Civil law Flashcards
breach
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
causation
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.
loss
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
limitation of actions
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
non-statutory limitations
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
tort law
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
elements of negligence
- the negligent party must have owed a duty of care
- they must have somehow breached their duty
- the breach of duty of care must of caused the plaintiff to suffer a loss or harm
neighbour principle
one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour
precedent
a legal principle that has been established by judges when ruling over a case
binding precedent
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.
persuasive precedent
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
Lack of elements [ for negligence]
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
defences to negligence -no duty of care was owed
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
defences to negligence -the duty of care was not breached
the defendant acted as any reasonable person would have and the injury was the result of an accident that couldn’t be stopped
defences to negligence -no loss or harm occurred
although duty of care may have been breached, the plaintiff didn’t suffer because of the breach
voluntary assumption of risk
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
contributory negligence
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.
aim of defamation
to protect the reputation of individuals against the unjustified attempts to discredit their character in the eyes of others in the community
Elements of defamation
- the statement was defamatory
- the statement identified the plaintiff
- publication/communication to a third party
the statement was defamatory
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
the statement identified the plaintiff
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
publication/communication to a third party
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
defences to defamation - lack of elements
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
defences to defamation - justification
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.
defences to defamation- honest opinion
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
defences to defamation - contextual truth
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
Legally binding agreement
an agreement is an exchange of promises between two people or parties that it recognised by law
offer
offer can be written or spoken or made by conduct
offer can be = revoked, accepted, rejected, lapsed, or counter-offered
acceptance
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
intention to create legal relations
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
purpose of civil remedies
the general purpose of a remedy is to restore the plaintiff to the position they were in prior to the infringement of their rights.
types of remedies
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
specific damages
awarded to compensate the plaintiff for items that can be calculated exactly eg medical expenses
general damages
awarded to compensate the plaintiff for pain and suffering, these cannot be calculated exactly
aggravated damages
awarded to compensate for humiliation and embarrassment
mandatory injunctions
compel a party to perform an action eg an order to remove something from one’s land
restrictive injunctions
prevent a party from undertaking an action eg, stop photographs from being published
mediation
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
conciliation
can make suggestions but cant determine the outcome
not legally binding unless enter contract, normally for more complex commercial disputes
arbitration
arbitrator from VCAT can make decisions on how to resolve the dispute, legally binding, for more formal processes, eg tenant/landlord
judicial determination
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
