Legal studies Flashcards
Tort
a wrongful act or an infringement of a right (other than under contract) leading to legal liability.
Defamation
is a type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.
Rights protected by defamation laws
- the right to freedom of expression
- the right to be considered of good character and reputation
- that right to have that reputation protected by placing limits on freedom of expression
- the right of reputation of whose been harmed to seek effective and fair remedies
- the right to quick and effective method of resolving a dispute in relation to defamation
four elements to establish defamation
PUDD
- The statement
is defamatory - The statement
is untrue - The statement refers to
the plaintiff - The statement has been published by the defendant
limitations of action
a cause of action for defamation may apply to a court for an order extending the limitation period.
A court may extend the limitation period by up to three years from the date of the publication of the allegedly defamatory material.
defence to defamation
- justification
- contextual truth
- absolute privilege
- ppd
- fair report of proceedings of public concern
- qualified privilege
- honest opinion
- innocent dissemination
- triviality
impact on plantiff
- loss of reputation
- emotional impact
civil law
an area of law that defines the responsibilities of individuals groups and organisations in society and regulates private dispute
civil liability
the legal responsibility of a party for loss or harm caused to another party because of a breach of law
civil law aims to
. Achieve social cohesion
. protect the rights of individuals
. provide a means to seek compensation
. provide an avenue to seek compensation
civil law achieves its purpose
. establish the law
. decide the law
. enforce the law
types of law
. defamation
. trespass
. negligence
. nuisance
key concepts in civil law
.breach ( defendant) - failed to observe
. loss ( plaintiff) - obtain legal remedy
BOP
Is the obligation of a party to prove their case
SOP
The standard of proof is the degree or extent which a case must be proven
Plaintiffs in a civil dispute
.aggreved party - rights infringed
. other victims
. insurers
defendants in civil dispute
. wrongdoer
. employers
. insurers
Negligence
failed to take reasonable care that was due to another when it wasn’t reasonable forseeble
elements of negligence
. duty of care
. breach
. causation
. loss, injury, damage
defences to negligence
. defences to not establish the four elements
. contributory negligence
. assumption of risk
impact on defamation
plaintiff:
- loss of reputation
- unemployment
- loss of wages
defendant:
- cost
- need to sell assets
- public humiliation
social cohesion
The term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper
principle of justice
equality: to be treated with equal opportunity
access: to understand their legal rights and pursue their case
fairness: to be treated with impartialment
Characteristics of an effective
for society to function properly and for there to be social cohesion, laws must be effective:
- C lear and understood
- A cceptable
- K nown
- E nforcable
- S stable
Source of laws
statue of law
statue law is made by parliament, before the bill is passed down it must be passed by bothn houses of parliament
source of laws
common law
common law is made by judges through decisions made in cases. courts can makes laws by statutory interpretation
criminal law
an area of law that defines behaviours and conduct that are prohibited (crimes) and outline sanctions for people who commit them
crime
an act or omission that is against an existing law:
-harmful to an individual
- punishable by law
precedent
a principle established in a legal case that is followed by courts in cases where the material facts are similar. they can be binding ( have to obey) or persuasive ( can be relevant even though is not binding)
ratio decidendi
“the reason” the legal reasoning behind a judges decision. forms the binding part of precedent
sue
the civil action against another person, claiming they infringed some legal rights
common law elements
precedent- legal precedents are made through court decisions
obiter dictum- “by the way” comments made by the judges in particular
stare decisis- “ let the decision stand”
develop or avoid precedents
RODD
R everse- can reveres when taken to a higher court
O verruling- can be overruled by a higher case
D istinguish- if the materials are binding, lower court wont need to follow them
D isapproving- in some courts are bound by a precedent but dont agree with it
Relationship between parliaments and courts
statutory interpretation- when judges give meaning to words or phrases in the act of parliament
codification- when parliament passes down an act that reinforces and establishes by court Abrogation- when parliament abolishes common law principle
influence parliaments- courts influence changes in the law made by parliaments
reasons for court hierarchy
appeal- an application to have a higher court review a ruling
doctrine- the reasoning for higher courts to follow the law principle
beyond reasonable doubt
the standard of proof in criminal cases. this requires the prosecution to prove there is no reasonable doubt.
presumptions of innocent
accessory- a person knowingly assists another person who has committed a serious indictable offence
accused- a person accused with a criminal offence
actus rea- “the guilty act” the physical element of a crime
burden of proof- the obligation of a party to prove a case.to prove
indictable and summary offences
indictable- the seriousness of a case heard by judge in county or supreme court
summary- a minor offence heard generally heard in magistrates court
principle offender
a person who has carried out the actus rea guilt act
strict liability
when culpability or responsibility for committing a crime can be established without having to prove there was mens rea
purpose of criminal law
protect society
promote justice
protect individuals
