civil liability Flashcards
TYPES OF CIVIL LAW
negligence defamation trespass nuisance control law will and inheritance law family law employment law anti-discrimination laws
Purposes of civil law
- achieve social cohesion
- protects the rights of individuals
- ensure people have the opportunity to resolve disputes
- provide mechanism to seek compensation
Negligence
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.
Defamation
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
Key concepts of civil law, include of …?
Breach Causation Loss Limitation of actions The burden of proof The standard of proof
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:
- 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)
breach
Definition: a violation of law, promise or obligation
breaking or failing to fulfil a duty or obligation
causation, civil
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
loss
Can take a number of different forms: Personal injury Financial loss Pain and suffering Property damage Loss of amenity
Limitation of actions
-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
Burden of proof civ
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
Standard of proof civ
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
Possible parties to a civil dispute
In civil disputes, there can be more than one plaintiff and more than one defendant
POSSIBLE PLANTIFFS AND DEFENDANTS
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
In civil cases, the outcome is?
a remedy
DEFENCES TO NEGLIGENCE
- CONTRIBUTORY NEGLIGENCE
- ASSUMPTION OF RISK
ASSUMPTION OF RISK
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.
CONTRIBUTORY NEGLIGENCE
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
ELEMENTS OF NEGLIGENCE
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
duty of care
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)
BREACH OF DUTY OF CARE
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
INJURY , LOSS OR DAMAGE
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.
IMPACT OF THE BREACH ON THE PARTIES- negligence
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
the rights protected by negligence
- 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.
