Civil Liability

Question 1

Civil Law

Answer 1

Defines the rights and responsibilities of individuals, groups and organizations in society and regulates private disputes.

Question 2

Sue

Answer 2

To take civil action against another person by making a claim that they have infringed some legal right.

Question 3

Liability

Answer 3

The legal responsibility of a party for loss or harm caused to another because of a breach of civil law.

Question 4

Remedy

Answer 4

Orders made by a court or tribunal to address a civil wrong or breach - designed to restore the plaintiff back to their original position. Remedies can be in the form of damages (money) or injunctions.

Question 5

Types of Civil Law
Negligence

Answer 5

Requires individuals who owe a duty of care to another person to prevent foreseeable harm from occurring.

Question 6

Types of Civil Law
Trespass

Answer 6

Prevents individuals from interfering with another person, their land or goods.

Question 7

Types of Civil Law
Nuisance

Answer 7

Ensures that individuals can enjoy public and private property without interference or annoyance.

Question 8

Types of Civil Law
Contract

Answer 8

Ensures that people who make promises under enforceable agreements fulfill those promises or compensate the other party if they fail to comply.

Question 9

Types of Civil Law
Defamation

Answer 9

Protect a person’s reputation from being damaged by lies that are shared with the public.

Question 10

Purposes of Civil Law

Answer 10

Provide guidelines for acceptable behaviour so that people uphold each other’s rights and social cohesion can be achieved.
Provide a system for parties to pursue rights protection through courts and tribunals.
Provide a remedy for harm or loss caused by an infringement of rights.

Question 11

Parties

Answer 11

Before court proceedings
> Aggrieved/wronged party
> Wrongdoer
During court proceedings
> Plaintiff
> Defendant

There may be more than one aggrieved person or more than one wrongdoer in a situation. Two or more people can be joined as plaintiffs or defendants in a proceeding.

Question 12

Breach

Answer 12

An act or omission that represents a failure to meet a legal obligation.
The plaintiff, who has the burden of proof, must prove that the defendant is in breach. Nature of the breach depends on the area of law;
> Contract - failure to fulfil a promise
> Negligence - failure to uphold duty of care to another person

Question 13

Loss

Answer 13

A type of harm or damage suffered by a person. It can involve both economic and non-economic.
Financial - loss of wages, earning capacity, profits, medical expenses, etc.
Property damage - damage or destruction of house, car clothing, etc.
Personal injury - cuts, bruises, broken bones, loss of limb, etc.
Pain and suffering - mental anguish, anxiety, depression
Loss of amenity - loss of enjoyment of life, job satisfaction, family life, etc.

Question 14

Causation

Answer 14

The direct relationship between the defendant’s breach and the plaintiff’s loss. The plaintiff must prove that the defendant’s breach was a necessary condition of the loss suffered (but for test is useful to determine cause).
After the defendant’s breach, their may be an intervening act or a break in the chain of causation.

Question 15

Burden of Proof

Answer 15

The responsibility (onus) of proving the facts of the case.
The plaintiff has the burden of proof - they must present evidence to establish the elements of the civil wrong.

Counter Claim
Separate claim made by the defendant to the plaintiff’s claim, asserting that it is the plaintiff who is actually at fault.
Counter claims have independent procedural existence (not a defense). If the plaintiff’s action is struck out by the court, defendant’s counterclaim will live on. The defendant has the burden of proof in proving the elements of the counter claim.

Question 16

Standard of Proof

Answer 16

The degree to which a case must be proven in court. It must be decided that the wrongdoing occurred on the balance of probabilities (more likely than not to have occurred).

Question 17

Limitations of Actions

Answer 17

The restriction on bringing a civil law claim to court after the allowed time.
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

Limitations of Actions Act 1958 sets out the time limits
> Defamation - 1 year
> Under tort law where there is personal injury - 3 years (starts on the day they know they are injured)
> Breach of contract - 6 years

The court can grant a time extension, depending on the circumstances and nature of the case. Some civil claims have no time limitation (e.g. a plaintiff’s claim for physical or sexual abuse they suffered as a minor) - Victoria was the first state to abolish this sort of time limit.

