Civil law

Question 1

Civil law

Answer 1

Defines the rights and responsibilities of individuals, groups, and organizations in society and regulates private disputes 

Question 2

Sue

Answer 2

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

Question 3

Liability

Answer 3

The legal responsibility of a partyfor loss or harm caused to another because of a breach of civil law

Question 4

Remedy

Answer 4

Orders made by a court or tribunal to address a civil wrong or breach, designed to restore the plaintiff back to the original position remedies can be in the form of damages or injunctions

Question 5

Negligence

Answer 5

Requires individuals who owe a duty of care to another person to prevent foreseeable harm from occurring

Question 6

Trespass

Answer 6

Prevent individuals from interfering with another person, their lands all their goods

Question 7

Contract

Answer 7

Ensures that people who make promises under enforceable agreements, fulfil those promises or compensate the other party if they failed to comply

Question 8

Defamation

Answer 8

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

Question 9

Purposes of civil law

Answer 9

Provide guidelines for acceptable behaviour so that people uphold each other’s rights and social cohesion can be achieved
Provide a system for parties to pursue right protection through the courts and tribunals
Provide remedy for harm or loss, caused by an infringement of rights

Question 10

Nuisance

Answer 10

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

Question 11

Parties

Answer 11

BEFORE:
Aggrieved/ wronged party
Wrongdoer
AFTER:
Plaintiff
Defendant

Question 12

Breach

Answer 12

An act or omission that represents a failure to meet a legal obligation
Plaintiff- burden of proof, must prove defendant is in breach of
Nature depends on area of law:
Contract- failure to fulfill a promise made to plaintiff
Negligence- failure to uphold a duty of care to another person

Question 13

Loss

Answer 13

A type of harm or damage suffered by a person it can involve both economic and non-economic loss
The plaintiff can only obtain a remedy if they can prove that they have suffered loss or harm
Types of loss:
Financial- loss of wages loss of earning capacity, loss of profits, medical expenses
Property damage- damage or destruction of house, car, clothing, etc
Personal injury- cuts, bruises, broken bones, loss of limb etc
Pain and suffering- mental anguish, anxiety, depression
Loss of amenity- loss of enjoyment of life, loss of job satisfaction, loss of family etc
cannot be too remote (reasonably foreseeable for negligence)

Question 14

Causation

Answer 14

The direct relationship between the defendants breach and the plaintiff loss
Plaintiff must prove defendants breach was a necessary condition of loss suffered
But for test
There may be an intervening event or break in chain of causation. It may be possible for defendant to avoid liability. If they can prove, the preach was not true cause of loss.

Question 15

Burden of proof

Answer 15

Responsibility of proving facts of case (plaintiff)

Question 16

Counter claim

Answer 16

Separate claim made by the defendant in response to the plaintiff claim asserting that the plaintiff is actually at fault
Have independent procedure existence . If the plaintiff action is struck out by the court, the defendants counterclaim will live on.
The defendant has the burden of proof in relation to proving the elements of the counterclaim 

Question 17

Standard of proof

Answer 17

The degree, which case must be proven in court
Balance of probabilities (more likely than not)

Question 18

Limitations of actions

Answer 18

The restriction on bringing a civil law claim to court after the allowed time
For almost all civil claims, there is a time period within which the aggrieved party can the wrongdoer
Purposes
Insure civil cases are resolved in a timely manner
Ensure that the defendant does not have a potential case pending for unlimited amount of time
Insure reliable evidence is readily available.
Limitations of actions act 1985, set out the time limits
defamation- 1 year
under tort law where there is a personal injury -three years (starts on the day, they know they know they are injured)
Breach of contract, six years
The court can gain a time extension, depending on the circumstances and nature of the case, some civil claims have no time limit (for example plaintiff claim for physical or sexual abuse they suffered as a minor)
Victoria was the 1st to abolish this sort of time limit 

Question 19

Plaintiffs and defendants
(inc other PTs)
(inc vicarious liability)

Answer 19

can be multiple plaintiffs/ defendants in a proceeding (joinder of ____)
Plaintiffs can be a person who has indirectly suffered loss as a result of another party:
suffers loss due to death of family member and sues party they believe is negligible
witness of traumatic event who has suffered nervous shock
Defendants:
VL- legal responsibility of a third party for wrongful acts of another-
employers have right, ability and duty to control activities of employees
(course of their employment, frolic of their own)

