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legal studies > civil liability > Flashcards

civil liability Flashcards

1
Q

TYPES OF CIVIL LAW

A 
negligence
defamation
trespass
nuisance
control law
will and inheritance law
family law
employment law
anti-discrimination laws
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2
Q

Purposes of civil law

A
  • achieve social cohesion
  • protects the rights of individuals
  • ensure people have the opportunity to resolve disputes
  • provide mechanism to seek compensation
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3
Q

Negligence

A

a person who owes a duty of care to others breaches that duty and causes harm to others

the law to duty of care eg. the person has failed to take reasonable care that was due to another.

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4
Q

Defamation

A

publication of false material causes damage to a person’s reputation

defamation involves the action of damaging a person’s personal or professional reputation

a type of tort that involves the action of damaging a person’s personal or professional reputation in the community through false communication and/or untrue statements

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5
Q

Key concepts of civil law, include of …?

A 
Breach
Causation
Loss
Limitation of actions
The burden of proof
The standard of proof
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6
Q

In order for a person, the plaintiff, to bring about a case against the wrongdoer, the defendant, in civil law, the following must be established:

A
  • That the defendant is at fault, or has breached their obligation (breach)
  • That the defendant was the cause of the fault or breach (causation)
  • That the plaintiff suffered some form of loss due to the defendant’s fault or breach (loss)
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7
Q

breach

A

Definition: a violation of law, promise or obligation

breaking or failing to fulfil a duty or obligation

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8
Q

causation, civil

A

The plaintiff must show a link between the defendant’s actions (or omissions) and the loss suffered.
The plaintiff must also prove that the harm would not have occurred but for the actions (or omissions) of the defendant
An intervening event can break the chain of causation

the direct relationship between one event (i.e. event 1) and another event (i.e. event 2), where event 1 was the reason event 2 happened, and event 2 would have not happened by itself, without event 1

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9
Q

loss

A 
Can take a number of different forms:
Personal injury
Financial loss
Pain and suffering
Property damage
Loss of amenity
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10
Q

Limitation of actions

A

-There are restrictions placed on the time in which you need to bring a civil claim to court to ensure that disputes are resolved efficiently and the defendant will not be subject to claim a significant time after the act/omission occurred i.e. they won’t have a potential claim hanging over their head

There are some types of civil claims where there is no limitation period - for example, people who have experienced physical or sexual abuse can sue for some types of loss, such as pain and suffering

Limitations of actions are in place for civil matters as they ensure a greater level of fairness. This is particularly true for the defendant as they may not be aware that someone is intending to take civil action against them and therefore may not keep relevant information to help them with their case. Time limitations also may mean witnesses forget key evidence

Defamation- 1 year
Personal injury- 3 years
Rent recovery (non-payment)- 6 years
Breach of contract- 6 years
Tort law (excluding personal injury)- 6 years
  • How long you have will depend on the type of case
  • The main piece of legislation that sets out the limits is the Limitations of Actions Act 1958
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11
Q

Burden of proof civ

A

This refers to which party has the responsibility to prove the claims they are making, since they are the party initiating the action.
In Civil Cases the Burden of Proof lies with the Plaintiff - as they are the party bringing the case to court

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12
Q

Standard of proof civ

A

This refers to the level of proof required for the decision maker to be satisfied regarding.

In Civil Law the Standard of Proof is on The Balance of Probabilities. This refers to the standard of proof that ’it is more probable than not. this requires the plaintiff to establish that it is more likely than not, that their version of the facts is correct

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13
Q

Possible parties to a civil dispute

A

In civil disputes, there can be more than one plaintiff and more than one defendant

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14
Q

POSSIBLE PLANTIFFS AND DEFENDANTS

A

PLAINTIFFS

  • the aggrieved party i.e. the person who suffered loss
  • other victims i.e. victims other than aggrieved party
  • insurers

DEFENDANTS

  • the wrongdoer i.e. the person or company that caused the loss or damage to the plaintiff
  • employers
  • persons involved in the wrongdoing
  • insurers
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15
Q

In civil cases, the outcome is?

A

a remedy

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16
Q

DEFENCES TO NEGLIGENCE

A
  • CONTRIBUTORY NEGLIGENCE

- ASSUMPTION OF RISK

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17
Q

ASSUMPTION OF RISK

A

the defendant must prove that the plaintiff was aware of an obvious risk and they voluntarily chose to take the risk. eg. person who knowingly accepts a ride with a drunken driver is accepting an obvious risk of being injured in a car accident, as it is well known that alcohol affects someone’s driving ability.

18
Q

CONTRIBUTORY NEGLIGENCE

A

a formal defence to negligence that claims the plaintiff contributed to the harm caused by the defendant. eg. a person may make a claim that they suffered personal injury as a result of being pushed by the defendant. however, the claim, if proven, would be reduced if it were shown that the plaintiff was intoxicated at the time.

