Tort Liability

Contract law and tort law are considered the major divisions within civil law. A tort is a civil wrong that involves harm committed against a person or their property, business or reputation. It is a violation of an individual's right to be secure in his or her person and free from unwarranted harrassment. The Tort law entitles a person who has suffered a loss, independent of a contract or criminal law, to seek damages from a negligent person at fault.

The difference between a tort and a 'crime is that a crime is a wrong against society which threatens the peace and safety of a community. It is more than just a civil wrong. 

If injury or damage is caused by wrongful action or defective merchandise, the victim may sue the defendant. In general, Canadian law of tort is considered fair as a lawsuit cannot be based upon bad luck, accidental or completely random circumstances. The accused party's conduct becomes the key factor when assessing a lawsuit, and is generally categorized as either intentional, negligent or accidental. 

To succeed in a tort action, the defendant's actions must be either intentional or negligent to result in direct liability. In order for the plaintiff to receive compensation, they must prove the following:

  • Defendant owed the plaintiff a duty of care which was breached
  • Plaintiff suffered loss or damage
  •  The breach was the significant cause of plaintiff's loss

If any of the above are absent, the lawsuit will fail[1]. For example, a negligent act that did not

result in damage or injury is not a viable claim under the tort law. Tort suits involving engineers usually fall under one of the following actions: Misrepresentation, Nuisance, Negligence, and Product Liability. The first is a false statement by an individual who is aware that the statement is incorrect. When this is done under an oath, it is known as perjury. Nuisance relates to the distrubance of a person resulting in a physically uncomfortable scenario. Negligence is the failure to exercise the care that a trained professional would be expected to under the given circumstances. Lastly, product liability refers to the action in which an injured party seeks to recover compensation for personal injury or loss from the manufacturer or seller of a particular product.

Vicarious Liability and Concurrent Tortfeasors[edit | edit source]

Often in Tort Law, if an employee of a company commits an act of tort while on duty, the company will be held responsible for the tort rather than the employee. This is what is known as vicarious liability. Since the purpose of Tort Law is to compensate victims, not punish those who commit the act, it can be reasonably argued that the company will most likely be in a better financial position to compensate the victim.

Although employers are often held liable for an act of tort, it is not uncommon that the employee is also held accountable, specifically when there is a complete lack of care on their part. This is an example of what is known as a concurrent tortfeasor. Concurrent tortfeasors involve more than one party committing an act (or multiple acts) of tort that ultimately lead to the injury of the victim. In the 1983 case of Brown & Hudson Ltd. v. The Corporation of the City of York et al., a consulting engineering firm left out an important soil report document in their submission to a contractor who was responsible for constructing an underground pumping station.[2] The contractor’s bid on the job was therefore inaccurate due to omission of this document. The judge ultimately ruled that the engineering firm was 75% accountable due to the omission and the contractors were 25% liable because they never asked for the document.[3] This is an example of a concurrent tortfeasor in which two parties were held accountable for a single act of tort committed. 

Bibliography[edit | edit source]

[1] Andrews, G. (2009). Professional engineering and geoscience. (4th ed., pp. 140-143). Toronto, ON: Nelson Education Ltd.[edit | edit source]

[2],[3]: Marston, D. L.. Law for Professional Engineers: Canadian and International Perspectives. 4th ed. Toronto: McGraw-Hill Ryerson, 2008.


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