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5. NEGLIGENCE & LIABILITY

•The basic concept of a tort is that the negligence of one or more individuals has lead to loss or damages of another. The court seeks to compensate those who suffer as a result. This is independent of any contracts that might exist.

•A tort-feasor is a defendant that has been found liable for losses.

•Comparitive negligence - parties will both be found partially liable (hence lawyers sue everybody they can find) and be assigned a percentage of responsibility.

•Jointly and severally liable - when negligence has been proven to cause damage it is often the result of more than one action, each party found negligent will be assigned responsibility and will be respectively responsible for a percentage of the compensation. If one of the parties is unable to pay a share, the other parties will be expected to cover the shortfall.

•The essential elements of a successful tort suit are,

-a duty of care - “how would your neighbor expect you to act?”

-breach of expectations

-resulting damage

•A standard of care - “what would a reasonable person do?” - reasonable is an important concept in tort suits.

•Typical torts arise from,

-negligence

-negligent misconduct

-assault

-battery

-nuisance

-interference

•“cause of action” - somebody who can demonstrate a loss or damage. Somebody too remote will not be successful

•Damages can be,

-pecuniary - special damages that can be demonstrated as having a certain value

-non-pecuniary - general damages that are hard to quantify

•Thin Skull - this principle suggests that if you are vulnerable, such as a weak heart, or thin skull, this cannot be used as a defense against liability.

•Assumption of risk - in some cases some risks are inherent and obvious, and thus are consented to by any party willingly participating or entering. For example, somebody swimming in the ocean would assume some risk of being caught in currents.

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•Volenti - assumption of risk

•An engineer is liable for services, and may be responsible for more than his fee.

•When a consumer buys a product there is a contractual obligation but if the product is used by another (not the buyer) the manufacturer owes the ultimate consumer a duty of care.

•Professionals can be liable for incorrect advice, designs or reports. Also important is that a fee does not have to be paid for a professional to be liable.

•Strict liability occurs when the plaintiff proves that there was a defect that existed when the product was sold and it lead to injury.

•In some cases strict liability may make an employer/manufacturer/etc. liable regardless of negligence.

•Vicarious liability - an employer is liable for the actions of employees.

•Employees can also be held liable in tort suits.

•More than one party can be found to be negligent and are thus called “concurrent tort-feasor”.

•Product liability is determined by the courts,

-if damage results when the product is used normally, and the manufacturer could have reasonably foreseen the results.

-there are some statutes that provide certain conditions and warranties for sold goods.

-this area is a mixture of both tort and contract law.

•Typical questions the court will consider are,

-What is the use or purpose of the product?

-What alternatives are available for the production?

-How likely and how severe is an injury?

-How obvious is the hazard?

-Is the danger of the product common knowledge?

-How avoidable was the injury if used normally?

-Could the hazard have been eliminated without eliminating functionality?

-What was the state of the art?

-How much would it cost to make the product safer?

-Would consumers buy a safer product?

•Manufacturers are obliged to warn consumers when there are potentially dangerous uses of a product. This duty to warn is stricter than normal.

•In tort cases, economic losses (e.g. lost business) can be counted as damages. But, these tend to be limited economically and in delay.

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•The categories of economic loss may change in the future.

•There are time limitations between when a cause of action occurs and when the suit can be started. If a suit is started after the limitation period it is called “statute barred”. This can be changed by a clause in a contract.

•The tort of defamation involves an untrue statement that damages a reputation. If it is written it is called libel, or if it is verbal it is called slander.

•Occupiers’ Liability - anybody occupying property is responsible for anybody coming onto the property. Guests and trespassers should be protected against dangers the occupier is aware of. Business guests generally receive a higher duty of care and the occupier is expected to safeguard them against dangers that should be reasonably recognized.

•The Tort of Nuisance - an occupant should be able to enjoy their land without interference. In some cases this will result in a lawsuit.

5.1 REFERENCES

Ullman, D.G., The Mechanical Design Process, McGraw-Hill, 1997.

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5.2 LAW IN GENERAL

•The general rules of law in Canada are a combination of,

-common law

-statute law

-negligence

•The court structure is given below,

•The Adversary System - a system of opposing legal parties.

•Lower courts are compelled to follow rulings made in higher courts.

•Statues are made by provincial and federal legislatures and override common law.

•criminal law is in the federal jurisdiction, and is not within the provincial jurisdiction - ultra vires

•The theory of precedent - a basis for legal decisions. When a decision has been made in a similar case before, that decision should be used again. In apparently similar cases there might be distinctions that cause a court to not follow precedents. Occasionally precedents are used from other provinces, england, or occasionally the USA.

•Common Law - “judge made law” - previous court decisions are used as legal principles.

•Legislation - legislation can override the common law.

-this is law passed in an elected legislature

-can be a new law or a former common law