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Legal Studies > U1 AOS3 - Civil Liability > Flashcards

U1 AOS3 - Civil Liability Flashcards

1
Q

what are the purposes of civil law?

A
  • to achieve social cohesion
  • to protect the rights of individuals
  • to provide an avenue for people to seek compensation where a break of civil law has occured (through dispute resolution bodies)
  • to provide a means to seek compensation (civil remedies)
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2
Q

what are some types of civil law?

A
  • contract law
  • nuisance
  • defamation
  • negligence
  • wills + inheritance laws
  • employment laws
  • family law
  • equal opportunity + discrimination laws
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3
Q

what are the different types of loss?

A
  • economic or financial loss
  • property damage
  • personal injury
  • pain and suffering
  • loss of amenity
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4
Q

what is the standard of proof in a civil case?

A

on the balance of probabilities

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5
Q

who is the burden of proof on in a civil case?

A

on the person who brings the case to court

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6
Q

who are possible plaintiffs in a civil case?

A
  • the aggrieved party
  • other victims (those who have suffered indirect loss)
  • insurers
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7
Q

what is the right of subrogation?

A

the right for a company to ‘step ino the shoes’ of an insured person and act on their behalf

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8
Q

who are possible defendants in a civil case?

A
  • the wrongdoer
  • employers
  • insurers
  • persons involved in the wrongdoing
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9
Q

what is vicarious liability?

A

when an employer becomes responsible for the actions of their employee (because they have a right, ability, and duty to control the activities of the wrongdoer)

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10
Q

what is a representative proceeding?

A

a legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person

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11
Q

what is a lead plaintiff in a representative proceeding?

A

the person who leads a class action, the case is brought to court in their name

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12
Q

who are the group members in a representative proceeding?

A

other members of the class action, they each get a share of the damages awarded

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13
Q

how are damages distributed among group members of a representative proceeding?

A

NOT equally, those who suffered the largest loss receive the most compensation

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14
Q

what is negligence?

A

a type of tort that involves a brecah of a duty of care, causing loss or harm

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15
Q

what is defamation?

A

a type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information

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16
Q

what are the elements of negligence?

A
  • duty of care exists
  • there was a brecah of the duty ofcare
  • causation
  • injury, loss, or damage was suffered
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17
Q

what is a duty of care?

A

the legal obligation to be cautious and careful, keeping other people in mind when doing when doing anything that could harm them

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18
Q

when does a person owe another person a duty of care?

A
  • if the risk was foreseeable (the person knew or should have known about the risk of loss or harm)
  • if the risk was significant or not insignificant (not farfetched or fanciful)
  • if a reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm
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19
Q

what are the exceptions to a duty of care?

A
  • when participating in a risky recreational activity
  • when you’re a good samaritan (give care, help, or advice in an emergency situation)
  • when you’re a person who donates food in good faith or for charitable purposes
  • when you’re volunteering/doing community work for a community organisation
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20
Q

when does a breach occur?

A

when the defendant has in some way failed to observe a law or obligation imposed on them

21
Q

what must the plaintiff prove in a civil case?

A

that the defendant was in breach

22
Q

what must the plaintiff prove in a civil case?

A

that there was no breach

23
Q

what is causation?

A

the direct relationship between 1 event (event 1) and another event (event 2) where event 1 was the reason that event 2 happened, and event 2 would not have happened by itself, without event 1

24
Q

what is the causal link?

A

the link between the defendant’s actions/inactions and the hrm that the plaintiff suffered

25
Q

what is an intervening act?

A

an act that breaks the chain of causation (when something occurs after the defendant’s actions which may be considered to have actually caused the injury or loss rather than the defendant’s actions/inactions)

26
Q

what is remoteness?

A

if it can be shown that the harm caused by the defendant was too remote from the brecah of the duty of care, then the plaintiff will not be successful in claiming negligence (e.g. if someone suffers nervouse shock from hearing about a car accident but didnt actually see it)

27
Q

what rights are protected by negligence laws?

