Claims in Tort

Question 1

Concurrent liability

Answer 1

• Often concurrent liability in torts and contract

Question 2

Duty of care in torts

Answer 2

informed by contractual obligations

Question 3

Tort claims cannot

Answer 3

be used to escape an applicable contractual exclusion or limitation clause

Question 4

Tercon

Answer 4

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

Question 5

4 kinds of tort in construction

Answer 5

1) Negligence
2) Nuisance
3) Trespass
4) Non-Natural use

Question 6

Elements needed to be proven for negligence

Answer 6

1. Duty of Care?
2. Has there been a breach of that duty by the defendant?
3. Were the damages caused by that breach foreseeable?

Question 7

Duty of Care (Negligence)

Answer 7

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?


Question 8

Ex of policy considerations that would negate duty of care

Answer 8

Design services: negated duty of care- indeterminate liability

Question 9

Has there been a breach of that duty by the defendant? (Negligence)

Answer 9

• Have they performed their standard of care?

- Standard of care depends on the circumstances and the parties involved

Question 10

Pure economic loss historically

Answer 10

Historically courts have said it is not recoverable at all (Design Services and Martel)

Question 11

5 categories that have now been recognized where pure economic loss is recoverable

Answer 11

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

Question 12

Independent liability of statutory public authorities (PEL)

Answer 12

Main application is municipal building inspection

Question 13

Negligent misrepresentation (PEL)

Answer 13

Main application is representations made by architects/ engineers relied on by owner/contractor

Question 14

Negligent performance of a service (PEL)

Answer 14

Reasonably foreseeable that a third party may suffer damage as a result of negligent performance of that service

Question 15

Contractual Relational Economic loss (PEL)

Answer 15

• 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)

Question 16

Pure Economic Loss

Answer 16

financial loss which does not result from a physical injury to the plaintiff’s own person or property

Question 17

Presumption for PEL

Answer 17

Presumption against recover, the 5 discussed are the exceptions to the presumption

Question 18

Winnipeg Condo

Answer 18

• 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

Question 19

Nuisance

Answer 19

an unreasonable interference with occupiers use and enjoyment of land

Question 20

What needs to be asked in nuisance cases?

Answer 20

whether the occupiers conduct is reasonable considering the fact that they have neighbors?

Question 21

Examples of claims for nuisance in construction

Answer 21

• 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

Question 22

Trespass to land

Answer 22

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

Question 23

Distinguish trespass from nuisance

Answer 23

• 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

Question 24

To be direct (trespass)

Answer 24

• Doesn’t have to be intentional

- Can be negligent and satisfy directness

Question 25

No trespass where…

Answer 25

there is consent to the encroachment

Question 26

Trespass is…

Answer 26

Legally actionable without having to prove damages

Question 27

Non-natural use

Answer 27

Rule comes from Rylands v Fletcher

Question 28

Rylands v Fletcher rule

Answer 28

Person has something on their land that is likely to do mischief if it escapes is prima facie answerable the damage if it escapes

Question 29

Non-natural use is a…

Answer 29

Strict liability offence (don’t need to prove negligence)

Question 30

Non-Natural use meaning

Answer 30

special use that will bring increased danger to others

Question 31

What does plaintiff need to show for non-natural use claims

Answer 31

Plaintiff doesn’t need to demonstrate that the escaping substance is dangerous per se but that in escaping it has caused damage that results from non-natural use of that property

Question 32

Rylands situations distinguished from trespass

Answer 32

interference is consequential instead of direct

Question 33

Rylands situations distinguished from nuisance

Answer 33

• Difficult (both involve the use of one’s land with negative consequences for adjacent land)
• Rylands v Fletcher requires non-natural use of land
• Rylands v. Fletcher liability may be extended to persons who have no interest in the land they were on when they were damaged