civil law Flashcards
Difference between civil and criminal law
Criminal law aims to protect the community by defining crimes and deciding on appropriate penalties for those who commit crimes.
Whereas civil law sets out and protects the rights and responsibilities of individuals, groups and organisations.
Purposes of civil law
Achieve social cohesion
Civil law provides guidelines for acceptable behaviour so that individuals can live together in harmony. Without these guidelines, some people might exploit or abuse the rights of others.
E.g. manufacturing
Protect the rights of individuals
Key rights are enshrined in civil law. E.g. the right to be protected from false statements that might damage your reputation.
To remedy the harm that has been suffered
When rights have been infringed, civil law provides a way to return the person harmed to their position before the harm occurred.
E.g. remedies
Types of civil law
Negligence: Occurs when someone owes a duty of care to another and breaches that duty, causing harm or loss to another person.
(e.g. a doctor is careless during a medical procedure and a patient sustains an injury)
Nuisance: Deal with the inability to use and enjoy property (both public and private) due to an interference.
Key concepts of civil law
Causation
the actions of the defendant caused or resulted in the harm, suffered by the plaintiff, and that the harm would not have occurred if not for the actions of the defendant.
Balance of probabilities
The standard of proof in civil disputes.
This requires the plaintiff to establish that it is more probable than not that their claim is true.
Loss
Definition: Loss refers to the harm or damage suffered by the plaintiff as a result of the defendant’s actions or inactions.
- Economic or financial loss: e.g. loss of wages, loss of earning capacity, loss of profits, medical expenses.
- Property damage: e.g. damage to a house, clothing or goods
- Personal injury: e.g. cuts, bruises, broken bones, loss of limb
- Pain and suffering: e.g. mental anguish, anxiety, depression
- Loss of amenity: loss of enjoyment of life, loss of job satisfaction, loss of family life, loss of enjoyment of hobbies
Limitation of actions
To resolve disputes efficiently, protect the defendant from being subjected to a claim a significant amount of time after the alleged act occurred, reliability of evidence.
Limitations/downsides of LOA:
- Plaintiffs may not be ready to bring their claim (financially or emotionally)
- Some civil claims do not have a limitation period
Standard of proof
Definition: The degree or extent to which a case must be proven.
In civil cases, the plaintiff must prove the case on the balance of probabilities.
The plaintiff must prove that they are most likely in the right, and the defendant is more likely in the wrong.
The burden of proof
The responsibility of proving the facts of the cases. (the burden of proof is with the plaintiff)
The plaintiff must present evidence to establish that the defendant is in the wrong (and is liable for the harm inflicted on the plaintiff)
Remedy
A remedy is any order made by a court, or a tribunal designed to address a civil wrong or a breach.
A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant.
Possible plaintiffs:
Aggrieved party
The person whose rights have been infringed and who has suffered loss.
Other victims
eg. a family member who suffers loss and damage as a result of the death
Possible defendants:
Wrongdoer
The plaintiff will often sue the person or company that has directly caused the loss or damage to the plaintiff (the wrongdoer.)
Employers
An employer of an employee who is the wrongdoer may become a defendant because of the principle of vicarious liability (when someone becomes responsible for the actions of another.)
Persons involved in wrongdoing
A person who is involved in the wrongdoing of another may also be sued.
This is known as accessorial liability.
Vicarious liability
Accessorial liability
Vicarious liability is the legal responsibility of a third party for the wrongful acts of another, due to the responsibility to control the actions of the wrongdoer.
(Eg. an employer may become a defendant because of the actions of their employee, where the employee was acting in the course of their employment.)
The responsibility imposed on one person for the wrongdoing of another, where there is a connection to the wrongdoing.
(Eg where the first person encourages the other person to cause harm.)
NEGLIGENCE
Elements required to establish liability
- Duty of care: the defendant owed a duty of care to the person injured. (The risk was foreseeable)
- Breach of duty of care (standard of care): the defendant breached the duty of care. (The duty is breached when a person fails to do what a reasonable person would have done.)
- Causation: the breach of duty of care caused the harm to the plaintiff.
- Injury, loss or damage: the wronged person has suffered injury, loss or damage. (The injury, loss or damage can be physical, mental or damage to property.)
Possible defences
= Contributory negligence and assumption of risk
Contributory negligence
The defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done.
If this defence is established, it will generally reduce the amount of damages owed to the plaintiff.
Assumption of risk
Refers to the voluntary acceptance of risk or injury.
The defendant must prove that the plaintiff was aware of an obvious risk and that the plaintiff voluntarily chose to take the risk.
