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legal yr 10 > unit 3: civil law > Flashcards

unit 3: civil law Flashcards

1
Q

Aim of Civil law

A

Protection of individual rights

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2
Q

Parties involved…

A

Plaintiff
Defendent

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3
Q

Define Plaintiff

A

The party whose rights have been infringed and has suffered a loss as a result.

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4
Q

Define Defendent

A

The party who has allegedly committed the wrongdoing and therefore is being sued.

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5
Q

Who has the BURDEN of proof?

A

[responsibility]
The plaintiff who therefore must prove the elements of the wrongdoing.

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6
Q

What is STANDARD of proof mean?

A

[degree/extent]
On the balance of probabilities. It means the wrongdoing is more likely to have occurred than not.

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7
Q

What is the outcome of civil cases?

A

Remedies

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8
Q

Jury

A

optional in civil trials on agreement the partied in County and Supreme courts. Not used in appeals. Made up of 6 jurors.

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9
Q

Methods of Dispute Resolution [6]

A

Negotiation
Letter of Demand
Mediation
Conciliation
Arbitration
Litigation (judicial determination)

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10
Q

Negotiation

A

It involves the parties in dispute to discuss the problem , either orally or through the exchange of written documents, and presenting options for resolution in an effort to come to an agreement about how to settle it.

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11
Q

Letter of Demand

A

A letter of demand can be sent by a solicitor to add gravity to the claim and communicate the seriousness of the complaint to the other party

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12
Q

Mediation

A

-The parties meet with an independent third party who acts as the mediator.
-Mediator may not suggest a resolution. Parties must reach agreement themselves. Mediators merely facilitate discussion.
-Not necessarily legally binding. But if so, agreement must be in contact form.
-Most appropriate for resolving disputes that are not legally complex.
eg. Neighbourly disputes/ Family law disputes

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13
Q

Conciliation

A

-The parties meet with an independent third party who acts as the conciliator.
-Conciliator takes an active role in the discussion in identifying the issue and makes suggestions for resolving dispute, inc. terms of settlement.
h/w outcome decided by parties
-Not necessarily legally binding. But if so, agreement must be in contact form.
-often used in more compex commercial disputes as conciliators have more expertise in the subject matter of dispute
eg. consumer disputes/ landlords and tenants

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14
Q

Arbitration

A

-The parties to the disagreement argue their case before an independent arbitrator.
-Arbitrator enforces a decision as to how best to resolve the issue.
-Both parties MUST COMPLY with decision of arbitrator.- even if only one party applies for arbitration
-outcome is legally binding to BOTH parties
-engage when other dispute resolutions haven’t worked
eg. complex commercial disputes

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15
Q

Litigation

A

The process of taking legal action.
Infringed party seeks remedy via court system because alternative dispute resolution (ADR) haven’t worked. But must’ve tried ADR first.
The court decision (judge) will be determined by civil jurisdiction (power/system) and amount of damages the plaintiff is seeking.

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16
Q

Civil Court Jurisdiction

A

[power of hearing cases]

Magistrates court: hears civil disputes involving claims up to $100,000.
County court:
-hears civil matters with unlimited amount ($)
-appeals from Mag. court
Supreme Court:
-TD: hears larger civil disputes with unlimited amount ($)
-Court of Appeal: hears appealed decisions in COUNTY or TD courts.

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17
Q

Breach

A

-fault on the defendant’s behalf, therefore a person is eligible to sure for compensation or other forms of remedy.
-[someone] has failed or violated their responsibility under tort law.

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18
Q

script for breach

A

Secondly, [plaintiff] must prove that [defendant] breached or failed to uphold their duty of care.

It is reasonably foreseeable that [act/omission] would cause significant harm because ______.
Therefore, a reasonable person in the position of [defendant] would have taken precautions such as______.
As the defendant fell below this standard, they breached their duty of care.

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19
Q

Causation

A

A connection between the actions of the defendant and the loss suffered by the plaintiff. [direct link]
shown by plaintiff

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20
Q

script for causation

A

Thirdly, [plaintiff] must prove causation, that [defendant)’s breach was a necessary condition of their loss and there is a direct relationship between the two elements. But for [breach], [plaintiff) would not have suffered [loss].

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21
Q

Loss

A

in order to receive a remedy by the court, plaintiff must suffered some loss [harm] due to defendant’s breach such as:
-personal injury
-economic loss
-loss of reputation
-pain and suffering
-loss of income
-death

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22
Q

Limitation of Actions/ Statuary Limitations

A

[time limits to initiate action]
In Victoria, the Limitation of Actions Act 1958 (Vic) sets limitation periods for certain claims
- Personal injuries has a limit of 3 years
-Defamation has a limit of 1 year.
-Contract has a limit of 6 years

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23
Q

Time frame is extended if…..

A

application to court is approved under JUST and REASONABLE circumstances.

