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Legal year 11 > civil law > Flashcards

civil law Flashcards

1
Q

civil law

A

defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

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2
Q

sue

A

to take civil action against another person by making a claim that they have infringed some legal right

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3
Q

liability

A

the legal responsibility of a party for the loss or harm caused to another because of a breach of civil law

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4
Q

remedy

A

orders made by a court or tribunal to address a civil wrong or breach - designed to restore plaintiff back to original position. Can be in form of damages [money] or injunctions

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5
Q

negligence

A

requires indv who owe duty of care to another person to prevent forseeable harm from occurring

eg teacher owes student duty of care and if negligent if something occurrs in their classroom if they arent present

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6
Q

trespass

A

prevents individuals from interfering with another person, their land or goods

eg destroying laptop = could claim trespass for goods

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7
Q

role of nusiance

A

ensures that indv can enjoy public and private spaces without interference or annoyance

eg neigbour has rotting food in backyard and the smell makes it annoying to go outside.

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8
Q

contract aim

A

ensures that people who make promises under enforceable agreements fufil there promises and compensate others if they fail to comply

eg when person joins social media must agree to terms of service

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9
Q

defamation

A

protects a persons reputation from being damaged by lies that are shared by the public

eg calling someone a “fraud” or “war criminal”

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10
Q

purposes of civil law

A
  • provide guidelines for acceptable behaviour so that people uphold each others rights and social cohesion can be achieved
  • provide a system for parties to pursue rights protection through courts and tribunal
  • provide a remedy for loss or harm caused by infringment of rights
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11
Q

parties before court proceedings

A

aggrieved/ wrong party = person with rights infringed

wrongdoer = person alleged to have infringed another persons rights

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12
Q

parties during court proceedings

A

plaintiff = the person whos rights have been infringed and who sues another party in a court/tribunal

defendant = the party who is alleged to have breached a civil law and is being sued

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13
Q

loss

A

a type of harm or damage suffered by a person. It can involve both economic and non-economic loss.

plaintiff can only get remedy if sufferred loss or harm

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14
Q

causation

A

the direct relationship between the defendants breach and the plaintiffs loss.

+ must prove necessary condition of loss suffered

+ may be intervening act to break chain of causation

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15
Q

breach

A

an act or ommision that represents a failure to meet a legal obligation

+ plaintiff [with burden of proof] must prove that the defendant is a breach

could be contract = failure to fufil promise
or
Negligence = failure to uphold duty of care

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16
Q

types of losses

A
  1. financial - eg loss of wages, medical expenses
  2. property damage
  3. personal injury
  4. pain and suffering eg anxiety depression
  5. loss of amenity eg loss of enjoyment, job satisfaction
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17
Q

burden of proof

A

the responsibility of proving the facts of the case
in civil law rests on plaintiff this means they must present evidence to esthablish the elements of the civil wrong

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18
Q

standard of proof

A

the degree to which a case must be proven in court

in civil law the plaintiff must prove that the wrongdoing occurred on the balance of probabilities

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19
Q

limitation of actions

A

need to get definition

for almost all civil claims there is time period within where the aggrieved party can sue the wrongdoer

purpose
ensure civil cases resolved in timely manner
reliable evidence is readily available
defendant doesnt have pending case for unlimited amount of time

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20
Q

counter claims

A

this is a seperate claim made by the defendant in response to the plaintiffs claim, asserting that it is the plaintiff who is actually at fault

counterclaims have independant procedural existnece [not a defence]

this gives the defendant burden of prood

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21
Q

plaintiff and defendants

A

+ may be more than one aggrieved person or more than one wrongdoer in situation
+ two or more people can be joined as plaintiffs or defendants in proceedings

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22
Q

class actions

A

+ also known as representative proceedings or group proceedings
+ lead plaintiff represents case others are called group members

+ vic has opt out system for class actions
+ one the class has been defined if person meets criteria automatically apart of class action

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23
Q

vicarious liability

A

the legal responsibility of a third party for the wrongful acts of another

+ employees have the right, ability and duty to control the activities of their employees therefore employers can be vicariously liable for breaches of employees

