Outcome 3 - Civil liability Flashcards
Purposes of civil law
- Achieve social cohesion
- Protect the rights of individuals
- Provide an avenue for people to seek compensation
- Provide a means to seek compensation
Civil law: Achieve social cohesion
- Provides guidelines for acceptable behaviour, so that people can live together in harmony.
- Without the guidelines, individuals might exploit or abuse the rights of others.
Civil law: Protect the rights of individuals
- Key rights are enshrined in civil law
E.g. The right to a promise made under a contract
Civil law: Provide an avenue for people to seek compensation
- Individuals can seek compensation for a breach of civil law through dispute resolution bodies
- Without this there would be no specialised bodies available to help people resolve their disputes
- Leading to disagreement within community - social cohesion impacted
Civil law: Provide a means to seek compensation
- Provides a way to return the harmed person, as far as possible, to the position they were in before the harm occurred when a person’s rights have been infringed.
- Achieved through the awarding of civil remedies.
- The most common civil remedy is damages, an amount of money paid as compensation for the loss the plaintiff suffered.
Types of civil law
- Negligence
- Trespass
- Defamation
- Nuisance
- Wills and inheritance laws
- Contract law
- Family law
- Employment laws
- Equal opportunity and discrimination laws
Concepts of civil law
- Breach
- Causation
- Loss
- Limitation of actions
- The burden of proof
- The standard of proof
Concepts of civil law: Breach
- A breach occurs when a person fails to observe a law or obligation imposed on him or her
E.g. Negligence - a plaintiff may allege that the defendant breached their duty of care
Concepts of civil law: Causation
- The plaintiff must prove that the actions of the defendant caused the harm they suffered/the harm only occurred because of the defendant’s actions
- If harm is too remote, it is unlikely to prove causation
- There can be a break in the chain of causation
Concepts of civil law: Loss
- A plaintiff will only be able to obtain a legal remedy (e.g. damages) if it can be proved that they suffered loss or harm
Concepts of civil law: Limitations of actions
- A time frame in which the wronged party must sue the defendant
- Ensures cases are heard swiftly and that the evidence is credible
- Claims involving sexual abuse as a minor, do not have a time limit.
- Negligence - 3 years
- Contract - 6 years
- Other - 1 year
Concepts of civil law: Burden of proof
- Burden of proof on the plaintiff to prove the facts of the case and that the defendant is in the wrong.
- Defendant may need to also prove facts if they choose to raise a counterclaim.
Concepts of civil law: Standard of proof
- The extent to which a case must be proven.
- The plaintiff must prove the case on the balance of probabilities
Plaintiffs to a civil dispute
- The aggrieved party
- Other parties
- Insurers
Plaintiffs to a civil dispute: The aggrieved party
- Rights have been infringed and suffered the loss
- May be more than one aggrieved person
Plaintiffs to a civil dispute: Other parties
- A person who has indirectly suffered loss or damage because of the actions of another party
- A person who was close to an event may suffer loss and damage as a result
- E.g. suffering loss due to death of family member
Plaintiffs to a civil dispute: Insurers
Insured - Individuals or companies that enter into an insurance policy with a person
Insurer - Agrees to provide insurance in certain circumstances under the insurance policy
Right to subrogation - Under the insurance policy, the insurer pays the insured for the damage caused by another. Then the insurer is entitled to recover what they paid the insured from the defendant who caused the loss against the person.
Defendants to a civil dispute
- The wrongdoer
- Employers
- Persons involved in the wrongdoing
- Insurers
Defendants to a civil dispute: The wrongdoer
- The person or company that has directly caused the loss or damage
- There may be 2 wrongdoers liable for the loss or damage suffered by the plaintiff.
Defendants to a civil dispute: Employers
- An employer can be liable for the actions of an employee.
- Vicarious liability - when someone becomes liable for the actions of another
- An employer is responsible for the actions of their employee
- Plaintiff must prove that the wrongdoing occurred during the course of their work/employment
Defendants to a civil dispute: Persons involved in the wrongdoing
- Aided, abetted (encouraged) or procured (organised) the wrongdoing
- Induced, or encouraged the wrongdoing
- Directly or indirectly a party to the wrongdoing
- Conspired with others to cause the wrongdoing
- Known as accessorial liability
Defendants to a civil dispute: Insurers
- The insurer of the person who has caused loss or damage
- The plaintiff can also sue their own insurer if the insurer refused to cover the loss or damages caused by another
Rights protected by tort of negligence
- Right to be protected from wrongful conduct by others
- Right to seek compensation
- Elements required to establish liability
Elements required to establish negligence
- Duty of care
- Breach of a duty of care
- Causation
- Injury, loss or damage
Elements of Negligence: Duty of care
- The defendant must have owed a duty of care to the injured person.
Exceptions to duty of care: - Participating in risky recreational activity
- A good Samaritan who acts in good faith
- A person who donates food in good faith
- Volunteers
Elements of Negligence: Breach of a duty of care
- The defendant must have breached the duty of care
- Occurs when defendant did not take all the care they should have to prevent loss
Elements of Negligence: Causation
- Must prove that the injury/loss was caused by the breach of duty of care
- The harm could be shown to be too remote
- There may be a break in the chain of causation
Elements of Negligence: Injury, loss or damage
- The plaintiff must prove that they suffered an injury, loss or damage, even if it is minor
Elements of Negligence: Limitations of actions
- General negligence claims (eg property damage) - 6 years
- Negligence claims where personal injury occurs (eg disease, disorder) - 3 years
- No limitation for child abuse
Elements of Negligence: Calculation of limitation periods
- General negligence claims starts on:
- the date on which the cause of action occurred
- Personal injury negligence claims starts on:
- the date on which the plaintiff first knew they had the disease/disorder
- and that the disease/disorder was caused by the defendant.
