Unit 1 AOS 3 - Civil Liability

Question 1

Define civil law

Answer 1

Civil law regulates disputes between individuals, groups and organisations. It enables people to enforce their rights where harm has occured.

Question 2

Define civil liabilities

Answer 2

‘Civil liabilities’ is a term used to describe the legal responsibilities of a party (i.e. an individual, group or organisation) for any loss or harm caused to another party because of a breach of civil law.

Question 3

What are the four purposes of civil law?

Answer 3

• achieve social cohesion
• protect the rights of individuals
• provide an avenue for people to seek compensation
• provide a means to seek compensation

Question 4

What is achieving social cohesion?

Answer 4

Social cohesion is a society working towards the well-being and equality of all the members of a society. So, the civil law provides guidelines for acceptable behaviour, so that individuals can live together in harmony.

Question 5

What is protecting the rights of individuals?

Answer 5

Is the right of a person to be protected from false statements that might damage their reputation, or the right to a promise made under a contract, or the right not to be hurt or harmed.

Question 6

What is providing an avenue for people to seek compensation?

Answer 6

Civil law provides an avenue for people to seek compensation where a breach of the civil law has occurred.

Question 7

What is providing a means to seek compensation

Answer 7

When a person’s rights have been infringed, the civil law provides a way to return the person harmed, as far as possible, to the position they were in before the harm occurred. This is done by rewarding remedies.

Question 8

What is a civil remedy?

Answer 8

A term used to describe any order made by the court designed to address a civil wrong or breach. It provides a legal solution for the plaintiff for a breach of the civil law by the defendant and restores the plaintiff to their original position prior to the breach of their rights. The most common remedies are damages.

Question 9

What are damages?

Answer 9

An amount of money that the court (or tribunal) orders on a party to pay another.

Question 10

What are the nine main types of civil law?

Answer 10

• negligence
• trespass
• defamation
• nuisance laws
• wills and inheritance laws
• contract law
• family law
• employment laws
• equal opportunity and discrimination laws

Question 11

What are the three tort laws?

Answer 11

• tort of negligence
• tort of defamation
• tort of trespass

Question 12

Define and explain a breach

Answer 12

A breach is when the defendant breaks or in some way fail to observe and fulfil a law or observation. A breach is one of the key elements of a civil case. The plaintiff will have to prove that there has been a breach by the defendant.

Question 13

Define and explain the causation

Answer 13

Causation means the direct relationship between one event (event 1) and another event (event 2), where event one was the reason event 2 happened, and event 2 would not have happened by itself. Causation is another key element in a civil case. The plaintiff will have to prove that the actions of the defendant caused or resulted in the harm suffered by the plaintiff and that harm would not have occurred if not for the actions of the defendant. There has to be a causal link between the actions of the defendant and the harm the plaintiff suffered.

Question 14

Define and explain loss

Answer 14

As a general rule, the plaintiff will only be able to obtain a legal remedy, such as damages, if it can be proved that he or she suffered loss or harm, where a loss is a type of harm or damage suffered by a person and can involve both economic and non-economic loss. The loss in a civil claim can include:

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

Question 15

Define and explain limitation of actions

Answer 15

For almost all civil claims, there is a time within which a wronged party must sue the wrongdoer. This is known as the limitation if actions, which means the restriction on bringing a civil claim after the allowed time. Once that time limit has passed, then the defendant will be able to raise a defence that the plaintiff is too late to obtain any form of remedy.

Question 16

Define and explain the burden of proof

Answer 16

Refers to the responsibility of proving the facts of the case. In a civil case, the burden of proof is held by the plaintiff or the person who is bringing the action. This means that the plaintiff must present evidence to establish that the defendant is in the wrong, (so responsible for the harm or loss that has been inflicted on the plaintiff).

Question 17

Define and explain the standard of proof

Answer 17

Refers to the degree of proof required to prove a case. In civil cases, the plaintiff must prove the case on ‘balance of probabilities,’ which is the standard of proof required. The ‘balance of probabilities’ requires the plaintiff to establish that it is more likely than not that his or her side of the story is right.

Question 18

Who are the possible plaintiffs?

Answer 18

• the aggrieved party (the person who suffered the loss)
• other victims (the victims other than the aggrieved party)
• insurers

Question 19

Who are the possible defendants?

Answer 19

• the wrongdoer (the person or company who caused the loss or damage to the plaintiff)
• employers
• persons involved in wrongdoing
• insurers

Question 20

What are the rights protected by the tort of negligence?

