AOS1 - Civil Liability

Question 1

bCivil Law

Answer 1

An area of law that describes the rights and responsibilities of individuals, government entities and organisations and provides legal framework for when these parties interact with each other.

A remedy is given when a breach of these rights occur.

Question 2

Key concepts of civil law

Answer 2

Breach
causation
Loss
limitation of actions
burden of proof
Standard of proof

Question 3

Breach

Answer 3

A failure to perform legal obligations owed to a person or business.

When rights have been infringed, then there has been a breach of civil law.

An element that must be proven when taking action in civil law.

Question 4

Causation

Answer 4

The relationship between an action and the resulting event.

The defendants breach was a necessary condition of the loss sustained.

Question 5

Loss

Answer 5

A disadvantage experienced by a party due to the action or inaction of another party.

A plaintiff must have suffered loss in order to be granted a remedy.

The type of loss is assists the court or the dispute resolution party to the determine the best way to restore the plaintiff to their original position before the loss occurred.

Question 6

Limitation of actions

Answer 6

The limitation of actions are contained in the Limitation Of Actions Act 1958 (Vic) and refers to the time period in which a plaintiff can commence civil action. The limit differs depending on the type and extent of the civil wrong. Overall the Limitations of actions ensures a civil case is resolved in a timely manner.

Question 7

Burden of proof

Answer 7

The party that holds the responsibility of proving the facts of a case.
The Plaintiff hold the burden of proof.

The plaintiff must prove the defendant was liable for their loss.

Question 8

Plaintiff

Answer 8

A person that brings a civil matter to court against another.

The plaintiff has had their rights breached due to another persons wrongdoing.

Question 9

Possible plaintiffs

Answer 9

Aggrieved party
Other victims
Insures
Class action

Question 10

Aggrieved party

Answer 10

The individual or group that has directly suffered the loss and had their rights breached.

Question 11

Other victims

Answer 11

The individual or group that has indirectly suffered a loss as a result of the actions against the aggrieved party.

Question 12

Insures

Answer 12

Individuals or cooperation’s that provide insurance.

Question 13

Class action

Answer 13

7 or more people have the same or similar claim and legal issue against the defendant.

Question 14

Defendant

Answer 14

An individual, company or group that has been sued for allegedly carrying out a civil wrong and breaching the plaintiffs rights.

Question 15

Possible defendants

Answer 15

Wrongdoer
Employers

Question 16

Wrongdoer

Answer 16

The individual or group who has directly caused or instigated the loss or suffering of the plaintiff.

Question 17

Employers

Answer 17

An individual or company who employs the plaintiff and has directly or indirectly caused the loss or suffering of the plaintiff.

Question 18

Vicarious liability

Answer 18

When the party is indirectly the cause of the plaintiffs loss or suffering.

Question 19

Negligence

Answer 19

One party fails to owe of care to prevent loss or injury to another party that a reasonable person in the same circumstances would have exercised.

Question 20

Elements of negligence

Answer 20

Duty of care
Breach of duty of care
Causation
Loss

Question 21

Duty of care

Answer 21

A legal obligation to ensure to ensure the safety and wellbeing of others.

A duty of care has to be reasonably foreseeable
The defendant and plaintiff carried out the neighbouring principle.

Question 22

Breach of duty of care

Answer 22

Breach of duty of care is one element that must be proven in order for a defendant to be found liable for negligence. A breach of Duty of care occurs when an individual or group fails to take reasonable care of their ‘Neighbor’ in a situation where the chance of risk was easily forseable.

• reasonable persons test

Question 23

Causation

Answer 23

The link between the breach of duty and the harm caused
Factual causation requires the defendants negligence to be the necessary condition for causing harm. (But for test)
Scope of liability must be considered to determine if there were any intervening acts.

