Unit 2

Question 1

define civil law

Answer 1

governs disputes relating to the rights of two parties (which can be individuals, or organisations), and aims to restore parties to the position they were in before their rights were infringed and they suffered injury or loss. Claims in civil law can include negligence and defamation and enable the party whose rights have been infringed to seek compensation for their loss or injury.

Question 2

purposes of civil law (list)

Answer 2

-restore plaintiff to original position
-promote social cohesion
-system for parties to pursue rights protection
-avenue to seek compensation

Question 3

civil law- main purpose

Answer 3

the main purpose of civil law is to restore the plaintiff to their original position, that is the position they were in before they suffered any injury or loss, resulting from the defendants breach. However, achieveing this purpose is not always possible. For example, if the wrong results in a loss of sight, this can not be restored. In these instances, monetary compensation aims to restore the plaintiff as close as possible. Other purposes of civil law include achieveing social cohesion. Civil law provides guidelines for acceptable behaviours so that individuals can live together in harmony. This deters the exploitation or abuse of the rights of others. For example, if there was no law regulating the standard and quality of toys, toy manufacturers might make toys using the cheapest materials without the concern for the safety of the children playing with them. Civil law also provides a system for parties to pursue rights protection and an avneue for people to seek compensation.

Question 4

Define Negligence

Answer 4

a failure to behave with the level of care to prevent loss or injury to another person, that a reasonable person would have exercised under the same circumstances. For example, it is well established that a motor vehicle driver owes a duty of care to other road users to drive their own vehicle to the standard of care that would be expected of the reasonable driver. If they breach this standard of care and the plaintiff is injured or suffers loss as a result of this breach then the driver will be liable in negligence to the plaintiff.

Question 5

Define trespass

Answer 5

Trespass – a type of tort involving interference or intrusion of a person’s body, property or goods without the consent of that person.

Question 6

define nuisance laws

Answer 6

Nuisance laws – a type of tort which involves interference with a person’s rights to use and enjoy property.

Question 7

list types of civil law (11)

Answer 7

-negligence
-trespass
-defamation
-nuisance laws
-wills and inheritances
-contract law
-family law
-employment law
-equal opportunity and discrimination law
-property law
-consumer protection law

Question 8

elements of civil law (6)

Answer 8

Breach
Causation
Loss
Limitation of actions
The burden of proof
The standard of proof

Question 9

What is breach?

Answer 9

breach is an act or omission that represents a failure to meet a legal obligation. As civil law protects certain individual rights, such as defamation laws protecting the right to a good reputation, when these rights hvae been infringed, it means civil law has been breached. In most civil claims, it must be proven that there was some kind of breach by the defendant, i.e, the defendant failed to comply with a legal obligation imposed on them, such as breach of contract. The nature of the breach will vary according to the area of law in question. As the plaintiff has the responsibility or onus to prove their case, they need to establish that the defendant is in breach.

Question 10

What is causation?

Answer 10

causataion is the relationship between an event or action and a resulting event. To establish a claim, the plaintiff needs to show that the defendant’s breach was a necessary condition of the loss suffered, meaning that the harm sustained by the plaintiff would not have occured but for the defendant’s action, or inaction. Courts consider whether the defendant’s actions substantially or significantly contributed to the harm. If there is a break in the causal link, ie. something happens after the defendant’s actions which may be seen to have actually caused the injury or loss, rather than the defendants actions, then the plaintiff’s case may be unsuccessful as a causal link must be established between the actions and resulting harm suffered. If the harm was not reasonably foreseeable there will also be no legal causation because damage is regarded as ‘too remote’.

Question 11

What is loss?

Answer 11

Loss is a disadvantage experienced by a party due to an action or an inaction of another party. A party must have suffered loss in order to be granted a remedy by the courts when taking civil action. Loss may include:
1. economic or financial loss (wages, potential profit, medical expenses etc.)
2. property damage
3. injury, suffering or death (includes mental distress)
4. loss of enjoyment
5. loss of reputation

Question 12

what is Limitation of actions

Answer 12

A restriction on the time limit a plaintiff can commence a civil action in court, after which the plaintiff cannot pursue a claim against the defendant for the civil wrong. Different causes of action will have different time limits that apply to them, for example, a defamation action must be brought within one year of the defamatory statement being made. Once that 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. The purpose of a time limit is to ensure disputes can be resolved efficiently and a defendant does not have cases pending for an unlimited amount of time. A delay can also risk the availability and reliability of evidence.