Question 18

Plaintiffs - Class Actions

Answer 18

AKA representative proceedings or group proceedings. The lead plaintiff represents the class in the proceeding. The other people in the class are called group members.

A class action is when seven or more people have claims against the same defendant; the claims concern the same, similar or related circumstances; and the claims give rise to a common issue of law or fact.

Question 19

Becoming Part of a Class Action

Answer 19

Victoria has an opt out system for class actions. Once the class has been defined by the court, if a person meets the relevant criteria, they are automatically a part of the class action. People can opt out of a class action via writing. The case can only be argued once. All members of the class are considered to have their claim heard and settled by its conclusion (cannot bring an individual claim after the class action has concluded).

Question 20

Plaintiffs - Other Victims

Answer 20

A plaintiff can also be a person who has indirectly suffered loss as the result of another party. A person suffers loss due to the death of a family member and sues the party that they believe is responsible. A witness of a traumatic event who has suffered nervous shock.

Question 21

Defendants - Employers

Answer 21

Vicarious liability - the legal responsibility of a third party for the wrongful acts of another.
Employers have the right, ability and duty to control the activities of their employees. Therefore, employers can become vicariously liable for the breaches of their employees.
The employee must have been acting in the ‘course of their employment’ (authorized way) as opposed to a ‘frolic of their own’ (unauthorized way).

Question 22

Negligence

Answer 22

Negligence is a type of tort (civil wrong).
Purpose: negligence requires individuals who owe a duty of care to another person to prevent foreseeable harm from occurring.

Question 23

Negligence
Elements

Answer 23

1. Defendant owed the plaintiff a duty of care
2. Defendant breached their duty of care
3. Defendant’s breach caused harm to the plaintiff
4. Plaintiff suffered harm or loss

Question 24

Duty of Care (Negligence)

Answer 24

The plaintiff must establish that the defendant owed them a duty of care. Duty of care is the obligation to be careful toward another person and prevent foreseeable harm from occurring to them.

Two types exist;
> Settled law that DoC exists (presumed DoC, e.g. patient and doctor)
> Novel situation where DoC is arguable based on the situation

A person owes a DoC to another if the risk of harm was reasonably foreseeable.
If the risk is reasonably foreseeable, the ‘neighbor principle’ established in Donoghue v Stevenson applies. In negligence, the term neighbor refers to the relationship between two parties who are directly impacted by each other’s actions or omissions

Question 25

Breach

Answer 25

Plaintiff must establish that the defendant breached their DoC. The DoC is breached when a person fails to do what a reasonable person would have done in the same situation.
A person has breached their duty if;
> It is reasonably foreseeable that the breach will result in harm to the plaintiff
> The risk was not insignificant (i.e. not far-fetched or fanciful)
> A reasonable person in the same situation would have taken precautions to eliminate the risk

Question 26

Negligence Causation

Answer 26

The plaintiff must prove that the defendant’s breach was a necessary condition of their loss or harm.
The but for test can be used to establish causation.
There may be intervening acts that break the chain of causation.

Question 27

Loss, injury, damage

Answer 27

The plaintiff can only seek a legal remedy if they can prove that they have suffered injury, loss or damage, even if it is minor.
Loss can be financial, property damage, personal injury, pain and suffering, etc.
The loss cannot be too remote from the breach. The plaintiff must prove that this specific type of loss was reasonably foreseeable.

Question 28

Reasonably Foreseeable

Answer 28

Common sense/predictable

Question 29

Negligence Defenses
Lack of Elements

Answer 29

The defense is used when the defendant claims that not all elements of negligence are present.
1. No duty of care was owed
The defendant may claim that there was no ‘neighbor relationship’ because it was not reasonably foreseeable that their actions could or would cause loss or damage to the plaintiff.
2. 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 reasonably foreseeable.
3. No loss or harm occurred/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 was not the result of the breach.

