Tutorial 6: Responsibility

The case study you will discuss here is related to the lecture on responsibility. In the lecture, we discussed that you should carefully evaluate the basis of liability in Qubec law on three points - i) act of omission; ii) a consequence; and iii) a cause-effect relation.

Case Study: The Pulverizer

Super Mulcher Corporation manufactures the Model 1 Pulverizer, a 10-hp chipper/shredder that grinds yard waste into small particles which can be composted and blended into the soil. The device is particularly popular with homeowners, who are interested in reducing the amount of garden waste deposited in landfills. The chipper/shredder has a powerful engine and a rapidly rotating blade that can easily injure operators if they are not careful. During the five years the Model 1 Pulverizer has been sold, there have been 300 reported accidents with operators. The most common accident occurs when the discharge chute gets plugged with shredded yard waste, prompting the operator to reach into the chute to unplug it. When operators reach in too far, the rotating blades can cut off or badly injure their fingers. Pierre who lives in Montral has bought a Model 1 Pulverizer for processing his garden waste. One day, the machine plugs and Pierre's son puts his hand inside the machine to unplug it. He removes a branch, but when he pulls it out, the blade starts to spin and it cuts his finger. Pierre wants to takes Super Mulcher Corporation to a Qubec court to get compensation. He approaches you because he knows as a professional engineer like you can assist him in getting a compensation claim.

1. Do you think there is act of omission in the Model 1 Pulverizer? Why?

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2. Is there a cause-effect relation in what happened to Pierre's son that indicates responsibility by Super Mulcher Corporation?

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Charlie Burns, President of Super Mulcher, calls a meeting of the engineers and legal staff to discuss ways to reduce legal liability associated with the sale of the Model 1 Pulverizer. The legal staff suggests several ways of reducing legal liability:

• Put bright yellow warning signs on the Model 1 Pulverizer that say, "Danger! Rapidly rotating blades. Keep hands out when machine is running!"
• Include the following warning in the owner's manual: "Operators must keep hands away from the rotating blades when machine is in operation."
• State in the owner's manual that safe operation of the Model 1 Pulverizer requires a debris collection bag placed over the discharge chute. State that operators are not to remove the debris collection bag while the Model 1 Pulverizing is running. If the discharge chute plugs, the owner is instructed to turn off the Model 1 Pulverizer, remove the debris collection bag, replace the debris collection bag, and restart the engine.

From operating the Model 1 Pulverizer, Fred, the design engineer, knows the discharge chute has a tendency to plug. Because the machine is hard to restart, there is a great temptation to run the unit without the debris collection bag and to unplug the discharge chute while the unit is still running. In each of the following scenarios, discuss the various ways Fred attempts to resolve the problem.

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Scenario 1: Fred says nothing to his colleagues about the impracticality of requiring the machine to be run with the debris collection bag. He accepts the legal staff's advice and adds the warning signs to owner's manual instructions. No changes are made in the design of the Model 1 Pulverizer.

1.What is the nature of product liability that Fred is trying to correct? Would this reduce their product liability in Qubec?

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Scenario 2: Fred suggests to his engineering colleagues that the Model 1 Pulverizer should be re-designed, so it does not plug. His colleagues reply that the company probably cannot afford the expense of re-engineering the Model 1, and they conclude that the legal staff's recommendations should be sufficient. Being dissatisfied, Fred re-designed the Model 1 Pulverizer in his spare time, and solves the plugging problem in an affordable way.

2. What is the nature of product liability that Fred is trying to correct? Would this reduce their liability in Qubec?

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I added the notes on responsibility and liability :

LESSON 10: RESPONSIBILITY AND LIABILITY

RESPONSIBILITY AND THE EVOLUTION OF LIABILITY

Responsibility

Responsibility: Responding or answering for an action performed

oAll actions we take have consequences either for ourselves or for other people. (Not all can be foreseen).

For a person to be held morally responsible for an action:

oVerify agency of the action (who did the action)

oKnow the degree of the action (nature of circumstances that guided the action)

For some situations, the responsibility for the action might be less because of the nature of the circumstance.

Role: Position that an individual holds (Ex. Student, professor...) - Individuals often fill multiple roles in society

If a person fills a role in society, then society has expectations about how that person should act in that role

oHeld responsible for not meeting the expectations of the role.

Evolution of Liability

Liability: The responsibility that is backed by the power of the law.

oYou do not meet the expected responsibility in your professional work, you could be held liable or legally responsible by the consumer or client for your actions.

Extra-contractual: Responsibility that is owed by tort or regulatory damages.

Contractual: Responsibility that is owed within the bounds of an explicit contract.

