civil liability Flashcards
Lesson one
what is the aim of civil law?
the protection of individual rights and restoring individuals to their previous positions if those rights have been infringed by resolving disputes b/w individuals, groups & organisations
Lesson one
what is the aim of the civil law negligence?
to ensure that ppl who owe a duty of care to another party do not breach the duty of care; if the duty is breached, the party which committed the breach, will be held accountable
Lesson one
what is the aim of the civil law defamation?
to enure a person’s reputation is not unjustifiably harmed b/c of false statements that are made about that person; if a reputation is unjustifiably harmed, the party which damaged the reputation will be held accountable
Lesson one
how does civil law meet its aim?
- through establishment of the law through both statute & common law
- by determining whether the law has been breached
- through enforcement of the law
Lesson one
what are some areas of civil law?
- tort law
- contract law
- family law
- employment law
- wills & estates
- company law
Lesson one
what is a tort?
- a civil wrong.
- it exists in the absence of a contract b/w the disputing parties
- e.g. negligence / defamation / nuisance / trespass
Lesson one
which act is the law relating to negligence outlined in?
Wrongs Act 1958 (Vic)
Lesson one
which act is the law relating to defamation outlined in?
Defamation Act 2005 (Vic)
Lesson one
what is contract law?
covers the legal validity of a contract (legal agreement) & the rights available to a party if a valid contract is broken
e.g. commercial contracts, employment contracts & building contracts
Lesson two
define breach
breaking, or failing to fulfill, a duty or obligation
e.g. in a negligence claim, the plaintiff must est that the defendant breached the duty of care owed to them
Lesson two
define causation
the direct link b/w the actions of the defendant & the harm suffered by the plaintiff; the liability of the defendant
Lesson two
how can the casual chain be broken?
- harm was too remote to have been caused by the actions of the defendant –> test = ‘was the damage foreseeable by the defendant?’
Lesson two
what are intervening acts?
acts that break the chain of causation meaning that causation cannot be established & the defendant t/f cannot be held liable for the harm suffered by the plaintiff
Lesson two
define loss
a type of harm or damage suffered by a person which can involve both economic & non-economic loss
Lesson two
what are the different types of loss?
- financial loss = loss of wages, loss of earning capacity, loss of profits (contact breach), money spent on medical expenses
- property damage = car, house, clothing, goods
- personal injury = cuts, bruises, broken bones, loss of limb
- pain & suffering = mental anguish, anxiety, depression
- loss of amenity = enjoyment of life, job satisfation, family life, enjoyment of hobbies
Lesson two
define limitation of actions?
restriction on bringing a civil claim to court after a given time
Lesson two
what is vicarious liability?
situation in which a party is deemed responsible for wrongdoing & a breach of rights merely due to an association w/ another party
Lesson two
what is the burden of proof?
Lesson four
what does the Limitation of Actions Act 1958 provide?
provides the time limits in which a person can make a claim of negligence in Victoria
Lesson four
when must a claim of negligence be commenced?
- w/n 3 yrs of the discovery of the cause of action by the party eligible to claim
or - w/n 12 yrs from the date of the act or omission which resulted in the injury
Lesson four
what did Donoghue v Stevenson establish?
est. the ‘neighbour principle’ in the UK, forming persuasive precedent on Aust. (Grant v Australian Knitting Mills)
Lesson four
what is the ‘neighbour pinciple’?
a person must take reasonable care to avoid acts or omssions that are likely to injure their neighbour (person they ought to consider in their actions)
Lesson four
what did Grant v Australian Knitting mills establish?
est. binding precedent that applied the principles in D v S in Australia
Lesson four
what are the four elements the plaintiff must prove in a negligence claim?
- duty to care exists
- the defendant has breached their duty of care
- causation: link b/w breach of duty of care & injury or loss suffered
- the plaintiff has suffered a loss as a result of the breach of the duty of care
Lesson four
when does a legal entity owe a duty of care?
- the risk was foreseeable (person knew or should have known about risk of harm)
- the risk was significant or not significant (not farfetched)
- a reasonable person in the same circumstances would have taken precautions to eliminate the risk of harm
Lesson four
what are the exceptions to the negligence element duty of care?
- risky recreational activities (participants can sign a waiver acknowledging that they accept responsibility for injuries)
- ‘good samartians’ are exempt from liability as long as they acted in good faith & w/n their competence
- voluntary donations of food in good faith
- volunteers X be held liable as long as they acted in good faith (the organisation can be held liable though)
Lesson four
when is a duty of care breached / broken?
when the defendant fails to do what a reasonable person would have done in the circumstances
Lesson four
what must the court consider when determining whether a reasonable person would have taken precautions against a risk of harm?
