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5.7.23 Dominion Chain Co. Ltd. v. Eastern Construction Co. Ltd. et. al.

Location: Ontario Court:

Year: 1974, 1976

Importance: makes an engineer liable for negligence without a limit, also an example of joint and several liability

Details:

•Dominion Chain entered into contracts with an engineer and a contractor to construct a factory.

•Years after construction the improperly constructed roof began leaking.

•The owner sued, but the judge found the contractor was exempted by a clause in the contractors contract.

•The judges ruling included statements that,

-an engineer is “responsible if he does or omits to do his professional undertakings with an ordinary and reasonable degree of care and skill,” (Marston, pg.29)

-an engineer “ought not to undertake the work if it cannot succeed, and he should know whether it will or not.” (Marston, pg.29)

-liability is “not limited to the amount of remuneration which under the agreement the architect or engineer was to receive, but are measured by the actual loss occasioned...” (Marston, pg.30)

•In the ruling the judge ruled that the fault for the damages were 25% the engineer and 75% the contractor (not liable). But, because the engineer was the only one left in the suit that he would be responsible for 100% of the damages.

•A court of appeal released the contractor because they were not joint tort-feasors. But, the court of appeal did state they could be liable in tort and contract.

•The supreme court also relieved the contractor of responsibility, based on contractual obligations alone.

5.7.24 Donoghue v. Stevenson

Location: England Court:

Year: 1932

Importance: makes a manufacturer responsible to the eventual consumer of the product Details:

•a bottle of ginger beer containing a decomposed snail was consumed, leading to an illness. This bottle of ginger beer was not purchased by the consumer, but was given to him by a friend. He Sued.

•The court rules that even though there was not privity of contract between the plaintiff and the defendant, a duty of care was owed to the plaintiff.

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Court: Year: 1972

Importance: the distinct nature of a corporation disappears when being used fraudulently Details:

•the defendant, a director, officer and accountant of the corporation had made an authorized transfer of funds.

•these funds were used as a loan by the corporation as a loan to two other companies controlled by the director.

•some of the loaned money was used to buy shares in the corporation. (The court ruled this inappropriate).

•The court rules that the 2 other corporations had been used as instruments of the director, that the director had breached his trust, and that the companies could not shield his personal conduct.

5.7.29 Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd.

Location: Ontario

Court:

Year: 1983

Importance: an example of an implied term

Details:

•a construction contract included the supply and installation of two staircases, but neglected to include a requirement that they meet the Building Code.

•A representative of the company visited the site, but turned down an offer to review architectural plans, which specified a minimum clearance.

•Based on measurements, a variety of staircases were suggested by the representative.

•The final staircase did not meet the minimum clearance in the building code, and was ordered replaced.

•The resulting lawsuit found that if the Building Code was not mentioned in the contract and the staircase was improperly designed thus being illegal, it would make the contract for an illegal action, therefore by implication the staircase would have to conform to the building code.

5.7.30 General Electric Company, Limited v. Fada Radio, Limited

Location: ? Court: Year: 1929

Importance: indicates patents must be novel and have use Details:

• Basically stated that there must be some creative content, no matter how small. This includes alterations. They also focus on the concept of an improvement.

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5.7.31 GeorgeHo Lem v. Barotto Sports Ltd. and Ponsness-Warren Inc.

Location: Alberta Court:

Year: 1976

Importance: a manufacturer can be held liable if the consumer is not adequately warned about dangerous uses of a product

Details:

•Lem bought a machine for reloading used shotgun shells. The machine had clear instructions on how to load the shells. He also received personal instructions on the machine.

•When using the machine Lem did not follow instructions, and as a result produced some dangerous shells.

•One of the shells caused Lem’s gun to burst, causing personal injury, and as a result he brought a lawsuit against the manufacturer and distributor.

•The court found that a high standard of care to prevent misuse was present, and found Lem fully responsible for his own injuries.

5.7.32 Grant Smith & Co. v. The King

Location: ?

Court:

Year: ?

Importance: fraudulent engineers certificates are set aside

Details:

•An engineer presented a certificate that had been prepared in collusion with a drilling contractor.

•In a lawsuit the certificates were ruled invalid because of the fraud.

5.7.33 Hadley v. Baxendale

Location: England

Court:

Year: 1854

Importance: established principle of remedies for damages

Details:

•A part in a mill was broken, and needed to be repaired.

•It was given to couriers for transport to the manufacturer.

•Not knowing of the urgency of the delivery the couriers delayed.

•The resulting delay meant that the mill was inoperative for a prolonged period and business was lost. As a result the courier was sued.