Are any defences available? If so, please summarise them.
In case of negligence under tort law, the test is whether certain damage suffered by the aggrieved party was a foreseeable consequence of an act or omission on the part of the breaching party. The breaching party can contend that the essential components of negligence, being ‘duty’, ‘breach’ and ‘resulting damage' are not established, and that all necessary steps a reasonable, prudent man would have taken in the given circumstances have been undertaken.
Indian courts have also recognised the principle of contributory negligence, i.e. the person who has suffered damage is also guilty of some negligence and has contributed towards damage, in adjudication of liability under tort law.
The main defence will relate to whether the defendant acted negligently or failed to act where required. In concrete terms, the main issues are whether such accident or the manner of use of the products, etc. are ordinarily foreseeable, and, if so, whether the defendant is legally responsible and able to prevent such accident or result under the circumstances, etc. In short, foreseeability and the possibility of avoiding the results will be the key issues.
As a claimant owes the burden of proof of all the elements for general tort liability pursuant to Article 709 of the Civil Code, defendants will often counterargue that plaintiff has not satisfied its burden of proof.
In addition to the above, the causal relationship between the alleged defect and the alleged damages and whether the calculation of damages is reasonable can frequently be the issues.
Under the provisions of the Code of Obligation (6098), any responsible party can raise a defense that they are not responsible for the tort with respect to relation of causality or they may reveal that it is not their fault.
There are no separate defense (i.e. exemption) provisions in the Civil Act for tort liability.
The following defences may be available to a claim in negligence:
- volenti non fit injuria (voluntary assumption of risk);
- contributory negligence; and
- the learned intermediary defence.
Voluntary assumption of risk is a deliberate decision by the plaintiff to assume the risk of injury, loss or damage. To establish the defence of volenti, the defendant must show that the plaintiff not only perceived the existence of the danger, but also fully appreciated it and voluntarily accepted the risk. This defence is difficult to establish, but is a complete answer to any claim.
Contributory negligence may be relied on where the plaintiff’s conduct fails to meet the standard of care required for his or her own protection and safety, and is a contributing cause in bringing about his or her injury. Damages are apportioned by the court in accordance with each party’s degree of fault. In certain jurisdictions, contributory negligence can be a complete defence to an action if the court thinks it is just and equitable in the circumstances.
There is no express authority in Australia for a learned intermediary defence, although there is no reason why the defence cannot be accommodated within existing common law principles.
The Tort Reform Process has created new statutory defences to an action for negligence, although these differ from jurisdiction to jurisdiction.
For example, in New South Wales, a defence will arise where the harm was suffered as a result of the materialisation of an inherent risk, which is defined as the risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
If the producer can prove that the defect of the product was caused by force majeure or a
fault committed by the claimant or a third party, the defendant’s liability can be excluded.
Force majeure is defined as an unforeseeable event, exterior to the situation, which, if anticipated, would have been too strong to be controlled.
The fault committed by the claimant or a third party must be unforeseeable and if anticipated, too strong to be controlled, for the defendant’s liability to be totally excluded. If not, the fault of the victim may result in a partial exclusion of the defendant’s liability.
When the lawsuit is filed, the judge must summon the defendant to present a defence, which will be the first opportunity to explain the reasons why the lawsuit should be ruled groundless.
In such opportunity, the defendant should prove it is not liable for the damage. In order to do so, it must prove (i) the in existence of the defect; (ii) the defendant did not insert the product in the market; or (iii) exclusive fault of the consumer or a third party.
Common law defences are challenging to run but commonly include:
- contributory negligence, where the claimant's own negligence contributed towards his/her loss, leading to a reduction in the amount of compensation he/she is awarded;
- voluntary assumption of the risk by the claimant, where the claimant knew the risks of the product but chose to accept them.
The primary defence is to dispute causality between the allegedly damaging act and the damage. The secondary defence is to contest fault. For example, the tortfeasor can deny any faults if he can show that he respected the required diligence and organizational duties. A further, in practice often relevant defence, is to accuse the injured party to have contributed to the damage by its own negligent behaviour or infringement of own obligations, e.g. for quality inspection of goods, uncommon use of a product or similar circumstances.
Yes, many defenses are available. A few of the most common defenses are summarized below; however, depending on the facts and circumstances of your specific case, other defenses may also be available.
Assumption of risk: Assumption of risk is a complete defense to a negligence action and requires the showing that the plaintiff fully appreciated the nature and extent of the risk and voluntarily chose to assume it. Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59, 64 (2003); Va. Elec. & Power Co. v. Dungee, 258 Va. 235, 250 (1999).
Contributory negligence: Contributory negligence is a complete defense to a negligence action and requires a determination of whether a plaintiff’s failure to exercise ordinary care for his own safety proximately contributed to his injury regardless of defendant’s negligence. See RGR, LLC v. Settle, 288 Va. 260, 283-84 (2014); Ford Motor Co. . Bartholomew, 224 Va. 421, 432 (1982).
Misuse: A plaintiff cannot recover against a manufacturer if the plaintiff has misused the product in a manner not reasonably foreseeable. See Cooper Indus., Inc. v. Melendez, 260 Va. 578, 590 (2000). In addition, any alteration that is causally related to plaintiff’s injury could relieve a defendant from liability. See Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 66 (1996).
Open and Obvious: “When the dangerous condition is obvious and patent to all, the manufacturer of the product is not liable for injury to the user.” Morgen Indus., 252 Va. at 69.
Learned Intermediary: A manufacturer of prescription drugs has been held to only have a duty to warn the physician not the patient of potential risks of the product. See Pfizer, Inc. v. Jones, 221 Va. 681, 684 (1980).
Mitigation: The defendant has the burden to prove that the plaintiff failed to mitigate damages. See Forbes v. Rapp, 269 Va. 374, 380 (2005).
Damage to Product: Absent privity of contract, a plaintiff cannot bring a negligence action to recover for damage to the defective product itself. See Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 424-25 (1988).
Sophisticated User: The United States Court of Appeals for the Fourth Circuit, interpreting Virginia law, has recognized the sophisticated user defense where a defendant is relieved of liability when a product is supplied to an individual whom the defendant believes will act to protect the safety of himself and others. See, e.g., Buettner v. R.W. Martin & Sons, Inc., 47 F.3d 116, 120 (4th Cir. 1995).
Workers’ Compensation Bar: The Virginia Workers’ Compensation Act is the sole and exclusive remedy against an employer for an employee injured at work. See Va. Code § 65.2-307(A).
There are various defences available and possible damages may be reduced or cancelled as a result of the injured party's contributory negligence or acceptance of risk.
Both “system damage” and “development damage” are generally considered to be defences for the manufacturer (see the answer to question 4). In such situations, the cases are often complex in terms of evidence.
Where the defendant can prove contributory negligence on the part of the claimant, the damages may be reduced.
See section 4.
The defendant may defend himself by
- invoking the limitation period for the claim,
proving that there is no causal link between the damage and the conduct in question
proving that the damage was caused solely by the plaintiff's conduct
proving that there is no fault on the part of the defendant