Civil Law Flashcards
What is a precedent
A court decision that is followed by another court lower in the hierarchy
What is obiter dictum
A remark made by a judge in passing which is not binding
What is a binding precedent?
Decision of a higher court that must be followed by lower courts in the same hierarchy
What is a persuasive precedent
Decision of another court which is influential but not binding
What is defamation
Written or verbal statements that lower a persons reputation
What is sue
Start civil proceedings against another person
What is a tort
A civil wrong
What is overruling
When a judge of a higher court refuses to follow a decision in an earlier case and creates a new law for a SEPERATE case
What is reversing
When a higher court makes a different decision than a lower court on the SAME case (on appeal)
What is disapproving
When a court expresses its disapproval of a precedent but is bound by it
What is distinguishing
When a court decides that the main facts are SUFFICIENTLY DIFFERENT so a precedent that they thought was binding doesn’t apply
What is statutory interpretation
When a judge clarifies or interprets the laws written by parliament
What are 3 reasons statutory interpretation is required
Mistakes can occur when drafting an act
The meaning of the words may be ambiguous
The act may not include new technology
3 facts of the ciabatta case
Had to be decided wether ciabatta is a bread or biscuit
If it’s a bread it can be sold free of GST
court had to interpret the word bread
4 elements of negligence
- The person who was negligent owed a duty of care to the person injured
- The duty of care was breeched
- The breach of duty of care cause loss or damage
- The wronged persons has suffered loss or damage
When was Donoghue vs Stevenson
1932
Who is your neighbour
People who would be closely and directly affected by their acts or omissions and someone you ought to have had in contemplation when carrying our an action
What are 3 defences to negligence
Contributory negligence
Assumption of risk (volenti non fit injuria)
One or more element was absent
What is contributory negligence
The plaintiff helped to cause the harmful situation or is partly to blame
What is assumption of risk (volenti non fit injuria)
The voluntary acceptance of the risk or injury eg. Sport
3 elements of defamation
A statement is defamatory
The defamatory statement refers to the plaintiff
The statement has been published by the defendant
3 defences to defamation
Justification
Honest opinion
Absolute privilege
What is justification
When the defamatory statement is SUBSTANTIALLY true
What is honest opinion.
An expression of his/ her honest opinion rather than a statement or fact
What is he defence of absolute privilege
The defamatory statement was published in relation to proceedings of parliament, courts, tribunals or communication between husband and wife
What is slander
Defamatory statements made in a temporary reform
What is libel
Defamatory statements made in permanent form
What is the aim of civil law
To protect the rights of individuals
When does a person owe a duty of care (3)
The risk was foreseeable
The risk was significant or not insignificant
In the circumstances a reasonable person would have taken precautions to eliminate any risk of harm
What is the court of record?
They physically record the reasons for the decision
