Term 3 Definitions

Question 1

Balance of probabilities

Answer 1

The standard of proof in a civil case.

Question 2

Binding precedent

Answer 2

A decision of a higher court that must be followed by lower courts in the same hierarchy.

Question 3

Common law/Case law/Judge-made law

Answer 3

Decisions made by judges that form part of law.

Question 4

Court hierachy

Answer 4

The ranking of courts according to the seriousness of the matter they deal with.

Question 5

Damages

Answer 5

A civil remedy (an order of a court) that aims to compensate the person who has been wronged for the injury or loss suffered.

Question 6

Defamation

Answer 6

Written or verbal statements that lower a person’s reputation in the eyes of the community

Question 7

Defandant

Answer 7

Person against whom a civil action is taken.

Question 8

Disapprove

Answer 8

When a court expresses disapproval of a previous precedent but is still bound by it

Question 9

Distinguish

Answer 9

When a court decides that the material facts of a case are sufficiently different to a precedent not binding on that court.

Question 10

Doctrine of precedent

Answer 10

The common-law principle by which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar.

Question 11

Duty of care

Answer 11

A legal obligation to avoid causing harm to a person/group when harm is ‘reasonably foreseeable’ if care is not taken; there must be a sufficiently c lose relationship between the two people in order for a duty of care to exist.

Question 12

Injunction

Answer 12

A civil remedy, being a court order that stops someone from doing something or compels someone to do something.

Question 13

Negligence

Answer 13

Doing or not doing something a reasonable person would or would not do in certain circumstances, which causes harm or loss to another person.

Question 14

Neighbour principle

Answer 14

Used in negligence cases to determine whether a duty of care was owed to the person injured. A person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’, that is the people who would be closely and directly affected by their acts or omissions.

Question 15

Obiter Dictum

Answer 15

A remark made by a judge in passing, which is not binding.

Question 16

Order of specific performance

Answer 16

A civil remedy that requires someone to perform a specific act, usually applied in contract law to order someone to complete a contract.

Question 17

Overrule

Answer 17

A new case in a higher court creates a new precedent, which means the previous precedent in a different case is no longer applicable.

Question 18

Persuasive precedent

Answer 18

A decision of another court which is influential but not binding.

Question 19

Plaintiff

Answer 19

Person bringing a civil action; person who has the burden of proving the case.

Question 20

Precedent

Answer 20

A court decision that is followed by another court lower in the hierarchy.

Question 21

Ratio decidendi

Answer 21

The reason for a decision (the binding part of a decision)

Question 22

Remedy

Answer 22

A way in which a court will enforce a right, impose a penalty or make another court order for the benefit of the plaintiff. It is aimed at restoring the plaintiff to the position he or she was in before the wrongful act occurred. The most common remedy is damages.

Question 23

Reverse

Answer 23

A higher court makes a different decision than a lower court in the same case on appeal.

Question 24

Sue

Answer 24

Start civil proceedings against another person.

Question 25

Tort

Answer 25

A civil wrong; an act that injures someone in some way, and for which the injured person may sure the wrongdoer for damages.