Civil Law Flashcards
Revise
4 purposes of civil law
- provide guidelines for acceptable behaviour
- protect the rights of individuals
- provide an avenue for people to seek compensation where a breach has occurred
- remedy the harm that has been suffered
Breach
the breaking of or failure to fulfil or comply with a duty or obligation.
Causation
the direct relationship between one event and another event, where event 1 was the reason event 2 happened and event 2 wouldn’t have occurred without event 1.
5 types of loss
- economic or financial
- property damage
- personal injury
- pain and suffering
- loss of amenity
Limitation of actions
the restriction on bringing a civil law claim after the allowed time.
Counter claim
separate claim made by defendant in response to plaintiff’s claim, usually herd at same time in same court.
burden of proof usually on plaintiff but in this scenario it is on both plaintiff and defendant.
Balance of probabilities
Standard of proof in civil disputes.
requires plaintiff to establish that it is more likely than not that their claim is true.
Possible defendants
- wrongdoer: person or company that directly caused plaintiff loss
- employers
- person involved in wrong doing
Possible plaintiffs
- aggrieved party: the person whose rights have been infringed and who has suffered loss
- other victims
vicarious liability
legal responsibility of a third party for the wrongful acts of another.
accessibility liability
responsibility imposed on one person for the wrong doing of another. where there is a connection to the wrong doing.
Duty of care
legal obligation to be cautious and careful and keep other people in mind when doing anything that could harm them.
Negligence
a type of tort law that involves a breach of a duty of care causing loss or harm
Damages
amount of money that one party is ordered to pay another party for loss and harm suffered.
Element 1 - negligence
- duty of care
plaintiff must establish defendant owed them a duty of care.
Element 2 - negligence
- breach of duty of care
failed to take reasonable actions to prevent harm or loss.
Element 3 - negligence
- causation
harm or loss was caused by breach of duty of care without break in causation.
Element 4 - negligence
- injury, loss or damage
Plaintiff must’ve suffered injury, loss or damage.
Limitation period for general negligence claims
6 years
e.g. property damage
Limitation period for negligence claims where the plaintiff contracted a disease or disorder
3 years
Limitation period for negligence claims where the plaintiff died or suffered personal injury
3 years (discoverable)
or 12 years
Defence 1 - negligence
- contributory negligence
Defence 2 - negligence
- assumption of risk (volenti non fit injuria)
compensatory damages
money awarded to plaintiff for harm, injury or loss suffered. Includes special, aggravated and general damages.
special damages
amount of money one party is ordered to pay another party to compensate for losses that are easily quantifiable
e.g. medical expenses or loss of wages
general damages
amount of money one party is ordered to pay another party to compensate for loss that isn’t easily quantifiable
e.g. pain and suffering
aggravated damages
amount of money defendant is ordered to pay plaintiff if plaintiff has suffered extreme humiliation, embarrassment or insult due to defendants conduct.
Impacts on plaintiff - negligence
- loss of life
- permanent physical incapacity
- serious physical injury
- emotional impact of breach
- loss of wages and livelihood
- unemployment
- effect on mental health
Impacts on defendant - negligence
- loss of business
- public humiliation
- physical injury
- costs
- need to sell assets
defamation
tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.
rights protected by defamation laws
- right to freedom of expression
- right to be considered of good character and reputation
- right to have that reputation protected by placing limits on freedom of speech
- right of people whose reputations have been harmed to seek effective and fair remedies
- the right to a quick and effective method of resolving a dispute in relation to defamation
element 1 - defamation
statement is defamatory, lowers a person’s reputation.
element 2 - defamation
statement is untrue.
element 3 - defamation
the statement refers to the plaintiff.
element 4 - defamation
the statement has been published by the defendant.
element 5 - defamation
the publication caused or is likely to cause serious harm.
limitations of actions for defamation
must be brought within 1 year from date of publication, however person may apply to extend limitation period by 2 years.
Defence of justification for defamation
when defamatory statement is substantially true
Defence of contextual truth for defamation
applies when defamatory statements are made within same context, while some of the statement is untrue some of it is also substantially true.
Defence of absolute privilege for defamation
defendant has complete immunity from being sued for what they say in parliament and courts
Defence of publication of public documents for defamation
if statement was a fair copy, summary or extract of a public document published for the public or educational purposes.
Defence of fair report of proceedings of public concern for defamation
defendant can argue that statement is a fair report of proceedings and it was published for public’s information or educational purposes.
Defence of public interest for defamation
defendant believed that the publication of the matter was in the public interest
Defence of honest opinion for defamation
claim defamatory material is their honest opinion rather than a statement of fact.
Defence of innocent dissemination for defamation
protects people who unknowingly distribute defamatory information.
Injunction
a remedy in the form of a court order requiring defendant to do or not to do something. injunctions are designed to prevent a person from doing further harm/rectify a wrong.
-mandatory injunction
-restrictive injunction
possible impacts of a breach of defamation on the plaintiff
- loss of reputation
- emotional impact
- loss of wages and livelihood
- unemployment
possible impacts of a breach of defamation on the defendant
- costs
- need to sell assets
- public humiliation
