Tort_and_Contract - Contracts and Torts Presented by:...

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Unformatted text preview: Contracts and Torts Presented by: Jeremy T. Lovell January 29, 2007 Overview What is a tort? The legal system in Canada and B.C. Torts. Contracts. W hat is a Tort? A “civil wrong”, other than a breach of contract, committed by one individual against another. Redressed through an award of damages (moolah). Distinct from criminal law, where the state punishes the wrongdoer. Also a fancy cake. The Leg al System in Canad a and B. C. Inherited from Britain. Mix of statutes and common law. Statutes Acts passed by the legislature I.e., government made law Federal E.g., Copyright Act Provincial E.g., Engineers and Geoscientists Act Com m on Law “Judge-made” law Develops and derives through judicial decisions (precedent) Authority derived from usages and customs of immemorial antiquity Evolved into bodies of law, including tort and contract Interrelationship of Statue and Com m on Law Statutes and the common law affect one another. Judges interpret statutes. Statutes can modify common law. E.g., Limitation Act Common law Statute Torts W hat is a Tort? A “civil wrong”, other than a breach of contract, committed by one individual against another. Redressed through an award of damages. Distinct from criminal law, where the state punishes the wrongdoer. Typ es of Tort Intentional Battery Trespass Unintentional Nuisance Negligence Neg lig ence The area of tort law which has the most impact on professionals is the law of negligence. Neg lig ence The principles of negligence are adaptable to new activities. Neg lig ence There are three essential elements that a plaintiff must prove in order to establish negligence: the defendant owed the plaintiff a duty of care; the defendant breached that duty of care through action or inaction, which fell below the standard of care; the defendant’s breach caused the injury to the plaintiff. Duty of Care You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Duty of Care ‒ The Neig hb our Princip le The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply… 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. Stand ard of Care Objective Different for different classes of persons Professionals are held to the standard of persons of ordinary competence, practicing the profession at that time The Stand ard of Care for Desig n Professionals The applicable standard is outlined in B.M. McLachlin, W.J. Wallace and A.M. Grant, The Canadian Law of Architecture and Engineering (2nd Edition), at p. 101-102. The Stand ard of Care for Desig n Professionals Unless expressly stated in the contract for professional services, in all the work done for the client, the [design professional] owes a duty to exercise the skill, care and diligence which may reasonably be expected of a person of ordinary competence, measured by the professional standard of the time. The Stand ard of Care for Desig n Professionals Implicit in this test are several limitations. First, [design professionals] are not obliged to perform to the standards of the most competent and qualified members of the profession, unless they so covenant. Unless they undertake to exercise a higher standard of care, what is required of [design professionals] is reasonable skill, care and diligence as judged generally by standards of competence in the profession in which they practice. The Stand ard of Care for Desig n Professionals Second, the [design professional] is to be judged by the professional standards prevailing at the time the work was done, not by what may be known or accepted at a later date, or what may be seen only with the benefit of hindsight. The Stand ard of Care for Desig n Professionals Third, it is sufficient if a [design professional] follows the accepted body of professional opinion, even where there may be a substantial body of opinion to the contrary, provided the [design professional] applies the school of opinion he or she chooses to follow with reasonable competence. In other words, there is a distinction to be drawn between an error in judgment and negligent conduct. The Stand ard of Care for Desig n Professionals Finally, [design professionals] do not guarantee that their work will be successful. Provided that they have exercised reasonable judgment, competence and diligence in doing the work, the fact that the work proves unsatisfactory in some way will not render them liable to the client for breach of contract or negligence. The Stand ard of Care for Desig n Professionals Sources of professional standards for engineers B.C. Building Code Engineers and Geoscientists Act B.C. Electrical Code Compliance with codes is not necessarily sufficient to meet the standard of care. Failure to comply with codes will likely constitute a failure to meet the standard of care. Innovative Desig n What is the standard when an engineer uses innovative design or new materials? Engineer must have the informed consent of the client. Informed consent requires that the potential risks be identified and explained. (Do this in writing.) Duty to W arn If, at any time, an engineer becomes aware of an error in his or her design, or that of others, which error gives rise to an issue of public safety, he or she must warn others of the error. Owners Authorities having jurisdiction Users Duty to W arn Failure to warn may result in professional negligence. Failure to warn also contravenes the Code of Ethics. Contracts Elem ents of a Contract Two or more parties with legal capacity; Who intend to create a legal obligation by agreement; Who reach a consensus, usually by way of offer and acceptance; Who provide consideration; and Who contract for a lawful purpose. Leg al Cap acity Infants Intoxicated Persons Insane or Mentally Incompetent Companies Unincorporated Voluntary Associations and Organizations Intention to Create a Leg al Relationship Parties must intend to create legal relations Offer, Accep tance, and Consid eration Offer to do or not to do something (e.g., a bid) Offer must be accepted as proposed (otherwise it’s a counter offer) Consideration (usually moolah) must be exchanged W hat to Includ e in a Contract Date Who What For whom How much When Signatures Form of Contract Oral vs. written Must be written for: Land Guarantee Lease > 3 years Contract >1 year Oral agreements aren’t worth the paper they’re printed on. The Term Every contract is binding upon the parties until its terms are concluded, it is terminated, or it is amended. A contract is amended if the parties agree. Generally, termination must be in accordance with the contract’s terms or on reasonable notice. Ag ency Agent can negotiate a contract on principal’s behalf Owner CRP Engineer Privity of Contract OWNER CONTRACTOR SUBCONTRACTOR Interp retation of Contracts Precise Meaning Ambiguity and the parole evidence rule Contextual approach Implied terms Rem ed ies for Breach of Contract Damages Specific Performance Injunctions Your Ob lig ations W hen the Other Party Breaches the Contract You will likely not be relieved of your obligations in the event of another’s breach unless they are dependent on the other party’s performance or unless the breach is serious or fundamental to the whole intended benefit of the contract. Lim itation Period s The law on limitations is complicated. Basically, claims in negligence or contract must be made within: Two years, for personal injuries or damage to property; or Six years, for other claims. N.B. The clock begins to run only when the plaintiff should reasonably have become aware of the claim. Contracts and Torts Presented by: Jeremy T. Lovell January 29, 2007 ...
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This note was uploaded on 10/09/2009 for the course ENSC 1146 taught by Professor Michaelsjoerdsma during the Spring '07 term at Simon Fraser.

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