Civil Law

Question 1

Aim of Civil law

Answer 1

Protection of individual rights.

Question 2

Parties involved

Answer 2

Plaintiff: Party whose rights have been infringed.
Defendant: Party being sued.

Question 3

Burden of proof

Answer 3

Plaintiff to prove the wrongdoing of the Defendant.

Question 4

Standard of proof

Answer 4

On the balance of probabilities = more likely than not.

Question 5

Outcomes of civil cases

Answer 5

Remedies.

Question 6

Jury in a civil case

Answer 6

Optional. Not used in appeals. Made up of 6 jurors.

Question 7

Six methods of dispute resolution

Answer 7

• Negotiation
• Letter of demand
• Mediation
• Conciliation
• Arbitration
• Litigation (judicial determination)

Question 8

Negotiation

Answer 8

First step.
People in disputed discuss the problem, orally or through the exchange of written docs and present options for resolution.

Question 9

Letter of demand

Answer 9

Sent by a solicitor to add gravity to the claim and communication the seriousness of the complaint to the other party.

Question 10

Mediation

Answer 10

Parties meet with an independed third party who acts as the mediation. The mediator assists the paries to discuss the issue in dispute h/w not offer any solutions.

Question 11

Conciliation

Answer 11

Parties meet with an independent third party who acts as the conciliator. The conciliator takes an active role in identifying the issue and making suggestions for how to resolve the dispute.

Question 12

Arbitration

Answer 12

The arbitrator decides as to how best to resolve the issue. The outcome is legally binding on the parties.

Question 13

Litigation (Judicial Determination)

Answer 13

If a dispute cannot be resolved through alternate means, the party whose rights have been infringed can seek remedy via the court system.

Question 14

Key concepts of civil law: Breach

Answer 14

Failure to uphold legal obligation or wrongdoing.
Failed in their responsibilities or contravened a term in a contract.

Question 15

Key concepts of civil law: Causation

Answer 15

Prove that the actions of the defendant led to the plaintiff’s loss.
‘But for’ test.

Question 16

Key concepts of civil law: Loss

Answer 16

Suffered loss due to the defendant’s breach.
Personal injury, economic loss, loss of reputation, pain and suffering (mental illness), loss of income and death.

Question 17

Key concepts of civil law: Limitations of Actions
Statutory

Answer 17

Limitation of Actions Act 1958 (Vic)
-negligence - personal injury (3 yrs) / no personal injury (6 yrs)
-defamation (1 yr)
Only extended if court believes just and reasonable.

Question 18

Key concepts of civil law: Limitations of Actions
Non-Statutory

Answer 18

The plaintiff or defendant cannot afford a court case or paying remedy.

Question 19

Tort law definition

Answer 19

A civil wrong.

Question 20

Elements of negligence

Answer 20

1. The negligent party must have owed a duty of care
2. They must have somehow breached their duty of car
3. The breach of duty of care caused the plaintiff to suffer loss or harm

Question 21

Neighbour principle

Answer 21

One must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour.
Established through Donoghue v Stevenson case.

Question 22

Precedent definition

Answer 22

A legal principle that has been established by judges when ruling over a case.

Question 23

Binding precedent

Answer 23

Established by a higher court in the same court hierarchy and there are similar material facts.

Question 24

Persuasive precedent

Answer 24

Established by a lower or same level court/in a different court hierarchy/ material facts are not similar.

Question 25

Tort of negligence aims

Answer 25

To ensure that a party who owes a duty of care to another party does not breach that duty, or is held accountable if they do.

Question 26

Tort of Negligence DEFENCES: Lack of elements

Answer 26

1. No duty of care was owed
2. The duty of care was not breached
3. No loss or harm occurred or if so, it was caused by other means

Question 27

Tort of Negligence DEFENCES: Voluntary assumption of risk

Answer 27

Full defence
1. Was fully aware of the risk
2. Fully appreciated its nature and extent
3. Freely and willingly accepted the risk

Question 28

Tort of Negligence DEFENCES: Contributory negligence

Answer 28

The plaintiff contributed to their loss b/c they failed to take the standard of care a reasonable person should to ensure their own safety t/f damages awarded will be reduced.

Question 29

Aim of Tort of Defamation

Answer 29

To protect reputation of individuals against unjustified attempts to discredit their character in the eyes of others in the community.

Question 30

Defamation Elements: The statement was defamatory

Answer 30

Lowers reputation or standing in the community through a lie or false representation.

Question 31

Defamation Elements: The statement identified the plaintiff

Answer 31

People reading the statement would reasonably conclude that it was about the plaintiff or it mentions their name.

Question 32

Defamation Elements: Publication/communication to a third party

Answer 32

Communication must be made to someone other than the aggrieved. Private does not constitute defamation.

Question 33

Defences to defamation: Lack of elements

Answer 33

If the plaintiff cannot establish that all the elements of defamation are present, then defamation has not occured.

Question 34

Defences to defamation: Justification

Answer 34

Applies to 1 statement.
Defamatory statement is substantially true. Even if there are som inaccuracies, as long as the core imputation is substantially true.

Question 35

Defences to defamation: Contextual truth

Answer 35

Multiple statements.
When defamatory statements are made w/in same context as statements that are substantially true. If substantially true statements are more serious then they cancel out defamatory statements.

Question 36

Defences to defamation: Honest opinion

Answer 36

The statement communicated was their honest opinion and not written as fact.
Opinion was based upon proper material and matter of public interest.

Question 37

Elements of legally binding agreement: Intention to create legal relations

Answer 37

Through spoken or written word or conduct via actions and behaviours.

Question 38

Elements of legally binding agreement: Agreement b/w the parties–Offer

Answer 38

The offeror is the party making the offer. The offeree receives the offer.
Offers can be written or spoken or made by conduct.

Question 39

Elements of legally binding agreement: Agreement b/w the parties–Acceptance

Answer 39

Occurs when the offeree accepts the offer.
Can be accepted by written or spoken words or by conduct.

Question 40

Consideration

Answer 40

Value of the promise of what is exchanged between the parties.
Must be CLEAR to both parties.
Doesn’t have to be equal in value.

Question 41

Consideration: Capacity

Answer 41

The ability that a person has to be legally capable of entering into a contract or properly understand their obligations under a contract.
VOID/VOIDABLE/LEGALLY BINDING.

Question 42

Consideration: Voidable contracts

Answer 42

Able to be cancelled or ended.

Question 43

Consideration: Minors and necessaries

Answer 43

Necessaries are those things that a minor needs to maintain the standard of living that they currently enjoy.

Question 44

Purpose of civil remedies.

Answer 44

Restore the plaintiff to the position they were in prior to infringement of their rights.

Question 45

Types of remedies: Damages

Answer 45

Monetary compensation.
Specific -Can be calculated exactly.
General -Pain and suffering.
Aggravated- Humiliation and insult.

Question 46

Types of remedies: Injuctions

Answer 46

Mandatory: Compel party to act.
Restrictive: Prevent the lparty from undertaking an action.