Question 20

Class actions

Answer 20

representative/ group proceedings
lead member represents class, others are group members
1. 7 or more ppl have claims against same defendant
2. claim concerns same, similar, related circumstances
3. claim gives rise to common issue of law/ fact
Vic has opt- out system
- once defined by court, if a person meets relevant criteria, automatically part of class action
-must opt out via writing
- case can only be argued once, all members are considered heard and settled by its conclusion

Question 21

Negligence

Answer 21

A type of tort (civil wrong)
Purpose - negligence requires individuals who owe a duty of care to another person to prevent foreseeable harm from occurring
elements of negligence :
Defendant owed plaintive duty of care
Defendant breached their duty of care
Defendants breach cause harm to the plaintiff
Plaintiff suffered harm or loss

Question 22

Duty of care

Answer 22

The plaintiff must establish the defendant, owed them a duty of care
Duty of care = obligation to be careful toward another person and prevent foreseeable harm from occurring to them
1. Settled law that a duty of care exists.
2. Novel situation. There is no settle law and social duty of care is arguable based on the circumstances.

A person owes a duty of care to another, if the risk of harm was reasonably foreseeable
Neighbour principal- neighbour refers to the relationship between two parties who are directly impacted by each other’s actions or omissions
Presumed duty of care:
Teacher student
Dr nurse - patient
Motorist- other road user
Manufacturer- consumer

Question 23

Negligence breach

Answer 23

The plaintiff must establish that the defendant breached their duty of care
A breach : duty of care is breached when a person fails to do what a reasonable person would’ve done in the same situation
A person has breached their duty, if :
It is reasonably foreseeable that the breach will result in harm to the plaintiff
The risk was not insignificant
Every reasonable person in the same situation would’ve taken precautions to eliminate the risk

Question 24

Lack of elements (negligence)

Answer 24

No duty of care owed
(no neighbour principle- cant reasonably foresee actions causing loss to PT)
DOC not breached
(acted as a reasonably person would and injury result of accident which could not be stopped)
No loss or harm occurred
(no harm/ not result of breach)

Question 25

voluntary assumption of risk

Answer 25

Volenti non fit injuria (to a willing person, injury is not done) Complete defence plaintiff aware of obvious risk plaintiff voluntarily chose to take risk (consent can be express- waiver OR implied) -not apply to healthcare

Question 26

Contributory negligence

Answer 26

not complete defence PT contributed to harmful dituation/ is partly to blame for harm done (did PT take reasonable care to avoid foreseeable harm?) intoxicated- presumption of contributory negligence, can be rebutted

Question 27

Other types of damages

Answer 27

Exemplary/punitive damages- defendants conduct is particularly reprehensible, make an example of them and deter others awarded if the defendant has acted, consciously, and an extreme disregarded for the rights of others Nominal damages- requires an extremely small amount of money to be paid to the plaintiff usually valued at one dollar. These damages are used to ensure the right is upheld with providing compensation. Nominal damages are awarded where the plaintiff is not necessarily seeking compensation, but wants to proof its legally right. The plaintiff often wants to make a point for moral reasons. Contemptuous damages - acknowledge the plaintiff had a legal right, but not a moral right to take civil action against the defendant to condemn. The immorality of the claim= minimal compensation is awarded when these damages are awarded the judge must believe that the claim should not have been brought to court. Indicate a technical victory, not a moral victory.

Question 28

Compensatory damages

Answer 28

The most common form of remedy for negligence claims Restore the plaintiff as nearly as possible to the position that they would’ve been in, had taught not been committed Special damages- compensate for loss that can be accurately 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 plaintiff feelings and causes them unnecessary distress, shame or humiliation

Question 29

Impacts of negligence

Answer 29

Plaintiff- loss of life, permanent, physical, incapacity series, physical injury, emotional impact of the breach, loss of wages and livelihood, unemployment, effect on mental health Defendant- loss of business, public humiliation, and loss of reputation, physical injury, costs, need to sell assets

Question 30

statement is defamatory

Answer 30

lowers persons reputation in the eyes of ordinary members of the community, not necessary to prove defendant intended to hurt plaintiff plaintiffs claim will fail if one part of the matter conveys a defamatory meaning, but another part neutralises this

