civil law Flashcards
civil law
defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes
sue
to take civil action against another person by making a claim that they have infringed some legal right
liability
the legal responsibility of a party for the loss or harm caused to another because of a breach of civil law
remedy
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
negligence
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
trespass
prevents individuals from interfering with another person, their land or goods
eg destroying laptop = could claim trespass for goods
role of nusiance
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.
contract aim
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
defamation
protects a persons reputation from being damaged by lies that are shared by the public
eg calling someone a “fraud” or “war criminal”
purposes of civil law
- 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
parties before court proceedings
aggrieved/ wrong party = person with rights infringed
wrongdoer = person alleged to have infringed another persons rights
parties during court proceedings
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
loss
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
causation
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
breach
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
types of losses
- financial - eg loss of wages, medical expenses
- property damage
- personal injury
- pain and suffering eg anxiety depression
- loss of amenity eg loss of enjoyment, job satisfaction
burden of proof
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
standard of proof
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
limitation of actions
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
counter claims
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
plaintiff and defendants
+ 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
class actions
+ 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
vicarious liability
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
a class action is when…
- seven or more people have claims against the same defendant
- the claim concerns the same, similar or related circumstances
- the claims give rise to a common issue of law or fact
negligence purpose
negligence requires individuals who owe a duty of care to another person to prevent forseeable [ predictable] harm from occurring
elements of negligence
- defendant owed the plaintiff a duty of care
- defendant breached their duty of care
- defendants breach caused harm to the plaintiff
- plaintiff suffered harm or loss
duty of care with negligence
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
a person has breached their duty if
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
negligence causation
+ 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
negligence loss, injury and damage
+ 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
lack of elements defence
- no duty of care was owed
+ may claim no neighbour relationship because not reasonably forseeable risk - the duty of care was not breached
+ no breach if defendent acted as reasonable person and injury was accident that couldnt be stopped - 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
voluntary assumption of risk
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
contributory negligence
+ 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
remedies
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
damages defenition
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
compensatory damages
+ 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
special damages
compensate for the loss that can be accuratly measured in monetary terms
general damages
compensate for loss that cannot be accurately measured in monetary terms
aggravated damages
awarded if the defendant shows reckless disregard for the plaintiffs feeling and causes them unnecessary distress, shame or humiliation
exemplary damages
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
nominal damages
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
contemptuous damages
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
impacts on negligence - the plaintiff
loss of life
permanent physical injury
serious physical injury
emotional impact of the breach
loss of wages and livelihood
unemployment
effect on mental health
impact of negligence - on defendant
loss of business
public humiliation and loss or reputation
physical injury
costs
need to sell assets
elements of defamation
- the statement was defamatory
- the statement is untrue
- the statement refers to the plaintiff
- the statement has been published
- the defamatory statement caused serious harm, or is likely to cause serious harm to the reputation of the defendant
- the statement was defamatory
+ is defamatory if it lowers a persons reputation in the eyes of ordinary members of the community
+ not necessary to prove intent to hurt
- the statement is untrue
+ plaintiff must prove that the statement is false
+ if the statement is substantially true, plaintiff cant be defamed
- the statement refers to the plaintiff
+ 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
- the statement has been published
+ must be communicated to someone other than the plaintiff
+ online if your repost it can be considered published a statement
- publication caused, or is likely to cause, serious harm
+ 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
justification
+ applies when the defamatory statement is substantially true
+ doesnt matter if there is some inaccuracies as long as the core imputation is substantially true
contextual truth
+ 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
+
honest opinion
+ may claim expression of honest opinion rather than a statement of fact
- the matter was a statement of opinion rather than a statement of fact
- the opinion was related to a matter of public interest
- the opinion was based on proper material
+ the material for the opinion must be set out, notorious [widely known]
innocent dissemination
+ 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
defamation damages
[+ caps and mitigating factors]
+ 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
defamation injunctions
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
defamation impacts on plaintiff
+ loss of rep
+ emotional toll
+ loss of wages and livelihood
+ unemployment
defamation impacts on defendant
+ financial impact - b/c of damages
+ public humiliation
purpose of nuisance
nuisance ensures that individuals can enjoy public and private property without interference or annoyance
elements of nuisance
- the plaintiff had property right in or over the land
- there has been interference with the plaintiffs use and enjoyment of the land
- the plaintiff suffers damage, loss or injury
property right
the plaintiff must have property right
as the owner of the land
as the tenant of the property
as an indv accessing public land
interference
the plaintiff must esthablish that the defendant substantially and unreasonably interferred with their use and enjoyment of the land
nuisance defence= statutory authorisation
+ 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
statutorya authorisation allows acts of
post office staff
council staff
gas, water and electricity readers
police entering house w/o warrant
potential impacts of nuisance on the plaintiff
+ impact on mental health eg anxiety
+ impact on quality of life
+ financial impacts - loss of productivity/customers
potential impacts of nuisance on the defendant
+ 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
