Civil Liability Flashcards
Unit 1: AOS3
Civil Law
- Defines the rights & responsibilities of individuals, groups and organisations in society
- Regulates Private Disputes
Remedy
- Order made by the courts that is designed to address a civil wrong or a breach
- Should provide a legal solution for the plaintiff for a breach of the civil law by the defendant
- Restore (as much as possible) the plaintiff to the position they were in before they were wronged or rights were breached
Plaintiff
Party who makes a legal claim against another party in court
Damages
- Amount of money that the court orders one party to pay to another party
- Most common remedy in civil claim
Contract Law
An area of civil law governing the validity & enforceability of agreements made between two parties or more
Negligence
Type of tort that involves a breach of a duty of care; causing loss or harm
Will
A document that specifies how a person would like their assets to be distributed after they die, and who they would like to carry out their wishes
Nuisance
Type of tort that involves interference with a person’s right to use and enjoy private and/or public property
Defamation
Type of tort that involves the action of damaging a person’s personal or professional reputation
Trespass
Type of tort involving the interference or intrusion of a person’s body, property or goods without the consent of that person
Defendant
Party alleged to have breached a civil law and who is being sued by a plaintiff
Sue
- To take civil action against another person
- Claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff)
Burden of Proof
- The obligation of a party to prove a case
- Usually rests with the plaintiff [party who initiates legal action]
Standard of Proof
The degree or extent to which a case must be proved in court
Breach
Breaking or failing to fulfil a duty or obligation
Causation
- The direct relationship between one event and another event
- Event 1 was the reason for Event 2, and Event 2 would not have happened by itself, without Event 1
Loss
- Type of harm or damage suffered by a person
- Can involve both economic and non-economic loss
Limitation of Actions
The restriction of bringing a civil law claim after the allowed time
Counterclaim
- A separate claim made by the defendant in response the the plaintiff’s claim
- Heard at the same time by the Court
Balance of Probabilities
- The standard of proof in civil disputes
- Requires plaintiff to establish that it is more probable [i.e. likely] than not that their version of facts is correct
Aggrieved Party
- The person whose rights have been infringed and who has suffered loss
- It is possible for a civil action to include more than one aggrieved person
Representative Proceeding
- Legal proceeding in which a group of people have a claim based on similar or related facts bring that claim to court in the name of one person
- also called ‘class action’ or a ‘group proceeding’
Lead Plaintiff
- Person named as the plaintiff in a representative proceeding
- Represents the group members
Group Members
A member of a group of people who is part of a representative proceeding [i.e. class action]
Nervous Shock
- A Psychological Reaction
- It is psychological harm that is more serious that ordinary grief or stress
Insurers
A person or company that is contracted to compensate another person in the event of damage or loss
Right of Subrogation
- The right to ‘step into the shoes’ of an insured person and act on their behalf
- Included taking legal actions in their name
Vicarious Liability
- Legal responsibility of a third party for the wrongful acts of another
- e.g. an employer’s liability for what their employees do`
Accessorial Liability
- Way in which a person can be responsible or liable for the loss or harm suffered by another person because they were directly or indirectly involved in causing the loss or harm
- e.g. They encouraged another person to cause the harm
Tort
- Term that means ‘wrong’
- A wrong that interferes with a person’s legally protected interests
Duty of Care
[in relation to negligence]
- The legal obligation to be cautious & careful
- Keeping other people in mind when doing something that could harm them
Contributory Negligence
- A formal defence to negligence
- Claims the plaintiff contributed to the harm caused by the defendant
- If proved: this reduces the damages the defendant has to pay
Volenti non fit injuria
- A Latin term meaning: ‘To A Willing Person Injury Is Not Done’
- Defence in which the defendant claims that the plaintiff accepted the dangers of a known & understood risk; either expressly or by implication
Neighbour Principle
[in relation to negligence]
- The common law rule that a person must take reasonable care to avoid acts & omissions that can reasonably be foreseen as likely to inure they ‘Neighbour’
- i.e. people who would be closely and directly affected by their acts or omissions
Justification
- Applies when a defamatory statement is Substantially True
- Vast majority of the statement is True
Contextual Truth
- Applies when defamatory statements are made within the same context as statements that are Substantially True
- Defamatory statements do not further harm the reputation of the plaintiff
Absolute Privilege
- Gives defendant complete immunity from being sued in certain cases
- Able to be used if defendant can prove that the defamatory statement was published in relation to proceedings of parliament, parliamentary bodies, courts or tribunals
Publication of Public Documents
[Defence to a defamation claim]
- Published statement was a fair copy, summary or extract if a public document, but only if the statement was published in the public interest or for educational purposes
- Public document is on e readily available from a parliamentary body, court, tribunal, local government or statutory authority
Fair report of proceedings of public concern
- Argue that the statement is a fair report of proceedings, and that the report was published for the public’s information or for educational purposes
‘Proceedings’ of public concern involve: - Parliamentary body, local government, court or tribunal, because their procedures are usually open to public scrutiny
- Government inquiries, law reform bodies, the ombudsman, international organisations, and international conferences where governments are represented
- Learned, professional, trade, sporting or recreational associations where memberships or contractual issues are involved
- Company shareholders or other meetings dealing with a matter of public interest
Qualified Privilege
- Protects a person who has no malice in publishing information that is damaging to another person, and who published the information for various reasons
- Defence is based on public policy considerations & aims to strike a balance between competing interests.
The defence is applicable where the defendant: - believes that the person receiving the defamatory information has a moral or legal interest in receiving the information
acts without malice or spite and acts reasonably in the circumstances
Honest Opinion
- Defendant may claim defamatory material is an expression of their honest opinion (as a commentator) rather than a statement of fact
- Matter must be based on public interest and the opinion must be based on proper material
Proper Material = statement that is substantially true or relates to public documents or a fair reports of proceedings of public concern
Innocent Dissemination
- Protects people who may unknowingly distribute defamatory information, such as printing companies, booksellers, libraries, and internet or email providers
Defendant must establish that they: - published material as a subordinate distributor or as an employer or agent of one
- did not know (nor should have known) that the publication contained defamatory information
- did not have an obligation to check for defamatory material
Triviality
Defence applies where the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material
