The duty not to cause harm to others is an obligation imposed on everyone . However, is it possible to successfully refute a claim from someone that you have failed in this duty? Civil liability is a two-way street: where there is a remedy, there is also a defense!
To maximize your chances for exoneration, it is best to entrust your defense to civil liability attorneys referred by JuriGo!
Are you being sued for civil liability? The basis of a recourse!
Before diving into the main principles of civil liability, it is important to understand what it is all about! First, extra-contractual civil liability is different from contractual liability!
In the latter case, the claim against you is based on obligations stipulated in a contract. You are, therefore, accused of breaching the terms of your contract which is not the case with a civil liability case!
When you are sued for an extra-contractual civil liability, the recourse is not based on the breach of a contract but rather on the breach of the general obligation not to cause harm to others. The Civil Code of Québec provides for this obligation by stating the following principle
Every person has a duty to respect the rules of conduct which, according to circumstances, usage, or law, are imposed on him so as not to cause prejudice to others.
A person, when he is endowed with reason and fails in this duty, is liable for the injury he causes by this fault to another person and is bound to make reparation for this injury, whether it be bodily, moral, or material.
Civil Code of Quebec
Article 1457, paragraphs 1 and 2
You are, therefore, accused of having breached a general duty of care to third parties, which is imposed based on the circumstances. Why is the distinction with contractual liability important? Because the conditions for liability are not the same.
Whereas contractual liability requires only the breach of a validly concluded contract (subject to possible justifications), civil liability requires the concurrent meeting of an injury, a fault, and a causal link between the first two elements. Thus, since the standards of liability are not the same, the defences are also different!
We will discuss below the defences that apply strictly to extra-contractual civil liability, for instance, liability in the absence of a contract!
The importance of civil liability defences in Quebec!
Whether the person fell on your property, or you made defamatory remarks, or for any other reason invoked by an individual, you have defences for civil liability claims. Knowing the main defences to use is, therefore, essential!
First of all, you should know that there are general defences concerning the three elements of civil liability! It is possible to just refute that these three elements constituting a civil liability action have been satisfied to avoid incurring liability.
First of all, you will be able to prove that there was no fault, as defined in article 1457 of the French Civil Code, when the behavior is different from what a "good father" would have done under the same circumstances. Thus, it will be your lawyer's role to prove that your behaviour followed the guidelines of an exemplary father.
Deny the alleged injury. An injury is characterized as a legitimately protected interest, meaning that it should be compensated. There are an impressive number of nuances that can contradict the quality of the injury, such as when the injury is future but uncertain, or when it is suffered by rebound.
In fact, the plaintiff bringing the lawsuit will have to fit his or her injury into one of three categories of compensable injury which count bodily injury, moral injury, as well as material injury. It will be up to the plaintiff to prove his or her right.
Demonstrate the absence of a causal link. The fault must be linked to the injury, otherwise, it will be concluded that one occurred only in conjunction with the other and not because of the other. It is necessary to prove, on a scale of probabilities, that it was the fault that caused the damage.
How convincing does your defence have to be to the judge? The burden of proof is on the person alleging a right. While the criminal burden of proof is "beyond a reasonable doubt", the civil burden is based on a scale of probabilities. This means that your defence must be sufficiently convincing for a judge to find your version of events more likely than not compared to the plaintiff's version.
First defence - The victim's fault!
This first defence is a "classic" of civil liability. It is called the victim's fault, contributory fault. or contributory negligence. In all cases, it refers to the same principle: the victim should not be entitled to full compensation if he or she is partly responsible for the injury suffered.
The victim's fault is a defence to a civil liability action , which consists of claiming that the victim, through his or her fault, contributed to the occurrence of the injury, thus causing a division of responsibility between the victim and the defendant.
Does the victim's fault exonerate you completely? It depends, and it's all a question of circumstances! The more significant the victim's fault is, the more he or she will have to assume a large part of the responsibility for his or her injury, which can eventually destroy his or her recourse.
However, there is nothing automatic about this: a victim can suffer an injury that occurred in part through his or her fault and still retain a recourse if the fault was minimal. In other words, if the victim's fault argument is only partially successful, the compensation will be reduced in proportion to the allocation of the share of responsibility.
Here is an example of a victim's fault! A reckless young teenager enters a private property in the middle of the night to ride his motorcycle. He falls into a deep hole which was not covered by the owner. Who is responsible?
It is difficult to see how the owner could be entirely responsible, considering that it is a private property, and that the incident occurred in the middle of the night, especially since the teenager entered it illegally.
However, the fact remains that the property owner left a gaping hole uncovered and unprotected, which could constitute a fault. In this case, the owner and the motorcyclist could share the responsibility in order to reduce the compensation to which the motorcyclist is entitled, since in this particular case, the victim is clearly at fault for venturing onto a private property in the middle of the night.
Can the assumption of risk theory save you?
The assumption of risk theory is a sort of subcategory of victim blaming, and in fact, follows the same principle that if a person willingly participated in something that caused his or her own misfortune should not be awarded full compensation.
