AOS 3 Flashcards
Neighbour Principle
- Common law principle
- A person must take reasonable care to avoid acts and omissions that can be reasonably foreseen as likely to injure their ‘neighbours’
Representative Proceeding
A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person (also called a class action or a group proceeding)
Lead Plaintiff
The person named as the plaintiff in a representative proceeding (ie. a class action) and who represents the group members.
Defamation Defence - Innocent Dissemination
Protects individuals/companies who accidentally published defamatory information
Defamation Defence - Qualified Privilege
A person who has no malice in publishing information that is damaging to another person.
Types of Civil Law
- Negligence
- Trespass
- Defamation
- Nuisance Laws
- Will and Inheritance Laws
- Contract Law
- Family Law
Elements of Negligence
- Duty of Care
- Breach of Duty of Care
- Causation
- Injury, Loss or Damage
Defamation Defence - Fair Report of Proceedings of Public Concern
- Statements made by a judge in a trial
- A speech made by a city council member during a council meeting
- Testimony during a trial
Plaintiff
(In civil disputes) A party who makes a legal claim against another party (ie. the defendant) in court.
Nuisance
A type of tort that involves interference with a person’s right to use and enjoy private and/or public property.
Negligence
A type of tort law involves a breach of a duty of care, causing loss or harm.
Rights Protected (Defamation)
- Freedom of expression.
- Considered of good character and reputation
- Protection of reputation
- Quick and effective method of resolving a dispute.
Defences to Defamation
- Justification
- Contextual truth
- Absolute privilege
- Publication of public documents
- Fair report of proceedings of public concern
- Qualified privilege
- Honest opinion
- Innocent dissemination
- Triviality
Defences to Negligence
- Contributory Negligence
- Assumption of Risk (Volenti Non Fit Injuria)
Loss
A type of harm or damage suffered by a person, and can involve both economic and non-economic loss.
Assumption of Risk (Volenti Non Fit Injuria)
- A Latin term meaning ‘to a willing person injury is not done’
- Defendant claims that the plaintiff accepted the dangers of a known and understood risk, either expressly or by implication.
Limitation of Actions
The restriction on bringing a civil law claim after the allowed time.
Group Member
A member of a group of people who is part of a representative proceeding (ie. class action)
Employment Laws
Deals with disputes between employers and employees.
Defamation
A type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.
Defendant
(In civil disputes) a party who is alleged to have breached a civil law and who is being sued by a plaintiff.
Appeal
An application to have a higher court review a ruling (ie. a decision) made by a lower court.
Causation
The direct relationship between one event (ie. Event 1) and another event (ie. Event 2), where Event 1 was the reason Event 2 happened, and Event 2 would not have happened by itself, without Event 1.
Equal Opportunity and Discrimination Laws
Aim to protect individuals from bias, prejudice or vilification based on a personal attribute such as their sex, marital status, race or religion.
Accessorial Liability
The way in which a person can be responsible or liable for the loss or harm suffered by another person because they were directly involved in causing the loss or harm (eg. they encouraged another person to cause the harm)
Remedy
Any order made by a court that is designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of civil law by the defendant and (as much as possible) restore the plaintiff to the position they were in before they were wronged or their eights were breached.
Defamation Defence - Publication of Public Documents
Only if the statement was published in the public interest or for educational purposes.
Defamation Defence - Absolute Privilege
- Gives defendant complete immunity from being sued in certain cases.
- eg. Proceedings in parliament, parliamentary bodies, courts or tribunal.
Negligence - Role of Common Law
- Neighbourhood principle
- Makes sure every person in the chain of delivery is legally responsible
- Direct connection to loss to be able to sue
Right of Subrogation
The right to ‘step in the shoes’ of an insured person and act on their behalf - this includes taking legal actions in their name.
Negligence - Impact on Defendant
- Loss of Business
- Public Humiliation
- Physical Injury
- Costs
- Need to Sell Assets
Defamation - Impact on Plaintiff
- Loss of reputation
- Emotional impact of the defamatory material
- Loss of wages and livelihood
- Unemployment
Defamation Defence - Triviality
The circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.
Family Law
Deals with disputes between family members that are of family nature.
Rights Protected (Negligence)
- Protect people from wrongful conduct by others
- Compensation
Standard of Care (Negligence)
The degree of caution required by a person who owes a duty of care to another.
