civil law Flashcards
what does civil law do?
aims to uphold the rights of individuals
what is the purpose of civil law?
to restore the plaintiff to their original position
what is a remedy?
order from the court which upholds the plaintiffs civil rights by providing relief and / or compensation for the loss or injury they have suffered
what is workplace law?
regulates relationship between employees and their employers eg pay and working conditions
what is contract law?
aims to protect the rights of parties to make enforceable agreements
what is family law?
guides important decisions surrounding the care of children and division if assets when families have broken down.
what is defamation law?
protects a persons reputation from being damaged by lies
what is negligence law?
requires certain individuals to take responsible care in preventing foreseeable damage from occuring
what is consumer protection law?
ensures that individuals purchasing goods or services from businesses do not have their rights infringed.
what is wills and probate law?
concerned with the creation and enforcement of wills
what is property law?
helps individuals buy, sell or rent houses or deals with commercial property leases.
what is a breach in civil law?
a breach is when a person or company fails to abide by civil law and / or fails to perform a legal obligation or infringing on an individuals rights
what is causation in civil law?
term for if someone caused the loss
what is the ‘but for’ test in civil law?
it is to figure out if someone caused or was the main cause of the loss. it asks “‘but for’ the defendants actions, would the plaintiff have suffered the loss?”
when can causation become problematic?
when there are multiple causes to the loss other than the defendants actions.
what is loss in civil law?
the concept of a loss suffered by the plaintiff
examples of losses
- loss of earnings if unable to work due to injury
- loss of reputation due to defamation
- loss of enjoyment from physical or mental pain
- damage to property
- injury or death to the plaintiff, a close family member or witnessed by the plaintiff that left them with trauma.
what is the limitation of actions?
it means that a person who feels that their rights have been infringed must initiate a civil action within a set period of time depending on the civil wrong
what is the limitation of defamation, negligence and contract?
defamation= 1 year
negligence= 3 years
contract= 6 years
what is the burden of proof in civil cases and who has it?
the responsibility of proving the facts of the case. the burden of proof is the plaintiffs
when can the burden of proof be reversed in civil law?
if the defendant raises a defence (eg claiming the plaintiffs own negligence contributed to their injury) they bear the burden of proving the facts that support their defence
what is the standard of proof in civil law?
is ‘on the balance of probabilities’ which means it has to be more probable than not.
what are 3 key concepts about representative proceedings?
must be brought on behalf of at least 7 people, where the incident involves the same or related circumstances and raises common factual and legal implications. theyre conducted in the supreme court
what is a defendant?
the party defending the case
what is vicarious liability?
refers to accountability being imposed upon a defendant (often a company or institution) as a result of the actions of another (often an employee or
representative of the company or institution), despite the employer not being at fault itself.
3 examples of vicarious liability
-Employers can be held legally responsible for acts of discrimination or harassment that occur in the
workplace between employees.
-Schools can be held legally responsible for the actions of teachers in relation to matters that occur
within the school.
-Hospitals can be held legally responsible for the actions of doctors.
what is the law of negligence
protects a persons (and an organisations) right to not be harmed by someone who does not take reasonable care to prevent this. requires all individuals / organisations to take reasonable care to avoid any act omission
what types of harm are protected by negligence?
financial, physical, mental
what is the neighbour principal
a principal that means reasonable care must be taken to avoid acts or omissions that can be reasonably foreseen to injure a persons neighbour, which is anyone closely and directly affected by my act that i should have in contemplation when doing an act.
what is factual causation?
the negligence was a necessary condition of the occurrence of the harm
what is legal causation?
whether and why liability for the harm should be imposed on the defendant. this is based on novus actus intravernous, which is a supervening event that breaks the chain of causation and policy considerations.
what does ‘the breach of duty must be a significant cause of the damage suffered’ mean?
the court must decide whther the plaintiffs harm is too remote. a person will not be liable for harms that are too remote and not a reasonably foreseeable outcome.
what is the cause of action?
refers to the date in which the plaintiffs first becomes aware of the injuries suffered to them as a result of someone else’s negligence.
what is contributory negligence
a defence in which the plaintiff contributed to their harm. it is not a complete defence
what is voluntary assumption
a defence in which the plaintiff is aware of and accepts the risks involved. it is a complete defence.
what two things must the defendant prove to establish defence of contributory negligence?
- the plaintiff acted negligently
- the plaintiffs negligence was a contributing factor to the damage suffered.
what two things must the defendant probe to establish defence of voluntary assumption?
- the plaintiff had full knowledge of the nature and extent of the risk.
- the plaintiff freely and voluntarily agreed to incur the risk of injury.
what are specific damages, general damages and aggravated damages?
specific: have a precise value / easily quantifiable.
general: do not have a precise value / not easily quantifiable.
aggravated: further compensation for humiliation and insult.
what are the four impacts of negligence on the plaintiff?
physical injuries, psych injuries, financial loss, and re-victimisation
what are the five impacts of negligence on the defendant?
reputational damage, financial loss, cultural changes, third party claims and class actions
what does defamation law do?
protects a persons reputation from false statements
when does defamation occur?
when the matter conveys defamatory imputations, it identifies the plaintiff as the person being defamed and the matter has been published to a third party.
what does it mean that “defamation is a strict liability”?
what does defamation attempt to balance?
malice or intent doesnt need to be proven
balances freedom of speech and protection of a person’s reputation
what are two focuses of imputations?
what meanings an ordinary or reasonable person give to the matter and would a reasonable person think less of the plaintiff as a result.
what is expressly identified and implied?
expressly identified = name said
implied= reasonable person would identify them even without a name
who is a third party in defamation
anyone who comes across and absorbs the defamatory information
what is the time limit of defamation?
within 1 year of the date of publication
5 defamation defences
substantial truth, contextual truth, fair comment, absolute privilege, qualified privilege
what is substantial truth defence and are substantial and contextual truth complete defences?
substantial truth is when the claim is true and therefore not defamatory.
they are both complete defences
what are the three elements of the fair comment defence?
the matter was a statement of opinion, the opinion was a matter of public interest, the opinion was based on proper material
when does absolute privilege exist and does it allow them to make false statements or intent to harm?
it exists when it is commmunication of parlimentary proceedings, during the course of judicial proceedings, or between government ministers
no it doesnt allow them to make false statements or intent to harm
3 examples of qualified privilege and when can it be lost
a previous employer giving job / character reference to prospective employer, reporting a suspected misconduct to an employer, suspected crime to the police.
it can be lost when the plaintiff proves that the defendant was driven by malice or extended beyond what is reasonable.
what do mandatory and restrictive injunctions do?
mandatory = force parties to do something
restrictive = prevent parties from doing something
