Civil Law Flashcards
remedies
breach
causation
loss
remedies aim to return plaintiff back to their pre-wronged state (damages - court orders one party to pay another)
breach is a failure to act on a responsibility or obligation
causation is a direct relationship between an inciting incident (breach) and the loss or harm caused to the plaintiff
loss is economic or financial, property damage, personal injury that is caused by the breach
burden of proof
standard of proof
burden: the onus or responsibility of proving the facts of the case that lies with the plaintiff as they made the allegation
standard: the degree to which the case must be proven to the balance of probabilities (the plaintiff is more likely to be right)
purpose of civil law:
civil law definition:
tort law:
aims to achieve social cohesion, a mechanism for seeking compensation, protecting individuals rights
civil law that defines the responsibilities of individuals/groups/organisations in society, it regulates private disputes between 2 parties
tort law: a civil wrong, aims to return wronged person back to pre-wronged position
aggrieved party:
insurer:
other victims
aggrieved party: party who’s rights have been infringed/suffered loss
insurer: insurance companies trying to recover payment back from defendant who caused loss to company
other victims: family/friends who suffered due to harm caused by aggrieved party
wrongdoer:
employer
other parties
wrongdoer: those who allegedly caused harm to plaintiff
employer
other: those who encouraged, organised or planned, directly involved
LIMITATIONS OF ACTIONS
negligence claims (disease/disorder and personal injury):
exist because evidence can be forgotten, can cause backlog of cases
calculation of time usually starts at time loss was suffered
disease/disorder: 6 years
death/personal injury claims: 3 years of when plaintiff knew - 12 when it occurred
no limit for child abuse
DEFAMATION
Definition:
elements:
defences:
defamation is a tort that involves the action of damaging someones personal/professional reputation in the Community - false statement
elements: statement is defamatory, untrue, statement refers to plaintiff
defences: honest opinion, justification (statement is substantially true), absolute privilege
DEFAMATION
Rights protected:
Limitations:
impacts:
rights protected: freedom of expression, right to be considered of good character, right to effective and fair remedies
limitations: Brough to claim within one year statement was made/published - in limitations of actions act
impacts: loss of reputation, unemployment, emotional damage - costs, public humiliation
DEFAMATION
Common law in developing:
statute law in developing:
common: defamations act 2005 right to freedom of speech - constitution
statute: defamation act, defamation working party to review or abolish defamation laws
NEGLIGENCE - in wrongs act
Definition:
Elements:
defences:
a tort law that involves a breach of duty of care causing loss or harm
elements: duty of care (defendant owed a duty of care to wronged person), breach of duty of care, causation (breach caused harm to plaintiff), in jury/loss/damage suffered b by wronged person
defences: voluntary acceptance of risk (plaintiff was aware of an obvious risk but made the choice to take the risk) contributory negligence (plaintiff is partly to blame for harm they suffered
NEGLIGENCE
Aim:
Impacts:
aim: to protect people from wrongful conduct where a person recklessly or disregarded another person, seek compensation
impacts: loss of life, emotional impact, loss of wages, loss of livelihood
loss of business, public humiliation, injuries, need to pay costs
NEGLIGENCE
Common law in developing
statute law in developing
common: established principles in 1930 Donoghue vs Stephenson case, adopted in aus in 1963
statute law: in wrongs ac, aus consumer laws in reference to d vs s
