Who is responsible for civil liability?

cover story of Canal Solar Magazine

Professionals working in the solar sector, such as photovoltaic system integrators, must guarantee the safety of their services, complying with technical standards relating to the manufacturing, design and installation of solar equipment.

This topic is becoming increasingly relevant in the solar sector, as Solar energy is one of the main renewable sources and is growing constantly in Brazil, becoming the economical and sustainable option for many homes and businesses.

Furthermore, professionals must be aware that they have a duty to inform their clients about the correct use of the photovoltaic system, warning them of possible risks. However, even with all this care, accidents can occur, such as a panel falling and hurting a person.

To know how to act when this type of situation occurs, it is essential to know what civil liability is and what it entails. This content will also alert end consumers about the risks they take when hiring a company that does not have a qualified technical team.

This is because when photovoltaic systems are designed and installed by qualified professionals, with quality products, following standards and good engineering practices, the risk of accidents is practically zero.

What is civil liability?

Civil liability is the duty to repair the damage caused to a person, whether natural or legal, through compensation. “As a rule, we can say that whoever causes damage is obliged to repair it to maintain the balance of society”, explains lawyer Marina Pupo Nogueira, a specialist in civil law.

“According to the Consumer Protection Code, civil liability occurs when there is material damage, moral damage or when equipment does not work or does not reach its functionality”, adds lawyer Lilian Novakoski, also a specialist in the area. Lawyer Marina highlights that the responsibility between all companies in the chain is joint, that is, the manufacturer, distributor, importer and distributor can be held responsible.

“Therefore, everyone can respond simultaneously to the consumer, regardless of who is responsible, and companies can later request compensation from the person causing the damage.”

However, if it is found and proven that the product or service offered in the installation of the photovoltaic system is not defective, or that the fault for the damage was exclusively the customer, the company, whether the one that sold the product or the one that carried out the installation will not be held responsible and, consequently, will be exempt from paying compensation for the loss.

Examples within the solar sector

To make it clearer, check out some hypothetical cases below that may occur during or after the installation of a photovoltaic system.

What happens, for example, if a poorly placed panel hits a person and causes physical damage?

According to lawyer Marina, both legal entities and individuals may be required to repair property damage with economic value. That is, actual losses and lost profits, as well as moral damages.

“A poorly installed panel consists of a failure to provide a service and, when it hits a person and causes physical damage, it will result in the responsibility of the installer, who will have to pay for the losses that the person suffered as a result of the accident, from medical treatment, to days away from work. They must also compensate the victim for possible emotional damages resulting from the accident, such as pain, suffering, fear, anguish, risk to health or physical integrity”, explains Marina.

“The amount of compensation will consider the extent of the damage caused. In case of material damage, it will be necessary to prove it in court. In the case of moral damages, it will have to be arbitrated by a judge”, adds the lawyer.

The owner of a company hired a service provider who does not have technical qualifications to install a photovoltaic system on his property and after it was installed, an accident occurs with physical damage to someone who was walking nearby. Can the owner of this company be held liable?

The answer is yes. “As the owner of the panels or the place where they are installed, he is responsible for damages that third parties may suffer. However, there will be the right to claim reimbursement from the company that provided the services inappropriately”, explains Marina.

A supermarket hires a company that does not have the training or technical competence to install solar energy. After completing the installation, a solar panel falls on a customer's car, causing damage. Who will be held responsible, the supermarket owner, the company that installed the equipment or both?

In this situation, both could be held responsible. “Both will respond and may be held responsible. However, it is much more common for the customer to only sue the supermarket, as that is the person they have a relationship with. Afterwards, the supermarket can sue the company that caused the damage. The fact that the contracted company does not have technical training demonstrates a serious misconduct and could, for example, increase the value of compensation”, emphasizes Marina.

In the same case, if the supermarket owner had hired a qualified company, the lawyer explains that the compensation could be more lenient.

“In the event of a conviction for moral damages, for example, the fact that the supermarket took all precautions, could be a criterion for reducing the value of the compensation. As for material damage (damages to the car, for example), the value will not change, as it will be the amount needed to repair the vehicle”, adds Marina.

If a person installs a photovoltaic system in their home and, for example, an accident happens that causes problems at their neighbor's house. Can the homeowner be held liable?

Yes! “Such a fact may result in a duty to compensate, as, for example, in the event that the owner of the property with the photovoltaic system has not adopted the correct safety and maintenance measures recommended by the system supplier and that his conduct has caused a loss, because it is your duty not to harm third parties”, explains Marina.

When problems occur that cause damage to property or people, can those who purchased and installed the photovoltaic system and the designers be held responsible?

According to lawyer Marina, in the event that the photovoltaic system causes damage to neighboring property, the owner of the property that caused the damage must repair the damage, if they have not carried out the correct maintenance or use of the equipment.

“The professional will only be held responsible if it is proven that he acted with the intention of causing the damage, whether by acting with negligence (omission), malpractice (lack of preparation/technical knowledge) or imprudence (lack of precaution)”, explains Marina.

“In the case of a legal entity providing services, there is no need for the consumer to investigate and prove in the process whether they acted with fault (intentional intent, negligence, malpractice, imprudence). It will be enough to demonstrate the act, the damage and the relationship between the act and the damage”, adds the lawyer.

Taking out insurance is vital

Lawyer Marina highlights that to avoid problems and reduce compensation costs, it is essential that companies take out insurance that offers civil liability coverage.

“Companies that sell solar panels can take out civil liability insurance for installation and assembly, with coverage for design errors, as well as employer civil liability, with coverage for moral damages, including moral damages”, comments Marina.

According to specialist Vanda Somera, director of Visioni Seguros, before taking out insurance, companies should research which product meets their needs.

“It is important to check whether the insurance is the right size for professionals who work in the area of installing photovoltaic systems. After all, no one buys clothes that don't fit, or worse, that they can't wear when they're ready to wear them, for whatever reason. It’s no different with civil liability insurance”, highlights Vanda.

“Today, many industrial and commercial establishments are requiring contracted companies to have a civil liability policy, engineering, installation and assembly risk, as well as life insurance for their employees, to contract or even authorize the start of work” , adds the Visioni specialist.