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24
Q

a class action is when…

A
  1. seven or more people have claims against the same defendant
  2. the claim concerns the same, similar or related circumstances
  3. the claims give rise to a common issue of law or fact
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25
Q

negligence purpose

A

negligence requires individuals who owe a duty of care to another person to prevent forseeable [ predictable] harm from occurring

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26
Q

elements of negligence

A
  1. defendant owed the plaintiff a duty of care
  2. defendant breached their duty of care
  3. defendants breach caused harm to the plaintiff
  4. plaintiff suffered harm or loss
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27
Q

duty of care with negligence

A

a person owes duty of care to another if the risk of harm was reasonably foreseeable
if the risk is reasonably forseeable , then the neighbour principle applies

28
Q

a person has breached their duty if

A

reasonably forseeable that the breach will result in harm to the plaintiff
the risk was not insignificant
a reasonable person in the same situation would have taken precautions to eliminate the risk

29
Q

negligence causation

A

+ the plaintiff must prove that the defendants breach was a necesarry conditon of their loss or harm
+ the but for test can be used to esthablish causation
+ there may be intervening acts that break the chain of causation

30
Q

negligence loss, injury and damage

A

+ plaintiff can only seek remedy if sufferred injury, loss or damage
+ loss can be financial, property damage, personal injury, pain and suffering
+ cant be too remote from the breach / must be reasonably forseable

31
Q

lack of elements defence

A
  1. no duty of care was owed
    + may claim no neighbour relationship because not reasonably forseeable risk
  2. the duty of care was not breached
    + no breach if defendent acted as reasonable person and injury was accident that couldnt be stopped
  3. no loss or harm occurred or if so, it was caused by other means
    + they might have breached duty with no harm as result of the breach
32
Q

voluntary assumption of risk

A

complete defence if proven defendant avoids liability
must prove
1. plaintiff was aware of an obvious risk
2. plaintiff voluntarily chose to take the risk

eg knowingly accepting ride with a drunk driver is accepting obvious risk of being injured in car accident

doesnt apply with medical as health providers must tell the risks

33
Q

contributory negligence

A

+ not a complete defence - if proven amount of damages owed to plaintiff will be reduced
+ defendant must prove that plaintiff contributed to harmful situation or is partly to blame
+ court will examine conduct of plaintiff and assess “did plaintiff take reasonable care to avoid forseeable harm”
+ if intoxicated there is presumption of contributory negligence

34
Q

remedies

A

a court order that aims to enforce a right by
preventing a civil breach or
correct a civil breach by returning the plaintiff to their original jurisdiction

two remedies = damages and injunctions

35
Q

damages defenition

A

a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach

36
Q

compensatory damages

A

+ the purpose of comensatory damages is to restore the plaintiff, as nearly as possible to the position that the would have been in had to tort not been committed

37
Q

special damages

A

compensate for the loss that can be accuratly measured in monetary terms

38
Q

general damages

A

compensate for loss that cannot be accurately measured in monetary terms

39
Q

aggravated damages

A

awarded if the defendant shows reckless disregard for the plaintiffs feeling and causes them unnecessary distress, shame or humiliation

40
Q

exemplary damages

A

if the defendant conduct is particularly reprehensible the court can impose exemplary damages to make an example of them and to deter others from that type of behaviour

+ awarded if the defendant has acted consciously and in extreme disregard for the rights of others

41
Q

nominal damages

A

require an extremely small amount of money to be paid to a plaintiff usually valued at $1.

+ ensure plaintiffs rights are upheld without providing compensation
+ normally wants to prove legally right - or make a point for moral reasons

42
Q

contemptuous damages

A

acknowledge plaintiff had legal right but not a moral right to take civil action
+ condemn immorality of claim, minimal compensation awarded
+ judge must believe that the case shouldnt be brought to court

43
Q

impacts on negligence - the plaintiff

A

loss of life
permanent physical injury
serious physical injury
emotional impact of the breach
loss of wages and livelihood
unemployment
effect on mental health

44
Q

impact of negligence - on defendant

A

loss of business
public humiliation and loss or reputation
physical injury
costs
need to sell assets

45
Q

elements of defamation

A
  1. the statement was defamatory
  2. the statement is untrue
  3. the statement refers to the plaintiff
  4. the statement has been published
  5. the defamatory statement caused serious harm, or is likely to cause serious harm to the reputation of the defendant
46
Q
  1. the statement was defamatory
A

