Civil Law Aos1 Flashcards
Burden of proof
The responsibility of proving the facts of the case
In civil this rests on the plaintiff
Counter claims
This is a separate claim made by the defendant in response to the plaintiff’s claim, asserting that
it is the plaintiff who is actually at fault – e.g. a disputed car accident
- independent procedural existence
If the
plaintiff’s action is struck out by the court, the defendant’s counterclaim will live on.
The defendant has the burden of proof in relation to proving the elements of the counterclaim.
Standard of proof
The degree to which a case must be proven in court
In civil law, the plaintiff must that the wrongdoing occurred on the balance of probabilities.
Limitations of actions
For almost all civil claims, there is a time period within which the aggrieved party can sue the
wrongdoer.
Purpose
• Ensure civil cases are resolved in a timely manner
• Ensure reliable evidence is readily available
• Ensure that the defendant does not have a potential case pending for an unlimited amount of
time
Lack of elements (negligence)
- No duty of care was owed
The defendant may claim that there was no ‘neighbour relationship’ because it was not reasonable to foresee that their actions could cause loss or damage to the plaintiff.
- The duty of care was not breached
A duty of care is not breached if the defendant acted as any reasonable person would have and the injury was the result of an accident and could not be stopped. I.e. The injury or harm was not foreseeable.
- No loss or harm occurred or if so, it was caused by other means
The defendant claims that although they may have breached their duty of care, the plaintiff suffered no harm or the harm/injury was not the result of the breach.
Voluntary assumption of risk
Defendant must prove
- Plaintiff was aware of an obvious risk
- Plaintiff voluntarily chose to take the risk - consent can be express (e.g. sign a waiver) or implied (e.g. willingly engaging in the activity
Contributory negligence
Contributory negligence is not a complete defence - if proven, the amount of damages owed to the plaintiff will be reduced. If the plaintiff contributed significantly to their injury, the damages awarded may be negligible.
The defendant must prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done.
The court will examine the conduct of the plaintiff and assess how they might have contributed damage - did the plaintiff take reasonable care to avoid foreseeable - to their own injury, loss or harm?
If a plaintiff was intoxicated when the incident occurred, there is a presumption of contributory negligence. If the plaintiff cannot rebut this assumption, their damages will be reduced automatically.
Civil law remedies
Remedies = a court order that aims to enforce a right by
preventing a civil breach or
correct a civil breach by returning the plaintiff to their original position
There are two types of remedies that will be covered in the course: damages and injunctions
Damages = a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.
Damages can be divided into different categories and, more than one type of damage can be awarded to a plaintiff in a civil dispute should the defendant be found to be liable.
Types of compensatory damages
The most common form of remedy for negligence claims is compensatory damages.
The purpose of compensatory damages is to restore the plaintiff, as nearly as possible, to the position that they would have been in had the tort not been committed.
Special damages - compensate for loss that can be accurately measured in monetary terms
General damages - compensate for loss that cannot be accurately measured in monetary terms
Aggravated damages - awarded if defendant shows reckless disregard for the plaintiff’s feelings and causes them unnecessary distress, shame or humiliation
Other types of damages
Exemplary (punitive) damages - if the defendant’s conduct is particularly reprehensible, the court can impose exemplary damages to make an example of them and to deter others from that type of behaviour. These will be awarded if the defendant has acted consciously and in extreme disregard for the rights of others (e.g. violence, cruelty, abuse of power, excessiveness)
Nominal damages = require an extremely small amount of money to be paid to a plaintiff usually valued at $1. These damages are used to ensure the plaintiff’s rights are upheld without providing compensation. Nominal damages are awarded where the plaintiff is not necessarily
m
seeking compensation but wants to prove that they are legally right. The plaintiff often wants to
make a point for moral reasons.
Contemptuous damages = acknowledge that the plaintiff had a legal right but not a moral right to take civil action against the defendant. To condemn the immorality of the claim, minimal compensation is awarded. When these damages are awarded, the judge must believe that the claim should not have been brought to court. An award of these damages indicate a technical
victory, not a moral victory.
Impact of negligence: the plaintiff
Loss of life: a workplace accident or a car accident can result in death.
Permanent physical incapacity: the plaintiff might require carers for the remainder of his or her life.
Serious physical injury: the need for medical expenses, such as operations and ongoing care
Emotional impact of the breach: Fear of social situations or certain places.
Loss of wages and livelihood: Being out of work for the duration of the recovery.
Unemployment: Might be as a consequence of physical or mental injury.
Effect on mental health: Depression, anxiety, loss of self-esteem.
Impact of negligence: the defendant
Loss of business: Potentially due to the negative publicity associated with the negligence claim. E.g. A restaurant where a customer has become ill might lose patronage.
Public humiliation and loss of reputation: Again, this can stem from the negative publicity of the claim.
Physical injury: In cases of contributory negligence, the defendant might also suffer injury, such as in a car accident; a counterclaim can also be launched by a defendant.
Costs: If the defendant loses the case, the prospect of paying some of the plaintiff’s legal costs
exists.
Need to sell assets: This will potentially result from a high award of damages against the defendant.
Defamation
Defamation is a type of tort (a civil wrong)
Purpose: defamation protects a person’s reputation from being damaged by lies that are shared
with the public
There are five elements of defamation:
- The statement is defamatory
- The statement is untrue
- The statement refers to the plaintiff
- The statement has been published
- The defamatory statement caused serious harm, or is likely to cause serious harm to the reputation of the defendant
Statement is defamatory
Defamatory statements can come in many forms.
Some examples of defamatory matter are included in s4 of the Defamation Act 2005 (Vic)
A statement is defamatory if it lowers a person’s reputation in the eyes of ordinary members of the community.
It is not necessary to prove that the defendant intended to hurt the plaintiff.
The plaintiff’s claim will fail if one part of the matter conveys a defamatory meaning, but another part neutralises this.