Question 30

Negligence Defenses
Voluntary Assumption of Risk

Answer 30

Volenti non fit injuria (Latin - to a willing person, injury is not done). This is a complete defense - if proven, the defendant avoids liability.
Defendant must prove;
> Plaintiff was aware of an obvious risk inherent to the activity
> Plaintiff voluntarily chose to take the risk - consent can be express (e.g. waiver) or implied (e.g. willing engagement in the activity)

Medical Profession
> Does not apply to the provision of health services. Health providers have a legal responsibility to warn people of any inherent risk associated with the procedure/work

Question 31

Negligence Defenses
Contributory Negligence

Answer 31

Not a complete defense - 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 to their own injury, loss or damage - did the plaintiff take reasonable care to avoid foreseeable 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.

Question 32

Civil Law Remedies

Answer 32

Remedies = a court order that aims to enforce a right by
> Preventing a civil breach
> Correcting a civil breach by returning the plaintiff to their original position
There are two types of remedies;
> Damages
> Injunctions

Question 33

Damages
Civil Law Remedies

Answer 33

Damages are a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a defendant’s civil breach
Damages can be divided into different categories and, more then one type of damage can be awarded to a plaintiff in a civil dispute
Damages
> Compensatory (specific, general, aggravated)
> Exemplary
> Nominal
> Contemptuous

Question 34

Compensatory Damages

Answer 34

The most common form of remedy for negligence claims.
The purpose of compensatory damages is to restore the plaintiff, as nearly as possible, to the original position that they would have been in had the tort not been committed.
Special/specific 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 (salt in wound/stir the pot)

Question 35

Exemplary (Punitive) Damages

Answer 35

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 behavior. 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).

Question 36

Nominal Damages

Answer 36

Require an extremely small amount of money to be paid to the 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 seeking compensation but wants to prove that they are legally right. The plaintiff often wants to make a point for moral reasons.

Question 37

Contemptuous Damages

Answer 37

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.

Question 38

Impact of Negligence (Plaintiff)

Answer 38

> Loss of life - death of oneself or of family member
Permanent physical incapacity - might require carers for the remainder of their life
Serious physical injury - medical expenses and ongoing care
Emotional impact of breach - fear of social situations or certain places
Loss of wages and livelihood - out of work for the duration of recovery
Unemployment - potential consequence of physical or mental injury
Effect on mental health - low self-esteem, depression, anxiety

Question 39

Impact of Negligence (Defendant)

Answer 39

> Loss of business - due to negative publicity associated with negligence claim
Public humiliation and loss of reputation - negative publicity of claim
Physical injury - contributory negligence, defendant may also suffer physical injury (e.g. car crash) (counterclaim may also be launched)
Costs - if defendant loses the case, potential prospect of paying some of the plaintiff’s legal costs
Need to sell assets - potentially result from a high award of damages

Question 40

Defamation

Answer 40

Defamation is a type of tort (a civil wrong). The purpose of defamation it to protect a person’s reputation from being damaged by lies that are shared with the public.
Elements;
1. The statement is defamatory
2. The statement is untrue
3. The statement refers to the plaintiff
4. The statement has been published
5. The defamatory statement caused serious harm, or is likely to cause serious harm to the reputation of the plaintiff

Question 41

Elements of Defamation
Statement is Defamatory

Answer 41

Defamatory statements can come in many forms. Some examples of defamatory matter are included in section 4 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 neutralizes this.

Will ordinary members of the community think less of the plaintiff?

Question 42

Elements of Defamation
Statement is Untrue

Answer 42

The plaintiff must demonstrate that the statement made about them is false.
If the statement is found to be substantially true, the plaintiff cannot be defamed.

Question 43

Elements of Defamation
Statement Refers to the Plaintiff

Answer 43

The plaintiff must be referred to in the defamatory statement.
> The plaintiff can be explicitly named
> It may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff
The plaintiff may be defamed as part of a group
> The group must be sufficiently small enough for the plaintiff to be recognised as a part of

Question 44

Elements of Defamation
Statement has been Published

Answer 44

The statement must be communicated to a person other than the plaintiff. The plaintiff can sue once a third party reads, sees or hears the defamatory material.
It does not matter if the statement was published to the general public or a small group of people.
Online, a person will be considered to have published a statement if they repost it even if they did not author it.

