Civil Liability, Defamation, Remedies Flashcards
What is the aim of CRIMINAL law?
To protect society and sanction offenders
What are examples of crimes and laws for CRIMINAL law?
Murder
Assault
What are the possible consequences for CRIMINAL law?
Punishment (imprisonment, corrections orders, fines)
Who brings an action under the law (CRIMINAL law)?
State/Commonwealth government (prosecution)
Who has the responsibility (burden)of proving the case in CRIMINAL law?
State/Commonwealth government (prosecution)
Standard of Proof in CRIMINAL law
Beyond Reasonable Doubt
Who is defending the action in CRIMINAL law?
Alleged wrongdoer (defendant)
Police involvement in the action (CRIMINAL law)?
Significant, compiles evidence prior to court and then argues on victim’s behalf at court.
What are the common words used in CRIMINAL cases?
Charge
Bail
Remand
Punishment
Penalty
What is the aim of CIVIL law?
To regulate the conduct between parties to a dispute, and to remedy a wrong that has occurred.
What are examples of crimes and law of CIVIL law?
Not crimes but rather torts;
Negligence
Defamation
Contract law
What are the possible consequences of CIVIL law?
Compensations
Injunctions - to stop acting in a certain way or to compel you to do something
Who is bringing an action under the CIVIL law?
Individuals bring forward claims
Who has the responsibility (burden) of proving the case in CIVIL law?
Plaintiff (person bringing forward case)
Standard of Proof in CIVIL law?
Balance of Probabilities
Who is the defending the action in CIVIL law?
Respondent (person alleged to have caused harm)
Police involvement in an action in CIVIL law?
Very limited/non- existent
Common words used in cases in CIVIL law
Compensation
Harm caused
Negligent
Accidental
What is Breach (CIVIL LIABILITY CONCEPT)?
This is breaking or failing to fulfil a duty or obligation
What is Causation (CIVIL LIABILITY CONCEPT)?
The plaintiff needs to prove that the defendant’s actions caused or resulted in the harm suffered by the plaintiff, and that the harm to the plaintiff would not have happened if the defendant had not acted in the way they did.
What is loss (CIVIL LIABILITY CONCEPT)?
A plaintiff can only obtain a legal remedy (i.e damages) if it can be proved that they have suffered loss or harm. In a civil claim, loss or harm can include:
Economic or Financial loss
Property Damage
Pain and Suffering
Loss of enjoyment in life
What is CIVIL LIABILITY?
Negligence and Defamation
What is Limitation of Actions?
Deadline for starting a civil case - A negligence claim usually needs to be recommended within 3 years of the alleged negligence.
What is Burden of Proof?
The responsibility of proving the facts of a case, and proving that the defendant is in the wrong - the plaintiff HAS THE BURDEN OF PROOF
What is Standard of Proof?
- How well a party needs to prove its case.
- Plaintiff must prove the case on the balance of probability
What are Torts?
This is a civil wrong committed against a person (or company)
NEGLIGENCE is a type of tort that involves a breach of duty of care, causing loss or harm
*Most torts are from common law
What are the law of Negligence?
Protect people from wrongful conduct by others
Allows parties to seek compensations
What are the elements of a negligence claim?
Duty of care
Breach of Duty of Care
Causation of harm
Injury loss or Damage
Remedies = ?
Damages.
What impact does Negligence have on the PLAINTIFF?
Loss of Life
Permanent physical capacity
Serious physical injuries
Emotional impact of the breach
Loss of wages and livelihood
Unemployment
What impact does negligence have on the RESPONDENT?
Loss of Business
Public Humiliation
May need to pay costs
May need to sell assets
Change of policy
- DUTY OF CARE
Relationships:
- Teacher/student
- Doctor/Patient
Factors courts consider:
- The risk was foreseeable
- The risk was not significant. There was at least a possibility of harm happening
What is a case example of DUTY OF CARE?
Roger v Whitaker :
States doctors’ duty of care to patient. Doctor is negligent when they fail to take precautions to prevent harm to patient.
- BREACH OF DUTY OF CARE
The plaintiff must prove that the conduct of the defendant failed to meet the standard of care required by the circumstances of the case.
