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Unit 1 & 2 Legal Studies > Unit 2 - Chapter 5 - Civil Law > Flashcards

Unit 2 - Chapter 5 - Civil Law Flashcards

1
Q

Can the government be a party to a civil case?

A

Yes the government can be a party to a civil case because individuals can sue them if they believe their actions caused them a loss or vice versa.

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2
Q

What does civil law do?

A

It protects the rights of individuals by providing a means for returning the wronged person to the position they were in before the wrong was done. This is done through civil remedies, the most common of which is monetary compensation paid by the party in the wrong to the party whose rights have been infringed.

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3
Q

What can a person do when their rights have been infringed?

A

They can sue the person who has infringed their rights under criminal law. This means hey start court proceedings.

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4
Q

Why do we need civil law?

A

. Protect the rights of individuals and make sure they aren’t exploited
. Provides guidelines for acceptable behaviour in many situations where individuals interact

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5
Q

What are the parties in a civil case and criminal case?

A

Civil:
. Plaintiff - person bringing a civil action
. Defendant - person against whom a civil action is taken
Criminal:
. Prosecution - person bringing the case
. Accused -

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6
Q

What is civil law?

A

It is all about returning the rights of those who have had their rights infringed ti their original position. It deals with disputes between two individuals or groups and is needed because it not only protects the rights of individuals but also provides guidelines for acceptable behaviour.

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7
Q

What is the main purpose of courts?

A

To settle disputes that arise in the community. A court’s primary responsibility is to apply existing laws to the facts in cases that come before the court and to make a determination on the case based on those laws.

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8
Q

What is the secondary role of courts?

A

The secondary role of courts is law-making. it is often referred to as judge-made law, case law or common law. Law made through parliament is known as statute law or legislation.

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9
Q

Why does court law-making occur?

A

It is sometimes difficult for a court to apply the law in a particular case because parliament may not have already created a law to cover a certain situation present in court. However, a decision must still be made, therefore the judge must make a decision and provide reasons for it. (This can also occur if a relevant law is unclear in its meaning).

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10
Q

What is precedent?

A

A court decision that is followed by other courts lower in the hierarchy.

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11
Q

What is the most important part of the judgement?

A

Ratio decidendi - the reason for the decision (the binding part of the decision)

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12
Q

What is binding precedent?

A

This is precedent which must be followed by lower courts in the same hierarchy. Eg. A decision in the county court is binding to the magistrates court, but not binding to the high court.

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13
Q

How is a precedent considered to be binding?

A

. the material facts of the precedent are similar to the material facts of the new case
. the precedent was set in a higher court in the same hierarchy as the new case.

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14
Q

What is persuasive precedent?

A

These are precedents from others states or countries which are therefore not binding because they are outside the victorian hierarchy. However, courts may look to these outside precedents and take them on if a similar case arises.

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15
Q

What is an example of a persuasive precedent?

A

Donoghue V Stevenson
Persuasive on
Grant V Australian Knitting Mills

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16
Q

What is obiter dictum?

A

A remark made by a judge in passing, which is not binding because it is not part of the reason for the decision.

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17
Q

What are the four main ways to develop or avoid earlier precedents?

A 
RODD
. Reversing
. Overruling 
. Distinguishing 
. Disapproving
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18
Q

Explain the following way to develop or avoid earlier precedents: Reversing

A

This is when the same cases are heard again through appeal in a higher court, however the higher court makes a different decision. The new decision now applies whilst the old one doesn’t.

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19
Q

Explain the following way to develop or avoid earlier precedents: Overruling

A

This is when a different case with a similar scenario is held in a higher court, but this higher court makes a different decision. The original precedent is therefore replaced by the new one.

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20
Q

Explain the following way to develop or avoid earlier precedents: Distinguishing

A

This is when a court evaluates a cases main facts to see if it is similar enough to a past case with binding precedent. If the main facts are different, then the precedent doesn’t apply.

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21
Q

Explain the following way to develop or avoid earlier precedents: Disapproving

A

This is when the court expresses disapproval of previous precedent but is bound by it. However, when deciding a future similar case heard in a higher court they may choose to agree with the lower disapproving court and decide to overrule the precedent.

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22
Q

What is statutory interpretation?

A

This is how a judge interprets a piece of legislation because some words may be ambiguous and need to be clarified. This clarification must then be used in future cases.

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23
Q

What is a tort?

A

A civil wrong; an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages.

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24
Q

What is the main aim of torts?

A

The main aim of the law of torts is to return the wronged person to the position he or she was in before the wrong occurred, by providing compensation or damages to the person whose rights have been infringed.

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25
Q

What are the main torts?

A

. Negligence
. Trespass
. Nuisance
. Defamation

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26
Q

What is the tort of negligence?

A

Negligence means a failure to take reasonable care. A person is obliged to take reasonable cade in regard to other people, where it is reasonably foreseeable that other people could be harmed by their actions or omissions. This means they are responsible for any harm suffered by a person.