Question 13

what is the burden of proof

Answer 13

The responsibility of a party to prove the facts of a case. In a civil case, the burden of proof rests with the plaintiff, meaning the plaintiff must present evidence to establish that the defendant is in the wrong or liable for the harm suffered by the plaintiff. It is not the responsibility of the defendant to prove they are not liable. However, if the defendant raises a counterclaim, which is a claim made by the defendant in response to the plaintiff’s claims in the same cases, then the defendant will need to prove that counterclaim. This helps to ensure that legal claims are only made where they carry subtanstial weight, promoting access by ensuring efficient legal processes that seek to minimise delays by keeping unrealistic matters out of the court, therefore freeing up court’s time to hear genuine cases.

Question 14

what is the standard of proof

Answer 14

thee degree to which the facts of a case must be proven in court. The standard of proof applicable in a civil proceeding is ‘on the balance of probabailities’ which requires the plaintiff to prove that it is more probabale than not their injury or loss was caused by the defendant’s act or omission. The balance of probabilites is a lower standard than that required in criminal trials

Question 15

define plaintiff

Answer 15

Plaintiff: the party that initiates a civil claim against another person, the defendant, in court. In a civil case, the plaintiff is the party, or parties, who have had their rights breached and consequently is claiming a civil remedy as a result of loss or damage they have sustained resulting from that breach.

Question 16

define defendant

Answer 16

Defendant: is the party liable that is defending themselves against a claim by another person, the plaintiff, for an alleged breach of civil law. The defendant may be an individual, company, or institution and there may be one or multiple defendants that are directly or indirectly responsible for the breach of the plaintiff’s rights.

Question 17

possible plaintiffs in a civil dispute

Answer 17

-aggrieved party: person/s whose rights have been infringed and has suffered damage or loss
-other victims: includes friends and fam who suffered due to aggrieved party’s harm
-insurer: often insurance companies who made payment to a client can attempt to recover payment back from a defendant

Question 18

possible defendants

Answer 18

-wrongdoer: those that directly caused harm to the plaintiff. can be more than one party
-employer: if the employer was acting in the course of their employment when the wrong occurred, the employer can be sued and found to be vicariously liable
-others involved in the wrongdoing: those who encouraged, organized, planned or were indirectly involved can also be sued and found liable (accessorial liability)
-insurers: plaintiff can sue insurer of the person who caused the loss

Question 19

what is a representative proceeding?

Answer 19

Where seven or more people claim against the same defendant for the same event
-particularly appropriate where large number of claimants have suffered a relatively small loss
-usually heard in supreme court

Question 20

define tort

Answer 20

wrongful act that is recognised by law. Tort law deals with rights and obligations that people ow to one another, as well as the infringement of those rights and obligations.
e.g. negligence, defamation, nuisance and trespass

Question 21

when is a person obliged to take care?

Answer 21

when it is reasonably foreseeable that other people could be harmed by their acts or omissions

Question 21

Rights protected by law- negligence

Answer 21

-the rights to be safe from harm, both to person and property
-right to be protected from wrongful conduct by others, particularly where a person acts recklessly, or with complete disregard for another
-right to expect that people who owe a duty of care are required to uphold their duty
-right to seek compensation against those who have acted negligently

Question 21

elements required to establish negligence (list)

Answer 21

duty of care- defendant owed duty of care to the person injured
breach- defendant breached duty of care
causation- breach caused harm to plaintiff
injury- plaintiff suffered injury, loss, or damage which is not too far-fetched

Question 22

elements of negligence- duty of care

Answer 22

-legal obligation to ensure the safety or wellbeing of others and avoid conduct that could reasonably be foreseen to harm another person
-person owes duty of care if two elements are established:
reasonable foreseeability: where defendant knows, or should know their action, or inaction would impact someone else
The neighbor principle: legal principle that requires people to take reasonable care to avoid acts or omissions that could be reasonably foreseen to injure their ‘neighbor’ someone directly affected by their actions or omissions

Question 23

elements of negligence- breach

Answer 23

Plaintiff must establish defendant breached duty of care
-risk of harm was foreseeable
-risk was not insignificant
-reasonable person in same position would have taken precautions
-breach= defendant has fallen below expected standard of care
courts consider:
-Likely risk of harm
-likely seriousness of harm
-burden of taken precautions to avoid risk of harm
-social utility (benefit/worth) of activity that creates harm

Question 24

elements of negligence- causation

Answer 24

factual causation- defendant negligence must be a ‘necessary condition’ for causing the harm= must be substantial contributor
scope of liability- whether there has been break in chain of causation
-also considers questions of morality, justice, or ethics that may make it impractical to hold defendant liable

Question 25

Elements of negligence- injury, loss or damage

Answer 25

-plaintiff may prove defendant caused their injury/loss but defendant may not be deemed liable for the harm if harm suffered is too remote
-injury or loss must be reasonably foreseeable
-outcome does not have to be exact

Question 26

negligence limitation of actions

Answer 26

personal injury-within 3 years
property damage or economics loss-within 6 years

Question 27

negligence defences (list)

Answer 27

absence of one or more of the elements of negligence
contributory negligence
voluntary assumption of risk

Question 28

negligence defence- absence of an element

Answer 28

While not a defence in itself, you must remember that the defendant may try to demonstrate that one or more of the elements of negligence has not been proven by the plaintiff, on the balance of probabilities. That is either:
a duty of care was not owed; or
there was no breach of the duty of care; or
causation is not established; or
no loss or harm has been suffered, or the harm/ loss was too remote.

