legal civil liability

Question 1

what is civil law?

Answer 1

Deals with disputes related to private individuals or groups
Dispute occurs due to an infringement of an individuals rights (human rights)
Civil law aims to protect the rights of an individual, by returning them back to the position they were in prior to dispute occurred through civil remedies e.g monetary compensation

Question 2

The purposes for civil law?

Answer 2

Provides guidelines for acceptable behaviour in situations where individuals must interact - achieves social cohesion
Protects and restores the rights of citizens/individuals
Provides avenues and needs fr people to seek compensation
Provides solutions to family issues that can arise from wills and breakdowns
Ensures people who make promises under a contract, abide by the conditions stipulated in the contract.

Question 3

How civil law achieves it purposes?

Answer 3

Establishes the law: through statutes and court decisions that establish civil law principles
Decides the law: by deciding which party’s claim is correct
Enforces the law: enforcing remedies

Question 4

Plaintiff?

Answer 4

wronged person bringing the matter to court. Has the burden of proving that the defendants in the wrong

Question 5

Defendant?

Answer 5

party alleged to be in the wrong

Question 6

Remedy?

Answer 6

what the plaintiff is seeking

Question 7

Damges?

Answer 7

a type of remedy. A sum of money paid by the defendant to the plaintiff for loss or injury caused to the plaintiff.

Question 8

Injuction?

Answer 8

a court order forcing the defendant to do something or prevent them from doing something

Question 9

Standard of proof:

Answer 9

balance of probabilities (which side of the story is most likely/ probable)

Question 10

In order for a person (plaintiff) to sue the wrongdoer (defendant) in civil law, the following must be established:

Answer 10

The defendant has breached their legal obligations
The defendant was the causation of the breach (the link between what the defendant has done has caused the plaintiff suffering or harm)
The plaintiff suffered some form of loss due to the defendant’s breach

Question 11

What is breach?

Answer 11

A civil case must establish that the defendant breached their legal obligations in some way towards the plaintiff
Duty of care and breach of law
A person can only take civil action if there has been some form of breach by the defendant
This means the defendant failed their responsibilities in tort law or they have broken a term of contract (contract law)
Tort law is a broad area of law made up of a number of separate wrongs aimed to protect individual rights.
Under tort law, a breach can either be intentional or unintentional

Question 12

What is causation?

Answer 12

Once a breach has been proven the plaintiff must prove the actions by the defendant (tortfessor) was the causation to the plaintiff’s loss
This means the plaintiff must prove causation by the defendant
Causation is the connection between the defendant’s actions and the plaintiff’s loss
It can also include inaction by the defendant that was the causation of the plaintiff’s loss

Question 13

What is loss?

Answer 13

Once both breach and causation has been proven by the plaintiff, the final requirements is has the plaintiff suffered some type of loss due to the defendant’s breach
The loss suffered by a plaintiff can be:
Financial loss
Physical loss
Emotional loss

Question 14

Limitations of actions?

Answer 14

Although a plaintiff could prove a case due to breach of tort or contract law, they still can be limited in taking action against the defendant due to a limitation of action.
Limitations on civil actions mean that some cases regardless that it can be established is unable to be taken to court. Time limiting pursuing a case.

Why?
Protects the defendant from being sued in order for the plaintiff to gain years after the fact
Protects the validity of evidence and the claims
Promotes a fair outcome

Question 15

Burden of proof?

Answer 15

Lies with planitff

Question 16

Possible plainitiffs?

Answer 16

Aggrieved party
Other victims
Insurers
Representative proceedings/class action:

Aggrieved party
The party/person who has had their rights infringed, and consequently suffered a type of loss

Representative proceedings/class action: 
A group of 7 or more plaintiffs who come together to pursue a claim against the same defendant. In this case, they are led by a lead plaintiff who leads the actions and others are known as group members. 
Group members don’t have an active role and can also “opt-out” of the proceedings. If they choose to do this. Then they can either take individual action against the same defendant it they won’t do anything (choosing not to pursue civil action), but they will not receive ant compensation potentially awarded, 

Other victims
Family members who have suffered a loss of person and want to sue an individual or group for their liss and suffering
People who witness a traumatic event can also sue for general damages of pain, loss and suffering.

Insurers
An insurer is someone how has entered an insurance policy with another person
Under this agreement, they agree to pay for any loss or suffering as a result of an event.
In a civil dispute, an insurer may seek action against a person/company to recover the money they have already paid under the insurance policy.

