Are Movers Legally Liable For Damage?
A Mover May Be Legally Liable For Damage to Homes or Buildings That Occurs During the Moving Process As Well As Damage Caused By Packing Failures or Accidents During Transportation. Special Valuation Limits May Apply When Property Is Damaged By a Mover.
Understanding When a Moving Company May Be Liable For Causing Damage or Loss
The move from one home to another home, whether moving up or down in the realty market, can be very stressful. During this time, homeowners will rely on suppliers those from various sectors for help in making the process smoother, easier, and less stressful. Of these suppliers, one of the most critically relied upon on moving day will be the moving company.
Similar to storage companies, or any other business that takes possession and control of customer belongings, a moving company is legally referred to as a "bailee". In short, a bailee is a person or business who is paid for the service of providing safe keeping, or safe handling, of customer belongings. The duties legally required and imposed upon a bailees were stated in the case of Punch v. Savoy's Jewellers Ltd. et al., 1986 CanLII 2759 by the Court of Appeal wherein it was stated:
It may be helpful to first consider the nature of bailment and the duty of bailees. Bailment has been defined as the delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be executed and the chattels be delivered in either their original or an altered form as soon as the time for which they were bailed has elapsed. It is to be noted that the legal relationship of bailor and bailee can exist independently of a contract. It is created by the voluntary taking into custody of goods which are the property of another. Such is the situation in cases of sub- bailment: see 2 Hals., 4th ed., p. 688, para. 1501. The facts of this case demonstrate that Savoy was a bailee for reward and that Walker and C.N. were sub-bailees for reward. The transfer of the ring to each of these entities fell within the definition of "bailment".
The bailee for reward must exercise due care for the safety of the article entrusted to him by taking such care of the goods as would a prudent man of his own possessions. Significantly, a bailee is liable for the loss of goods arising out of his servant's theft on the grounds that he is responsible for the manner in which his servant carries out his duty. In the result, it matters not whether the servant is careless, whether the goods are stolen by a stranger, or if the servant himself steals them.
In Morris v. C.W. Martin & Sons, Ltd.,  2 All E.R. 725, Lord Denning M.R. confirmed that when goods are damaged or lost while in the possession of a bailee, the bailee must prove either that he took appropriate care of them or that his failure to do so did not contribute to the loss. If the goods are lost or damaged while they are in possession of the bailee, the burden is on the bailee to show that the damage occurred without any neglect, default or misconduct on the part of himself or any of his servants to whom he delegated a duty. To escape liability, he must demonstrate that the loss was without any fault on his part or the part of his servants. Only if he satisfies the owner that he took due care to employ trustworthy servants and that he and his servants exercised all diligence will he be excused from liability.
As shown, and generally, bailees such as moving companies are legally required to take such care of the belongings for which the mover is entrusted with, as a reasonable owner of the belongings would care for the belongings. If the care shown is less than that which a reasonable owner would take, then the moving company will likely be deemed in breach of the standard of care as legally required and therefore found liable for damage or loss. Accordingly, unless otherwise agreed to by the moving company, assurances against loss or damage for incidents that are outside the fault or blame of the moving company, are beyond the legal liability of the mover. Simply said, the mover is in the business of providing moving services rather than providing insurance coverage. The moving company will only be legally liable for breaching the care required of a bailee or for breaching contractual obligations.
Basis for Determining the Value
When loss or damage occurs, and the moving company is legally liable due to breach of the standard, or level, of care that was required by law, the next question that arises is the amount of compensation that is due for the loss or damage. Generally, unless altered by a contractual agreement, the standard basis for valuing belongings that are lost or damaged will be the actual cash value of the belongings at the time of the loss or damage. Depending on the circumstances involved, such as whether the belongings are fully lost, written-off, or perhaps repaired, the method of valuation may vary. The various concerns were summarized within the case of Bookman v. U-Haul Co.(Canada) Ltd., 2007 CanLII 37462 wherein it was deemed that belongings should be valued following considerations for depreciation due to use and age as well as the possibility of betterment arising from a repair. Specifically it was said:
 The Appellants submit that if the Plaintiffs are entitled to damages, these should have been awarded on the basis of actual cash value. Actual cash value refers to what it would cost to replace an item at the time of loss after subtracting depreciation.