- the likely risk of harm
- the likely seriousness of the harm
- the burden of taking precautions to avoid the risk of harm (the effort & cost involved to address the risk)
Lesson four
what is causation in relation to negligence?
the direct link b/w the defendant’s breach of duty & the loss suffered by the plaintiff
Lesson four
what is loss in relation to negligence?
it must be proven that the plaintiff suffered loss or damage (even if it is only minor) as a result of a breach of duty of care. the loss or damage can be physical, mental, financial, or damage to property
lesson three
who are possible plaintiffs to a civil manner?
- the aggrieved party (person who suffered the loss)
- other victims (X aggrieved party)
- insurers
Lesson three
who is the aggrieved party?
person whose rights have been infringed & who has suffered loss
e.g. in a negligence claim, this will be the person who was owed a duty of acre by the defendant & has suffered harm as a result of the breach
Lesson three
what are representative proceedings / class actions?
- 7 or more aggrieved parties
- aggrieved parties make a claim against the same party which has arisen out of the same circumstances
- lead plaintiff: represents the group in the proceeding
- other members = group members
Lesson three
who are other victims?
those who have indirectly suffered loss or damage as a result of actions of another party may also become a plaintiff by taking legal action
Lesson three
what are examples of other victims?
- a family member who suffers loss & damage as a result of the death of a loved one & sues the person or entity they believe caused their family member’s death
- somebody who was close to or witnessed an event & suffers nervous shock as a result
Lesson three
what is the right of subrogation?
insurance companies have the right to sue on behalf of the policy holder.
t/f an insurer will pay the policy holder & then sue the person who caused the loss to recover their expenses
Lesson three
who are possible defendants to a civil claim
- the wrongdoer
- employers
- persons involved in wrongdoings (accessories)
- insuers
- organisations / companies
- the government & government agencies
Lesson three
define vicarious liability
the legal responsibility of a 3rd party for the wrongful acts of another
e.g. employers can be vicariously liable for the actions of their employees
Lesson seven
what are the impacts of negligence on the plaintiff?
- loss of life: e.g. a workplace accident / care accident can result in death
- permanent physical incapcity: the plaintiff might require carers for the remainder of their life
- serious physical injury: the need for medical expenses, such as operations & ongoing care
- loss of wages & 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
Lesson seven
what is the impact of negligence the defendant?
- loss of business: potentially due to the negative publicity associated with the negligence claim
- public humiliation & 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, sych as in car accident; a counterclaim can aso 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 assests: this will potentially results from a high award of damages against the defendant
Lesson seven
what are the impacts of negligence on society
- social impact: burden on families, health system, psychological services, workplaces
- psychological impact: a potential loss of faith in individuals & institutions
- impact on the legal sysem: delays, costs, backlogs, pressure
Lesson three
who is a wrongdoer?
the person or company that has directly caused the loss or damage to the plaintiff (may be more than one)
e.g. in medical neg. claim, plaintiff may sue both hospital & doctor
Lesson three
who is a person involved in wrongdoing?
party held liable as an accessory, known as accessorial liability
Lesson three
what is accessorial liability
- anyone who aided, abetted or procured the wrongdoing
- induced or encouraged wrongdoing
- conspired w/ others to cause the wrongdoing
Lesson five
what are the defences to a negligence claim?
- lack of elements
- specific defence (voluntary assumption of risk / contributory negligence / illegality)
Lesson five
when is the defence lack of elements used?
used when the defendant claims that not all the elements of negligence are present, X duty of care, duty of care X breached, X loss or harm occurred or if so it was caused by other means
Lesson five
what does it mean for ‘no duty of care was owed’?
the defendant may claim that there was no ‘neighbour relationship’ b/c it was not reasonable to foresee that their actions would cause the loss or damage that the plaintiff suffered
Lesson five
what does it mean for ‘the duty of care was not breached’?
a duty of care is not breached if the defendant acted as any reasonable person would have & the injury was the result of an accident & could not be stopped i.e. the injury or harm was not forseeable
Lesson five
what does it mean for ‘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 or care the plaintiff suffered no harm or the harm / injury was not the result of the breach
Lesson five
what must the defendant demonstrate for the specific defence voluntary assumption of risk?
- was fully aware of the risk;
- fully appreciated its nature & extent; &
- freely & willingly accepted the risk
Lesson five
what are examples of situations where the defence voluntray assumption of risk may be applied?
- Bungee jumping or sky diving
- knowlingly & voluntarily accpeting a lift w/ a drunk driver
- cases involving sports ppl: jockeys; boxers
Lesson five
what does the specific defence voluntary assumption of risk NOT apply to?
NOT apply to professional services. that is, negligence claims can be bought against professionals that have specialised skills such as financial advisors, accountants, lawyers, surveyors
Lesson five
what is the specific defence contributory negligence?