Caveat Emptor: Legal Doctrine? - Let the buyer beware (old mentality)

Caveat Venditor: Legal doctrine? - Let the seller beware (old mentality)

Procedures, manufacturers and designers are now held legally responsible for the products they introduce to society.

oProducers is expected to compensate for damages done

Strict liability: Legal responsibility assigned in the public interest, even in the absence of negligence on the part of the manufacturer.

LIABILITY IN QUEBEC

Liability

Civil liability: The responsibility of the guilty party to pay compensation of the plaintiff for damages or harms caused.

oNo punishment in terms of fines or imprisonment possible in Quebec

oIn Quebec, it is enforced through the Quebec Civil Code.

Under Quebec's liability legislation, compensation in damages is awarded only if three things are established by the plaintiff

oPlaintiff needs to show that there was an act of omission in the design or construction of the product

oPlaintiff has to demonstrate that a consequence or damage took place

oDemonstrate that a cause-effect exists between the act of omission and the consequence or damage.

Liability Insurance

Purchased to address business liability risks that not covered by general liability insurance.

oReferred to as "errors and omissions" insurance or "malpractice" insurance

In professional practice, liability insurance policy pays other parties for damages for which the policy holder is legally liable as a result of negligent acts, errors or omissions in the performance of their professional service.

oWhile insurance pays the compensation to be paid to the plaintiff, it reduces the seriousness that such tort claims can have on actions of the professional.

oInsurance is useful because it protects individuals from serious financial disruptions and provides clients with financial security for the professional services they have received.

In Quebec, the professional code requires every order to determine the categories of its members that should secure liability insurance coverage.

OIQ adopted a regulation requiring professional liability insurance for all members

oTherefore, all members shall join the group plan insurance contract to address professional liability.

CONTRACTS + TORTS

Contracts

Contracts (agreements): an affordable, legally binding, voluntary agreement between two or more parties

oIf one party does not meet their obligations, the other party can approach the courts to redress the situation

To determine if the contract is legal or not:

oEnsure mutual voluntary agreement to enter into the contract

oEvidence that an offer was made/accepted, entering them into the contract

oContract should have a motive

oIf the contract is made on an illegal matter, then it is unenforceable in a court because it is considered illegal

oThe parties entering the contract have to be legal people.

Express terms: Words, phrases or conditions that have been discussed and agreed to by the parties.

Implied terms: Terms that have never been discussed or agreed to between the parties but which are taken for granted.

Purpose of a contract is to set out the rights, responsibilities and liabilities of the parties involved

oAllocate risk and obligations between the parties

Even if the contract had been created for their benefit, parties not privy (a party to the contract) may not enforce the contract

Enforceability: Likelihood that a court would uphold a contract or a portion of it in the event of a dispute.

oSome agreements are unenforceable due to a flaw in the contract or in its formation

oSome become unenforceable due to events that occur subsequent to the creation of the contract.

Contract Formation, Offer, and Acceptance

Offer: Proposal by an offeror to an offeree, containing the essential terms of a proposed contract.

Acceptance: Unequivocal agreement to an offer.

Invitation to treat: Request for offers.

oOnce in a bidding process, an invitation for bids may be considered an offer.

Many contracts are formed through negotiations, where offers and counter-offers are sent back and forth until one is accepted.

Rejection: Expression of implied refusal to accept an offer

Supreme Court of Canada established that once a contract exists, both parties have an implied good faith obligation in the performance of the contract.

oParties also have an obligation of good faith during precontractual negotiations if they explicitly agree to negotiate in good faith or if there is a statutory requirement to do so

oEither party can walk away from negotiations with impunity if they have not formed a contract since there is no implied obligation of good faith in precontractual negotiations.

Party can revoke an offer at any time before it has been accepted.

oThe offeror is entitled to specify the mode of acceptance.

Procurement: The purchase of goods and/or services

Bid/tender: Offer made in compliance with a fixed set of contract terms in a competitive process

Contract and Employment

Regular Employees: An individual who works for an employer and is entitled to wages under an employment contract that controls the details or work performance

Contract Employees: An individual who has an employment contract for a fixed term.

Independent Contractors: An individual who has a contract for services with the client or customer to undertake a specific project but who is left free to do the assigned work.

Definitions

Consideration: Old legal concept meaning that something of value, however small, has been given or promised by each party to the contract.

Duty of care: An element of negligence based upon reasonable foreseeability.

Torts

Tort: Breach of duty to care for another party where the breach causes injury or loss to that party, independent of whether the two parties involved have a contract for which the law provides a remedy.

Intentional Torts: Fraud, trespass, defamation

Unintentional Torts: Negligence, negligent misrepresentation

In order to succeed in a negligence claim, the plaintiff must prove:

oThe defendant owed the plaintiff a duty of care

oThe defendant breached that duty

oThe plaintiff suffered loss or damaged

oThe breach was the proximate cause of the plaintiff's loss.