Difference between revisions of "Responding to a Small Claim (20:VI)"

For every cause of action, there is usually at least one possible defence. Some of the more common defences are listed here however a defendant should research the claimant’s cause of action or obtain legal advice to determine which defences might be applicable.  

Where a claimant was careless '''and''' this carelessness contributed to the damages suffered, a defendant might plead the defence of contributory negligence.   An example is where a claimant tripped over a bag that was carelessly left in a walkway. The defendant may be liable  but the claimant may have been contributorily negligent for failing to keep watch for obstacles.  

A defendant who believes that the claimant was partially at fault should state in the reply: “The defendant pleads and relies upon the ''Negligence Act''132”.Each party is liable to the degree that they are at fault; where degrees of  fault cannot be determined, liability is apportioned equally133.

Where, by express or implied agreement, a claimant knew of and understood the risk he was incurring and voluntarily assumed that risk, the  defendant will not be liable.   Because voluntary assumption of risk is a complete defence, it is very difficult to prove.

Where a claimant stands to profit from criminal behaviour or compensation would amount to an avoidance of a criminal sanction, the claimant cannot recover damages134.   This is narrowly construed and a claimant should read Hall before relying upon it.

If the defendant can show that the accident could not have been prevented even if the defendant had exercised reasonable care, the defendant cannot be liable135. For this defence to apply, the defendant must have had  no control over whatever occurred and its effect could not have been avoided even with the best effort and skill.  

If the claimant is suing on a contract that is illegal (e.g., it calls for a criminal interest rate), the defendant may ask the court to  decline to enforce the illegal provision or possibly the entire contract.   Depending on the circumstances, the court may consider modifying the contract to remove the illegality.  

If the defendant honestly and reasonably believed that an assault or battery was imminent and used reasonable force to repel or prevent the assault or battery, the defendant may not be liable for any injuries or damage suffered by the claimant as a result136.  

The same general rules apply as for self-defence provided that the use of force is reasonable137.  

Certain statutes such as the ''Business Practices and Consumer Protection Act'', SBC 2004, c 2 provide a party with a cause of action that would not otherwise exist. A defendant should carefully read the statutes that the claimant is relying upon to see if the statute creates or  prescribes certain defences.   

Where the claim is for remuneration in relation to real estate or property management services, the claimant must have either been licensed  when the services were rendered or have been exempt from the requirement to be licensed138. If the claimant was required to be licensed but was not licensed, the claimant cannot legally charge a fee.  

The first step in replying to a claim by an entity such as a real estate management company is to establish whether the claimant was licensed with the Real Estate Board.