- the plaintiff has contributed to the harm caused by the defendant
i.e. the plaintiff as contributed to their own negligence - reduces the amount of damages owed to the plaintiff if the defendant is hled liable
Lesson five
the plaintiff failed to take the standard of care a person should to ensure their own safety, thereby contributing to their own negligence.
Lesson eight
why does the tort of defamation exist?
exists to protect the reputation of individuals against unjustified attempts to descredit their character in the eyes of others in the community
Lesson eight
historically, what were the two catergories of defamation under common law?
- Libel
- slander
Lesson eight
what is libel?
statement made in permanent form (newspaper, radio, television, emial) that lowers that person’s reputation
Lesson eight
what is slander?
statement made in non-permanent form, word-of-mouth
Lesson eight
what is the relevant act that the tort of defamation covers both libel & slander?
the Defamation Act 2005 (VIC)
Lesson eight
what needs to be proven by the plaintiff for a defamation claim to be successful in court?
- the statement was defamatory
- the statement identified the plaintiff
- publication of the defamatory statement
Lesso eight
what does it mean for a statement to be defamatory?
a defamatory statement lowers a person’s reputation or standing in the community exposing them to ridicule or hatred
Lesson eight
what does it mean for the defamatory statement to refer to identify the plaintiff
- the person defamed need not be mentioned by name
- sufficient to prove that ppl reading the statement would reasonably conclude that it was about the plaintiff
- plaintiff may also be defamaed as part of a group (groups has to be specifically addressed)
Lesson eight
what does it mean by the publication of a defamatory statement
the written or verbal statement was published (communicated to a person other than the person to which it referred) by the defendant.
X matter whether material published to general public or to a small group
Lesson nine
when being sued for defamation, what can the defendant claim in defence?
- not all elements of defamation were satisfied by the plaintiff (lack of elements)
- the limitation of factions has expired (1 yr)
- specific defence
Lesson nine
what are the specific defences associated with defamation?
- justification
- honest opinion
- absolute privilege
- qualified privilege
- contextural truth
- fair report of proceedings of public concern
- triviality
- innocent dissemination
Lesson nine
what is the specific defence, justification?
- prove that def statement i true & that they were t/f justified in makingg the statement
- t/f demonstrate that no unjustified damage to the plaintiff’s reputation occurred
Lesson nine
what is the specific defence honest opinion?
- defendant claim def material is an expression of their opinion as a commentator.
- the matter must be of public interest & the opinion must be based on proper material
- the statement cannot be grossly exaggerated or go beyond what would reasonably be expected of a critic.
Lesson nine
when is the specific defence absoluet privilege used?
- when the defamatory statement is made in parliament, courts or tribunals
Lesson nine
who does parliamentary privilege protect?
protects those who participate in “proceedings in parliament” from outside interference or suit
lesson nine
where does the specific defence qualified privilege used?
used where the defendant:
- believes the recipient of the defamatory information has a moral or legal interest in receiving the information
- acts w/o malice or spite
- acts reasonably in the circumstances
e.g. - parent / teacher
Lesson nine
when does the specific defence contextual truth apply?
- applies when a defamatory statement is substantially true although there might be some inaccuracies
- the core issue of the publication is true
Lesson nine
what does the defendant argue for the specific defence, fair report of proceedings of public concern
defendant argue that the material was a fair report of proceedings published for the public or for educational purposes
Lesson nine
what is the specific defence triviality?
- defendant argue that the plaintiff was unlikely to suffer harm due to the statement
- the matter is a minor matter & trivial in nature
Lesson nine
who does the specific defence innocent dissemination protect?
- defence protects ppl who unknowlingly distribute defamatory information
Lesson nine
what must the defendant prove for the specific defence of innocent dissemination?
must prove that they did not know that the publication contained defamatory information & that they did not have an obligation to check for defamatory material
Lesson nine
what is an example of the specific defence, innocent dissemination?
- printing companies,
- bookseller
Lesson ten
what is the impact of defamation on the plaintiff?
- loss of reputation: loss of status e.g. shunned by ppl who once respected them
- emotional impact: a consequence of the publicity of the claim e.g. developing anxiety, depression
- loss of wages & livelihood: e.g. the plaintiff might need to take time off work for proceedings
- unemployment: consequences of loss of repuation
- legal costs / fees
Lesson ten
what is the impact of defamation on the defendant?
- costs: need to pay legal fees of the plaintiff if the defendant loses the case. even if successful defendant need to pay some of their own fees if the hearing is over a long period of time & costs exceed standard costs
- need to sell assests: potential consequence of a high award for damages or high legal fees
- public humiliation: consequence of the publicity of the claim
