U2AOS1: Civil Liability Flashcards
Purposes of civil law
Provide guidelines for acceptable behaviour so ppl uphold each others rights —> SC
Provide syst for parties pursue rights protection through courts + tribunals
Provide remedy caused by infringement of rights
Negligence
owe duty of care to prevent foreseeable harm
nuisance
indiv enjoy public +private property w/o interference or annoyance
civil law
defines rights and responsibilities of individuals groups and organisations in society + regulates private disputes
remedy
orders made by court /tribunal address civil wrong /breach
restore plaintiff to original position
damages / injunctions
Parties before court proceedings
Aggrieved- rights have been infringed
Wrongdoer- alleged to have infringed rights
Parties during court proceedings
Plaintiff- rights have been infringed (was aggrieved)
Defendant- alleged to have infringed on another persons rights + breached civil law (was wrongdoer)
types of loss
financial- loss of wages
property damage- damage to car
personal injury- cuts + bruises
pain and suffering-mental anguish
loss of amenity - loss of enjoyment of life
breach
act or ommission that represents a failure to meet a legal obligation
causation
direct r’ship btw defendant’s breach and plaintiff’s loss
‘but for’ test used to prove defendant x meet legal obligation + necessary condition of loss suffered
intervening acts
break chain of causation and allows defendant to avoid liability f prove breach x true cause of loss
BoP original lawsuit
plaintiff has responsibility of proving the facts of the case
BoP counterclaim
defendant has the responsibility of proving the facts of the case
counterclaim
separate claim made by a defendant that says the plaintiff is at fault
exists separately to the original dispute (like principle + accessory trials)
SoP
on the balance of probabilities
–> plaintiff’s version of events is more likely to have happened than defendants
Negilgence: purpose
requires individuals who owe a duty of care to another person to prevent foreseeable harm from occuring
Negilgence: elements
- d owed p a duty of care
- d breached their duty of care
- d’s breach caused harm to plaintiff
- p suffered harm or loss
duty of care
obligation to be careful to legal neighbour and act to prevent reasonably foreseeable harm
class action
seven or more ppl with claims against the same d ref to same/ similar circumstances re common issue of fact/law
vicarious liability
legal responsibility of employers to control activities of employees who are acting in an authorised manner in the course of their employmentt
x in a ‘frolic of their own’
Negligence: Breach
Reasonably foreseeable that (specific breach) could cause harm to (type of person p is)
Negligence: Loss
It is reasonably foreseeable that (specific breach) could cause the plaintiff to suffer (specific type of loss). t/f loss is not too remote
Negligence: duty of care
reasonably foreseeable that the actions or omissions of (type of person d is) could harm (type of person p is). t/f p and d are legal neighbours
Defences negligence: lack of elements
- no DoC owed
- Doc was not breached
- no loss or harm or loss or harm caused by other means
Defences negligence: voluntary assumption of risk
- plaintiff was aware of the obvious risk
- plaintiff voluntarily chose to take that risk- consent can be express (waiver) or implied (willingly engaged in activity)
Defences negligence: voluntary assumption of risk medical field
does not apply- all risks must be stated
Defences negligence: contributory negligence
- plaintiff contributed to harmful situation/ partly to blame for harm done
- did plaintiff take reasonable care to avoid foreseeable harm?
Defamation elements
- statement is defamatory
- statement is untrue
- statement refers to p
- statement has been published
- caused/likely to cause serious harm to d
Defamation: defamatory
lower rep of p in eyes of ordinary members of comm
Defamation: untrue
must be substantially untrue
Defamation: p named
referred to so that ordinary ppl could reasonably conclude about p (eg ms cohen or my y11 LS teacher) or as part of a small group (eg y11 LS teachers @ bcc)
Defamation: published
communicated to 3rd party
Defamation: serious harm
determined by judge b4 trial commences, otherwise case dismissed
Defamation defences: honest opinion
- statement =opinion x fact
- matter of public interest
- opinion based on proper material
Defamation defences: innocent dissemination
- published material as subordinate distributor/ employee or agent of one
- did not know / shouldn’t have statement contained defam info
- did not have obligation to check for defam info
Defamation defences: justification
statement is substantially true, does not matter if some inaccuracies if core imputation is sub true
Defamation defences: contextual truth
if sub true statements are more serious than defam statements, defam statements discounted as x further harm p’s rep
Defamation defences
jusitification
contextual truth
honest opinion
innocent dissemination
lack of elements
Types of damages
Compensatory damages
exemplary damages
Defamation: caps on damages
max $250 000 for non financial loss in the most serious case
types of compensatory damages
special- loss can be calculated in monetary terms
general-loss cannot be calculated in monetary terms
aggravated- for lack of integrity, hyperbole/ exaggeration, sensationalising, not apologising
injunctions
mandatory injunctions - force a party to do something
restrictive injunctions - prevent a party from doing something
Nuisance: elements
- P has a property right in or over land
- there has been interference with the p’s use and enjoyment of the land
- p suffers damage, loss or injury
Nuisance: property right
must have property right (interest in or over land)
–> owner, tenant, person accessing private property
ppl w/ permission to use land (licensees) cannot sue eg, customers, couch surfers
Nuisance: interference
substantially and unreasonably interfered w/ use and enjoyment of land
-substantially and unreasonably: nature, time of day, neighborhood, necessary for community, ongoing, how long
Nuisance: damage, loss, injury
material damage - phys property damage
non material damage - injury to p ‘s sensibilities eg, loss of enjoyment, sleep deprivation
public nuisance - p must show that they have suffered a special damage that extends beyond what has been suffered by other members of public
