Sem 2 Legal Unit 1 gang shi Flashcards
Definition of civil law
defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes
Definition of Sue
to take civil action against another person by making a claim that they have infringed some legal right. This term is used when the matter has proceeded to the courts/tribunal, the official term is litigation/ litigate
Definition of Liability
the legal responsibility of a party for loss or harm caused to another because of a breach of civil law.
Definition of Remedy
Orders made by a court or tribunal to address a civil wrong or breach, designed to restore the plaintiff back to their original position. Remedies can be in the form of damages (money) or injunctions.
Types of Civil Law
Negligence
Trespass
Nuisance
Contract
Defamation
Purposes of civil law?
-Provides guidelines for acceptable behaviour so that people uphold each other’s rights and social cohesion can be achieved
-provide system for parties to pursue rights protection through courts/tribunals
-provide remedy for harm/loss caused by infringement of rights
What is the requirements for Negligence?
requires individuals who owe a duty of care to another person to prevent foreseeable (predictable) harm from occurring
What are the names of the parties before and during court proceedings
Before:
Aggrieved/wronged party
Wrongdoer
After:
Plaintiff= person whose rights have been infringed and who sues another party in a court or tribunal
Defendant= party who is alleged to have breached a civil law and is being sued
Definition of Breach
An act or omission that represents a failure to meet a legal obligation
What is Loss?
Definition: A type of harm or damage suffered by a person. it can involve both economic & non- economic loss
-The plaintiff can only obtain a remedy if they can prove that they have suffered loss or harm
Types of Loss
Financial- loss of wages/earning capacity/profits/medical expenses
Property Damage- Damage/destruction of house/car/clothing
Personal Injury- Cuts/bruises/broken bones
Pain & suffering- mental anguish/anxiety/depression
Loss of amenity- loss of enjoyment of life/ job satisfaction/ family life etc.
What is causation?
Definition: the direct relationship between defendant’s breach and the plaintiff’s loss
- P must prove D’s breach was necessary condition of loss suffered
-but-for test is useful to determine causation “but for the D’s breach, would have have occured?
-after D’s breach, there may be intervening event to break chain of causation
What is the Burden of Proof?
Definition: the Responsibility of proving the facts of the case
-in civil law, plaintiff has burden of proof, has to provide the evidence to establish elements of a civil wrong
What are counter claims?
this a separate claim made by the defendant in response to the plaintiff’s claim, asserting that its the plaintiff at fault e.g disputed car accident (THEY ARE NOT A DEFENCE)
What is the Standard of proof?
Def: The degree to which a case must be proven in court
- in civ law, plaintiff must prove wrongdoing occurred on the balance of probablities
What is the definition and purpose of Limitation of actions?
The restriction on bringing a civil law claim after the allowed time
Purposes:
-ensure civil cases resolved in timely manner
-ensure evidence is readily available
-ensure defendant does not have potential case pending for unlimited amount of time
Requirements for a class action?
- seven or more people have claims against the same defendant; and
- claims concern the same, similar or related circumstances; and
- the claims give rise to a common issue of law or fact
Who does vicarious liability apply to and what does it mean
Only employers have vicarious liability
Def: the legal responsibility of a third party for the wrongful acts of another
What exactly is negligence and what’s its purpose
Negligence is a type of tort (civil wrong)
P: negligence requires individuals who owe a duty of care to another person to prevent foreseeable (predictable) harm from occurring
what are the four elements of negligence
- defendant owed plaintiff duty of care
2.defendant breached their duty of care
3.defendant’s breach caused harm to the plaintiff
4.plaintiff suffered harm or loss
What is a duty of care and when is it seen
DOC: obligation to be careful towards another person
-person owes doc to another if risk of harm was reasonably foreseeable
-if risk is reasonably foreseeable, ‘neighbour principle’ applies
1.settled law that a duty of care exists (doctor and patient)
2. novel situation, no settled law so DOC is arguable based on circumstances (child, old person)
What is a breach in duty of care, and when has it occurred?
Breach: the doc is breached when a person fails to do what a reasonable person would have done in the same situation
a person has breached their duty if
-risk of harm was reasonably foreseeable
-risk was not insignificant
-reasonable person in same situation would have taken precautions to eliminate risk
