Civil law

Question 1

breach

Answer 1

a person can only make a claim under civil law if there has been some form of breach or fault on the defendant behalf. A breach can mean that a person has failed in their responsibilities under tort law or contravened a term in a contract

Question 2

causation

Answer 2

it is important to prove that the actions of the defendant led to the plaintiff’s loss. The plaintiff must prove that it was the action or inaction of the defendant which led to the loss or harm that they suffered.

Question 3

loss

Answer 3

it is necessary to determine whether the plaintiff has suffered a loss due to the defendant’s breach. Loss may include personal injury, loss of reputation, mental illness, loss of income, death

Question 4

limitation of actions

Answer 4

statutory limitations in Victoria, the Limitation of Actions Act 1958 [ vic] sets limitation periods for certain claims
personal injury - 3 years
breach of contract - 6 years
defamation - 1 year

Question 5

non-statutory limitations

Answer 5

even if a plaintiff is still within the statutory period required to make a claim they may be unable to commence the claim due to: not having funds, defendant has insufficient funds

Question 6

tort law

Answer 6

a tort is a civil wrong
aim = it is a situation where one person is harmed and this harm gives right to the rise to sue

Question 7

elements of negligence

Answer 7

1. the negligent party must have owed a duty of care
2. they must have somehow breached their duty
3. the breach of duty of care must of caused the plaintiff to suffer a loss or harm

Question 8

neighbour principle

Answer 8

one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour

Question 9

precedent

Answer 9

a legal principle that has been established by judges when ruling over a case

Question 10

binding precedent

Answer 10

must be followed by lower courts in the same hierarchy for consistency and fairness
occurs when = a precedent has been established by a higher court, established in the same court hierarchy, and there are similar material facts.

Question 11

persuasive precedent

Answer 11

does not have to be followed but it can persuade the judge to make a similar decision
occurs when = a precedent was established in a lower or same level court, established in different country hierarchy, matters of facts are not similar

Question 12

Lack of elements [ for negligence]

Answer 12

the defence is used when the defendant claims that not all the elements of negligence are present
1. no duty of care was owed
2. the duty of care was not breached
3. no loss or harm occurred

Question 13

defences to negligence -no duty of care was owed

Answer 13

there was no neighbour relationship because it was not reasonable to foresee that their actions would cause the loss or damage that the plaintiff suffered

Question 14

defences to negligence -the duty of care was not breached

Answer 14

the defendant acted as any reasonable person would have and the injury was the result of an accident that couldn’t be stopped

Question 15

defences to negligence -no loss or harm occurred

Answer 15

although duty of care may have been breached, the plaintiff didn’t suffer because of the breach

Question 16

voluntary assumption of risk

Answer 16

occurs when the defendant can demonstrate that the plaintiff:
- was fully aware of the risk
- fully appreciated its nature and extent
- freely and willingly accepted the risk
eg bungee jumping

Question 17

contributory negligence

Answer 17

occurs when the defendant can show that the actions of the plaintiff contributed to their injury/loss. the Plaintiff may have failed to take the standard of care a person should to ensure their own safety, contributing to their own negligence.

Question 18

aim of defamation

Answer 18

to protect the reputation of individuals against the unjustified attempts to discredit their character in the eyes of others in the community

Question 19

Elements of defamation

Answer 19

1. the statement was defamatory
2. the statement identified the plaintiff
3. publication/communication to a third party

Question 20

the statement was defamatory

Answer 20

a communication was defamatory if someones reputation has been damaged by the publication of the lie or imputation. It may be a blatant lie, a false representation

Question 21

the statement identified the plaintiff

Answer 21

They do not need to be mentioned by name, and can be part of a group. If the statement reasonably concludes that it was about the plaintiff

Question 22

publication/communication to a third party

Answer 22

visual and verbal statments, all types of , media, could be writing, print, website, drawings, speech
communication must be made to someone other than the plaintiff

Question 23

defences to defamation - lack of elements

Answer 23

if the plaintiff cannot establish that all the elements of defamation are present, then the defamation has not occurred
1. the statment was not defamatory
2. did not identify the plaintiff
3. was not communicated to third party

Question 24

defences to defamation - justification

Answer 24

a statement will not be considered defamatory if there was a good reason for publishing it. One can prove that it is true, also known as the truth defence.

Question 25

defences to defamation- honest opinion

Answer 25

defendant must esthablish that the statement communicated was their opinion and not written as fact
- the opinion was honestly held
- the opinion was based on proper material [ truth]
- was a matter of public interest

Question 26

defences to defamation - contextual truth

Answer 26

when the defamatory statement was substantially true, Under the Defamation Act 2005 {VIC] it is possible for a publication to contain some defamatory statements as part of a larger article
If an untrue statement was made within the context of an accusation that is substantially true

Question 27

Legally binding agreement

Answer 27

an agreement is an exchange of promises between two people or parties that it recognised by law

Question 28

offer

Answer 28

offer can be written or spoken or made by conduct
offer can be = revoked, accepted, rejected, lapsed, or counter-offered

Question 29

acceptance

Answer 29

acceptance can be words or conduct
that must be clearly communicated, cannot be withdrawn without consent and needs to be within a time period. cannot be accepted by silence

Question 30

intention to create legal relations

Answer 30

one way to demonstrate intentions is through a written document in the form of a contract which both parties read, agree on and sign. Also through actions and behaviours. eg a car yeard with vehicles on display, magazine rack displaying magazines

Question 31

purpose of civil remedies

Answer 31

the general purpose of a remedy is to restore the plaintiff to the position they were in prior to the infringement of their rights.

Question 32

types of remedies

Answer 32

damages = an amount of money to be paid to the infringed party to compensate what they suffered

injunctions = a court order to force a party to complete or stop an action in an attempt to rectify the situation which has arisen

Question 33

specific damages

Answer 33

awarded to compensate the plaintiff for items that can be calculated exactly eg medical expenses

Question 34

general damages

Answer 34

awarded to compensate the plaintiff for pain and suffering, these cannot be calculated exactly

Question 35

aggravated damages

Answer 35

awarded to compensate for humiliation and embarrassment

Question 36

mandatory injunctions

Answer 36

compel a party to perform an action eg an order to remove something from one’s land

Question 37

restrictive injunctions

Answer 37

prevent a party from undertaking an action eg, stop photographs from being published

Question 38

mediation

Answer 38

acts as a mediator between the two parties but can’t suggest a solution
not legally binding unless enter contract,
for non-complex situations for eg fencing disputes

Question 39

conciliation

Answer 39

can make suggestions but cant determine the outcome
not legally binding unless enter contract, normally for more complex commercial disputes

Question 40

arbitration

Answer 40

arbitrator from VCAT can make decisions on how to resolve the dispute, legally binding, for more formal processes, eg tenant/landlord

Question 41

judicial determination

Answer 41

parties involved = plaintiff, judge, defendant, possible jury
judge/jury determines amount of remedy owed
legally binding
used when cant resolve dispute any other way eg defamation