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27
Q

What are the key principles of negligence?

A

When bringing an action for negligence it must be proved that:
. the person who was negligent owed a duty of care to the person injured
. the duty of care was breached
. the breach of the duty of care caused loss or damage (causation) and
. the wronged person has suffered loss or damage.

If it can be proved that the person was owed a duty of care and that the duty of care was breached and harm was caused, then the wronged person can claim compensation, normally by seeking an order for damages.

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28
Q

When does a person owe a duty of care?

A

. When the risk was foreseeable (the person knew or ought to have known about the risk)
. The risk was significant or not insignificant (not far-fetched or fanciful) and
. In the circumstances, a reasonable person in the same position would have taken precautions to
eliminate any risk of harm.

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29
Q

What are the defences to negligence?

A

The defendant can claim that the plaintiff has not established the four elements of negligence. If all elements are proven, the defendant may have to rely on one of the following defences.
. Contributory negligence
. Assumption of risk (violenti non fit injuria)

30
Q

Explain the following defence to negligence: Contributory negligence

A

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

The court will then look at:
. the defendant’s actions to determine the degree of care taken
. what the defendant knew or ought to have known about any associated risks
. and whether a reasonable person in the same position would have acted in the same way as the defendant

31
Q

Explain the following defence to negligence: Assumption of risk (volenti non fit injuria)

A

The defence of volenti non fit injuria refers to the voluntary acceptance of the risk of injury.
The defendant must prove that:
. the plaintiff was aware of an obvious risk
. and that he or she voluntarily chose to take the risk

32
Q

What is the tort of defamation?

A

The tort of defamation is aimed at protecting an individuals rights to a good name and reputation. Defamation can be in the form of written statements or libel and spoken words or slander.

33
Q

What are the key principles of defamation?

A

To prove defamation it must be shown that:
. a statement is defamatory
. the defamatory statement refers to the plaintiff
. the statement has been published (communicated to people other than the person it refers to) by
the defendant.

34
Q

When is a statement defamatory?

A

When it lowers a person’s reputation or standing in the community, exposing them to ridicule, contempt or hatred. The onus is on the plaintiff to prove that his or her reputation has been damaged by the publication of such material.

35
Q

Extra defamatory notes.

A

. It is not necessary to prove that the defendant had the intention to hurt the plaintiff
. The defamatory statement does not need to name the plaintiff (as long as people can reasonably deduce who the defamatory comment is referring to)
. The statement must be communicated to a person other than the plaintiff

36
Q

What are the defences to defamation?

A 
The defendant may argue that any or all of the three principles of a defamation action have not been proved. If not, the defendant may rely on any of the following defences:
. Justification
. Contextual proof
. Absolute privilege 
. Publication of public documents
. Fair report of proceedings of public concern
. Qualified privilege
. Honest opinion
. Innocent dissemination
. Triviality
37
Q

Explain the following defence to defamation: Justification

A

This defence applies when a defamatory statement is substantially true, meaning the core facts of a statement are true.

Eg. person who commits an act of indecent exposure before a crowd of 50 people cannot claim defamation if a publication wrongly states that there was a crowd of 30

38
Q

Explain the following defence to defamation: Contextual truth

A

This applies when a number of defamatory statements are made within the same context and the plaintiff objects to one statement but not all. This means the statement is substantially true and the effect of the untrue statement on the plaintiff’s reputation is insignificant.

Eg. when a publication correctly states that a person caused a serious accident by riding a bike into oncoming traffic while intoxicated, but incorrectly states that the rider was without a bike helmet.

39
Q

Explain the following defence to defamation: Absolute privilege

A

This can be used when the defendant can prove that the defamatory material was published in relation to proceedings of parliament, parliamentary bodies, courts, tribunals or communication between husband and wife.

40
Q

Explain the following defence to defamation: Publication of public documents

A

This is used when it can be proven that the material was a fair copy, summary or extract of a public document, but only if the material was published in the public interest or for educational purposes.

A public document is one readily available from a parliamentary body, court, tribunal, local government or statutory authority.

41
Q

Explain the following defence to defamation: Fair report of proceedings of public concern

A

A defendant can argue that the material was no more than a fair report of proceedings published for the information of the public or for educational purposes.
Proceedings of public concern are those involving:
. a parliamentary body, local government, court or tribunal because their procedures are usually
open to public scrutiny
. government inquiries, law reform bodies, the ombudsman, international organisations or
conferences where governments are represented
. learned, professional, trade, sporting or recreational associations where membership or
contractual issues are involved
. company shareholders or other meetings dealing with a matter of public interest.

42
Q

Explain the following defence to defamation: Qualified privilege

A

This is applicable when the defendant:
. believes the recipient of defamatory information has a moral or legal interest in receiving the
information
. acts without malice or spite
. acts reasonably in the circumstances

43
Q

Explain the following defence to defamation: Honest opinion

A

A defendant may claim that the defamatory material is an expression of his or her honest opinion (as a commentator) rather than a statement of fact.

