The Legal Framework Flashcards
What are the main types of legal systems in the western world?
1- Civil law systems, which emphasise a complete code of written law.
2- Common law systems, which are more reliant on the decision making of judges.
What is the common law system?
The common law system used in New Zealand as well as many countries colonise by the English, are laws that are made by judges (called common-law) or by parliament (called statute law).
What model of government does New Zealand use, and how many levels of government does it have?
New Zealand is a constitutional monarchy and there is 1x level of government known as House of Representatives.
Name the various branches of government related to lawmaking and briefly describe them?
1- The legislature- responsible for making law. Made up of ministers of parliament and select committees who examine and debate bills, which went passed become law.
2- The executive- responsible for initiating and administering the law. Made up of cabinet ministers, government departments etc, who decide policy, draft bills, enforce and administer Acts.
3- The judiciary- responsible for applying the law. Made up of judges and judicial officers who hear and decide cases by applying the relevant facts as well as conducting judicial reviews of administrative decisions.
What areas of law to New Zealand courts generally deal with?
1- Criminal law.
2- Civil law.
Describe a criminal law case?
A criminal case is brought before the courts by the state or district in the name of the crown. The crown can bring proceedings against a person or an entity for committing a crime. The guilt of the accused must be established be on reasonable doubt.
Describe a civil law case?
A civil case involves an individual or entity bringing an action against another individual or entity. Civil law can be divided into the following-
- Public law- involves government bodies etc
- Private law- involves individuals etc
What is the hierarchy of courts in New Zealand from highest to lowest?
1- Supreme Court 2- Court of Appeal 3- The High Court 4- The district court 5- Tribunal such as the disputes tribunal
What is the doctrine of precedent?
Under the doctrine, previous court decisions are available for other judges to use as guidelines for arriving at decisions in current cases.
How does the doctrine of precedent operate within the court system?
The doctrine of precedent means the decisions of higher courts are binding on lower courts where they are considering similar facts, circumstances, legislation etc. therefore only an equal or higher court than the one that set the original precedent can overrule the precedent.
How is statute law created?
The first step in making statute law is for someone within parliament to make a proposal for new legislation. The proposed law(Bill) is given three readings in parliament. Once passed, it then becomes an act of parliament and part of statute law.
What main sources are used in the interpretation of statutes?
1- The objectives/aims section and definitions section of the Acts
2- Any explanatory memorandum to the Act
3- Parliamentary speeches
4- Earlier cases where identical or similar wording or legislation has been considered
What are the remedies available when any person or organisation breaches a statue by an act or omission?
1- They may be liable for penalties prescribed in the statute.
2- May give rise to a civil claim for damages.
Name 3x Acts that could provide a defence for a manufacturer or supplier when charged with the breach of a commercial/retail statute law?
1- Limitation Act 1950
2- Contributory Negligence Act 1947
3- Consumer Guarantees Act 1993
What is the law of tort?
A tort can be defined as a civil wrong. It is an act or omission by a person, without just cause or excuse, which caused some form of harm to the person or property of another.
Explain the law of torts in comparison to the purpose of the law of contracts?
1- The law of contract exists primarily to in force promises made by one person to another.
2- The law of tort exists to compensate the person injured by a wrongdoer, when the person injured and the wrongdoer are not in a contractual relationship.
In any negligence action, the plaintiff must show what?
1- Is that the defendant owed a DUTY of care.
2- That the defendant BREACHED the required standard of care.
3- The defendants breach of the standard of CARE caused the damage alleged by the plaintiff.
4- The defendant should reasonably have FORESEEN that the particular damage or injury suffered would result from their conduct.
Prompt-
Do
Be
Careful
Fuckwit
Discuss ‘Duty of Care?
A duty of care is the legal requirements of one party to protect the legally conferred rights of another party. This means that when one party has legally protected rights, there is a duty upon others to-
1- Respect those rights.
2- Abstain from acting in a way that would prejudice or damage those rights.
What are the legal requirements to determine if a defendant owed a ‘duty of care’?
A duty of care is owed only to those whose relationship to the defendant is sufficiently proximate, that is, physically close in space and time.
If duty of care is shown to exist, the plaintiff must show that the defendant ‘breached’ the required standard of care. What is the test for the required standard of care?
The test for the required standard of care, is how a reasonable person in a particular situation would have acted. Consideration needs to be given to the likelihood of the risk, counterbalanced against the cost, difficulty and inconvenience of acting to prevent that risk.
With regard to ‘causation’, what must the injured party establish?
The injured party must establish that the breach by the defendant caused the injury, loss or damage.
With regard to foreseeability, what must the plaintiff establish?
The plaintiff must establish that the injury, loss or damage suffered is not too remote a consequence of the defendants breach of the duty of care. The defendant is only liable if the injury, loss or damage was reasonably foreseeable from the defendants negligence.
True or false? If the injury, loss or damage is consistent with that which was reasonably foreseeable, the defendant will be liable even if the injury, loss or damage was more extensive than could have been reasonably foreseen?
True.
Discuss the Mainguard Packaging Ltd v Hilton Haulage 1990 case law example?
In this case H reversed his truck, striking a power cable opposite M’s factory. Not only did the impact cut power to the factory causing a loss in production, a power surge followed which caused a fire destroying the factory’s PABX room.
It was held that the economic loss that resulted was foreseeable given that the driver knew of the power pole and ought to have foreseen the likelihood of cutting power on impact, especially in a semi industrial area.
Discuss occupiers liability?
The occupier is defined as the person in control of the premises. The occupier of the premises has a duty of care owed to an entrant onto those premises or to a person outside the premises.The key information that needs to be ascertained in such cases is which occupier i.e. owner or tenant, owes the duty of care.
What is the key method in order to determine the liability of an occupier of the premises after an incident?
The liability of an occupier of premises, to entrants onto those premises, usually depends on whether the principles of the tort of negligence are satisfied.
What method can an occupier of a premises use to limit their obligations with regard to their liability to entrants to the premises?
The occupier may seek to limit its obligations by an EXCLUSION CLAUSE printed on a ticket issued to the entrant. However, courts have determined such exclusions have little effect unless brought to the specific attention of the entrant.
What is strict liability?
Strict liability is the imposition of liability on a party without a finding of fault. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution.
What are the three situations where vicarious liability can arise?
1- Employer and employee- although, an employer will only be liable for acts or omissions of its employees during the course of their work
2- Principal and agent
3- Partners
What is the main principle, with regard to a remedy in negligence?
Remedies in tort are based upon the main principle of compensation, as compensation serves to restore the injured parties to the position they were in before the loss.