Answer 20

The main purpose of the law of negligence is to protect the individuals right to be safe from harm, both to the person and their property. Negligence is a type of tort that involves a breach of a duty of care, causing loss or harm.

Question 21

What are the four elements of the tort of negligence?

Answer 21

• the duty of care owed
• breach of the duty of care
• causation
• injury, loss or damage

Question 22

Define the element of duty of care in relation to the tort of negligence

Answer 22

The plaintiff must first establish that the defendant owed him or her a duty of care. A person owes a duty of care if:

• the risk was foreseeable
• the risk was significant or not insignificant
• a reasonable person in the same situation would have acted differently

Question 23

Define the element of the breach of a duty of care in relation to the tort of negligence

Answer 23

A breach of duty of care occurs when a person does not provide reasonable care, that is what a reasonable person would have done in the same set of circumstances.

Question 24

Define the element of causation in relation to the tort of negligence

Answer 24

The defendant’s actions must have directly caused the plaintiffs loss or injury as a result of the breach of the duty of care. The plaintiff will not be successful in their claim if the harm was too remote from the breach or if there has been a break in the chain of causation.

Question 25

Define the element of injury, loss or damage in relation to the tort of negligence

Answer 25

A plaintiff can only seek a remedy under the tort of negligence if there is actual loss or harm. The harm can be physical, mental, property damage or economic loss.

Question 26

What is the limitation of actions in relation to the tort of negligence?

Answer 26

The limitation for a plaintiff to make a claim for negligence is 6 years

Question 27

What are the possible defences for the tort of negligence?

Answer 27

• contributory negligence

- assumption of risk (volenti non fit injuria)

Question 28

Define the defence of contributory negligence in relation to the tort of negligence

Answer 28

The defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done.

Question 29

Define the defence of assumption of risk (volenti non fit injuria) in relation to the tort of negligence

Answer 29

In latin, volenti non fit injuria literally means ‘to a willing person, injury is not done.’ This means that the defendant. must prove that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to take the risk.

Question 30

How did the tort of negligence develope because of statute and common law?

Answer 30

The law of negligence has been significantly developed through the courts over-time, however, it has been modified by parliament through statutes. The tort of negligence developed because of the Donogughhue v Stevenson case, which established negligence and the neighbour principle, which was adopted in Australia in the case of Australian Knitting Mills.

Question 31

What are two impacts of negligence on the plaintiff?

Answer 31

• loss of life

- effect on mental health

Question 32

What are two impacts of negligence on the defendant?

Answer 32

• loss of business

- public humiliation

Question 33

What are the rights protected by the tort of defamation?

Answer 33

The tort of defamation aims to protect the character and reputation of individuals against attempts to discredit them. Defamation means knowingly making a false statement, which is communicated to a third party, that lowers the persons reputation in the eyes of another.

Question 34

What are the four elements of defamation?

Answer 34

• the statement is defamatory
• the statement is untrue
• the defamatory statement refers to the plaintiff
• the defendant published the defamatory statement

Question 35

Define the element the statement is defamatory in relation to defamation?

Answer 35

Means if it lowers a persons reputation or standing in the community, exposing them to ridicule, contempt or hatred.

Question 36

Define the element the statement is untrue in relation to defamation?

Answer 36

The plaintiff cannot be defamed if the statement is substantially true

Question 37

What is the limitation of actions for the tort of defamation?

Answer 37

Defamation claims must be brought within 3 or 12 years.

Question 38

What are two possible defences for the tort of defamation?

Answer 38

• justification

- honest opinion

Question 39

Define the defence of justification in relation to the tort of defamation

Answer 39

This applies when a defamatory statement is substantially true, this means that the vast majority of the article is true.

Question 40

Define the defence of honest opinion in relation to the tort of defamation?

Answer 40

A defendant may claim that the defamatory material is an expression of his or her honest opinion rather than a statement of fact. The matter must be of public interest, and the opinion must be based on the proper material.

Question 41

What is the role of common and statute law in developing the tort of defamation?

Answer 41

The elements and defences of defamation have been developed through the courts by a number of cases. The common law principle of defamation distinguishes between libel (the written word) and slander (the spoken word). In 2006, uniform legislation came into operation in Australia. Each state passed the legislation, in Victoria, The Defamation Act.

Question 42

What are two impacts of defamation on the plaintiff?

Answer 42

• loss of reputation

- emotional impact of the defamatory material

Question 43

What are two impacts of defamation on the defendant?

Answer 43

• costs

- need to sell assets