Civil Law Flashcards
What is civil law?
an area of law that defines the rights and responsibilities of individuals, groups and organisations in society. It also regulates private disputes.
What are the two parties involved in civil law?
Plaintiff vs Defendant
What are the purposes of civil law?
Achieves Social Cohesion - provides guidelines for acceptable behaviour, so
that individuals can live together in harmony. If those guidelines did not exist, some individuals might exploit or abuse the rights of others.
Protect the Rights of Individuals – For example, the right to be protected from false statements that might damage your reputation, the right to a promise made under a contract, and a right not to be harmed.
Provide an Avenue for People to Seek Compensation Where a Breach of Civil Law Has Occurred – For example, through the courts, tribunals and complaints bodies. If there were no dispute resolution bodies, no specialised bodies would be available to help people resolve their disputes, so disagreement would fester in the community. This would impact on social cohesion.
The types of civil law are:
Negligence - Trespass - Defamation - Nuisance Laws - Wills and Inheritance Laws - Contract Law - Family Law - Employment Laws - Equal Opportunity and Discrimination Laws
Key concepts to a civil law - breach
- defendant has failed to observe a law or obligation imposed on him or her.
- eg. in contract law, the plaintiff may allege that the defendant has breached an agreement.
- eg. in negligence, the plaintiff may allege that the defendant breached his or her duty of care to the plaintiff.
- eg. in a sexual harassment claim, a plaintiff may allege that the defendant breached the relevant laws (which prohibit people from sexually harassing another person.
Key concepts to a civil law - causation
plaintiff needs to prove the actions caused/resulted in the harm they suffered, and this harm only arrived because of the plaintiff’s actions.
Key concepts to a civil law - law
- the plaintiff may receive a remedy (damages, an apology etc) if it can be proved they suffered loss/harm such as: financial loss, property damage, personal injury, pain and suffering and loss of amenity.
Key concepts to a civil law - limitations in actions
There is a time frame in which the wronged party (plaintiff) must sue the defendant.
eg. defamation = 1 year
breach of contract = 6 years
under tort law = 6 or 3 years
under tort law where there is personal injury consisting of a disease or a disorder = 3 years
an action to recover arrears of rent = 6 years
- the limitations are set in place so disputes can be resolved efficiently.
- some civil cases have no limitations, such as sexual assault of a minor.
Key concepts to a civil law - burden of proof
- also known as the ‘onus of proof’ and is the plaintiff’s responsibility to prove the facts of the case.
- the plaintiff must present evidence to establish that the defendant is in the wrong/liable.
Key concepts to a civil law - standard of proof
- the degree or extant to which a case must be proven.
- in civil law it is on the balance of probabilities, meaning the plaintiff must prove that they are most likely right, and the defendant is most likely wrong.
Possible plaintiffs to a civil dispute - the aggrieved party
- the persons who’s rights have been infringed and who has suffered loss.
- is possible for a civil acton to include more than one person
eg. a representative proceeding (class action) is a legal proceeding in which a group of people who have a claim based on similar or related facts bring the claim to court in the name of one person.
Possible plaintiffs to a civil dispute - other victims
- a person who has indirectly suffered loss or damage as a result of actions against another party.
eg. a family member may suffer loss and damage as a result of the death of a family member, and sue another person who they allege has caused the death. - someone may have been close to an event and suffered loss and damage as a result.
eg. a person may suffer from nervous shock after seeing an event, may be entitled to seek damages for loss and damage.
Possible plaintiffs to a civil dispute - insurers
- a person or company contracted to compensate another in the event of damage or loss.
- Usually, the insurance policy will provide the insurer with a right of subrogation (the right to ‘step into the shoes) of an insured person and act on their behalf, including taking legal actions in their name.
Possible defendants to a civil dispute - the wrongdoer
- the person or company that has directly caused the loss or damage to the person.
- sometimes there may be two wrongdoers, and both of them may become liable for loss or damage suffered by the plaintiff.
Possible defendants to a civil dispute - employers
- an employer of an employee who is the wrongdoer may become the defendant because of the the principle of vicarious liability (the legal responsibility of a third party for the wrongful acts of another) .
- for an employer to be liable, the plaintiff needs to establish that the employer was acting in the course of employment when the wrong occurred.
- if the employee was acting in an unauthorised way, then the employer may not be found liable.
Possible defendants to a civil dispute - persons involved in the wrongdoing
a person who is involved may be sued. A person may be involved if they:
- aided, abetted or procured the wrongdoing
- were in anyway, directly or indirectly, a party to the wrongdoing
- conspired with others to cause the wrongdoing.
This is known as accessorial liability
Possible defendants to a civil dispute - insurers
- it may be possible for a plaintiff to sue the insurer of the person who has caused the loss or damage.
eg. if someone has been injured at work, and has made a proper claim for compensation but gets the claim rejected, they may be able to commence proceedings against the authority.
What is tort law?
- a wrongful act the is recognised by law
- a civil wrong that one person commits against another.
- tort law deals with the rights and obligations that people owe one another, as well as the infringement of those rights and obligations.
the main aim is to return a wronged person he or she was in before the wrong occurred.
What is negligence?
A type of tort which involves a breach of a duty of care causing loss or harm.
Elements of negligence - duty of care
A person owes a duty of care if:
- the risk was foreseeable
- the risk was a significant or not significant
- a reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm.
- some people who have a duty of care are: teachers, doctors, motorists and manufactures.
Exceptions to the duty of care:
- when participating in a risky recreational activity
- a good samaritan who gives care and help in a situation.
- a person who donates food in good faith
- volunteers
Elements of negligence - breach
A breach occurs when a person does not take all the care they should. When determining whether a reasonable person would have taken precautions, the court considers:
- the likely risk of harm
- the likely seriousness of harm
- the burden of taking precautions to avoid the risk of harm
- the social utility of the activity that creates the risk of harm.
Elements of negligence - causation
The plaintiff has to prove that the injury was caused by the breach of duty of care, and the injury would not have occurred without the breach of duty of care.
Elements of negligence - injury, loss or damage
As a general rule, the plaintiff can only seek a legal remedy through the law of negligence if it can be proved that he or she suffered an injury, loss or damage, even if it’s minor. The injury, loss or damage can be physical, mental damage to property.
Defences of negligence - contributory negligence
- the defendant may try to prove that the plaintiff contributed to the harmful situation, or is partly to blame.
- will generally reduce the number of damages
- eg. a person may make a claim that they suffered personal injury as a result or being pushed by the defendant. However, their claim, if proven, would be reduced if it were shown at the time the plaintiff was intoxicated.
