legally binding gratuitous promises from legally binding promisespromises

Intention is presumed, except when the Intention is presumed, except when the circumstances dictate otherwisecircumstances dictate otherwise

Intention to Create Legal RelationsIntention to Create Legal Relations

Contract law deals with legally enforceable promises; One element is intention to be bound v. gratuitous promises; Id give a million dollars for a beer no intention to be bound,

therefore no contract;

To make it easier, an intention is presumed by the law except in family matters and advertising;

A tentative promise (containing some condition) is made by the offeror; It is not binding until the condition is accepted by offeree; offers: must be communicated by the offeror to the offeree; are not even valid until received by the offeree; only the person to whom an offer is made may accept the offer; exception is a special kind of offer made to public at large;

An offer will lapse upon: rejection of offer; death of either party; bankruptcy of either party; declaration of insanity of either party; counter-offer; passage of specified time; passage of reasonable time if no specified time; overt physical act, such as leaving the negotiation;

an offer can be revoked at any time; revocation must be communicated to be effective; offeree must actually be aware of revocation posting is NG;

an option is a separate promise that obliges the offeror to keep the offer open for a specified period of time in return for some compensation or if made under seal;

revocation can be implied if the offeror deals the goods to another and the offeree is aware of such;

acceptance must be communicated to the offeror in the manner specified in the offer if not specified, the normal manner will be implied; eg. auction situation waive your paddle, dont mail in bid; Trans-Pacific Trading v. Rayonier Canada Ltd. [1998] B.C.J. No. 890 Dispute arose whether contract had been accepted; Offer specified acceptance by fax; Acceptance delivered by mail but, in meantime, offer withdrawn; Not valid acceptance;

must be clear and unconditional to be valid; can be acceptance by conduct: Wardrop Engineering v. Lake Manitoba Band 2002 MBQB 319; Miscommunication, not corrected by Band, sets Wardrop to work; Conduct inferring acceptance: inquiry by the Band Manager as to whether the plaintiff could be in

attendance at the reserve to do the work; failure to reply to the subsequent fax indicating that the plaintiff's

employees would be at the reserve to carry out the inspection; acquiescence by the Band in the inspection all indicated a clear

assent to the proposal;

a conditional acceptance is a counter-offer which terminates the original offer;

an inquiry is a request for further information concerning the offer and does not terminate the original offer;

silence is not acceptance unless a pre-existing agreement or practice; normally accomplished by words such as I accept your offer but could

be nod of head / handshake / auctioneers gavel banding and the word sold / removing the shrink-wrap (see Mortenson v. Timberline [2000] WA-QL 629);

unilateral contracts are accepted by performance of the condition: reward is

450final notes

Documents