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24
Q

Non-Statuary Limitations

A
  • Plaintiff not having the funds to pursue the claim [cost of legal action]
  • Defendant has insufficient funds to pay any damages that might be awarded to the plaintiff.
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25
Q

Tort law

A

A tort is a CIVIL WRONG.
It is a situation where one person is harmed by another and this harm gives right to the rise the sue.

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26
Q

Types of torts

A

Negligence
Defamation

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27
Q

Tort law is developed in…

A

the legislation (statute law) and judge made law (common law)
-Wrongs Act 1958 (Vic)= info. abt negligence
-Defamation Act 205 (Vic)

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28
Q

The tort of negligence aims specifically..

A

to ensure that a party who owes a duty of care to another party does not breach that duty, or is held accountable if they do.

29
Q

Who owes a Duty of Care?=types of Neighbor relationships

A

-land owner and tenant
-occupier of land and visitor of land
-teacher and their student
-doctor and their patient
-manufacturer and the consumer
-employer and their employee
-road user and another road user

29
Q

Negligence Elements

A

proven on the balance of probabilities:
1. The negligent party must have owed a duty of care
2. They must have somehow breached their duty; and
3. The breach of duty of care caused the plaintiff of suffer loss or harm.

30
Q

Neighbor:

A

In legal terms, ‘one’s neighbor’ is anyone who could be injured by your actions or omissions.

30
Q

Neighbor principle:

A

One must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour.

31
Q

Script for Negligence elements:

A

The plaintiff, [___], must prove that Silwood owed her a duty of care, breached that duty and caused her to suffer loss.
Duty of care:
Firstly, [plaintiff] must prove that [defendant] owed them a duty of care, meaning that [defendant] was responsible for preventing foreseeable harm.
Per the neighbor principle established in Donoghue v Stevenson, it is reasonably foreseeable that the actions or omissions of a [___] directly impact a [___].
(If applicable - e.g. doctor patient) This duty of care relationship is established under law.
Breach:
Secondly, [plaintiff] must prove that [defendant] breached or failed to uphold their duty of care.
It is reasonably foreseeable that [act/omission] would cause significant harm because____.
Therefore, a reasonable person in the position of [defendant] would have taken precautions such as ____.
As the defendant fell below this standard, they breached their duty of care.
Causation:
Thirdly, [plaintiff] must prove causation, that [defendant)’s breach was a necessary condition of their loss and there is a direct relationship between the two elements. But for [breach], [plaintiff] would not have suffered [loss].

32
Q

Defences to the Tort of Negligence:

A
  1. Lack of elements
  2. Voluntary assumption of risk.
  3. Contributory negligence
33
Q

Lack of Elements:

A
  1. No duty of care was owed
    [not a ‘neighbor relationship’]
  2. The duty of care was not breached
    [far-fetched, fanciful, not logically predicable, not reasonably foreseeable]
  3. No loss or harm occurred or if so, it was caused by other means.
    [intervening act]
33
Q

Voluntary Assumption of Risk [full defence]

A
  • fully aware of the risk
  • fully appreciated nature and extent of risk
  • freely and willingly accepted the risk
34
Q

Contributory negligence
[partial defence]

A

actions of plaintiff contributed to their own loss + failed to ensure own safety

-if intoxicated, this defence no apply -> this is partial defence bc doesnt apply to everyone

35
Q

The tort of defamation aims specifically..

A

to protect the reputation of individuals against unjustified attempts to discredit their character in the eyes of others in the community

36
Q

Publication/communication to a 3rd party

A

-broadly construed to include visual/verbal statements across all media:
writing/ print or online media/ drawings/ speech/ blogs/ vlogs

-individual who makes/shares/reposts defamatory statements are called ‘publisher’.

-must be anyone else other than aggrieved [person that was unfairly treated eg. plaintiff] = general public or small group

36
Q

Defamation elements

A
  1. The statement was defamatory
  2. The statement identified the plaintiff
  3. The defamatory statement was published/communicated to a third party.
37
Q

The statement was defamatory

A
  • blatant lie, false representation/imputation/claim
    -reputation has been damaged and lowers social standing in the community

eg. racist, criminal, immoral, sexist, fraudulent

37
Q

The statement identified the plaintiff

A

-not necessarily by name h/w people can reasonably conclude
-they can also be defamed as a part of a group that has been specifically referred to
-untrue/unidentified statement won’t cause action for defamation

38
Q

Defences to Defamation:
Lack of elements

A

unable to establish all defamation elements are present, therefore defamation cannot have occurred

38
Q

Defences to Defamation

A

achieves balance between a person’s freedom of expression (defendent) and another’s right to protect their reputation (plaintiff).