The standard of care that must be exercised is the standard of a ‘reasonable person’
- CAUSATION OF HARM
A plaintiff must prove that:
He/she actually suffered harm (no harm = no claim)
The harm suffered was caused by the defendant’s negligence
The damage is not too remote from the defendant’s negligent act or omission
The type of harm caused must have been reasonably foreseeable and not too farfetched. The chain of causation must be intact.
What is a case example of BREACH of DUTY OF CARE?
Wyong Shire Council v Shirt - Involved a sign that claimed water as deep when it was shallow. Injury results when person takes advice and jumps in. Council found to have breached its duty to shirt.
what is a case example of CAUSATION of HARM?
Amaca v Booth:
Negligent act must have “materially contributed” to the harm suffered by the plaintiff.
- INJURY LOSS OR DAMAGE
A plaintiff must have suffered some form of harm. It can be physical, mental or damage to property.
there are limits under the WRONG ACT on the amount of damages that can be claimed for mental harm.
- (EG) no more than 3 x average weekly wages for lost income.
What is CONTRIBUTORY NEGLIGENCE?
A defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done.
Contributory negligence generally reduces the amount of damages that a defendant has to pay the plaintiff to compensate them for their loss, injury or damage.
What is ASSUMPTION OF RISK?
This defence is the voluntary acceptance of risk of injury.
The defendant must prove that the plaintiff was aware of an obvious risk that they voluntarily chose to take the risk.
What is an example of CONTRIBUTORY NEGLIGENCE?
s26 Wrongs Act 1958 (Vic) outlines that a person who suffers as part of their own negligence will be partially to blame and therefore, this will affect their compensation.
What is an example of ASSUMPTION OF RISK?
s54 Wrongs Act 1958 (Vic)
Certain types of extreme sports attract this defence
What is Defamation?
An area of civil law that aims to protect the reputations of individuals.
What are the 3 types of reputations protected by defamation?
Personal
Professional
Business
What are the examples of the 3 types of reputations?
Personal: A false statement about a student’s personal life.
Professional: A false statement claiming a person is using sick days when they are not sick.
Business: A false statement claiming a business sell faulty goods.
What are the elements of defamation?
The matter is defamatory
The matter is false
The matter is about the Plaintiff
The matter has been published to a third party
The matter has caused, or is likely to cause, serious harm to the plaintiff’s reputation.
What does it mean if the matter is defamatory?
Court must consider what an “ordinary or reasonable person” will deem as defamatory.
An ordinary or reasonable person is:
- Of average intelligent
- Fair and objective
- Does not approach manners in reasonable ways
What does it mean if the matter is false?
To succeed in a defamation case, the plaintiff must be able to prove that the statement made against them was false on the balance of probabilities.
What does it mean when the matter is about the plaintiff?
The plaintiff must be the person that the matter refers to - either directly or indirectly.
What does it mean when the matter has been published to a third party?
A person’s reputations can’t be harmed unless the information is published to at least one third party. If information is shared online, a plaintiff must also prove that at least one person accessed that information.
Publications:
- A defendant posting online to an audience of more than one person
- A defendant sharing defamatory information (re-posting, re-tweeting)
What does it mean what the matter has caused, or is likely to cause, serious harm to the plaintiff’s reputation?
This is a matter for the judge to determine - often before the trial even begins.
considerations:
the meaning of the words and the gravity of the allegations
The ‘grapevine’ effect - have the allegations spread ‘along the grapevine ‘ and to wider audience.
What are the elements of defences?
Justification
Contextual truth
Honest opinion
Absolute Privilege
Qualified Privilege
What is CONTEXTUAL TRUTH?
A defendant may be able to prove their statement had contextual if they can satisfy that:
1. The defamatory statements were published alongside one or more statements that are largely based on truth; and
- Due to the existence of truthful statements that lower the plaintiff’s reputation, the false statements do not further damage the plaintiff’s reputation
What is JUSTIFICATION?
Matters cannot be defamatory if they are true. To satisfy this defence the defendant must prove that the statements made were true in substance or not materially different from the truth.
What is HONEST OPINION?