A
  • the right to be safe from harm
  • the right to be protected from wrongful conduct by others, particularly where a person acts recklessly or with complete disregard for another person
  • the right to seek compensation against those people who have acted contrary to negligence laws
28
Q

what rights are protected by defamation laws?

A
  • the right to freedom of expression
  • the right to be considered of good character and reputation
  • the right of people whose reputations have been harmed to seek effective and fair remedies
  • the right to a quick and effective method of resolving a dispute in relation to defamation
29
Q

what are the elements of defamation?

A
  • the statement is defamatory
  • the statement is untrue
  • the statement refers to the plaintiff
  • the statement has been published (communicated to people other than the person it refers to) by the defendant
30
Q

what does it mean for a statement to be defamatory?

A
  • the statement must lower a person’s reputation or standing in the communit, exposing them to ridicule, contempt, or hatred
31
Q

what are defenses to negligence?

A
  • contributory negligence
  • assumption of risk (volenti non fit injuria)
  • the absence of one of the elements of negligence
32
Q

what is contributory negligence?

A

when the defendant claims that the plaintiff contributed to the harm caused by the defendant

33
Q

what happens if contributory negligence is proven?

A

the damages the defendant has to pay is reduced

34
Q

what does volenti non fit injuria mean?

A

to a willing person, injury is not done

35
Q

what is the defense of assumption of risk?

A

when the defendant claims that the plaintiff accepted the dangers of a known and understoof risk, either expressly or by implication

36
Q

when does contributory negligence not apply?

A

in cases involving the provision of professional or health services, as health providers have a legal responsibility to warn people of any inherent risk associated with their work

37
Q

what are defenses to defamation?

A
  • absolute privilege (parliamentary privilege)
  • honest opinion
  • innocent dissemination
38
Q

what is the defense of absolute privilege?

A

if the defendant can prove that the defamatory statement was published in relation to proceedings of parliament, parliamentary bodies, courts, or tribunals, then the defendant is immune to defamation claims

39
Q

what is the defense of honest opinion?

A

if the defamatory material is an expession of the honest opinion of the defendant (as a commentator) rather than fact

40
Q

when can the defense of honest opinion be used?

A

if the defamatory material is of public interest and the opinion is based on proper material (a statement that is substantially true)

41
Q

what is the defense of innocent dissemination?

A

if the defendant unknowingly distributed the defamatory material (e.g. printing companies, booksellers, libraries, internet providers, etc.)

42
Q

when can the defense of innocent dissemination be used?

A

if the defendant can prove that they:
- published the material as a subordinate distributor
- did not know the publication contained defamatory material
- did not have any obligation to check for defamatory material

43
Q

what are impacts of a breach of negligence laws on the plaintiff?

A
  • loss of life
  • permanent physical incapacity
  • serious physical injury
  • emotional impact of breach
  • loss of wages and livelihood
  • unemployment
  • effect on mental health
44
Q

what are the impacts of a breach of negligence laws on the defendant?

A
  • loss of business
  • public humiliation
  • physical injury (contributory negligence or counterclaim)
  • costs
  • need to sell assets
45
Q

what are the impacts of a breach of defamation laws on the plaintiff?

A
  • loss of reputation
  • emotional impact of the defamatory material
  • loss of wages and livelihood
  • unemployment
46
Q

what are the impacts of a breach of defamation laws on the plaintiff?

A
  • loss of reputation
  • emotional impact of the defamatory material
  • loss of wages and livelihood
  • unemployment
47
Q

what are the impacts of a breach of defamation laws on the defendant?

A
  • costs
  • need to sell assets
  • public humiliation
48
Q

how is defamation defined by law (common v statute)?

A

prior to 2006, defamation was all governed by common law
uniform defamation legislation was introduced in 2005 (defamation act)

49
Q

how is negligence defined by law (common v statute)?

A
  • common law, first case in 1930’s (grant v australian knitting mills) decided by adopting British negligence principles
  • wrongs act part x created in response to the findings of a committe that changed many common law principles relating to negligence

Legal Studies (10 decks)

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