-lack of elements
-justification
-honest opinion
-justification

38
Q

Defences to Defamation:
Justification

A

USED WHEN ONLY 1 DEFAM. STATEMENT

statement is substantially true (vast majority is true).
->small inaccuracies don’t matter as long as core imputation is substantially true= incorrect number and amounts

E.g. Commits an act of indecent exposure in front of 30 or 40 ppl.–> value doesn’t matter but act of indecent exposure is SUBSTANTIALLY TRUE

39
Q

Defences to Defamation:
Honest Opinion

A

Individual are protected from being sued for stating honest opinion.
- statement was an opinion and not written fact
- opinion based on proper material
- opinion was a matter of public interest= health, entertainment, politics, safety

E.g. A food critic is protected of defamation if they publish a negative review of a restaurant’s food.

40
Q

Defences to Defamation:
Coontextual Truth

A

USED WHEN MULTIPLE DEFAM. STATEMENT
-> have to prove most serious

applies when many defamatory [untrue] statements are published alongside substantially true statements

E.g. A person committed indecent exposure. Publication correctly stated fact but if stated that they used offensive language that wouldn’t matter. This is because indecent exposure is the core allegation [most important] and is substantially true and the slight inaccuracies wouldn’t matter and do not further harm plaintiff’s reputation.

41
Q

A legally binding agreement is…

A

an agreement is an exchange of promises between two people or parties that is recognised by law.

-clarifies rights and responsibilities of ppl who entered an agreement
-must read and understand before signing

42
Q

Elements of a Legally Binding Agreement

A
  1. Intention to create legal relations
  2. Agreement between the parties- (offer and acceptance)
  3. Consideration
43
Q

Elements of a Legally Binding Agreement
1. Intention to create legal relations

A

It involves creating legal relations via a written document in the form of a contract which both parties read, agree on and sign.

-can also be demonstrated through actions and behaviours
-BOTH PARTIES MUST show the intention to create a legal relation for it to be legally binding and enforceable.

44
Q

Social agreements

A

Not all agreements are legally binding.

A social agreement is usually between friends and family.

E.g. Verbal agreement between M and her mum if M get an A for Legal she’ll get $100.

45
Q

Elements of a Legally Binding Agreement
2. Agreement- Offer and Acceptance

A

Agreement between parties, a party can include one or more ppl.
e.g. one person or two or more people, business, organisation…
Two parts:
Offer and Acceptance

46
Q

what are offers?

A

offers can be…
-written or spoken
-involves making a promise/exchange tem/s
-can require certain conditions be met inorder for acceptance to be valid
- revoked= withdrawn prior to acceptance
-accepted= yes
-rejected=no
-lapse= offer has to be accepted w/in time frame or no longer an offer = expired
-or a counter-offer can be made no, a new offer is made in exchange of party roles

47
Q

what is acceptance?

A

An acceptance is made by the party to whom the offer was made. The party accepting the offer is called the offeree.
->written, spoken or by conduct [must be clearly communicated]
-> Once accepted cannot be withdrawn
-> acceptance must be made w/in the prescribed time= reasonable time
->cannot be accepted by silence

48
Q

what is consideration

A

consideration is the value of the promise of what is exchanged between the parties.
= doesn’t have to be money
=consideration can be just one party benefiting

49
Q

what is capacity

A

Capacity refers to the ability that a person has to be legally capable of entering into a contract or properly understanding their obligation under a contract.
ppl who are subjected to these legal restrictions:
- Aus. citizens
-bankrupt or in jail
therefore, the contract would be void

50
Q

people who lack the capacity

A
  • those who are mentally ill
  • intoxicated people
  • those with an intellectual disability
    -minors- children under 18

as they are not capable of fully understanding the terms, obligations and responsibilities they would need to comply with.

51
Q

void

A

the contract is of no legal value and essentially does not exist

52
Q

voidable

A

able to be ended or cancelled.

A voidable contract is one of the parties may choose to proceed with the contract even though the other party has done something which could in theory allow them to end (or terminate) the contract.

53
Q

necessities

A

necessities are those things that a minor needs to maintain the standard of living that they currently enjoy.

54
Q

purpose of civil remedies

A

the general purpose of a remedy is to restore the plaintiff to the position they were in prior to infringement of their rights.

55
Q

two types of remedies

A

damages
injunctions

55
Q

what are injunctions

A

a court order to force a party to complete or stop an action in an attempt to rectify the situation which has arisen

55
Q

what are damages

A

an amount of money to be paid to the infringed party to compensate for losses suffered.

55
Q

what are specific damages

A

awarded to compensate the plaintiff for items that can be calculated exactly eg. wages

56
Q

what are general damages

A

awarded to compensate the plaintiff for pain and suffering. These cannot be calculated exactly
eg. emotional stress, loss of enjoyment from walking and working

56
Q

what are aggravated damages

A

awarded to compensate for humiliation and insult

-awarded when defendent’s conduct was so outrageous that an increased award is necessary to appropriately compensate injury to a plaintiff’s ‘proper feelings of dignity and pride’.

56
Q

restrictive injunctions

A

prevent a party from undertaking an action
eg. an order stopping a building from being destroyed

57
Q

mandatory injunctions

A

compel a party to perform an action.
eg. order to remove smth from one’s land

legal yr 10 (3 decks)

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