Protects a statement of opinion that is honestly held by the defendant . To successfully rely on this defence, the defendant must prove:
- The matter was a statement of opinion rather than a statement of fact
- The opinion was related to a matter of public opinion
- The opinion was based on a proper material.
What is ABSOLUTE PRIVILEGE?
Applies to statements made on an occasion where the free communications of information is so important that it should be exempt from defamation law.
situations are expressly covered:
- communications made during the course of
parliamentary proceedings
- communications made during the course of judicial proceedings
- communicationes made between government ministers
What are some exemptions of ABSOLUTE PRIVILEGE?
- They make the statement knowing it’s false
- They act with the intention to harm the plaintiff
- Substantial harm result from the statement.
What is QUALIFIED PRIVILEGE?
Covers scenarios where a publisher feels that it was in the best interests of the recipient to receive the message
What is the principles of JUSTICE in CIVIL LAW?
Fairness
Equality
Access
What is FAIRNESS?
Means having a fair processes and a fair hearing (e.g parties in a legal case should have an opportunity to know the facts of the case and the opportunity to present their side of events.)
What is an example of FAIRNESS?
Processes remain the same throughout every civil trial, Rule of Law, all = under the law
What is EQUALITY?
It means people shoulds be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage.
What is an example of EQUALITY?
All equal under the law, however, some consideration is made to the factors surrounding a case and decisions can be made for.
What is ACCESS?
It means that people should be able to understand their legal rights and pursue their case.
What is an example of ACCESS?
Representation for all in court cases, legal and for those who can’t afford representation, translators for people who can’t speak English.
What is the methods to resolve a CIVIL DISPUTE?
Mediation
Conciliation
Arbitration
what is MEDIATION?
Uses an impartial third party
Help disputing parties reach a solution
Tries to empower the parties, even out any imbalances and help people make a decision (X make the decision)
mediators = good ppl skills + high lvls of conflict resolution skills
What is CONCILIATION?
Uses a third party
Make suggestions about appropriate ways of resolving the matter
X make the decision
Usually has specialist knowledge about the subject matter of the dispute.
What is ARBITRATION?
More FORMAL than other two methods (but less than court)
Independent 3rd party, listens to the parties and help them reach an agreement
Makes decision if one cannot be reached
Expensive, though parties decide how evidence is presented and how formal the process is.
Normally resolve disputes such as large corporate disputes incl international ones.
When is a MEDIATION appropriate?
Parties are willing to negotiate, participate and resolve the dispute
Mediation process is understood by disputing parties
Privacy and confidentiality = maintained
Parties aiming to save time and money.
When is MEDIATION NOT appropriate?
A vulnerable party is involved in the dispute eg. someone who has experienced abuse
Parties unwilling to discuss the issues associated with the dispute
Parties = highly emotional or hostile
When is CONCILIATION appropriate?
Parties are willing to negotiate, participate and resolve the dispute
Disputing wanting to maintain their relationship in the future
Disputing parties require 3rd party knowledge and expertise in resolving the dispute and negotiating a resolution.
When is CONCILIATION NOT appropriate?
A vulnerable party is involved in the dispute eg. someone who has experienced abuse
A legally binding agreement needs to be established
Parties = highly emotional or hostile
When is ARBITRATION appropriate?
Parties agree to arbitration incl if arbitration has been included in a contractual agreement
The civil dispute requires a binding and enforceable decision to be made
Parties are wanting a cheaper and quicker resolution than the courts
What is the role of TRIBUNALS?
Tribunals are dispute resolution bodies that obtain their power to resolve certain types of disputes from parliament
Tribunals develop expertise in particular types of disputes and can make decisions that are binding on the parties.
What is VCAT (Victorian Civil and Administration Tribunal)?
VCAT hears a broad variety of cases incl residential tendency, consumer, planning just to name a few
purpose: to provide low-cost, accessible, efficient, independent and high-quality dispute resolution
How does VCAT achieves its purpose?
- Generally charging low fees to file a claim and have a case heard
- Having a variety of locations across Victoria
- Aiming to have cases heard within weeks of the application being filed
What is an OMBUDSMAN?
