Civil Law Flashcards
Aim of civil law
The aim of civil law is the protection of INDIVIDUAL rights.
Burden of proof
In civil law, the plaintiff (the party whose rights have been infringed) must prove the wrongdoing of the defendant. This means that the plaintiff has the burden of proof.
Standard of proof
In civil law, the standard of proof is on the balance of probabilities. This means that the court needs to be satisfied based on the evidence presented, that it is more likely than not that the event occurred.
Methods of Dispute Resolution
- Negotiation
- Letter of demand
- Mediation
- Conciliation
- Arbitration
- Litigation (judicial determination)
Negotiation
It involves the people in the dispute discussing the problem, either
orally or through the exchange of written documents, and
presenting options for resolution in an effort to come to an
agreement about how to settle it.
Mediation
In mediation, the parties meet with an independent third party who acts as the mediator. The mediator assists the parties to discuss
the issue in dispute.
The mediator may not suggest any particular resolution to the parties, who must reach agreement on the outcome of the dispute themselves.
The outcome reached may or may not be legally binding. The agreement must be put into a legally binding contract for it to be legally binding.
Mediation is most appropriate for resolving disputes that are not legally complex.
Letter of Demand
A letter of demand can be sent by a solicitor to add gravity
to the claim and communicate the seriousness of the
complaint to the other party.
Conciliation
In conciliation, the parties meet with an independent third
party who acts as the conciliator.
The conciliator takes an active role in identifying the issue in dispute and may make suggestions for how to resolve the dispute, including the terms of settlement.
However the parties must decide on the outcome for themselves.
Conciliation if often used for more complex commercial disputes.
The outcome reached may or may not be legally binding. The agreement must be put into a legally binding contract for it to be legally binding.
Arbitration
Arbitration is one of the more formal processes for alternative dispute resolution in Victoria.
The parties to the disagreement argue their case before an independent arbitrator. The arbitrator makes a decision as to how best to resolve the issue.
The parties must comply with the decision of the arbitrator. The outcome is legally binding on the parties.
Litigation (Judicial Determination)
If a dispute is not able to be resolved through alternate means, the party whose rights have been infringed can seek remedy via the court system.
In many instances, the courts will not hear a case unless the parties have first tried to resolve the issue using an alternative dispute resolution (ADR) method.
The court that hears the dispute will be determined by the civil jurisdiction of the court and the amount of damages the plaintiff is seeking.
Breach
-A person can only make a claim under civil law if there has been some
form of breach or fault on the defendant’s behalf.
-A breach can mean that a person has failed in their responsibilities under
tort law or contravened a term in a contract (contract law)
Causation
A connection between the actions of the defendant and the loss suffered by the plaintiff.
Loss
Loss (also referred to as harm) can take many forms. Some
forms of loss include:
* Personal injury: physical harm to a person’s body
* Economic loss: often applicable to cases involving a breach
of contract
* Loss of reputation: applicable to defamation cases
* Mental illness
* Loss of income
* Death
Limitation of Actions
In Victoria, the Limitation of Actions Act 1958 (Vic) sets limitation periods for certain
claims.
-Personal injuries: 3 years
-Breach of contract: 6 years
-Defamation: 1 year
Non‐Statutory Limitations
- Not having the funds to pursue the claim
-Discovering that the defendant has insufficient funds to pay any damages
that might be awarded to the plaintiff.
Tort
A civil wrong
Tort of Negligence
The tort of negligence aims specifically: to ensure that a party who owes a duty of care to another party does not breach that duty, or is held
accountable if they do
Negligence Elements
- The negligent party must have owed a duty of care;
- They must have somehow breached their duty; and
- The breach of duty of care caused the plaintiff to suffer loss or harm
Relationships are considered where a duty of care is owed
- Land owner and tenant
- Occupier of land and visitor to the land
- Teacher and their student
- Doctor and their patient
- A manufacturer and the consumer
- Employer and their employee
- A road user and another road user
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
Binding precedent occurs when:
* A precedent was established by a higher court
* Established in the same court hierarchy
* There are similar material facts
A binding precedent must be followed by lower courts in the same hierarchy for consistency + fairness
Persuasive precedent
Persuasive precedent occurs when:
* A precedent was established by a lower or same level court
* Established in a different court hierarchy (Eg. Another state or outside of
Australia)
* The material facts are not similar
Persuasive precedent does not have to be followed but it can persuade a
judge to make a similar decision
Defences to the Tort of Negligence
- Lack of elements
- Voluntary assumption of risk
- Contributory negligence
Lack of elements
This defence is used when the defendant claims that not all the elements of negligence
are present.
Voluntary Assumption of Risk
This occurs when the defendant can demonstrate that the plaintiff:
* Was fully aware of the risk;
* Fully appreciated its nature and extent; and
* Freely and willingly accepted the risk.
Contributory Negligence
This occurs when the defendant can show that the actions of the plaintiff contributed to their injury/loss.
Defamation
The tort of defamation aims specifically: to protect the reputation of individuals against unjustified attempts to discredit their character in the eyes of others in the community.
Defamation Elements
1) The statement was defamatory
2) The statement identified the plaintiff
3) The defamatory statement was published/communicated to a third party
Defences to the Tort of Defamation
- Lack of elements
- Justification
- Honest opinion
- Contextual truth
Agreement
An agreement is an exchange of promises between two people or
parties that is recognised by the law.
An offer can be
-revoked (withdrawn prior to acceptance),
-accepted (yes),
-rejected (no),
-lapse (the offer has to be accepted by a certain time; after that time it is no longer an offer and therefore cannot be accepted),
-or counter‐offer made (no; a new offer is made the offeree now
becomes the offeror as that party has made a new offer).
Elements of a Legally Binding Agreement
- Intention to create legal relations
- Agreement between the parties – (Offer and Acceptance)
- Consideration
Consideration
Consideration is the value of the promise of what is exchanged
between the parties.
Capacity
Capacity refers to the ability that a person has to be legally capable of entering into a contract or properly understand their obligations under a contract.
lack the capacity:
* those who are mentally ill
* intoxicated people
* those with an intellectual disability
* minors ‐ children under 18 (there are some exceptions)
Voidable contract
-Able to be cancelled or ended.
-A voidable contract is one in which one of the parties may choose to
proceed with the
contract even though the other party has done something which could in
theory allow them
to end (or ‘terminate’) the contract
Void
The contract is of no legal value and essentially does not exist
Purpose of Civil Remedies
The general purpose of a remedy is to restore the plaintiff to the
position they were in prior to infringement of their rights
Two main types of civil remedy
-Damages: an amount of money to be paid to the infringed party to
compensate for losses 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
Aggravated damages
awarded to compensate for humiliation and insult
Specific (or pecuniary) damages
Awarded to compensate the plaintiff for items that
can be calculated exactly. Eg. Loss of wages; medical expenses.
General damages
Awarded to compensate the plaintiff for pain and suffering. These
damages cannot be calculated exactly.
There are two types of injunctions
- 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. An order stopping a building from being destroyed.
