4.2 Tort, Business Structures, Employment & IP

Tort Law and Negligence

A tort is a civil wrong, independent of contract, for which the law provides a remedy in damages. The most important tort for engineers and geoscientists is negligence — careless conduct that injures another person or their property. Unlike contract liability, tort liability can be owed to people you never contracted with, such as members of the public affected by your design.

This is a heavily tested NPPE topic because professional liability claims usually allege negligence.

The Four Elements of Negligence

To win a negligence claim, a plaintiff must prove all four of the following. Missing any one defeats the claim.

A useful memory hook: Duty → Breach → Causation → Damages. The NPPE frequently gives a scenario and asks which element is missing or which the plaintiff must still prove.

Professional Negligence and the Standard of Care

For ordinary people the standard is that of the reasonable person. For professionals, the law raises the bar: an engineer or geoscientist must meet the standard of care of a reasonably competent member of that profession acting in the same circumstances.

Key points:

• The standard is not perfection — a professional is not negligent merely because something failed, only if they fell below accepted practice.
• Following accepted professional practice and codes is strong (though not absolute) evidence the standard was met.
• A professional who offers a higher level of skill (a specialist) may be held to that higher standard.

Professionals can be liable in both contract and tort to a client at the same time, which is why professional liability insurance (errors and omissions) is so important.

Vicarious Liability

Vicarious liability holds one party responsible for the torts of another because of their relationship. Most commonly, an employer is liable for torts its employees commit in the course of their employment, even if the employer was not personally at fault.

The rationale is that the employer directs the work and benefits from it, so it should bear the related risk. Note that vicarious liability usually does not extend to the acts of truly independent contractors, and the negligent employee remains personally liable too — the plaintiff can pursue either or both.

Business Structures and Liability

How a professional organizes a practice determines who is personally on the hook for debts and claims. This is a favourite NPPE comparison.

The corporation's limited liability is its defining advantage. However, a professional cannot use a corporation to escape personal liability for their own professional negligence — the individual engineer or geoscientist who seals the work remains professionally responsible.

Employment Law Basics

Professionals are usually either employees or employers, so the NPPE expects familiarity with core employment concepts:

• Employee vs independent contractor — courts look at control, ownership of tools, chance of profit/risk of loss, and integration into the business. The label the parties use is not decisive.
• Termination — an employer may dismiss for just cause (serious misconduct) without notice, or without cause by giving reasonable notice or pay in lieu (set by contract, statute, and common law).
• Wrongful dismissal — terminating without adequate notice or cause can give rise to damages.
• Statutory floors — employment-standards legislation sets minimums for hours, overtime, vacation, and notice that a contract cannot undercut.

Professionals also carry statutory duties in employment that override an employer's instructions — for example, the duty to protect public safety under occupational health and safety law.

Intellectual Property

Intellectual property (IP) protects creations of the mind. Four forms appear regularly on the NPPE; know what each protects and how long it lasts.

A trade secret is a fifth category: confidential business information (a formula, process, or client list) protected as long as it is kept secret, through confidentiality rather than registration. Engineers and geoscientists generate copyrightable reports and drawings and sometimes patentable inventions, so knowing who owns the IP — often the employer, when created in the course of employment — is a practical concern.