Tort Case

Case 2

Mammoth Undertaking Ltd. ("Mammoth"), a development company, retained an architectural firm to design a twenty-storey office building. The architect also agreed with Mammoth that the architect would provide or arrange for inspection services during the course of the construction of the project in order to ensure that construction was carried out in accordance with the project plans and specifications.

The architect prepared a conceptual design and retained a structural engineering firm to prepare the detailed structural design for the project and also to carry out the inspection services to ensure that all structural aspects of the construction of the project were carried out in accordance with the project plans and specifications.

The engineering firm prepared the structural design and eventually Mammoth awarded the contract for the construction of the project to a general contractor, Swift Construction Ltd. ("Swift").

The engineering firm appointed one of its employee engineers, Jim Neophyte, a recent engineering graduate, as the engineering firm's representative and inspector on the construction site.

Construction commenced during the month of October and soon thereafter Swift recommended to Mammoth that a substantial cost savings could be achieved if the specified fill material around the foundation was changed to a more readily available material. Mammoth sought the architect's advice on the suitability of the proposed alternative fill material and indicated to the architect that it was most important that a decision be made as soon as possible in order to complete as much of the foundation and back-filling as possible prior to frost conditions setting in.

The architect, in turn, referred the matter to the structural engineering firm through its representative Jim Neophyte, requesting that the structural engineering firm approve the proposed changes as quickly as possible in the circumstances. Jim Neophyte determined that the original fill material had been specified by an engineer who no longer worked for the structural engineering firm and that the specification had been made on the basis of a careful investigation of soil conditions at the site. Jim Neophyte contacted on of the structural engineering firm's vice-presidents as was authorized to advise the architect as to the suitability of the alternative fill material after conducting an appropriate investigation.

Under significant pressure from both Mammoth and Swift to approve the proposed fill material without delaying the construction schedule, Jim Neophyte approved the change of materials without giving due consideration to the possible repercussions.

The substitute material did not drain as well as the material originally specified; in fact, it retained some water and, as it expanded during freeze up, it caused significant cracking in the foundation walls, necessitating remedial work resulting in substantial additional expense being incurred by Mammoth. In addition, the completion of the project was considerably delayed as a result.

Explain the potential liabilities in tort law arising from the preceding set of facts. In your explanation, discuss and apply the principles of tort law and indicate a likely outcome of the matter.

To demonstrate liability in tort, one must demonstrate that

• the defendant owed the plaintiff a duty of care,
• the defendant breached that duty by his or her conduct, and
• the defendant's conduct caused the injury to the plaintiff.

The purpose of tort law is to compensate the injured party for the damages and not to punish the tortfeasor.

Reference: Marston, p.39.

The professional engineer is expected to apply reasonable care and prudence in the practice of professional engineering and thereby owes a duty of care to the development company even if no contractual relationship exists between the two.

The professional engineer Jim Neophyte negligently approved the alternative fill material. The general contractor Swift was negligent in proposing an alternative fill material on the basis of availability and not suitability.

The structural engineering firm is vicariously liable for the actions of its employees and therefore the firm must take responsibility for the negligence of its employee.

The injuries sustained by Mammoth include the costs of the remedial work as well as the delay of the project. In considering the costs due to delays in the project, however, it would be necessary to determine if any liquidated damages were specified in any of the contracts.