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Negligence: The Four Elements Every Business Should Know
Faculty of LawTort Law
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A utilities contractor operating in Edmonton had been engaged to complete water main repair work along a commercial street, with the scope of work requiring excavation of a trench running parallel to the roadway and extending partially across the adjacent public sidewalk. The trench measured approximately 1.8 metres deep and 1.2 metres wide, positioned to access underground infrastructure while maintaining vehicular traffic flow on the street itself. The contractor's crew worked through the afternoon and, at approximately 4:30 PM, the site supervisor made the decision to cease operations for the day, with work scheduled to resume the following morning.

Before departing, workers placed 2 orange traffic cones at either end of the excavation and strung a single strand of yellow caution tape across the opening. No rigid barriers surrounded the trench, no warning signage had been posted to alert pedestrians, and no plywood or steel covering was placed over the excavation where it crossed the sidewalk. The site remained in this condition overnight, with the trench fully open and accessible to anyone walking along the pedestrian pathway.

The following morning, a 62-year-old retiree was walking along the sidewalk on a route she had used regularly for years, returning from an early medical appointment. The pedestrian's attention was momentarily drawn to her phone, which displayed directions to a nearby pharmacy, as she approached the construction zone. At approximately 8:45 AM, she stepped directly into the uncovered trench, falling the full depth of the excavation. During the fall, she struck her head against a protruding pipe fitting and landed awkwardly on her left leg and hip.

Emergency services transported the injured pedestrian to hospital, where medical examination revealed a fractured pelvis, a dislocated shoulder, multiple contusions, and a severe concussion. The injuries required surgical intervention followed by an extended course of physiotherapy projected to last approximately 8 months. The pedestrian incurred significant medical expenses, lost the ability to perform activities she had previously enjoyed, and experienced ongoing pain and mobility limitations.

The injured pedestrian now seeks compensation from the contractor, alleging that the failure to properly secure the excavation site constituted negligence. The contractor's liability insurer has retained counsel to defend the claim. Central to the dispute are questions about what obligations the contractor owed to pedestrians using the adjacent sidewalk, whether the precautions taken before leaving the site met the standard of care expected of a reasonable contractor in similar circumstances, whether the contractor's conduct actually caused the injuries sustained, what categories of loss are compensable, and whether the pedestrian's own conduct in using her phone while walking should reduce or eliminate any recovery.

Breach of the Standard of Care: What Reasonable Care Requires in Practice

The concept of breach lies at the heart of every negligence claim, serving as the critical bridge between what a person or business should have done and what they actually did in the circumstances. While the previous lesson explored how courts establish the standard of care—that measure of conduct expected of a reasonable person in similar circumstances—this lesson examines how that standard is applied to determine whether particular conduct falls short of what the law requires. For business owners, non-profit operators, and professionals across Canada, understanding breach is essential because it transforms abstract legal principles into concrete questions about daily operations, risk management, and decision-making.

In Canadian common law provinces, breach of the standard of care occurs when a defendant's conduct fails to meet the level of care that a reasonable person would have exercised in the same or similar circumstances. This determination is inherently fact-specific and contextual, meaning that what constitutes reasonable care in one situation may be inadequate in another. The reasonable person standard—sometimes still referred to in older texts as the reasonable man standard—does not demand perfection. It demands reasonableness, which is itself a flexible concept that accounts for the knowledge, circumstances, and resources available to the defendant at the time of the alleged negligent act or omission. Quebec's civil law framework, governed by the Civil Code of Quebec, approaches this analysis somewhat differently but arrives at similar practical conclusions. Under Article 1457 of the Civil Code of Quebec, as of the date of authorship, every person has a duty to abide by the rules of conduct incumbent on them according to the circumstances, usage, or law, so as not to cause injury to another. The analysis of whether conduct breaches this duty involves examining whether the person acted as a prudent and diligent administrator of their own affairs would have acted, a standard that parallels the common law reasonable person while drawing on civil law traditions.

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