Claims in Tort Flashcards
Concurrent liability
• Often concurrent liability in torts and contract
Duty of care in torts
informed by contractual obligations
Tort claims cannot
be used to escape an applicable contractual exclusion or limitation clause
Tercon
when there was an exclusion clause cannot use tort to defeat a properly constituted contract, to do otherwise would defeat freedom of contract full stop
4 kinds of tort in construction
1) Negligence
2) Nuisance
3) Trespass
4) Non-Natural use
Elements needed to be proven for negligence
- Duty of Care?
- Has there been a breach of that duty by the defendant?
- Were the damages caused by that breach foreseeable?
Duty of Care (Negligence)
Anns Test:
1) Is there a sufficiently proximate relationship between parties that would cause reasonable contemplation that carelessness on his part would likely cause damage to the other (prima facie duty of care)
2) If yes, are there any policy considerations that would negate duty of care?
Ex of policy considerations that would negate duty of care
Design services: negated duty of care- indeterminate liability
Has there been a breach of that duty by the defendant? (Negligence)
- Have they performed their standard of care?
- Standard of care depends on the circumstances and the parties involved
Pure economic loss historically
Historically courts have said it is not recoverable at all (Design Services and Martel)
5 categories that have now been recognized where pure economic loss is recoverable
1) Independent liability of statutory public authorities
2) Negligent misrepresentation
3) Negligent performance of a service
4) Negligent supply of shoddy goods or structures
5) Contractual Relational Economic loss
Independent liability of statutory public authorities (PEL)
Main application is municipal building inspection
Negligent misrepresentation (PEL)
Main application is representations made by architects/ engineers relied on by owner/contractor
Negligent performance of a service (PEL)
Reasonably foreseeable that a third party may suffer damage as a result of negligent performance of that service
Contractual Relational Economic loss (PEL)
- If A damages property of B out of negligence but there is a loss suffered by C
- Ex: if a party damages a tunnel they have damaged the railway operators property but the guy who ships his goods using the railway suffered an economic loss (did not damage his physical property but impeded his business)
Pure Economic Loss
financial loss which does not result from a physical injury to the plaintiff’s own person or property
Presumption for PEL
Presumption against recover, the 5 discussed are the exceptions to the presumption
Winnipeg Condo
- Owners, contractors and subcontractors owe a duty of care to subsequent purchasers where the defect will lead to a substantial danger to health and safety
- duty to repair defects and put building back into non-dangerous state
Nuisance
an unreasonable interference with occupiers use and enjoyment of land
What needs to be asked in nuisance cases?
whether the occupiers conduct is reasonable considering the fact that they have neighbors?
Examples of claims for nuisance in construction
- Work on a property causing large quantities of dust to settle on neighboring properties
- Removal of soil from property causing structure to collapse
- Blasting that damages neighboring properties
- Diverting water and flooding their basement
Trespass to land
entering upon the land of another without lawful justification, or placing, throwing or erecting some material object thereon without the legal right to do so
Distinguish trespass from nuisance
- Unlike nuisance it requires direct encroachment onto the land instead of consequential interference
- Nuisance is where occupiers use land in a way that indirectly affects adjacent land
To be direct (trespass)
- Doesn’t have to be intentional
- Can be negligent and satisfy directness
