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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.

Duty of Care: When the Law Recognizes a Legal Obligation

The concept of duty of care stands as the foundational threshold that must be crossed before any negligence claim can proceed in Canadian law. Before a court will consider whether someone acted carelessly, before it will examine whether harm occurred, and before it will calculate damages, it must first answer a preliminary question: did the defendant owe the plaintiff a legal obligation to take reasonable care in the first place? This question is not merely procedural. It represents a fundamental choice that Canadian law makes about which relationships and circumstances give rise to legal responsibility, and which do not. For business owners, non-profit operators, and professionals across Canada, understanding duty of care is essential because it defines the boundaries of their legal exposure. Not every mishap that occurs in connection with a business creates legal liability. Not every person affected by a business decision can successfully sue for negligence. The duty of care requirement acts as a gatekeeper, separating those situations where the law recognizes an obligation to take care from those where no such obligation exists.

The duty of care concept has deep roots in common law, which governs tort liability in all Canadian provinces except Quebec. Under the common law system applied in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, duty of care has evolved through judicial decisions over more than a century. The fundamental principle underlying duty of care is that individuals and organizations should be legally responsible for harms they cause only when it is reasonable to expect them to have had the plaintiff's interests in mind when acting. This reflects a balance between protecting people from harm and allowing businesses and individuals to operate without being paralyzed by the fear of unlimited liability to anyone who might conceivably be affected by their actions. Without the duty of care requirement, a business could theoretically be liable to anyone in the world who claimed to have been harmed by its operations, no matter how remote or unforeseeable that harm might be.

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