+ is defamatory if it lowers a persons reputation in the eyes of ordinary members of the community
+ not necessary to prove intent to hurt

47
Q
  1. the statement is untrue
A

+ plaintiff must prove that the statement is false
+ if the statement is substantially true, plaintiff cant be defamed

48
Q
  1. the statement refers to the plaintiff
A

+ the plaintiff can be explicitly named
or
+ people witnessing the statement would reasonably conclude that it was about the plaintiff
+ the plaintiff can be defamed as part of a group

49
Q
  1. the statement has been published
A

+ must be communicated to someone other than the plaintiff
+ online if your repost it can be considered published a statement

50
Q
  1. publication caused, or is likely to cause, serious harm
A

+ change made in 2021 to defamation act 2005
+ element must be determined by judge before trial commences [ if not satisfied case will be dismissed]
+court may consider meaning of words, gravity of allegation, scale of publication, reaction of recipients

51
Q

justification

A

+ applies when the defamatory statement is substantially true
+ doesnt matter if there is some inaccuracies as long as the core imputation is substantially true

52
Q

contextual truth

A

+ applies when defamatory statements are made within the same context as statements that are substantially true
+ if the contextual and substantially true elements are more serious than the defamatory statements, the defamatory statements are cancelled out as they dont further harm plaintiffs rep
+

53
Q

honest opinion

A

+ may claim expression of honest opinion rather than a statement of fact

  1. the matter was a statement of opinion rather than a statement of fact
  2. the opinion was related to a matter of public interest
  3. the opinion was based on proper material
    + the material for the opinion must be set out, notorious [widely known]
54
Q

innocent dissemination

A

+ protects people who unknowingly distribute defamatory info such as printing companies, booksellers, libraries, internet or email providers
1. the published the material as a subordinate distributor or as an employee or agent of one
2. did not know [nor should have known] that the publication contained defamatory information
3. did not have obligation to check for defamatory material

55
Q

defamation damages
[+ caps and mitigating factors]

A

+ in defamation the plaintiff can receive compensatory damages including special, general and aggravated. However exemplary [punishment] cant be awarded to protect free speech.
caps = in vic $250k limit for non financial loss

mitigating factors = if D has apologised or published a correction, if the P has already recovered damages

56
Q

defamation injunctions

A

injunction = a court order that compels a party to do something or prevents from doing something
mandatory = force party to do something
restrictive = prevents from doing something

may be held contempt in court or ordered to pay damages or be charged with criminal proceedings if dont comply

can be awarded with damages

57
Q

defamation impacts on plaintiff

A

+ loss of rep
+ emotional toll
+ loss of wages and livelihood
+ unemployment

58
Q

defamation impacts on defendant

A

+ financial impact - b/c of damages
+ public humiliation

59
Q

purpose of nuisance

A

nuisance ensures that individuals can enjoy public and private property without interference or annoyance

60
Q

elements of nuisance

A
  1. the plaintiff had property right in or over the land
  2. there has been interference with the plaintiffs use and enjoyment of the land
  3. the plaintiff suffers damage, loss or injury
61
Q

property right

A

the plaintiff must have property right
as the owner of the land
as the tenant of the property
as an indv accessing public land

62
Q

interference

A

the plaintiff must esthablish that the defendant substantially and unreasonably interferred with their use and enjoyment of the land

63
Q

nuisance defence= statutory authorisation

A

+ can be raised if legislation passed by the victorian or commonwealth parliament allows for the defendants conduct
+ the defendant must show that the legislation confers a mandatory duty to undertake and action and that the nuisance is an enivitable consequence

64
Q

statutorya authorisation allows acts of

A

post office staff
council staff
gas, water and electricity readers
police entering house w/o warrant

65
Q

potential impacts of nuisance on the plaintiff

A

+ impact on mental health eg anxiety
+ impact on quality of life
+ financial impacts - loss of productivity/customers

66
Q

potential impacts of nuisance on the defendant

A

+ inconvinience, may be stopped from using property how they would like
+ business failure - may need to stop or change operations
+ costs eg legal costs and possibly paying a remedy

Legal year 11 (6 decks)

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