Week 3 Everything

Question 1

Forms of legal liability

Answer 1

Harmful conduct can lead to:

Criminal liability 
Tortious liability 
Statutory liability 
Vicarious liability 
Contractual liability

Question 2

FORMS OF LEGAL LIABILITY: Criminal Liability

Answer 2

Criminal Liability attaches to acts which constitute a crime. It involves a relationship between an individual and Government on either a Federal or State level. If the harm caused to another constitutes a crime, this act will be prosecuted and punishment in some form, will eventuate. Both Federal and State governments have laws in place which deal with criminal matters.

Question 3

TORT LAW

Answer 3

Some harmful acts may be defined as a ‘tort’. A tort is a civil wrong.

Question 4

A tort is a civil wrong.

This brief definition says two things:

Answer 4

There is a wrong doing; This wrong doing committed attaches to a civil jurisdiction. This means the dispute is between two or more individuals: no one is accused of committing a crime. It also means that the wrong doing in this context, does not involve a criminal prosecution.

Question 5

This does not mean that a tort may not also constitute a crime. It can.

Answer 5

Example: The tort of deceit may constitute a civil wrong and form the subject of a civil action. It may also constitute a crime and be the subject of an action in a criminal jurisdiction. The crime is that of fraud. So one act of harmful wrong doing may constitute both a tort and a crime.

Question 6

Tortious liability: tort law liability explained

Answer 6

The liability which attaches to the commission of a tort derives from a breach a civil law on either a Federal or State level and which applies to every person equally.

Question 7

Tort law examples

Answer 7

I may not trespass on your land and you may not trespass on mine. I am prohibited from defaming you and you, me. I may not be negligent towards you, nor you towards me. Tort law therefore derives from a legal rule or principle which is applied by a Government to every individual in society equally, and to which liability attaches if that rule or principle is breached by that individual.

Question 8

Tort distinguished from contract

Answer 8

Tort law is different from contract law where the parties themselves determine what their rights and liabilities are, by agreeing to the terms of the contract. They are responsible for the type of breach and its importance. The promises agreed to, therefore, can literally be about anything at all `1and that is acceptable, provided the subject matter agreed to is a legal one and so constitutes a legally enforceable contract.

Question 9

Tort distinguished from contract

Examples: A contract to deliver goods on a certain date - at which time the goods will be paid for.

Answer 9

The breaches which may arise here are in relation to the failure to deliver the goods -and if delivered, the failure to pay. A contract to sell a car to A in return for which A has agreed to pay a specific price. The breaches here will arise if the car is sold to someone other than A - and if sold to A, A’s failure to pay the agreed sum.

Question 10

Tort distinguished from contract: uniformity

Answer 10

Tortious law is more uniform than contract law when it comes to what constitutes a breach of the law because in tort law, the law applies to every person in exactly the same way.

Question 11

Tort distinguished from contract: uniformity examples

Answer 11

No one is permitted to trespass on another’s land.

No one is permitted to defame another.

The type of breach of the civil law is therefore, more uniform in tort than in contract law.

Question 12

CONTRACT LAW

Answer 12

This is a liability which arises from the relationship which exists between two or more parties because they have entered into a contract with each other and agreed to its terms. Contractual liability arises as a result of the breach of one of more promises made by a party to the contract. A breach of contract may also constitute a tort.

Question 13

Contractual liability example

Answer 13

If an employee is injured as a result of the careless act of an employer, that employee may take action in the tort of Negligence and sue for breach of contract on the part of the employer in relation to the duty implied in a contract of employment for the employer to take reasonable care to ensure employee safety.

Question 14

STATUTORY LIABILITY

Answer 14

Sometimes the wrongful action committed, may, in addition to constituting a crime, a tort, and/or a breach of contract, amount to a breach of a Statutory provision.

Question 15

STATUTORY LIABILITY example

Answer 15

The sale of a defective product may breach one or more of the statutory guarantees in the Australian Consumer Law (ACL) which apply to the retailer and/or manufacturer. In addition, such a breach may also amount to a breach of contract and may form the basis of a suit in the tort of Negligence.

Question 16

Distinction Between Criminal Law and Civil Law

Answer 16

The commission of a crime involves the presence of police and charges and arrests being made which are usually followed by a prosecution by the department of public prosecutions which is an arm of the government. Any law which does not involve the above factors and parties is known as civil law – that is, law which is the subject of dispute between two or more individuals and therefore includes the two areas already discussed – Tort and Contract law.

Question 17

some more differences between criminal and civil law

Answer 17

In a criminal matter the party alleging the commission of a crime is referred to as the prosecution.