The matter must be of public interest and the opinion must be based on proper material. Proper material is a statement that is substantially true or relates to public documents or a fair report of proceedings of public concern.

44
Q

Explain the following defence to defamation: Innocent dissemination

A

This protects people who may unknowingly distribute defamatory information, such as printing companies, booksellers, libraries and Internet or email providers.

For this defence to be successful, these people would need to show that they:
. published the material as a subordinate distributor or as an employee or agent of one (a subordinate
distributor is any person other than the author, primary distributor or editor of a publication)
. did not know (nor should have known) that the publication contained defamatory information
. did not have an obligation to check for defamatory material.

45
Q

Explain the following defence to defamation: Triviality

A

This applies when the publisher can show that the plaintiff is unlikely to be harmed by the publication of the defamatory material.

46
Q

What is the tort of nuisance?

A

It recognises the right of a person to reasonable convenience and comfort in life. A nuisance may be private or public.

47
Q

What is private nuisance?

A

This concerns interference with a person’s enjoyment of their land. The actions usually have to be continuous and reasonably serious to constitute nuisance.

48
Q

What is public nuisance?

A

This is both a tort and a crime because is can involve posing a danger to the public which means potential charges and if someone gets hurt civil proceedings can take place.

49
Q

What are the key elements of nuisance?

A

. What inconvenience has been suffered
. Is the interference reasonable
. What actual loss or harm has been caused

50
Q

What are the defences to nuisance?

A

Defences include:
. Claiming that the interference was not serious
. The person making the claim is extremely sensitive (more sensitive than others)

51
Q

What is the tort of trespass?

A

It deals with the interference of a person’s self, goods or land. Remedies include damages to compensate and court orders to retrieve goods.

52
Q

What are the three divisions of trespass?

A

. Trespass of goods
. Trespass to land
. Trespass to person

53
Q

What is trespass to goods?

A

This is the direct and voluntary interference of goods in the possession of another, regardless of whether damage is caused to those goods.

54
Q

What are the elements for the trespass of goods?

A

. Taking goods away from the person in possession of them
. Damaging the goods without actually taking them away
. Meddling with goods (eg. Moving them around or using them)

55
Q

What are defences for trespass to goods?

A

. Consent - a person agrees to having personal goods used or removed
. Accident - where a person takes property genuinely believing it to belong to them
. Contractual rights over property - someone has the right to remove or sell goods under contract

56
Q

What is trespass to land?

A

This is the direct interference, without lawful justification, with another person’s possession of land.

57
Q

What are the elements for trespass to land?

A

. Entering land without permission
. Remaining on land after permission to stay has expired
. Placing things on land without permission

58
Q

What are the defences for trespass to land?

A

. Consent - the plaintiff agreed to having the defendant on their property
. Necessity - eg. Building on fire
. Abatement of nuisance - to remedy a nuisance such as entering land to turn off running water tap which is causing flooding
. Implied licence - entering property to read a gas meter

59
Q

What is trespass to person?

A

There are three types of trespass to person, all of which are actionable. This means damage does not have to be proved.

60
Q

What are the three types of trespass to person?

A

. Assault
. Battery
. False imprisonment

61
Q

What is assault?

A

An assault in civil law does not involve bodily force or contact. It is an act which is without lawful justification which creates reasonable fear that bodily force is about to occur.

62
Q

What are the elements of assault?

A

To prove assault there must be:
. A direct threat to the plaintiff
. Reasonable fear of the defendant
. Knowledge of the threat

63
Q

What are the defences to assault?

A

. Defendant did not pose a direct threat to plaintiff
. Plaintiff was not in fear of defendant
. No knowledge of threat

64
Q

What is battery?

A

This is the unlawful, direct application of force to another person. The effect felt by the attacked must be immediate to be classified as battery.

65
Q

What are the elements of battery?

A

. Direct contact with the body of the plaintiff
. Intention to cause conflict
. The act must be voluntary

66
Q

What are defences to battery?

A

. No direct contact
. No intention to contact
. Action was involuntary
. Self defence

67
Q

What is false imprisonment?

A

This means unlawful imprisonment and it is committed when persons are intentionally, directly and totally prevented from going where they wish.

68
Q

What are the elements to false imprisonment?

A

It must be proven that:
. There was total constraint
. The act of confining the person must be done directly by the defendant
. The act was intentional

69
Q

What are defences to false imprisonment?

A

. Not total constraint
. Act not done directly by defendant
. The act was unintentional

70
Q

What is the difference between criminal and civil law?

A 
. Parties to the dispute
. Standard of proof
. Burden of proof 
. Aim
. Consequences 
. Pre-trial proceedings 
. Instigate action

Unit 1 & 2 Legal Studies (9 decks)

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