Negligence where personal injury includes a disease or disorder (Limitation Period)
3 Years
Defamation Defence - Contextual Truth
- Defamatory statements are made within the same context as statements that are substantially true.
- Defamatory statements don’t further harm the plaintiff.
Balance of Probabilities
- The standard of proof in civil disputes.
- The plaintiff must prove their version of events is more probable than the defence claims.
Limitation Period (Defamation)
1 Year
Trespass
A type of tort involving the interference or intrusion of a person’s body, property or goods without the consent of that person.
Negligence Where the Injury was Death (Limitation Period)
3-12 Years (Depending on circumstances)
Contract Laws
An area of civil law governing the validity and enforceability of agreements made between 2 or more parties.
Freedom of Political Communication
- Is not an absolute right to freedom of speech.
- The right of the Australian People to freely discuss and debate political issues, subject to certain restrictions.
Damages
An amount of money that the court (or tribunal) orders one party to pay to another party. It is the most common remedy in a civil claim.
Negligence - Role of Statute Law
- Created defences
- The wrongs act as a likely defence
Burden of Proof
- The obligation of a party to prove a case.
- Usually rests with the party who initiates the plaintiff.
Defamation - Role of Statute Law
- Uniform Defamation Legislation (2005)
- Victoria - Defamation Act
- Proposed uniform defamation laws
Contributory Negligence
- Claims that the plaintiff contributed to the harm caused by the defendant.
- If proved, this reduces the damages the defendant has to pay.
Negligence - Impact on Plaintiff
- Loss of Life
- Permanent Physical Incapacity
- Serious Physical Injury
- Emotional Impact of the Breach
- Loss of Wages and Livelihood
- Unemployment
- Effect on Mental Health
Defamation Defence - Justification
A defamatory statement is substantially true.
Civil Law
An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes (as opposed to criminal law)
Possible Defendants
- Wrongdoer
- Employers
- Persons involved in the wrongdoing:
- (Aided, abetted or procured the wrongdoing)
- (Induced or encouraged the wrongdoing)
- (Were in any way directly or indirectly a party to the wrongdoing)
- (Conspired with others to cause the wrongdoing.)
- Insurers
Civil Liability
The legal responsibility of a party (ie. an individual, group or organisation) for loss or harm caused to another party because of a breach of civil law.
Standard of Proof
The degree or extent to which a case must be proved in court.
Types of Loss
Economic or Financial Loss
- Loss of wages
- Profits
- Medical costs
Property Damage
- eg. Damaged car or house
Personal injury
- eg. broken bones
Pain and Suffering
- eg. anxiety, depression, mental anguish
Loss of Amenity
- Loss of enjoyment of life
- Job satisfaction
Insurers
A person or company that is contracted to compensate another person in the event of damage or loss.
Elements of Defamation
- The statement is defamatory
- The statement is untrue
- The statement refers to the plaintiff
- The statement has been published by the defendant (communicated to someone other than the defendant)
Duty of Care (Negligence)
The legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them.
Possible Plaintiffs
- Aggrieved Party
- Other Victims (eg. A family member, grieving after the traumatic death of a loved one)
- Insurers
Purposes of Civil Law
- Social cohesion
- Protect the rights of individuals
- Provide an avenue to seek compensation
- Provide a means to seek compensation
Defamation - Impact on Defendant
- Costs
- Need to sell assets
- Public humiliation
General Negligence claim, eg. Property Damage (Limitation Period)
6 Years
Defamation Defence - Honest Opinion
- The statement must be a statement of opinion, not a statement of fact.
- The opinion stated must be one that could have been held by an honest person in possession of the facts.
Vicarious Liability
The legal responsibility of a 3rd party for the wrongful acts of another (eg. an employer’s liability for what their employees do.)
Breach
Breaking or failing to fulfil a duty or obligation.
Will and Inheritance
A document that specifies how a person would like their assets to be distributed after they die, and who they would like to carry out their wishes.
Counterclaim
A separate claim made by the defendant in response to the plaintiff’s claim (and heard at the same time by the court)
Sue
To take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff.)
Defamation - Role of Common Law
- The distinction between liable and slander
- Implied freedom of political communication.