The person charged is referred to as the accused.

In a civil matter (including tort or contract law), the person suing is called the plaintiff.

The person being sued is referred to as the defendant.

Question 18

Vicarious Liability

Answer 18

The liability owed for the harm by another person. This often arises in the context of the relationship between employer and employee. The employer is liable for the harm caused to another by an employee provided the employee was undertaking authorised work. The fact that the employee was performing such work in an unauthorised matter does not affect the liability of the employer.

Question 19

Types of trespass

Answer 19

To land

To goods in the form of detinue or conversion

To the person in the form of:
Assault
Battery
False Imprisonment.

Question 20

THE TORT OF TRESPASS

Answer 20

The commission of the tort of trespass involves the intentional or negligent interference, directly, either with the plaintiff’s person or property. If one or more of these elements of the definition is missing, then an action in trespass in general, will fail.

Question 21

Trespass To Land

Answer 21

A person commits the tort of trespass to land if they interfere with another person’s exclusive possession of land and the interference is direct; and the interference is either intentional or negligent; there is no consent or lawful justification for the interference.

Question 22

Trespass To Goods

Answer 22

A person commits the tort of trespass to goods if they interfere with another person’s possession of goods and the interference is direct and the interference is either intentional or negligent and there is no consent or lawful justification for the interference.

Question 23

Assault

Answer 23

A person commits the tort of assault if they cause another person to develop an apprehension of imminent physical contact; and the act is direct; and the act is either intentional or negligent; and there is no consent or lawful justification for the act. An example is speaking aggressively and close to someone’s face. No physical contact is necessary for behaviour to constitute assault.

Question 24

Battery

Answer 24

A person commits the tort of battery if they cause some sort of physical interference with the body of another person; and the act is direct; and the act is either intentional or negligent; and there is no consent or lawful justification for the act.

Question 25

False imprisonment

Answer 25

A person commits the tort of false imprisonment if they cause another person to be totally restrained; and the act is direct; and the act is either intentional or negligent; and there is no consent or lawful justification for the act.

Question 26

Public nuisance

Answer 26

The tort of nuisance may take one of two form. A person commits the tort of public nuisance if they interfere with another person’s use and enjoyment of public land (e.g. a street or a park); and the other person suffers actual harm or damage over and above that suffered by members of the public generally; and the interference is indirect; and the interference is either intentional or reckless; and the interference is sustained and unreasonable.

Question 27

Private nuisance

Answer 27

A person commits the tort of private nuisance if they interfere with another person’s use and enjoyment of private land; and the other person has an interest in that land (e.g. they are the owner or a tenant); and the other person suffers actual harm or damage; and the interference is indirect; and the interference is either intentional or reckless and The interference is sustained and unreasonable.

Question 28

Defamation

Answer 28

A person commits the tort of defamation if they publish to a third party, in spoken or written form, a statement about another person that would damage the reputation of the other person. The other person must show that the statement about them was defamatory; and the statement identified them; and the statement was published to a third party.

Question 29

TORT OF PASSING OFF

Answer 29

A person commits the tort of passing off if they make a misrepresentation (expressly or by implication) that their goods or services are connected with another person or have the other person’s endorsement or approval; and the misrepresentation is made in the course of a trade; and the misrepresentation is intended to deceive potential purchasers.

Question 30

Deceit

Answer 30

A person commits the tort of deceit if they make a statement of fact to another person knowing that it is false; and they make the statement with the intention that it be relied upon by the other person; and the other person relies upon the statement; and the other person suffers harm as a result of relying upon the statement.

Question 31

Criminal penalties

Answer 31

Criminal penalties range in severity, and include warnings, fines, imprisonment and the confiscation of criminal profits. Fines are by far the most common criminal penalty, and range from nominal penalties to penalties as high as $10 million

Question 32

DAMAGES

Answer 32

Damages is monetary compensation. The purpose of an award of damages is to compensate the plaintiff for the loss or injury suffered as a result of the defendant’s harmful conduct. Damages are assessed ‘once and for all’. The plaintiff is not able to return to court at a later date seeking further compensation, and it is therefore necessary to estimate any future losses the plaintiff may incur as a consequence of the harmful conduct.

Question 33

INJUNCTION

Answer 33

An injunction is a court order whereby a person is required to do or refrain from doing certain acts. An injunction will be an appropriate remedy if the person is committing a tort on an ongoing basis, such as nuisance, trespass or defamation. If they fail to comply with the injunction they will face civil or criminal penalties.