Negligence

How BC law treats it

The elements are set out by the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd, 2008 SCC 27: the defendant owed the claimant a duty of care, the defendant's conduct breached the standard of care, the claimant suffered damage, and the damage was caused, in fact and in law, by the breach, meaning it was not too remote. The standard of care is that of a reasonable person, or for professionals a reasonably competent member of the profession, in the circumstances. Claims for pure economic loss, such as financial loss without physical injury or property damage, are more limited. For negligent misrepresentation and negligent performance of a service, the duty depends on whether the defendant undertook to the claimant to act for a particular purpose and the claimant reasonably relied on it (Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63). Under the Negligence Act, RSBC 1996, c 333, where more than one person is at fault, including the claimant, liability is apportioned according to the degree to which each was at fault. Two major statutory schemes displace ordinary negligence claims. The Workers Compensation Act, s. 127 bars most worker lawsuits against employers and other workers for workplace injuries. For motor vehicle accidents on or after May 1, 2021, the Insurance (Vehicle) Act, RSBC 1996, c 231 largely bars claims against at fault drivers. Negligence claims must generally be started within two years of discovery under the Limitation Act, SBC 2012, c 13.

What it means for your business

Negligence is the most common basis for claims against BC businesses, from customer injuries on premises to professional errors, defective work and careless advice. It is also a tool for businesses that suffer losses from careless contractors, consultants or advisors. Insurance, clear contracts that limit liability, safe systems of work and good documentation reduce exposure, and understanding the Negligence Act helps parties assess how fault will be shared. Example: A Burnaby engineering firm negligently specifies the wrong load rating for a mezzanine, which later fails and damages a client's stock. The client sues in negligence and contract, and the court reduces its award by 20 percent because the client overloaded the structure.

Risks and common mistakes

Assuming any careless act supports a claim without proving a duty of care and damage caused by the breach. Overlooking the claimant's own contributory fault, which reduces recovery under the Negligence Act. Suing for pure economic loss without evidence of an undertaking and reasonable reliance. Missing the two year limitation period while waiting for the full extent of the loss to emerge. Bringing a negligence action for a workplace injury that is barred by Workers Compensation Act s. 127.