2023 Midyear Exam Flashcards
What are the purposes and types of civil law
Civil law aims to provide individuals the right to seek a remedy if their right have been infringed upon, types of civil law are negligence and deformation law
What’s is a breach
Breaking or failing to fulfil a duty or obligation
What is causation
The relationship between one event and another event where one event is the reason the outcome occurred
What is loss
A type of harm or damage suffered by a person and can included economic and non-economic loss
What is limitation of actions
A time limit in which civil actions can be commenced in court
What is the burden of proof
The burden of proof is the responsibility of proving that facts of the case and lies on the plaintiff in civil cases
What is the standard of proof
The standard of proof is the strength of evidence that is required for a decision maker to reach a final verdict, in civil cases it is based on the balance of probabilities
Who are possible plaintiffs in a civil trial
- The aggrieved party (the person who suffered the loss)
- Other victims (victims other than the aggrieved party)
- Insurers
Who are some possible defendants in a civil case
- The wrongdoer (person or company that caused the loss to the plaintiff
- employers
- person involved in the wrongdoing
- Insurers
What is the aggrieved party
The party who’s rights have been infringed upon. In a negligence claim is likely to be the person to whom the defendant owed a duty of care and has suffered as a direct result of the defendant breaching that duty
Who are some other victims in a civil case
A plaintiff can be a person who has indirectly suffered loss or damage as a result of the actions of another party such as a family member may sue the person who they allege to have caused the death for emotional loss or damage.
What is the wrongdoer in a civil case
A wrongdoer is often a defendant in a civil case and is likely to have caused the damage or loss to the plaintiff.
What civil rights are protected the laws of defamation.
- Personal reputation (having an affair)
- Professional reputation (unethical workplace)
- Business reputation (business supplying faulty products)
What elements are required to find deformation liability
- The matter conveys defamatory imputations
- The matter identifies the plaintiff as a person defamed
- The matter has been published by a third party
The matter conveys defamatory imputations
The matter must lowers the plaintiffs reputation.
- What meanings would the ordinary or reasonable person give to the matter?
- Would the ordinary person think less of the person as a result?
What are the limitations of actions in a deformation case?
Limitations of actions act 1958 (Vic) outlines that a claim must be bought within one year of the date of publication
What are possible defences to deformation
- Truth (Where the imputations of the defamatory matter are true)
- Fair comment (Where the defamatory matter was a statement of a opinion honestly held by the defendant
- Absolute Privilege (Where the publication of the defamatory matter is always exempt from deformation law)
- Qualified Privilege (Where the publication of the defamatory matter was driven by a legal or moral duty)
What is absolute privilege
The defence that applies to a statement made on an occasion where the free communication of information is considered to be so important that it must be exempt from deformation law.
What’s an example of absolute privilege
- Communications in the course of parliamentary proceedings
- Communications made during the course of judicial proceedings
- Communications between government ministers
What is qualified privilege
A defence that can be raised when the publication of the defamatory matter was driven by a legal or moral duty
What is an example of qualified privilege
Parent teacher interviews where the defamatory matter was intended in good faith and without malice
What rights are protected by negligence law
Rights not to be harmed by someone who does not take reasonable care to prevent this
What elements need to be proven against the balance of probabilities to find liability in negligence
- Duty of care (The defendant owed a duty of care to the person injured
- Breach of duty of care (The defendant breached a duty of care
- Causation (The breach of duty of care caused harm to the plaintiff)
- Injury, Loss, or Damage (The wronged person has suffered injury, loss or damage because of the breach
What is a duty of care
Legal obligation to avoid conduct that can be reasonably foreseen to harm a persons neighbour
What is a breach of duty of care
A breach of duty of care is when a person does not take all the care they should and this determines whether a person is negligent.
What is causation (relation to breach)
The injury or loss is a direct result of the breach of duty of care and the injury would not have happened if the breach did not occur
What are the limitations of actions of a negligence claim
A negligence must be pursued within 3 years of the action arising according to the Limitations of actions act 1958 (Vic)
What are possible defences for a negligence claim
- Contributory negligence
- Assumption of risk (violenti non fit injura)
What is contributory negligence
Contributory negligence is not a complete defence meaning that if it is successfully raised the defendant is still liable just to a lesser degree. It means that the plaintiff contributed to the harmful situation and is partly to blame for the harm done.
What is Violenti non fit injura
Refers to the voluntary acceptance of the risk of injury “To a willing person, the injury was not done”
What are the impacts of deformation on the parties
Plaintiff:
- Losses (economic)
- Reputational damage
- Psychological damage
Defendant:
- Expenses (economic)
General
- Threat to free speech
What are the impacts of Negligence on the parties
Plaintiff:
- Loss of life
- Permanent physical injury
- Serious physical injury
- Emotional impact of the breach
- Loss of wages
- Unemployment
- Mental health effect
Defendant:
- Loss of business
- Public humiliation
- Physical injury
- Costs
- Need to sell assets
- Cultural changes
- Third party claims and class actions
What are the purposes of criminal law
- Protect individuals
- Protect property
- Protect society
- Promote justice
What are the key concepts of criminal law
- Elements of a crime
- Strict liability
- Age of criminal responsibility
- The burden of proof
- The standard of proof
What are the types of crime
- Crimes against the person
- Crimes against property
What are ways to classify crimes
- Division (a - f)
- Types of offender (cyber, hate, organised, juvenile, white collar)
What are indictable offences
More serious offences and generally heard by a judge and jury in county or Supreme Court
What is a summary offence
Minor crimes heard in the magistrates court and without a jury
What are some participants in a crime
- Principle offender
- Accessories
What is a principle offender
The person who directly commits the offence and is immediately linked to the crime
What is an accessory to a crime
Assists the principal offender after the commission of a crime knowing the offender has committed a serious crime.
What are the elements of murder
- The killing was unlawful
- The victim was a human being
- The accused was at least 10 years old
- The accused caused the victims death
- The accused was of sound mind and understood the nature of their act
- There was malice aforethought
What are the defences to murder
- Self defence
- Mental impairment
- Duress
- Sudden or extraordinary emergency
- Involuntary actions
What are the principles of Justice
- Fairness
- Equality
- Access
What is fairness
All individuals have the right to a just trial and heard by an unbiased third party
What is access
Ensuring individuals in society understand their rights and ability to pursue their case
What is equality
All persons, businesses and governments are equal before the law and no one is above the law
What are the characteristics of an effective law
- Reflects societies values
- Enforceable
- Clear and understood
- Known
- Stable
What is the relationship between parliament and the courts
Parliament affects courts through:
- Parliamentary supremacy
- Establishing the courts
- Statutory interpretation
Courts affect parliament through:
- Comments on existing statues and common law
- High profile cases
- Codification
- Abrogation
- Invalidation if stature law