Question 45

Elements of Defamation
Statement has Caused or is Likely to Cause Serious Harm

Answer 45

2021 legislative changes to the Defamation Act 2005 (Vic) now require plaintiffs to establish that they have suffered, or may suffer, ‘serious harm’ as a result of the defamatory statement.
This element must be determined by the judge before the trial commences, unless there are special circumstances (e.g. cost implications, available resources). If the serious harm element is not satisfied, the case will be dismissed. This element seeks to prevent frivolous and trivial defamation claims where the costs of taking the case to court exceed the damages awarded.
There is no set definition for serious harm. Court will consider;
> Meaning of words and gravity of allegation
> Scale of the publication and any grapevine effect (if statement spread beyond recipients to a wider audience)
> Reaction of the recipients
> What financial and non-financial loss has been suffered or could be suffered.

Question 46

Defenses to Defamation

Answer 46

The defendant can argue that any or all of the elements of defamation have not been proven on the balance of probabilities. Otherwise, they may rely on the specific defense;
> Justification
> Contextual Truth
> Absolute Privilege
> Publication of Public Documents
> Fair Report of Proceedings of Public Concern
> Public Interest
> Honest Opinion
> Innocent Dissemination

Question 47

Justification
Defenses to Defamation

Answer 47

This applies when the defamatory statement is substantially true (majority true).
It does not matter if there are some inaccuracies, as long as the core imputation (assertion) of the statement is substantially true.

Question 48

Contextual Truth
Defenses to Defamation

Answer 48

This applies when the defamatory statements are made within the same context as (published alongside) statements that are substantially true.
If the contextual, substantially true statements are more serious than the defamatory statements, the defamatory statements are essentially cancelled out (or subsumed within the greater context) as they do no further harm to the plaintiff’s reputation.

Question 49

Honest Opinion
Defenses to Defamation

Answer 49

The defendant may claim that their statement is an expression of their honest opinion (as a commentator) rather than a statement of fact:
1. The matter was a statement of opinion rather than a statement of fact
> Statement must appear to be an opinion to the ordinary, reasonable reader having regard to all the circumstances of the publication - e.g. a deduction, conclusion, criticism, judgement, remark or observation drawn from a set of facts
2. The opinion was related to a matter of public interest
> Public must have an interest in receiving the information. There is no exhaustive list of matters but can include politics, activities of large corporations, sports, literary and artistic works
3. The opinion was based on proper material
> The material providing the basis for the opinion must be set out in the defamatory publication, notorious or accessible from a reference or link
> That material must be substantially true, a public document or a report on public proceedings.

Question 50

Innocent Dissemination
Defenses to Defamation

Answer 50

This defense protects people who unknowingly distribute defamatory information such as printing companies, booksellers, libraries and internet or email providers.
Defendant must prove;
1. They published the material as a subordinate distributor or as an employee or agent or one
> Subordinate distributor - someone other than the author, editor or primary distributor.
2. Did not know (nor should have known) that the publication contained defamatory information
3. Did not have an obligation to check for defamatory material

Question 51

Defamation Damages

Answer 51

In defamation claims, the plaintiff can receive compensatory damages (including specific, general and aggravated). However exemplary damages cannot be awarded as the right to free speech must be protected. In Victoria, there is a $250,000 limit for non-financial loss in defamation claims. The maximum amount can only be awarded in the most serious case.
There are some factors that may be considered mitigating and weigh towards a smaller award such as if the defendant apologized or published a correction and if the plaintiff has already recovered damages in relation to any other publication that defamed them on the same subject matter.

Question 52

Defamation Injunctions

Answer 52

Injunctions are a court order that compels a party to do something or prevents a party from doing something.
Mandatory injunctions force a party to do something.
Restrictive injunctions prevent a party from doing something.
Injunctions aim to either remedy a past civil breach or prevent a future civil breach from occurring. If the defendant does not comply with the terms of the injunction, they may be held in contempt of court, be ordered to pay damages or be charged with criminal proceedings.
Injunctions can be awarded in conjunction with another remedy (e.g. damages).
The court will consider if the injunction has a lasting effect (e.g. if the identity of the defendant is known, the injunction may be effective). However, if the defendant is using pseudonyms or posting on the dark web, the injunctions may be ineffective.