Defendant would need to prove that the plaintiff played a role in creating the harmful situation (contributed to their loss, damage or injury)
This could reduce the amount of damages that the defendant may need to pay

19
Q

ELEMENTS OF NEGLIGENCE

A

There are 4 elements that must proved in a case of negligence:

The defendant owed a duty of care
The defendant breached the duty of care/breach of duty of care
Causation
The plaintiff suffered a loss as a consequence

20
Q

duty of care

A

This refers to the neighbour principle, that is reasonable care should be taken not to harm others through actions or omissions. This element includes that a reasonable person would foresee the risks associated and take measures to remove these risks.

the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them. (the neighbour principle)

21
Q

BREACH OF DUTY OF CARE

A

when a person fails to do what a reasonable person would have done. the person would have not taken precautions against harm to the victim.

Must establish that the risk of injury was foreseeable. If it’s extremely unlikely and/or a reasonable person would probably ignore it, it will be hard to establish that is was foreseeable

Must also consider the size of the risk. If the risk of serious injury is high, then greater care should be taken to avoid the injury.

This means that the defendant did not take reasonable precautions to stop the harm being done

22
Q

INJURY , LOSS OR DAMAGE

A

the victim must have suffered injury, loss or damage, even if its minor. The injury, loss of damage can be physical, mental or property damage.

23
Q

IMPACT OF THE BREACH ON THE PARTIES- negligence

A

plaintiff: loss of life, permanent physical incapacity, serious physical injury, emotional impact of the breach, loss of wages and livelihood, unemployment, effect on mental health
defendant: loss of business, public humiliation, physical injury, costs, need to sell assets

24
Q

the rights protected by negligence

A
  • to protect people from wrongful conduct by others, particularly where a person acts recklessly or with complete disregard for another person.
  • to allow parties to seek compensation against those people who have acted contrary to those laws.
25
Q

elements of defamation

A

THE STATEMENT IS DEFAMATORY

THE STATEMENT IS UNTRUE

THE STATEMENT REFERS TO THE PLAINTIFF

THE STATEMENT HAS BEEN PUBLISHED BY THE DEFENDANT

26
Q

THE ROLE OF STATUTE AND COMMON LAW

A

COMMON LAW: the common law rule allows a plaintiff to take legal action on the grounds that a defendant did not act in a way to protect the interests of their “neighbor”.

STATUTE LAW: part x of the wrongs act

27
Q

the statement is of one of which is defamatory

A

a statement is defamatory if it lowers a person’s reputation or standing in the community exposing them to ridicule, contempt or hatred

28
Q

THE STATEMENT IS UNTRUE

A

A plaintiff cannot be defamed if the statement is substantially true.

29
Q

THE STATEMENT HAS BEEN PUBLISHED BY THE DEFENDANT

it is not defamation for a person to make untrue or derogatory comments directly to the person if it is done in private. Once a third person reads, hears or sees the defamatory material, the comments become actionable

A
30
Q

THE STATEMENT REFERS TO THE PLAINTIFF

A

the person defamed must be mentioned in the statement. they do not need to be mentioned by name. it may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff.

31
Q

IMPACT OF THE BREACH ON THE PARTIES- defamation

A

plaintiff: loss of reputation, emotional impact from the defamatory material, loss of wages and livelihood unemployment
defendant: costs, need to sell assets public humiliation

32
Q

DEFENCES TO DEFAMATION

A 
JUSTIFICATION 
PRIVILEGE
FAIR REPORTING OF PUBLIC CONCERN
HONEST OPINION
TRIVIALITY
33
Q

JUSTIFICATION

A

the comments were justified because they are the truth. must be raised by the defendant

34
Q

PRIVILEGE

A

a person can prove that the defamatory statement was published in relation to a parliamentary or court proceeding

35
Q

FAIR REPORTING OF PUBLIC CONCERN

A

a person can argue that the argument was published for educational reasons involving government, shareholders, companies and the ombudsman.

36
Q

HONEST OPINION

A

the statement is an expression of their honest opinion rather than a statement of fact

37
Q

TRIVIALITY

A

It can be proven that the the plaintiff is unlikely to be harmed by the publication of the defamatory material

38
Q

THE ROLE OF STATUTE AND COMMON LAW, DEFAMATION

A

COMMON LAW: the australian constitution, elements and defences were developed through a series of court cases

STATUTE LAW: the defamation act 2005

39
Q

RIGHTS PROTECTED BY DEFAMATION

A
  • the right to freedom of expression
  • the right to be considered of good character and reputation
  • the right to have that reputation protected by placing limits on freedom of expression
  • the right of people whose reputations have been harmed to seek effective and fair remedies
  • the right to a quick and effective method of resolving a dispute in relation to defamation
40
Q

damade, defamation

A

You don’t have to prove that there was an intention to damage the person’s reputation. It’s enough that damage actually resulted from the publication.

legal studies (3 decks)

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