Question 31

statement is untrue

Answer 31

if statement substantially true, cannot be defamed

Question 32

statement refers to plaintiff

Answer 32

explicitly named sufficient to prove that ppl reading, hearing or seeing statement would reasonably conclude it was about PT may be defamed as part of a group - group must be sufficiently small enough

Question 33

statement has been published

Answer 33

must be communicated to third party can be considered to have published statement if repost

Question 34

publication caused or is likely to cause serious harm

Answer 34

Defamation Act 2005 (vic) determined by judge before trial commences, unless there are special circumstances (cost implications/ available resources) seeks to prevent frivolous and trivial claims court will consider: meaning of words and gravity of allegation scale of publication and grapevine effect reaction of recipients financial and non-financial loss could/ has been suffered

Question 35

Justification

Answer 35

Defamatory statement is substantially true As long as core imputation is sub true it doesn’t matter if there are some inaccuracies

Question 36

Contextual truth

Answer 36

Defamatory statements are made within the same context as statements that are substantially true If the contextual substantially true statements are more serious than the defamatory statements, the defamatory statements are essentially, cancelled out as they do not further harm the plaintiffs reputation 

Question 37

honest opinion

Answer 37

1. the matter was a statement of opinion rather than fact must appear as opinion to ordinary, reasonable reader having regard to all circumstances of the publication 2. opinion was related to a matter of public interest public must have interest in receiving info 3. matter was based on proper material material providing basis for opinion must be set out in defamatory publication, notorious or accessible from a reference/link material must be substantially true, a public doc or a report on public proceedings

Question 38

innocent dissemination

Answer 38

protects ppl who unknowingly distribute defamatory info such as printing companies, booksellers, libraries and internet or email providers 1. they published the material as a subordinate distributor (someone other than author editor or primary distributor) or as an employee/ agent of one 2. did not know (nor should have known) that the publication contained defamatory info 3. did not have an obligation to check for defamatory material

Question 39

defamation damages

Answer 39

Compensatory damages- special, general, aggravated NO exemplary damages to protect free speech in Vic- $250,000 limit for damages for non financial loss MITIGATING FACTORS defendant apologised or published a correction PT has already recovered damages in relation to any other publications that defamed them on the same subject matter

Question 40

injunctions

Answer 40

a court order that compels a party to do something (mandatory) or prevents a party from doing something (restrictive) AIM either remedy a past civil breach or prevent a future civil breach from occurring if def doesn't comply w/ terms of injunction, they may be held in contempt of court, be ordered to pay damages or be charged with criminal proceedings injunctions can be awarded as a single remedy or in conjunction w/ another remedy (e.g damages) the court will consider if injunction has a lasting effect

Question 41

nuisance elements

Answer 41

the plaintiff has a 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

Question 42

property right

Answer 42

the plaintiff must have a property right (interest) in or over the land -owner of the property -as a tenant of the property -as an individual accessing public property (e.g. public park/ roadway) licensees- ppl w/ mere permission to be on land cannot sue

Question 43

interference

Answer 43

the PT must establish that the defendant substantially and unreasonably interfered w/ their use and enjoyment of the land use and enjoyment- living, commercial or agricultural purposes interference- noise, dust, vibration, water run-offs, objects, obstruction To determine if sub and unreasonable, court will consider: nature of interference time of day nature of neighbourhood whether interference is necessary for community how long interference has existed

Question 44

damage, loss, injury

Answer 44

Material damage= physical property damage (e.g. damage to crops) Non- material damage=injury to PT sensibilities (e.g. loss of enjoyment/ sleep deprivation) public nuisance= to sue for a public nuisance, PT must show that they have suffered a special damage that extends beyond what has been experienced by other members of the public

Question 45

nuisance defences

Answer 45

lack of elements (inc if using land in reasonable manner) statutory authorization PT consented to activity that they are now claiming to be a nuisance

Question 46

statutory authorization

Answer 46

leg passed by Vic/Cth allows for defendants conduct. this defence will require careful analysis of statute and facts of case defendant must show legislation confers a mandatory duty to undertake an action and that the nuisance is an inevitable consequence of performing that duty Includes post office staff council officers gas, water and electricity meter readers police entering a home w a warrant

Question 48

impacts of nuisance

Answer 48

PT: loss of enjoyment of life/ use of land effect on mental health potential lack of wages Def: loss of business costs/ need to sell assets loss of rep.