Question 17

Possible defendants?

Answer 17

The wrongdoer
Employers
Persons involved in wrongdoing
Ensurers

The wrongdoer:
The person or company who has caused the loss, harm or damage to the plaintiff. In some instances, there may be two wrongdoers and they will be both liable for loss or damage.

Employers:
Under the rule of vicarious liability, an employer may be found liable.
Vicarious liability: means when someone becomes responsible for the actions of another
The justification for why an employer may be found liable is because they are deemed to be responsible in controlling the actions and activities of the wrongdoer which in this case, would be their employee.
For this to be proven, the plaintiff needs to prove that the actions that caused the suffering, were conducted during the course of actions of employment
Most common in negligence cases

Persons involved in wrongdoing:
If they aid, assist, encouraged, conspired with others
Know as acessional liability

Insurers:
A plaintiff can sue the insurer of a person who has causes loss or damage.

Question 18

What is negligence?

Answer 18

The tort of negligence is concerned with a breach in the duty of care that is owed to another person or group of people, in various circumstances.
When a person is negligent they have failed to take reasonable care that was owed to another.

Question 19

Rights protected by negligence laws?

Answer 19

This tort has been developed by both common and statue law

However, the main piece of legislation that deals with negligence laws is the Wrongs Act 1958 (Vic)

Question 20

The purpose of negeligence laws?

Answer 20

Protect an individual’s right to safety and to be protected from harm
Protect the person and property
Allow parties to seek compensation

Question 21

Elements required to establish liability in negligence ?

Answer 21

Duty of care
Breach
Causation
Loss, injury or damage

Duty of care
In a negligence case, a duty of care is owed if:
The risk was foreseeable (person knows or should’ve known about the risk of loss or harm)
The risk is significant
A reasonable person in the same circumstance would’ve taken necessary precautions to avoid risk or harm

Exceptions to duty of care 
Engaging in risky recreational activity e.g skydiving
Good Samaritan 
Volunteers 
Donating food 

Element 2: Breach of duty of care
A breach of duty of care occurs when a person failed to uphold a reasonable standard of care.
A court determines what a reasonable person would/should have done by considering the following:
The likely risk and severity of harm
The burden of taking precaution to avoid the harm
The value of the activity that creates the risk of harm

Element 3: Causation
To pursue a negligence claim a plaintiff must prove that their injury or loss was the direct result and caused by the defendant’s actions or lack there of
If it can be proven that the harm was too remote or there was a break in the chain of causation, the plaintiff will be unsuccessful

Element 4: injury, loss or damage
Regardless of how minor, a plaintiff must also prove they have suffered a loss or injury.
This can be physical, emotional or financial

Question 22

Limitations of actions - negligence?

Answer 22

The time period a plaintiff has to pursue a negligence claim

Question 23

Impact of the breach on the parties

Plaintiffs?

Answer 23

Plaintiffs:
Have suffered physical, psychological, financial and emotional loss/harm
May have lost significant relationships and may not be able to fund their own legal claim and may not be able to access litigation funding si will have to abandon their claim

Question 24

Impact of the breach on the parties

Defendant?

Answer 24

Can give their reputation damages or completely destroyed
May have to provide a significant remedy to the plaintiff
As a result of successful negligence lawsuits, organisations hold themselves to a high standard of care to take precautions to prevent foreseeable harm

Question 25

Denfences to negligence?

Answer 25

Contributory negligence
This is used by the defendant if they can claim that the plaintiff contributed or is partly to blame for their loss or harm
This defence does not mean the defendant is not liable, it will only reduce their liability and subsequently the damages they pay to the plaintiff.

Assumption of Risk (volenti non fit injuria)
Volenti non fit injuria (volunteered to injury) = to a willing person injury is not done
This defence is used to claim that the plaintiff voluntarily accepted the risk. It means the plaintiff was aware of the potential risk (s) and accepted or voluntarily engaged.
E.g getting into the car knowing the driver is drunk.

Question 26

The role of the law in developing the elements and defences to negligence

Answer 26

Common-Law:
The Donoghue V Stevenson Case (snail in the bottle) set up the tort of negligence in Australia. The principles, in this case, were adopted in Grant V Australian Knitting Mills.
This principle is known as the ‘neighbour principle’, which establishes that a person owes duty of care to their ‘neighbour’
Neighbour: someone who is impacted by their actions
E.g a suppliers neighbour is a consumer
E.g teachers neighbour us their student (s)

Statute Law:
The Wrongs Act - covers negligence laws

Question 27

Impact on the plaintiff - negligence?

