AOS1 - Civil Liability Flashcards
bCivil Law
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.
Key concepts of civil law
Breach
causation
Loss
limitation of actions
burden of proof
Standard of proof
Breach
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.
Causation
The relationship between an action and the resulting event.
The defendants breach was a necessary condition of the loss sustained.
Loss
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.
Limitation of actions
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.
Burden of proof
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.
Plaintiff
A person that brings a civil matter to court against another.
The plaintiff has had their rights breached due to another persons wrongdoing.
Possible plaintiffs
Aggrieved party
Other victims
Insures
Class action
Aggrieved party
The individual or group that has directly suffered the loss and had their rights breached.
Other victims
The individual or group that has indirectly suffered a loss as a result of the actions against the aggrieved party.
Insures
Individuals or cooperation’s that provide insurance.
Class action
7 or more people have the same or similar claim and legal issue against the defendant.
Defendant
An individual, company or group that has been sued for allegedly carrying out a civil wrong and breaching the plaintiffs rights.
Possible defendants
Wrongdoer
Employers
Wrongdoer
The individual or group who has directly caused or instigated the loss or suffering of the plaintiff.
Employers
An individual or company who employs the plaintiff and has directly or indirectly caused the loss or suffering of the plaintiff.
Vicarious liability
When the party is indirectly the cause of the plaintiffs loss or suffering.
Negligence
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.
Elements of negligence
Duty of care
Breach of duty of care
Causation
Loss
Duty of care
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.
Breach of duty of care
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
Causation
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.
limitation of action for negligence
3 years for personal injury
6 years for property damages/economic loss
Possible defences to negligence
Contributory negligence
Voluntary assumption of risk
Contributory negligence
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
voluntary assumption of risk
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
Possible remedies
Specific damages
General damages
Aggravated damages
Specific damages
Damages that are measurable and may have a precise value.
General damages
Do not have a specific value therefore are le easily quantifiable.
Aggravated damages
The defendant showed harmful behaviour such as nor remorse.
Rights protected by defamation
- Personal reputation
- Professional reputation
- Business reputation
Stated in the defamation Act 2005 (vic)
Defamation
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.
Elements of defamation
The statement is defamatory
The statement is untrue
Refers to the plaintiff
Published to a third party
Is or is likely to cause harm
The statement is defamatory
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.
The statement is untrue
The plaintiff must demonstrate that the statement against them was false.
Refers to the plaintiff
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.
Published to a third party
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.
The statement is or is likely to cause harm
The judge determines whether the serious harm element is satisfied.
Limitation of actions for defamation
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.
Defences of defamation
Justification
Contextual truth
Honest opinion
Absolute privilege
Qualified privilege
Justification
The information published is substantially true. This means the plaintiff has done something that has tarnished their own reputation.
Contextual truth
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.
Honest opinion
The defendants statement was a statement of opinion and was in the publics interest to know. The opinion was based on proper material.
Absolute privilege
Statements made where there is free communication information that is exempt from defamation law.
- Parliamentary proceedings
- Court or judicial proceedings
- Between government ministers
Qualified privilege
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 .
Remedies for defamation
Damages - Momentary compensation,
Injunctions - Court ordering compelling an action or preventing an action
Mandatory injunction
Court ordering parties to do something in the plaintiffs favour
Restrictive injunctions
Court ordering parties to stop doing something in the plaintiffs favour.
Impacts of defamation
Tarnished reputation
Unemployment
Emotional impact
Financial impact
types of civil law
Work Place law - Relationship between employees and employers
Contract Law - Parties establishing agreements