Question 29

negligence defence- contributory negligence

Answer 29

The defendant may try to prove the plaintiff contributed to their own loss or damage by failing to take reasonable care for themselves.
To establish contributory negligence the defendant must prove both that:
the plaintiff behaved negligently and did not take reasonable care in taking sensible steps to avoid a foreseeable risk of injury; and
the plaintiff’s negligence was a contributing cause of the damage suffered.
Contributory negligence is not a complete defence. If the defence succeeds the court will reduce the defendant’s liability to the extent of the plaintiff’s contribution. The court will reduce the damages awarded to the plaintiff to the percentage the court deems they contributed to their injuries (s26 of the Wrongs Act 1958 (Vic)).
When determining the extent of contributory negligence the judge must determine:
The culpability of each party in terms of how far they strayed from the standard of care expected of a reasonable person; AND
The relative importance of the acts of the parties in causing the injuries.

Question 30

negligence defence- voluntary assumption of risk

Answer 30

The defence of volenti non fit injuria refers to the voluntary acceptance of the risk of injury.
The Latin term translates to ‘to a willing person, no injury is done’.
The defendant must show the plaintiff:
had full knowledge of the risk
- knew all of the facts and extent of the potential danger. In situations where the risk is obvious, the plaintiff is assumed to have been aware of the risk.
appreciated and understood the risk involved
-Not enough to show plaintiff knew there was danger involved in the activity or engaged in dangerous recreational past-time. Plaintiff must also have an understanding and appreciation of the extent of the specific risk involved and the potential repercussions
freely and voluntarily agreed to incur the risk of injury
plaintiff must have consented, either expressly or implicitly, to the risk of injury that occurred, therefore giving up their right to bring action. This tends to occur by having the plaintiff sign a consent form, waiver or contract that states they understand and accept the risk involved.
Under s53 of the Wrongs Act a risk is ‘obvious’ if it is one that ‘in the circumstances, would have been obvious to a reasonable person in the position of that person’. It is up to the plaintiff to prove that the risk was not obvious.
Voluntary assumption of risk is a complete defence, that is it will remove the defendant’s liability.

Question 31

define remedy

Answer 31

Remedies: are court orders that aim to enforce a right by preventing a civil breach, or correct a civil breach and return the plaintiff to the position they were in prior to the breach by the defendant. For example, damages are a type of civil remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach.

Question 32

4 types of remedy for negligence

Answer 32

Specific damages – a type of compensatory damages that have a precise value and can be calculated objectively e.g. compensation for medical expenses, or loss of earnings.
General damages – a type of compensatory damages that do not have a precise value and cannot be quantified. They are awarded where the plaintiff has endured general pain, suffering, loss of quality of life, shortened life expectancy etc. For example, if the defendant’s actions result in the inability of a plaintiff to walk or live independently.
Aggravated damages – a type of compensatory damages that aims to compensate for additional embarrassment or humiliation caused.
Exemplary damages – aimed to punish the defendant and make an example of them to deter the community from behaving in a similar way.

Question 33

impact on plaintiff- negligence breach

Answer 33

Loss of life e.g. workplace injury
Permanent physical incapacity
Serious physical injury e.g. requiring surgery
Emotional impact (e.g fear of certain places)
Loss of wages and earning ability
Unemployment
Effect on mental health (eg depression, stress related claims for workplace injury)
Cost of medical treatment and continuing court costs
Impact on family members

Question 34

impact of negligence breach- defendant

Answer 34

Loss of business due to damaged reputation (media coverage)
Public humiliation e.g. resulting from adverse court finding
Legal costs to defend the claim and in some cases make a counterclaim (e.g. contributory negligence)
Need to sell assets to pay large award of damages
Cultural changes e.g. major negligence cases can prompt improvements to avoid further negligence
Class actions – time consuming, with potentially large payouts.

Question 35

define defamation

Answer 35

Defamation: is an area of civil law that aims to protect a plaintiff from having their reputation unfairly damaged. An action in defamation cannot be pursued if the defamatory statement is true, meaning it only protects the plaintiffs from false statements that unjustly damage their reputation, striking an appropriate balance between protecting a person’s reputation and the protection of free speech.