Strengths/reasons for limitations:
- Protects individuals from being accused of an act/omission from many years past.
- Ensures the dispute is resolved efficiently.
- The reliability and credibility of evidence
Negligence defences
- Plaintiff has not established elements of negligence
- Contributory negligence
- Assumption of risk
Negligence defences: Contributory negligence
- The plaintiff helped to cause the harmful situation
- Generally reduces the damages that the defendant has to pay
Negligence defences: Assumption of risk
- the voluntary acceptance of risk of injury
- It must be proven that the plaintiff was aware of the obvious risk and chose to take that risk
- volenti non fit injuria
Negligence: Common law
Landmark cases
- Donoghue v Stevenson (snail in a bottle)
- Grant v Australian Knitting Mills (woollen underwear)
- The principles from those cases were adopted into Australian law
- Common law has been adopted by statutes and amended (in 2002 and 2003 in particular) to make negligence laws clearer
Negligence: Statute law
- In Victoria, Part X of the Wrongs Act 1958 (Vic) is the main legislation that governs negligence claims.
- Other statutes cover negligence claims in some areas (e.g. Australian Consumer Law)
Impact of negligence: Plaintiff
- Loss of life
- Permanent physical incapacity
- Serious physical injury
- Emotional impact of the breach
- Loss of wages and livelihood
- Unemployment
- Effect on mental health
Impact of negligence: Defendant
- Loss of business
- Public humiliation
- Physical injury
- May need to pay costs
- May need to sell assets
Rights protected by defamation
- Right to freedom of expression
- Right to a character and reputation
- Right to protection of reputation through limits on freedom of expression
- Right to seek effective and fair remedies
- Right to a quick and effective method of resolving a dispute
Elements required to establish defamation
- The statement is defamatory
- The statement is untrue
- The defamatory statement refers to the plaintiff
- The defendant published the defamatory statement
Elements of Defamation: The statement is defamatory
- The plaintiff must establish that the statement is defamatory if it lowers a person’s reputation or standing in the community, exposing them to ridicule, contempt or hatred.
Elements of Defamation: The statement is untrue
- The plaintiff must prove that the defamatory statement is untrue.
- A plaintiff cannot be defamed if the statement is substantially true.
Elements of Defamation: The defamatory statement refers to the plaintiff
- The plaintiff must establish that they were the person referred to in the statement.
- The name of the person defamed does not need to be mentioned however it would be sufficient proof that people reading, hearing or seeing the statement would reasonably conclude it was about the plaintiff.
Elements of Defamation: The defendant published the defamatory statement
- The plaintiff must prove that the statement was communicated to a 3rd party other than the plaintiff.
- It is not defamation if the untrue or derogatory comments are made directly to the person concerned if done in private.
Elements of Defamation: The limitation of actions
- An action for defamation must be brought within 1 year from the date of the publication of the matter
- A person may apply for an extension - up to a period of 3 years
Defamation defences
- Justification
- Contextual truth
- Absolute privilege
- Publication of public documents
- Fair report of proceedings of public concern
- Qualified privilege
- Honest opinion
- Innocent dissemination
- Triviality
Defamation: Common law
- Prior to 2006 common law governed defamation in Victoria
- Common law established a distinction between libel (written defamation) and slander (spoken defamation)
Defamation: Statute law
- Defamation laws became uniform in Australia in 2006
- In some instances the statute has abolished common law principles, such as the distinction between libel and slander
Impact of defamation: Plaintiff
- Loss of reputation
- Emotional impact of the defamatory material
- Loss of wages and livelihood
- Unemployment
Impact of defamation: Defendant
- Costs
- Need to sell assets
- Public humiliation
Defamation defences: Justification
When a defamatory statement is substantially true
Defamation defences: Contextual truth
When the defamatory statements are made within the same context of statements that are substantially true
Defamation defences: Absolute privilege
Used in parliamentary proceedings which gives a defendant complete immunity from being sued
Defamation defences: Publication of public documents
Interests of the public to have this information.
Defamation defences: Fair report or proceedings of public concern
Allowing the public to know information that has been published.
Defamation defences: Qualified privilege
A privilege held by professionals - for example, a teacher
Defamation defences: Honest opinion
An expression of an opinion not a statement of fact
Defamation defences: Innocent dissemination
In possession of defamatory material without the knowledge of it having defamatory content and publicising it.
Defamation defences: Triviality
No big impact on the plaintiff’s reputation
Representative Proceedings
- aka class action or group proceeding
- Seven or more people have claims against the same party
- Those claims arise out of the same type of circumstances
Dispute Resolution Bodies
- Specialist bodies who assist people to resolve their disputes
- eg courts, tribunals, complaint bodies and ombudsmen
Civil law: Types of loss
- Economic or financial loss
- Property damage
- Personal injury
- Pain and suffering
- Loss of amenity
