ENGINEER ASSIGNMENT 1 Owaiz Merchant 400199784

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McMaster University *

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4A03

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Law

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Apr 3, 2024

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docx

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TO: Joseph Radocchia FROM: Owaiz Merchant DATE: October 31, 2022 RE: Assessing liability for the McMaster libraries structural collapse ISSUE Will McMaster University be entitled to damages from the architect, the engineer, and the engineering firm that designed the new McMaster University library, for negligence that led to its faulty construction and subsequent structural failure? Brief Answer A Hamilton court will likely hold that McMaster University is entitled to damages because all of the four elements of the test for negligence are met by the architect, the engineer, and the engineering firm responsible for the faulty construction and subsequent structural failure of its newly constructed library. The court will find that: (1) Kim Wexler, Saul Goodman and Fring Engineering Services owe McMaster University Duty of Care; (2) Kim Wexler and Saul Goodman breached the required standard of care expected of the reasonable person; (3) McMaster University suffered injury and harm from the structural failure of their newly constructed library; and (4) Kim Wexler and Saul Goodman’s omission caused McMaster University to suffer injury and harm.
Facts Saul Goodman is an architect hired by McMaster University for the construction of a new library. Mr. Goodman was instructed by Kim Wexler, an engineer working for Fring Engineering Services, that proper deep soils tests should be taken of the construction site prior to construction. Mr. Goodman disregarded Ms. Wexler’s professional advice and opted to withhold from taking deep soil tests. Ms. Wexler subsequently sent a “soils report” to McMaster University on the basis of the examination of shallow test pits. Ms. Wexler had knowledge that a deep soils test should be taken and yet withheld that information from McMaster University. Within a year of the new library being constructed it “settled” extensively to one side. Hamlin, Hamlin & McGill Engineering Consultants concluded that the design should never have proceeded without deep soils tests that would have provided a thorough and detailed subsurface investigation before the new library was constructed. 1) Duty of Care The court will likely find that a duty of care is owed to McMaster University by Mr. Goodman, Ms. Wexler, and Fring Engineering Services due to the nature of their relationship with regards to McMaster University. Mr. Goodman was hired by McMaster University to design a new library. Fring Engineering Services entered into a contract with Mr. Goodman to perform structural design services for the construction of the new library. Ms. Wexler was assigned to the project by Fring Engineering Services to help with the structural design services. Through vicarious liability, Fring Engineering Services is liable for the torts committed by its employees acting in the ordinary course of employment, in this case Ms. Wexler. Even if Fring Engineering Services were unaware of the negligence committed by its employees they would still be held liable as, “Vicarious liability is generally appropriate where there is a significant
connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires” Bazley v. Curry, [1999] 2 S.C.R. 534. Thus all 3 parties had a relationship with McMaster University that was close enough that one could reasonably foresee their actions involving the design of the new library as having potential to cause harm to the institution. 2) Standard of Care The court will likely find that the required standard of care was breached by Ms. Wexler and Mr. Goodman when their conduct is compared to that of a reasonable person. The standard of care expected of an engineer is that of a competent engineer, and the standard of care expected of an architect is that of a competent architect. Any reasonable engineer that knew deep soil tests were necessary to provide an accurate subsurface analysis would have recommended such tests be done to mitigate risk of structural collapse. Ms. Wexler, knowing that deep soil tests were needed, instead opted not to pass on the recommendation that it should be done. Furthermore, any reasonable architect, when professionally informed that deep soil tests were needed to get an accurate subsurface analysis, would act on that professional advice and recommend the tests to be done. Mr. Goodman ignored the professional advice of Ms. Wexler in order to cut costs to the construction. Thus, both parties breached the required standard of care required of the reasonable professional in their circumstances. The Ontario State of Appeals stated that, “a results-based approach to defining the standard of care is appropriate where negligence alone could prevent a goal from being achieved or a positive result from being attained” Armstrong v. Ward, 2021 SCC 1. The result in this scenario is the partial collapse of the new McMaster University library, and the act of negligence was the omission that deep soil tests were needed.
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