Unit 1 AOS 3 civil law Flashcards
purposes of civil law
- achieve social cohesion
- protect the rights of individuals
- provide an avenue for people to seek compensation
- provide a means to seek compensation
types of civil law
- negligence
- trespass
- defamation
- nuisance laws
- wills and inheritance laws
- contract law
- family law
explain law of negligence
a type of tort which occurs when someone owes a duty of care to another and breaches that duty, causing harm or loss to another person.
plaintiff
the party in a civil dispute who makes a legal claim against another person in court
defendant
the party in a civil case who is alleged to have breached a civil law and is being sued by the plaintiff
concepts of civil law
- breach
- causation
- loss
- limitation of actions
breach (concept of civil law)
- means that the defendant has failed to fulfil a duty or obligation imposed on them.
- in negligence, a plaintiff may argue that the defendant has breached their duty of care to the plaintiff
causation (concept of civil law)
- the plaintiff must prove that the actions of the defendant caused the harm or loss suffered by plaintiff, and the harm would not have occurred if not for the actions of the defendant.
- causation is the direct relationship between one event and another, where event 1 was the reason event 2 happened.
- must be a causal link between the actions of the defendant, and the harm suffered by the plaintiff
loss (concept of civil law)
- a type of harm suffered by a person, can involve economic and non-economic loss.
- the plaintiff will usually only be able to obtain legal remedy if it can prove they suffered loss or harm:
- economic or financial loss (eg. loss of wages)
- property damage (eg. damaged car, house or other)
- personal injury (eg. cuts, bruises, broken bones)
- pain and suffering (eg. anxiety, depression)
- loss of amenity (eg. loss of job satisfaction)
limitation of actions (concept of civil law)
- the restriction on bringing a civil claim to court after the allowed time
- time limit is so that disputes can be resolved efficiently
- once the time limit has passed, the defendant will be able to raise a defence that the plaintiff is too late to obtain any form of remedy
- no limitation period on physical or sexual abuse suffered as a minor
burden of proof
- refers to the responsibility of proving the facts of the case.
- in civil cases, the burden of proof lies with the plaintiff, meaning they must present evidence to establish that the defendant is in the wrong.
- a defendant can raise a counterclaim in response to the plaintiffs claims to prove they are not liable.
standard of proof
refers to the extent to which a case must be proven. the plaintiff must prove the case on the balance of probabilities, meaning the plaintiff must prove that they are most likely in the right.
explain element 1 in a case of negligence (duty of care)
the plaintiff must establish that the defendant owed a duty of care. a person owes a duty of care if:
- the risk was foreseeable
- a reasonable person in the same circumstances would have taken precautions to eliminate risk of harm
explain element 2 in a case of negligence (breach of a duty of care)
breach of a duty of care (standard of care)
- occurs when a person does not take all the care they should. the duty is breached when the defendant fails to do what a reasonable person would have done. the court considers:
- the likely risk of harm
- the likely seriousness of the harm
- the burden of taking precautions to avoid the risk of harm
explain element 3 in a case of negligence (causation)
- the plaintiff must prove that the injury or loss was caused by the breach of duty of care, and it would not have occurred without the breach.
- the plaintiff would not be successful in claiming negligence if it can be shown that the harm was too remote from the breach of duty of care.
- break in chain of causation means that some other act occurred between the tort occurring & the loss or damage being claimed