Answer 27

Loss of life - this could occur in a workplace setting
Permanent physical incapacity - this could require the use of a personal carer for the remainder of the person’s life
Serious physical injury: this could require treatment such as physiotherapy
Emotional impact of the breach - this could manifest as fear of certain place or engaging in social situations
Unemployment - this could be a consequence of physical injury or mental health issues
Effect on mental health - this could include conditions such as depression

Question 28

Impact on the defendant - negligence?

Answer 28

Loss of business - this could be a consequence of the publicity of the claim.
Public humiliation - this could be a consequence of the publicity of the claim
Physical injury - this could occur in cases of contributory negligence or a counterclaim
Costs- this could occur when the defendant loses the case
Need to sell assets - this could be a consequence of high damages award.

Question 29

What is defamation?

Answer 29

Protecting one’s reputation and identity V The right to exercise freedom of speech
- Protected under the Victorian Charter of
Human RIghts
- Implied rights to freedom of political
communication
What is defamation?
A statement or a published piece of material that is likely to cause harm to a person reputation by causing ridicule, hatred, being shunned, avoided, having others think less of them etc.
Aimed at protecting the reputation, character and image of an individual
Could be published in newspaper, radio, social media, magazine, google review
This tort is aimed at protecting the reputation, character and image of an individual.
There is a need to protect the character of an individual when an attempt has been made to discredit or ruin their image in a public forum, and as a result, they are subjected to ridicule and shame

Question 30

What are the key principles of defamation?

Answer 30

For it to be agreed upon as being ‘defamatory’ the following 3 elements must be proven:

Statement was defamatory

The statement made was about the plaintiff

The statement was communicated or published

Statement is defamatory
Tarnishes a person’s reputation. Have been subjected to ridicule, hatred etc.
The burden rests with the plaintiff to prove their reputation has been damaged. However, it is not necessary to prove that the defendant intentionally caused harm to the plaintiff.

Statement made about plaintiff
Does not necessarily have to name the plaintiff.
Can be deemed sufficient that people could reasonably conclude that the statement they read or heard was about the plaintiff
A person can be defamed as part of a group

Statement was communicated/published
Must be communicated to another person other than the plaintiff. Thus a third party must be involved
Material can be published – regardless of how and to how many
Publications can be written or verbal, however, most defamation cases are written statements

Question 31

What are the defences to defamation?

Answer 31

Justification- applies if statement is substantially true
Contextual truth- applies when a number of statements are made within the same context and P objects to one statement, not all.
Absolute privilege- when Def. can prove that the material was published in relation to proceedings of parliament, courts, communication b/w husband and wife.
Innocent dissemination- unknowingly distributing information. i.e through books, libraries
Honest Opinion – based on opinion rather than fact. Matter must be of public interest
Qualified Privilege- supports those who have published information for public policy reasons, or for moral or legal interests. E.g getting a reference for a job and the request that is made is reasonable and gives their response or investigative journalism

Question 32

What is the role of the law in developing the elements and defences to defamation?

Answer 32

Common law:
Prior to 2006 common law governed the tort of defamation.
Common law defined two different types of defamation:
Libel = written form
Slander = spoken

The courts have also shepherd defamation through interpretation of the constitution and finding the implied right to freedom of political communication

Statute Law:
In 2005 defamation laws underwent an overhaul
Prior to these defamation laws in all states and territories were different. This meant that a person could be found liable for defamation in Victoria, but not in NSW
Overhaul of thus law has allowed for uniformity of defamation in Australia
This abolished the common law principles of libel and slander

Question 33

Impact on the plaintiff - defamation

Answer 33

Impact on plaintiff:
Loss of reputation - this could include loss of status
The emotional impact of the defamatory material - this could be a consequence of the publicity of the claim
Loss of wages and livelihood - this could be a consequence of loss of reputation
Unemployment - this could be a consequence of loss of reputation

Question 34

Impact on the defendant - defamation

Answer 34

Impact on defendant: Costs- this could occur when the defendant loses the case
Need to sell assets- this could be a consequence of high damages award
Public humiliation - this could be a consequence of the publicity of the claim