civil law Flashcards
what’s the difference between criminal and civil law?
Criminal law aims to protect the community as a whole, whereas civil law is to protect the individual rights.
types of civil law
Torts Contract law Family law Employment law Wills and estates Company law
tort law
A ‘civil wrong’, examples include negligence and defamation.
contract law
covers the legal agreement of a contract and the rights available to a party if a valid contract is broken.
what is civil law?
civil law aims to protect individuals’ rights and restoring individuals to their previous positions if those rights have been infringed.
breach, causation and loss
Breach - breaking, or failing to fulfil, a duty or obligation.
Causation - direct link between the actions of the defendant and the loss of the plaintiff.
Loss - harm or damage suffered by a person.
Restriction on bringing a civil claim to court after a given time.
Generally 6 years after breach
Apart from personal injuries (3 years) and defamation (1 year)
Some instances there will be no limitations e.g. psycological harm suffered from sexual abuse
This ensures justice/fairness because it provides certainty to the defendant, avoids delay and the plaintiff cannot wait for D’s financial status to change.
vicarious liability
A party is considered responsible for the wrongdoing of another person. Eg) the employer can be held responsible for the employees actions.
civil law burden of proof
The party which has the responsibility of proving the facts of the case. The burden falls on the plaintiff to prove the wrongdoing of the defendant.
Standard of proof
In civil law, the degree in which the case must be proven is ‘on the balance of probabilities’,
The plaintiff must prove th
burden of proof: counterclaim
Counterclaim; a separate claim made in response to the plaintiffs claim; it’s heard at the same time. The wrongdoing may be on both parties.
Parties to a civil claim
It’s important to consider who the plaintiff may be and who the possible defendants may be.
P’s and D’s might be a human being, company, or other bodies such as government agencies.
Possible plaintiffs
The aggrieved party (the person who suffered the loss)
Other victims(secondary losses) such as children
Insurers
Aggrieved party
The person whose rights have been infringed and who has directly suffered loss. There may be more than one aggrieved person.
Representative proceedings
Also known as class actions Seven or more aggrieved parties making a claim against the same party + legal wrongdoing Lead plaintiff: represents the group in the proceedings, others are known as group members
other victims
Other victims who have indirectly suffered loss or damage may also become a plaintiff.
Examples: someone who witnessed an event and now suffers nervous shock due to it.
Insurers
Right of subrogation: Insurance companies have the right to sue on behalf of the policy holder.
Therefore, an insurer will pay the policyholder and then sue the person who caused the loss or recover their expenses.
possible defendants
The wrongdoer Employers - vic liability Person involved in wrongdoing Insurers organisations/companies The government and government agencies
Wrongdoer
person/company that has directly caused the damage or loss to the plaintiff. Could be more than one, for e.g. a plaintiff may sue the hospital, medical care felicity and the doctor(s).
employers
Can be held vicarious liability, which is the legal responsibility of a third party for the wrongful acts of another. Employers have a right, ability and duty to control the activities of their employees.
Must provide safe workplace for employees.
Negligence
An area of tort law, in which a duty of care is breached.
Aims to make sure those who owe a duty of care do not breach it and if so they are responsible for any loss or damage suffered.
Limitations:
Must be initiated within 3 years from when the injury was discovered
6 years to work injuries and transport accident injuries
Person involved in wrongdoing
A party can be held liable as an accessory, known as accessorial liability.
Neighbor principle
is someone that is so closely/directly affected by an act, that they should’ve been considered when the act was performed.
elements of negligence
- Duty of care
- Beached DOC
- Causation: link between the breach and loss
- Loss