An ombudsman provides individuals and small businesses with an independent timely and accessible dispute resolution service to resolve disputes in relation to certain agencies and industries.
What are the two types of OMBUDSMAN?
Government
Industrial
Roles of an OMBUDSMAN?
Limited ability to hear complaints, it can only hear very specific types of complaints and ONLY uses mediation or conciliation
service = free
resolves the case by working with both parties
Roles of a COMPLAINTS BODY?
Provide free complaints and dispute resolution service so that ordinary Australians can access dispute resolution services
Most dispute resolution services focus on a particular industry or service
Roles of VICTORIAN COURTS in CIVIL DISPUTES?
- Determining the liability of a party (who is to blame and by how much)
- Deciding on the remedy (if required eg. damages $$)
How to determine LIABILITY?
The decider of facts will consider all of the evidence and decide whether the plaintiff, on the balance of probabilities, has established that the defendant caused the loss suffered by the plaintiff.
If the defendant had made a counterclaim, the decider of factors also needs to determine whether the plaintiff is liable for that claim.
How does the COURT determine LIABILITY?
Provide specialization and expertise
Manage the case
Hear appeals
How to decide on REMEDIES?
if liability is established, the role of the court is decide on the remedy
Judge or Jury –> access damages (in defamation cases, only the JUDGE can do this)
The court may hand down a written judgement
What is the original and appellate jurisdiction for MAGISTRATES’ COURT?
Original = claims up to $100,000
Appellate = N/A
What is the original and appellate jurisdiction for COUNTY COURT?
Original = unlimited
Appellate = N/A, unless given under a specific Act of Parliment
What is the original and appellate jurisdiction for SUPREME COURT (TRIAL DIVISION)?
Original = Unlimited
Appellate = Appeals on a question of law from the Magistrates’ court and from VCAT
What is the original and appellate jurisdiction for SUPREME COURT (COURT OF APPEAL)?
Original = N/A
Appellate = Appeals from the County Court, Supreme Court (Trial Division) and VCAT (when constituted by VCAT’s president/vice-president)
What is the role of the JURY in a CIVIL TRIAL?
There’s X automatic right to a jury in a civil trial
Magistrates’ Court and in appeal cases = X jury
6 Jurors are selected in a civil jury in the County Court and the Supreme COurt.
A civil Jury considers the facts of the case and decides who is most likely in the wrong.
Decision = Balance of Probabilities
Decisions do X need explanation
What are the PURPOSES and types of REMEDIES?
Damages ($$)
Injunctions
What are the 4 DAMAGES?
Special/Specific
General
Aggravated
Exemplary
What is SPECIAL/SPECIFIC damage?
Awarded to compensate the injured party for items that can be calculated objectively and exactly
EG. Medical Expenses
What is GENERAL damage?
Awarded to compensate the plaintiff for PAIN and SUFFERING.
X calculated objectively because they incl considerations of the extent of the plaintiff’s emotional suffering and loss for enjoyment of life.
What is AGGRAVATED damage?
Awarded to compensate the plaintiff further if the court believes that the defendant’s conduct was particular bad and caused additional distress to the plaintiff
What is EXEMPLARY damage?
To punish the defendant if the defendant’s actions were really disgraceful. These damages are RARE. CANNOT be awarded in defamation cases
What are the EFFECTIVENESS OF DAMAGES?
Depends on the facts of the case and the loss that has been suffered by the plaintiff.
FACTORS of the EFFECTIVENESS OF DAMAGES
- Type of loss that has been suffered
- Whether the plaintiff suffered physical injury or irreparable damage
- Whether there been loss of life
- The accuracy of the estimate for future loss
- Whether the defendant has the capacity to pay.
What are the 2 types of INJUNCTIONS?
Restrictive - stops someone from doing something
Mandatory - Compels someone to do a particular act.
What are the FACTORS of the EFFECTIVENESS OF INJUNCTIONS?
- Whether the defendant has already caused too much damage
- Whether the defendant will stop their actions or whether may they may do other things to caused the plaintiff loss
- Whether the defendant will comply with the injunction
- Whether the plaintiff will be returned to their original position