Question 24

limitation of action for negligence

Answer 24

3 years for personal injury
6 years for property damages/economic loss

Question 25

Possible defences to negligence

Answer 25

Contributory negligence Voluntary assumption of risk

Question 26

Contributory negligence

Answer 26

The plaintiffs failure to take responsible care for their safety The plaintiff contributed to their own loss or damage 1) the plaintiff was negligent 2) the plaintiffs negligence was a contributing cause of the loss/damage Not a complete defence

Question 27

voluntary assumption of risk

Answer 27

The plaintiff accepted and was ware of the risk involved with their activity 1) They had full knowledge of the risk 2) Appreciated the risk involved 3) voluntarily took part in the risk

Question 28

Possible remedies

Answer 28

Specific damages General damages Aggravated damages

Question 29

Specific damages

Answer 29

Damages that are measurable and may have a precise value.

Question 30

General damages

Answer 30

Do not have a specific value therefore are le easily quantifiable.

Question 31

Aggravated damages

Answer 31

The defendant showed harmful behaviour such as nor remorse.

Question 32

Rights protected by defamation

Answer 32

- Personal reputation - Professional reputation - Business reputation Stated in the defamation Act 2005 (vic)

Question 33

Defamation

Answer 33

Defamation is protected under an area of law that aims to protect a plaintiffs reputation from being unfairly damaged. Defamation is a type of tort that involves the action of damaging a personal or professional reputation through false statements.

Question 34

Elements of defamation

Answer 34

The statement is defamatory The statement is untrue Refers to the plaintiff Published to a third party Is or is likely to cause harm

Question 35

The statement is defamatory

Answer 35

The overall message must lower the plaintiffs reputation. The court will use the 'reasonable persons' test to consider whether a ordinary or reasonable person would infer the matter and whether the plaintiffs reputation would have been lowered as a result.

Question 36

The statement is untrue

Answer 36

The plaintiff must demonstrate that the statement against them was false.

Question 37

Refers to the plaintiff

Answer 37

The plaintiff must be either explicitly or my implication identifiable as the person defamed. The defendant can still be held liable if they were unaware of the plaintiffs existence, referring to an imaginary character or was referring to a different person with the same name.

Question 38

Published to a third party

Answer 38

A persons reputation cannot be damaged when the matter is only between the plaintiff and the defendant therefore the matter must be published to a third party.

Question 38

The statement is or is likely to cause harm

Answer 38

The judge determines whether the serious harm element is satisfied.

Question 39

Limitation of actions for defamation

Answer 39

The claim of defamation must be brought within one year of the publication date, this can be extended to 3 years if it was not reasonable for the plaintiff to have commenced action.

Question 39

Defences of defamation

Answer 39

Justification Contextual truth Honest opinion Absolute privilege Qualified privilege

Question 40

Justification

Answer 40

The information published is substantially true. This means the plaintiff has done something that has tarnished their own reputation.

Question 41

Contextual truth

Answer 41

The defendant statement did not lower the plaintiffs reputation when read along other truthful statements with similar context. The false statement does not damage the plaintiffs reputation anymore than the true statements made alongside it.

Question 42

Honest opinion

Answer 42

The defendants statement was a statement of opinion and was in the publics interest to know. The opinion was based on proper material.

Question 43

Absolute privilege

Answer 43

Statements made where there is free communication information that is exempt from defamation law. - Parliamentary proceedings - Court or judicial proceedings - Between government ministers

Question 44

Qualified privilege

Answer 44

The publisher believed it was in the best interest of the recipient to publish the communication. The Defendant had reasonable belief in their truthfulness and acted with the absence of ill intent .

Question 45

Remedies for defamation

Answer 45

Damages - Momentary compensation, Injunctions - Court ordering compelling an action or preventing an action

Question 46

Mandatory injunction

Answer 46

Court ordering parties to do something in the plaintiffs favour

Question 47

Restrictive injunctions

Answer 47

Court ordering parties to stop doing something in the plaintiffs favour.

Question 48

Impacts of defamation

Answer 48

Tarnished reputation Unemployment Emotional impact Financial impact

Question 49

types of civil law

Answer 49

Work Place law - Relationship between employees and employers Contract Law - Parties establishing agreements