Unit 2

Question 1

define civil law

Answer 1

governs disputes relating to the rights of two parties (individuals, groups, or organisations in society) and aims to restore parties to the position they were in before their rights were infringed and they suffered injury or loss

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

-restore plaintiff to original position before they suffered any injury or loss resulting from the defendants breach. -However not always possible such as loss of sight
-monetary compensation

Question 4

Define Negligence

Answer 4

a type of tort (i.e. civil wrong) which involves a breach of a duty of care, causing loss or harm.

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 defamation

Answer 6

Defamation – a type of tort which involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.

Question 7

define nuisance laws

Answer 7

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

Question 8

define wills and inheritance laws

Answer 8

Wills and inheritances – regulate wills, including when they are valid. They give guidelines about the decisions made by a will-maker and how a person’s estate is distributed if there is no will.

Question 9

define contract law

Answer 9

Contract law – governs the validity and enforceability of agreements made between two or more parties.

Question 10

define family law

Answer 10

Family law – deals with disputes between family members, which are of a family nature, such as disputes over the division of property between divorced parties and the parenting of children.

Question 11

define employment law

Answer 11

Employment law – deals with disputes between employers and employees. These disputes in the workplace often relate to pay, conditions, harassment, discrimination and termination of employment.

Question 12

define Equal opportunity and discrimination law

Answer 12

Equal opportunity and discrimination law – aims to protect individuals from bias, prejudice or vilification based on personal attributes such as their sex, marital status, race or religion.

Question 13

define property law

Answer 13

Property law – deals with individuals buying, selling or renting houses and commercial property leases.

Question 14

define consumer protection laws

Answer 14

Consumer protection laws – aims to protect individual’s purchasing goods and services from businesses from having their rights infringed.

Question 15

list types of civil law (11)

Answer 15

-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 16

List the key concepts of civil law when a party SUES another (6)

Answer 16

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

Question 17

What is breach?

Answer 17

-defendant failed to comply with a legal obligation imposed on them
-most civil cases must be proven there was a breach by the defendant
-nature will vary according to the area of law in question
-plaintiff needs to establish defendant is in breach

Question 18

What is causation?

Answer 18

-plaintiff must prove that the inaction/action of the defendant led to the loss or harm they suffered
-important to prove actions of the defendant led to plaintiff’s loss
-needs to be a causal link
-courts consider the ‘but for’ test
-whether defendants’ actions substantially or significantly contributed to the harm
-if harm was not reasonably foreseeable there will be no legal causation -damage is considered ‘too remote’

Question 19

What is loss?

Answer 19

Plaintiff must prove they suffered loss or harm
includes:
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 20

what is Limitation of actions

Answer 20

-restriction on time in which a plaintiff must commence a civil action in court
-once time has passed defendant can raise the defense that it is too late to obtain any kind of remedy
-ensures disputes are resolved efficiently
-delay can risk availability and reliability of evidence
-time period can be extended if court believes it is ‘just and reasonable’

Question 21

what is the burden of proof

Answer 21

-responsibility of proving the facts of the case
-lies with plaintiff
-however, defendant must prove counterclaim if it is raised

Question 22

what is the standard of proof

Answer 22

-degree of extent to which a case must be proven
-civil case = balance of probabilities ‘more probable than not’
-lower standard of proof than criminal trials

Question 23

define plaintiff

Answer 23

party bringing action in a civil dispute. They have the burden of proof and must prove their case on the balance of probabilities by presenting arguments and evidence

Question 24

define defendant

Answer 24

party defending their case in court. Any individual, company or institution that is accused of a civil wrong may be the defendant in a civil claim

Question 25

possible plaintiffs in a civil dispute

Answer 25

-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 26

possible defendants

Answer 26

-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 27

what is a representative proceeding?

Answer 27

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 28

define tort

Answer 28

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 29

when is a person obliged to take care?

Answer 29

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

Question 29

Rights protected by law- negligence

Answer 29

-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 29

define negligence

Answer 29

failure to behave with a level of care to prevent loss or injury to another person, that a reasonable person would have exercised in the same circumstances

Question 30

elements required to establish negligence (list)

Answer 30

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 31

elements of negligence- duty of care

Answer 31

-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 32

elements of negligence- breach

Answer 32

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 33

elements of negligence- causation

Answer 33

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 34

Elements of negligence- injury, loss or damage

Answer 34

-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 35

negligence limitation of actions

Answer 35

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