Unit 1 AoS3 - Civil Liability (SAC 3) Flashcards
Describe the purposes of civil law
Social cohesion: provides guidelines for acceptable behaviour - didn’t exist people exploit or abuse the rights of others.
Protect the rights of individuals: protected from false statements, contracts and harm.
Provide a means to seek compensation: provides a way to return the person harmed as far as possible to the position they were in before the harm.
Explain the types of civil law
Negligence/tort - breaching duty of care
Defamation/tort - published material causing harm to someone’s reputation
Family law
Wills and inheritance laws
Contract law
Employment laws
Explain what is meant by the standard of proof and identify the standard in a civil case.
the amount of evidence needed to prove a case or to establish the liability of the defendant. ‘on the balance of probabilities
Explain what is meant by the burden of proof and identify who has the burden of proof in a civil case.
the responsibility to prove the facts of a case. this lies with the plaintiff
Explain the elements of negligence
- Duty of care: The risk was foreseeable, the risk was significant, and a reasonable person would take precautions.
- Breach: Defendant failed to do what a reasonable person would do.
- Causation: Must be proven that the injury was caused by the breach and that it would not have occurred if not for the breach.
- Injury, loss, or damage: Plaintiff can only receive remedies if it proved they suffered an injury, loss, or damage.
Explain the rights negligence protects
- Protect individuals from harm
- Protect people from wrongful conduct
- Allows parties to seek compensation
Define Negligence
A person failing to take reasonable care and this failure resulting in loss or damage to another.
Explain the possible defences to negligence
Contributory negligence: plaintiff helped cause harm or is partly to blame.
Assumption of risk: Voluntary acceptance of the risk of injury.
Explain/identify the elements of defamation
- The statement is defamatory: lowers the reputation
- The statement is untrue: Plaintiff = not defamed if substantially true
- The statement refers to the plaintiff
- The statement has been published/communicated by the defendant
Identify the rights defamation protects
- Freedom of expression
- Considered of good character and reputation
- Reputation protected
- People whose reputations have been harmed seek remedies
- Quick and effective dispute resolution.
Define defamation
An untrue statement that lowers a person’s personal or business reputation in the community.
Explain the possible defences to defamation
- Truth (Justification/Contextual truth): Substantially true.
- Absolute privilege: Free communication of information is considered to be so important.
- Publication of public documents: Driven by a legal or moral duty and the matter was a fair copy or summary of a public document.
- Fair report on proceedings of public concern
- Qualified privilege: A legal or moral duty. (no malice)
- Honest opinion: The matter must be of public interest and the opinion must be based on proper material.
- Innocent dissemination: Unknowingly distributes defamatory information.
Define/explain the limitation of actions
The time within a wronged party must sue the wrongdoer. The reason for this is cases are resolved efficiently, the defendant is protected, and to ensure no risk of the reliability of evidence.
Negligence: 3-12 years after the conduct of the defendant
Defamation: 1 year
Possible impacts of defamation
On the plaintiff:
- Loss of reputation
- The emotional impact of the defamatory material
- Loss of wages and livelihood
On the defendant:
- Need to pay costs
- Need to sell assets
- Public humiliation
Possible impacts of negligence
On the plaintiff:
- Loss of life
- Serious injury
- Loss of wages and livelihood
On the defendant:
- Need to pay costs
- Public humiliation
- Physical injury
How have parliament and the courts played a role in developing negligence laws?
Although common law has played, and still continues to play, a significant role in developing the law of negligence in Victoria, statute law in part now governs various aspects of negligence laws.
The law of negligence has been developed through cases and was adopted in Australia from the English cases, in particular Donoghue v Stevenson. Over the years cases have developed various elements and defences for negligence, including the test to establish causation (and the establishment of the ‘but for’ test), and the ‘voluntary assumption of risk’ defence. Courts have also established over time various categories of people who are presumed to owe a duty of care to another person. Courts continue to develop the law of negligence through deciding cases.
However, statute law has also had a role to play in developing the law of negligence. In particular, Part X of the Wrongs Act 1958 (Vic) introduced a statutory regime for dealing with negligence cases. This includes establishing what the standard of care is, general principles around causation and defences, such as voluntary assumption of risk. Other statutes have also developed the law of negligence. For example, trade practice laws in Australia and the states have created standards for goods and services, requiring vendors to meet a certain standard of care and skill.
Explain why you are able to sue two defendants in a case.
In Australia individuals can sue multiple defendants in civil cases this is called vicarious liability. This means the ability to sue not only the wrongdoer but the employer of the wrongdoer as they have the ability or duty to control the activities of their employee.
