civil liability and tort law Flashcards
chapter 9 and chapter 10
Define civil law
Civil law is an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes.
Purposes of civil law
Civil law aims to…
- Provide guidelines for acceptable behaviour
- Protect the rights of individuals
- Provide an avenue for people to seek compensation
- Remedy the harm that has been suffered
Define civil liability
Civil liability is the legal responsibility of a party for loss or harm caused to another party because of a break of civil law
Types of civil law
Nuisance, defamation, contract law, negligence, wills, trespass, family law, employment, equal opportunity and discrimination
Breach
A breach is a breaking of or failing to fulfill or comply with a duty or obligation.
Causation
The plaintiff must prove that the defendant’s actions caused or resulted in the harm suffered by the plaintiff, and that the harm would not have occurred if the defendant had not acted in the way they did
Loss
A plaintiff can only obtain a legal remedy if it can be proved that they have suffered loss or harm
Loss includes economic or financial loss, property damage, personal injury, pain and suffering, loss of amenity, etc.
Limitation of actions
The time period within which a civil law action can be initiated
The burden of proof
The obligation of a party to prove the facts of the case
In a civil case, the burden of proof lies with the plaintiff
The standard of proof
The degree or extent to which a case must be proved in court
In civil cases, the plaintiff must prove the case on the balance of probabilities
Plaintiffs in a civil case
The aggrieved party, other victims
Defendents
The wrongdoer, employers, persons involved in the wrongdoing
Define tort law
Tort law involves wrongs that interfere with a person’s legally protected interest
Define negligence
Negligence is a tort that involves a break of a duty of care, causing loss or harm
A person is obliged to take care when it is reasonably foreseeable that others could be harmed
Purposes of negligence laws
- protects an individual’s right to be safe from harm
- establishes legal principles about when duty of care is owed and the standard of care required
- allows people to seek an appropriate remedy against those who breached duty of care
- establishes limitation for what remedies may be sought
Elements required to establish liability for negligence
- the defendant owed a duty of care to the plaintiff
- the defendant breached the duty of care
- the breach of the duty of care caused harm to the plaintiff
- the wronged person has suffered harm; injury, loss or damage
Limitation of actions for negligence
Negligence claims where the plaintiff contracted disease - 3 years
General negligence claims - 6 years
Negligence claims where the plaintiff died/ suffered personal injury - 3 years or 12 years
Defenses to negligence
- the four elements of negligence have not been established
- contributory negligence
- volenti non fit injuria
Define class action
A type of lawsuit where the plaintiff is a group of people who are represented collectively by a member or members of that group
Exemptions to negligence
- participating in risky recreational activities
- volunteering
- donating food
- being a good samaritan
Possible remedies for negligence
Compensatory damages
These damages involve a payment of money from the defendant to the plaintiff
Impacts on the plaintiff for negligence
- loss of life
- permanent physical incapacity
- serious physical injury
- emotional impact
- loss of wages
- unemployment
- mental health impact
Impacts on the defendants for negligence
- loss of business
- public humiliation
- physical injury
- costs
- need to sell assets
Define contributory negligence
Contributory negligence is a defense where the defendant alleges that the plaintiff contributed to the harm caused.
E.g. the plaintiff does not wear a seatbelt in a car accident
Define ‘volenti non fit injuria’
A latin term which mean ‘to a willing person, injury is not done’. The plaintiff has accepted and understood the risk, either expressly or by implication
Define special damages
Damages which compensate for loss that can be accurately measured in monetary terms
E.g. loss of wages and medical cost
Define general damages
Damages to compensate for loss that cannot be accurately measured in monetary terms
E.g. loss of enjoyment of life, pain and suffering
Define aggravated damages
Awarded if the defendant shows reckless disregard for the plaintiff’s feelings. These damages aim to compensate the plaintiff for distress and feelings of humiliation
Define defamation
Defamation is a type of tort that involves the action of damaging a person’s personal or professional reputation through the communication of untrue or false statements or information
Purposes of defamation law
- protects the right to freedom of expression
- protects the right tp be considered of good character and reputation
- the right to have good reputation is protected by placing limits on freedom of expression
- protects the right to seek effective and fair remedies
- protects the right to a quick and effective method of resolving disputes
- protects individuals against material or free speech that would harm their reputation
Elements required to establish liability for defamation
- the statement is defamatory
- the statement is untrue
- the statement refers to the plaintiff (not necessarily by name)
- the statement has been published by the defendant
- the defamatory material has caused/ is likely to cause serious harm to the reputation of the plaintiff
Limitation of actions for defamation
Within 1 year of the publication date
The court may extend the limitation period by up to 3 years, if it was not reasonable for the plaintiff to have commenced action within a year
Defenses to defamation
Justification, contextual truth, absolute privilege, publication of public documents, fair report of proceedings of public concern, public interest, honest opinion, innocent dissemination
Justification as a defense to defamation
The statement is substantially true
Contextual truth as a defense to defamation
The statement is made in the same context as statements that are substantially true
The statement does not further the harm to the reputation of the plaintiff
Absolute privilege as a defense to defamation
The defendant has complete immunity from being sued in certain cases.
E.g. the defamatory statement was published in the course of proceedings of parliamentary bodies, courts or tribunals
Publication of public documents as a defense to defamation
The published statement was a fair copy, summary, or extract of a public document, but only if the statement was published for the public or for educational purposes
Fair report of proceedings of a public concern as a defense to defamation
The statement is a fair report of proceedings, published for the public’s information or for educational purposes
E.g. Parliamentary body
Public interest as a defense to defamation
When the defendant reasonably believed that the publication of the matter was in the public interest.
Honest opinion as a defense to defamation
Expression of honest opinion rather than a statement of fact
Innocent dissemination as a defense to defamation
Defendant unknowingly distributed the defamatory information
E.g. published as a subordinate or employee
Possible remedies for defamation
Damages
Injunction
(an order requiring the defendant to do or not to do something, non financial remedy)
Impacts on the plaintiffs for defamation
- loss of reputation
- emotional impact
- loss of wages and livelihood
- unemployment
Impacts on the defendants for defamation
- costs
- need to sell assets
- public humiliation
Slander
A type of defamation that is non permanent (i.e. verbal)
Libel
A type of defamation that is permanent (i.e. written)
Mandatory injunction
Compels behaviour, forces someone to do something
Restrictive injunction
Prohibits behaviour
Remoteness
If the damage was not reasonably foreseeable, the defendant will not be held liable as the damage is too remote
Vicarious liability
Vicarious liability is when somebody becomes responsible for the actions of another
The employer is vicariously liable for the actions of their employees