With that said, the risk acceptance theory applies primarily to activities with an inherent level of risk of harm. However, this defense assumes that the person involved knows and accepts the risks involved. Again, the victim's remedy is not automatically lost by virtue of his or her acceptance of the risks, but it may be significantly reduced!
A simple example is a "go-kart" or downhill skiing accident : a person speeding down a go-kart track or ski slope and subsequently losing control has only himself or herself to blame for the injuries incurred. However, this is not the case if the track and the kart were poorly maintained or otherwise unsafe without the victim's knowledge.
In any event, the remedy is much more difficult to invoke successfully for a person who voluntarily places himself or herself in a risky situation and then suffers an injury.
What is force majeure? Does it apply to your situation?
Force majeure is also referred to as an "act of God". If used as a defence, it alleges that while the injury is true, you cannot be held responsible for it since it was caused by an event beyond your control. Three conditions must be met in order to assert a defence of force majeure!
Unpredictability. The act that caused the harmful event must be unforeseeable. The unpredictability in question is, moreover, held to a limited and strict definition. It must be an event that could not be foreseen. For example, a snowstorm is not an unforeseeable event in Quebec, but the Ice Storm, because of its magnitude, may meet the test of unpredictability.
Irresistibility. This criterion is very simple and refers to the fact that nothing could have countered the reported unpredictable act. Once again, the criteria are strict and if the court finds that measures could have been taken to minimize the risk of harm, the defence of force majeure will fail.
Exteriority. This refers to the fact that the defendant must not be the cause of the harmful act. This act must come from an irresistible force such as nature or some other phenomenon beyond his control.
As a parent, are you responsible for the harm caused by your child?
In Quebec, there is a presumption that a parent is responsible for the act or fault of his or her child; however, a parent may be relieved of this responsibility if he can prove that he was not negligent in the care, upbringing, and supervision of the child.
How is parental responsibility assessed? The judge hearing the case will review the three criteria of custody, upbringing, and supervision to determine whether or not the parents have failed in their duty. You should also be aware that this principle of responsibility also applies to other guardians of the minor such as teachers.
However, the criteria for liability for other guardians may be adjusted depending on the degree of control or supervision that person has over the child. In addition, the volunteer caregiver is not held to this standard of responsibility.
Your insurer plays an essential role in civil liability matters!
The reality is often different from theory, and civil liability is no exception to this principle. That's why, in the event of a liability verdict against you, your insurer will most likely be required to pay the damages on your behalf. This is because liability coverage is included in almost all home insurance policies.
But be careful! A liability insurer is obligated to pay for damages and out-of-court costs incurred (if you are validly insured), but there are certain limits. In particular, the liability insurer is never required to cover you for intentional misconduct. A fault is considered to be intentional when the person does something with the intent to cause the damage or with full knowledge of its inevitability.
Moreover, certain actions cannot be taken under civil liability, such as work-related accidents, which must be referred to the CNESST, or injuries resulting from automobile accidents, which must be referred to the SAAQ for bodily injuries or to private insurers for material damages.
What penalties do you face if you are held liable for the injury?
The purpose of a civil liability action is reparation, not enrichment. In the vast majority of cases, compensatory damages will be awarded.
These damages are those mentioned in the Civil Code unless otherwise indicated. As the name indicates, the purpose is to restore the injured person to his or her original state as best as possible; they are not intended to enrich the injured plaintiff, nor to punish the responsible defendant.
When is it appropriate to award punitive damages? Such damages are exceptional in Quebec law. In order to award them, the law must explicitly provide for the right to award punitive damages. Punitive damages are exceptional because, in addition to compensation, they seek to punish the person responsible for his or her malicious conduct and bad faith.
Punitive damages are calculated in a specific way: since they are intended in part to punish, they are calculated by taking into account the seriousness of the fault, the financial situation of the person, the reparation to which he is already liable, and if an insurer will pay for the compensatory damages or not.
What to do when you receive a demand letter
Have you received a demand letter accusing you of liability? Take a deep breath because it's just a "lawyer's letter" with a reproach. You are still a long way from being sentenced to anything. But you shouldn't sit on your hands, so here are the steps to take!
A properly drafted demand letter will normally contain a reproach, a requirement to correct the reproach, and a time limit for doing so. Before getting into a panic, it is important to understand the plaintiff's complaint.
Every story has more than one version, and it is possible that the demand letter may contain some truth, but not all. Following consultation with a lawyer, you should consider the possibility of a private, out-of-court dispute resolution.
The best way to respond appropriately to a liability lawsuit is to consult a lawyer who can work on your defence as soon as possible! Connect with JuriGO now to Connect with a lawyer for your case.
Defend yourself against a liability lawsuit with the help of JuriGo!
The demand letter has been received and the dispute is now official. As this heralds the beginning of hostilities, it is best to be properly prepared with the help of a legal professional such as a lawyer! His unique expertise in civil law will allow you to benefit from tailored advice and a personalized defence.
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