Civil Law Flashcards
Persuasive Precedent
Judges in Victorian court hierarchy, however they could referred to decisions made in state courts outside the hierarchy if they are relevant to the case
Binding
Is a precedent which must be followed by a lower court with a similar case binding is considered when the facts of the case are similar to the original case or the price it it was set by a higher court in the same hierarchy
Stare decisis
Means to stand by what has been decided
Ratio decidendi
The legal reasoning used by judges to reach the decision in the case
Obiter dictum
Statement made by a judge when Determining a question of law and the statement will not directly affect the outcome of the case before the court
Remedy
Solution to a problem to set things right
Precedent
Court made law. It is made when a judge is faced with a case with similar facts to a previous decision in an older case.
Plaintiff
Person bringing civil action to court
Defendant
Civil action brought against this person
Infringe
To break the terms of the law to breach, violate and disobey them
Negligence
Is concerned with careless actions that result in loss and occurs when a person behaves in a Careless and reckless manner resulting in injury to another.
Negligence: Duty of care
The Duty of care is legally owes to a neighbour and is referred to as the neighboring principal
Defenses against negligence: no duty of care owed.
The defendant couldn’t foresee their action causing loss damage and suffering
Defenses: duty of care not breached
The defendant acted in anyway a normal person would
Defenses: no damage/injury caused by other means.
The defendant admits that the rights were infringed but their is no damaged
Defenses: plaintiff contributes to the damage.
The plaintiff admits they apparently responsible for the injury
Defenses: plaintiff willingly took a risk.
The plaintiff admits they took a risk and it is partly their fault
Changing a precedent: disapproving
This is when the precedent is flawed or incorrect and therefore not approved by the judge. When a judge isn’t satisfied they make a comment on how the case and precedent differ, in doing say they are disapproving its application and saying to the higher court that they must change it
Changing the precedent: distinguish
The case presented does not match the facts of the precedent case
Changing the precedent: overruling
When the judge is not faced with a binding precedent they can take action and can overrule the Precedent and make it their own which is then used in lower court.
Changing the precedent: reversing
This is when a case is appeal to a higher court the appellate judge may not agree
Parties
Any person involved in a legal proceeding and involves the plaintiff and the defendant
Statutory interpretation
The process of determining whether a statute applies to a particular circumstance
nuisance, public, private
A person’s rights to reasonable convenience and comfort in life.
Public: both the tort and a crime dealt with by criminal law
Private: concerned with interference with our rights to enjoy land
Standard of proof
The standard against which cases are measured; in a civil law it is the balance of probability
Burden of proof
A duty to prove what is suspected, which rests with the party making allegations or assertion, in civil law it results on the plaintiff
Donohue versus Stevenson
In 1932 Mrs. Donahue ordered Ginger beer. She drinks half of her friends ginger beer and her friend Pores the rest into a glass noticing a decomposing snail Mrs Donoghue becomes very ill and Sue’s the manufacturer Stevenson. Stevenson owed a duty of care and breached it by failing to inspect the product (neighboring principle)
Grant versus Australian kitting mills
In 1936 Dr. Grant buys undergarments he wears them develops an itch then dermatitis he discovers the underwear contain chemicals the Dr. sues the manufacturer and the Australian knitting mill says in Australia people are responsible for inspecting their own clothing the court agreed with this and Grant then went on to appeal against high Court to the privy Court the privy court said as a Neighbour Grant was directly affected and AKM owed Grant compensation
Trespass: to person
A person’s rights to their own safety and freedom trespass to person is often referred to as assault
Trespass to person: assault
Is not only physical but is placing someone in danger
Trespass to person: battery
Carrying out the danger implied such as a threat
Trespass to person: false imprisonment
A person unlawfully detaining another
Trespass to person: self-defense
Forced to Protect themselves
Trespass to person: necessity
Action take to save the life of another
Trespass to person: incapacity
suffers insanity at the time of the offense
Trespass to person: consent
injury through the course of action
Defamation
Protects our rights to a good reputation. Occurs when a person says or does something to damage the reputation of another.
Defamation:Slander and libel
Statement made usually not in print form.
Permanent statement often printed
Law of torts
major area of common-law is a civil wrong, a wrong which allows the individual who has suffered to take legal action torts are designed too give remedy
Defamation: absolute
Circumstances under which people are free to say what they please statements made in Parliament by members a considered privilege
Defamation: qualified
Limited privilege people having social moral or legal duty to communicate. People speak freely about matters that concern them defamatory comments made to wider audiences have to be reasonable.
Criminal: The difference between civil and criminal
Criminal law is to regulate behavior in a community with the use of punishment to rehabilitate the offender
Civil:The difference between civil and criminal
To enforce individuals rights and obligations that exists between people. remedies are awarded to help rectify the situation and place the plaintiff in the prior position
