Legal Unit 1 Exam Flashcards
Define defamation
Act of damaging someone’s reputation, either personally or professionally, through the communication or publication of false and untrue statements or information
Define breach
A breach is a break of or a failure to fulfil a duty or obligation. In most types of civil law cases, it must be proven that there has been a breach by the defendant
Define causation
Direct relationship between one event and another. Where there has not been a break in causation, the first event caused the second, and the second would not have happened without the first.
Define plaintiff
The plaintiff in a civil dispute is the party who makes a legal claim against another party in court
Define defendant
The defendant in a civil dispute is a party who has allegedly breached a civil law and is being sued by the plaintiff
Define tort
A tort is a civil wrong that interferes with a person’s legally protected interests
Define loss
A loss is a type of harm suffered by a person, which can either be economic or non-economic
List and describe 5 losses that can be present in a civil claim
- Economic loss: loss of wages, earning capacity, or profits. Can also be money spent on medical expenses
- Property damage: damage to a car, house, clothing, goods, etc.
- Personal injury: cuts, bruises, broken bones, loss of limb, etc.
- Pain and suffering: mental anguish, anxiety, depression, etc.
- Loss of amenity: loss of enjoyment of life, job satisfaction, family life or enjoyment of hobbies, etc.
Eco. loss, property damage, personal injury, pain/suff., loss of amenity
Define and explain the benefits of the limitation of actions
The limitation of actions is the restriction applied to civil law claims that states they must be brought to court within a certain period.
This is a necessary restriction as it allows disputes to be resolved efficiently and reliably, as evidence does not have as much time to decay or be forgotten by those involved. It also makes it so that a defendant is not subjected to a claim a significant time after the alleged act or omission occurred
Quick resolution, reliable decision, and less chance for decay of ev.
List and briefly explain the elements of negligence
- The defendant must have owed the plaintiff a duty of care
- There must have been a breach in this duty of care by the defendant
- There was a clear and unbroken causal link
- The plaintiff must have suffered some sort of loss (injury, damage, etc.)
Duty of care, breach in this duty, unbroken causal link, loss as result
List and briefly explain the elements of defamation
- The statement must have been defamatory (i.e. it has lowered their reputation or standing in the community)
- The statement must be untrue
- The statement must refer to the plaintiff
- The statement must have been published by the defendant (once a third person hears or sees the material, the claim is actionable)
Defamatory, untrue, refers to the plaintiff, published by the defendant
Define sue
To sue a person or an institution is to institute legal proceedings against them
Describe two purposes of civil law and a way in which they are achieved
3 purposes, 1 paragraph
- Aims to achieve social cohesion (community working together, rights upheld)
- Protects the rights of individuals (freedom of speech, religion, right to vote and silence)
- Provides a way for people to seek compensation after a breach of civil law has occurred
Social cohesion is achieved through providing guidelines for acceptable behaviour in the community, for example, by implementing laws to maintain processes and procedures within childcare businesses and schools, in order to protect the children within their care. It also protects the rights of individuals, through the right not to be harmed and not to have one’s reputation damaged.
Identify two types of civil law and explain one of these
Defamation and negligence are both types of civil law. Defamation is the tort which involves the action of damaging someone’s reputation, either personally or professionally, through the publication or communication of false statements or information
Define and explain the balance of probabilities
The balance of probabilities is the standard of proof in civil disputes. This requires the plaintiff to establish that it is more likely than not that their version of the facts is correct
List and briefly describe defences to defamation
5 main ones
- Justification (statement is partially true)
- Contextual truth (stated in the same context as other, substantially true statements, where the defamatory statements do not further harm the plaintiff)
- Honest opinion (rather than a statement of fact)
- Innocent dissemination (unknowingly distributed by libraries, publishers, etc)
- Triviality (plaintiff is unlikely to be harmed)
Describe the role of the law in developing the elements of and the defences to defamation
- Before 2006, defamation was a common law offence
- Used to be split into libel and slander (written and spoken defamation)
- Defamation Act 2005 abolished the distinction
- Common law established the freedom of political communication (cannot be sued for defamation after freely speaking on political matters)
- Statute law upheld most of the common law elements and defences
Describe the role of the law in developing the elements of and the defences to negligence
- The English case Donoghue v Stephenson establsihed the tort of negligence
- Adopted in Australia after Grant v Australian Knitting Mills
- D v S allowed a plaintiff to take action if the defendant did not act in a way to protect the interests of their neighbor
- Statutes were passed in 2003 after the tort of negligence was seen as unclear and unpredictable (too easy for plaintiffs)
- Statute requires people that provide services to provide them with “due care and skill”
List and briefly describe defences to negligence
- Contributory negligence: the plaintiff is partly to blame for the damages, usually results in less compensation
- Assumption of risk/“volenti non fit injuria”: the plaintiff was aware of an obvious risk and chose to take this risk (to a willing person, injury is not done)
Describe the rights protected by negligence laws
- Protects people from wrongful conduct by others (recklessness, with complete disregard for others)
- Allows parties to seek compensation
Describe the rights protected by defamation laws
- The right to freedom of expression
- The right to be of good character and reputation
- The right to have character protected through limits on freedom of expression
- Ability to seek compensation after reputation has been damaged
Describe the possible impacts of a breach of defamation law
- Plaintiff (reputation damaged, emotional impact of the content, loss of wages/livelihood, unemployment)
- Defendant (public humiliation, need to sell assets, costs)
Describe the possible impacts of a breach of negligence law
- Plaintiff (loss of life, injury, permanent physical incapacity, mental health impact, emotional damage, loss of wages/livelihood)
- Defendant (loss of business, public humiliation, physical injury, costs, need to sell assets)
List the possible parties to a civil dispute
- Plaintiff (aggrieved party, other parties involved, insurers)
- Defendant (wrongdoer, employer, persons involved in the wrongdoing, insurers)