 Whether it is a reflection of depreciation, the betterment principle or other relevant factors, actual cash value has unusually involved a deduction factor. (See Feist v. Gore Mutual Insurance Co.  O.J. 67)
 Where replacement cost is determined to be the proper basis for an award of damages, the usual principle should be applied and depreciation should be taken into account. (See Jens v. Mannix Co. (1979) 30 DLR(4th))
 Where the damaged article is repaired, the cost of the repair must be reasonable, both in the work must be necessary and changes must not be extravagant. (See McGregor (supra) at page 1032, 32-003 and 32-006)
 Most specifically, the proper measure of damages is the reasonable cost of repair less any enhancement if the repaired article is more valuable than it was before the accident. (See Waddams, The Law of Damages (Toronto: Canada Law Book, 1997) at 1.2760)
 The Appellants submit that the Plaintiffs owned and used many of the items which they claim were damaged since 1997 or 1998. The loss did not occur until 2004. Thus, an award of damages should reflect depreciation over the 6-7 year period and betterment that the Plaintiffs will now receive with replaced or refinished items.
 It is clear from the reasons for judgment that Deputy Judge Cimba did not consider either depreciation or betterment in her award of damages. In all fairness neither counsel for the Plaintiffs or Defendants raised the issue with her.
 The law however, is clear that depreciation or betterment is a necessary factor to consider in awarding damages.
Despite the above explained basis for value of belongings lost or damaged, other concerns may apply whereas a moving company is legally required to provide a Bill of Lading as a receipt for goods being transported. A Bill of Lading is a written document that confirms the description of belongings being transported and should be reasonably specific. Of course, practicality may affect how specifically the belongings are described whereas a single item with a make, model, and serial number, is easily describable; however, the general contents of an entire household may need a summary description of simply, "household goods" or other vagueness.
In addition to a description for what is being transported, a Bill of Lading will also provide for a basis of valuing the belongings being transported. Generally, a Bill of Lading is a standard document that, unless altered, will state that the belongings being transported are understood by the mover and the client have a limited value. The limited value may be two ($2.00) dollars per kilogram, or some other specified sum. Accordingly, a client of the moving company is required to state a different value, if necessary; and of course, pay a premium to the moving company for the higher valuation and thus higher risk of liability for loss or damage that may fall upon the moving company.
Some moving companies will mandate that any items for carriage by the mover must be packed by the mover. This requirement enables the moving company to minimize the risk of allegations of damage to items that may otherwise be poorly packed as well as to minimize the risk of allegations that items went missing during the move. When the moving company does the packing, the moving company assures itself that what was packed was packed well and also assures itself of what is within the packed boxes. Any items that the moving company is uncomfortable with, such as high risk items due to value, fragility, or even dangerous goods (ie. barbecue propane tanks) may be put to the client for handling and transport so to keep the moving company uninvolved and therefore without the risk of liability or loss of good will with the client, among others.
Sometimes during the course of loading and unloading, a mover may cause damage to a home or building or other structure, being property that is other than the belongings being transported. In this situation, the law of bailment, being the bailee liability explained above, is inapplicable. Bailee liability is inapplicable as the property damaged is, generally, property that the mover came into incidental contact with rather than property the mover is hired to carry and move. Simple examples include breaking a window, damaging walls or doors, among other things.
When a mover causes damage to property that is something other than the belongings that the mover is hired to carry and move, standard negligence principles apply rather than the principles applicable to a bailee. Generally, the difference is merely a legal technicality that only law scholars will be interested in; however, for those curious, the difference is that, as above, a bailee liability involves the failure to take the same level of care that a reasonable owner of the belongings would take, and standard negligence principles involves the failure to take the same level of care that a person in similar circumstances would take. In situations resulting in damage to a home or building, this legal technicality would likely make little difference in the outcome of a case.
Frustratingly, when a mover causes damage, especially if significant or appearing significant, on moving day; and especially if moving day is also the closing day, the damage may, and likely will, cause upset with the purchaser. If this happens, notify the lawyer handling the closing of the Agreement of Purchase and Sale as soon as possible.
Injury to Workers or Others
Another concern involving moving companies includes the risk of personal injuries. Injuries may occur to an employee of the moving company, perhaps the client that is moving, or even a third party. Of course, injuries could be relatively minor or serious, and in some circumstances could include death. Accordingly, a client should ensure that the moving company is a legitimate and professional moving business that is carrying the appropriate liability insurances as well as worker injury coverage. Where accidents occur involving a fly-by-night mover without proper insurances, the client may become liable for injuries to a worker or a third party person.
Moving is a stressful time in even the best of circumstances. Proper arrangements with a legitimate and professional moving company can help reduce the stress of a move as well as the risks of loss or damage to belongings or even injuries.