Question 53

Defamation Impacts
Plaintiff

Answer 53

Loss of rep (e.g. loss of status by being shunned by associates)
Emotional toll (e.g. publicity causing a person to develop depression or anxiety)
Loss of wages and livelihood (e.g. time off work)
Unemployment (e.g. lost business opportunities)

Question 54

Defamation Impacts
Defendant

Answer 54

Financial impact (e.g. loses case and ordered to pay damages and the plaintiff’s costs)
Public humiliation (e.g. publicity of the case shuns D’s credibility and accuracy of conduct, may be questioned on future statements)

Question 55

Nuisance

Answer 55

Is a type of tort (civil wrong).
Purpose: nuisance ensures that individuals can enjoy public and private property without interference or annoyance.

Question 56

Elements of Nuisance
Property Right

Answer 56

The plaintiff must have a property right in or over the land;
> As the owner
> As a tenant (renter)
> As an individual accessing public property

Note: licensees (ppl w permission to be on land) cannot sue (e.g. customers)

Question 57

Elements of Nuisance
Interference

Answer 57

The plaintiff must establish that the defendant substantially and unreasonably interfered with their use and enjoyment of the land.
Use and enjoyment = living, commercial or agricultural purposes.
Interference e.g. noise, dust, objects
Substantial and unreasonable =
> Nature of interference
> Time of day interference occurs
> Nature of neighborhood
> Whether the interference is necessary for the community
> Whether interference is ongoing or intermittent
> How long the interference has existed

Question 58

Elements of Nuisance
Damage, Loss, Injury

Answer 58

The plaintiff must establish that they have suffered some sort of injury, loss or damage.
Material damage - physical property damage (e.g. damage to crops)
> Material damage is deemed a substantial and unreasonable interference - prima facie claim
Non-material damage - injury to the plaintiff’s sensibilities (e.g. loss of enjoyment, sleep deprivation) or financial loss (e.g. loss of revenue).
Public nuisance - to sue for a public nuisance, the plaintiff must show that they have suffered a special damage (e.g. Westgate bridge climate protestors - woman had to have a roadside birth) that extends beyond what has been experienced by other members of the public.

Question 59

Nuisance Defenses

Answer 59

The defendant can argue that any or all of the elements of nuisance have not been proven on the balance of probabilities;
> The plaintiff did not have a property right in or over the land
> There was no unreasonable interference - rather the defendant was using their own land in a reasonable manner (the court must balance the rights of neighbours - give and take rule - people must tolerate interferences caused by normal, everyday activities of neighbours).
> The plaintiff did not suffer damage, loss or injury
Otherwise the defendant can rely on the defense of;
> Statutory authorization
> The plaintiff consented to the activity that they are now claiming to be a nuisance

Question 60

Nuisance Defenses
Statutory Authorization

Answer 60

This defense can be raised if legislation passed by the Victorian or Commonwealth Parliament allows for the defendant’s conduct. The defense will require a careful analysis of the statute and the facts of the case.
The defendant must show that the legislation confers a mandatory duty to undertake an action and that the nuisance is an inevitable consequence of performing that duty (i.e. the only way the action could be performed/ no other preventative measures). Statutory authorization covers the actions of;
> Post office staff
> Council officers
> Gas, water and electricity meter readers
> Police entering a house with a warrant

Question 61

Impacts of Nuisance (Plaintiff)

Answer 61

> Impact on mental health (e.g. anxiety caused from noise disturbance)
Impact on quality of life (e.g. malicious use of surveillance cameras can greatly impact person’s right to enjoy their property)
Financial impacts (e.g. loss of customers)

Question 62

Impacts of Nuisance (Defendant)

Answer 62

> Inconvenience (e.g. defendant may be required to stop using their property in the way they choose)
Business failure (e.g. defendant may be required to change or stop operations to pacify the neighbours
Costs (e.g. defendant may be required to pay a remedy or legal costs if a nuisance is established.