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Legal SAC #4
8.1, 9.1, 9.2, 9.3, 10.1, 10.2
| Question | Answer |
|---|---|
| civil law | an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes |
| civil liability | the legal responsibility of a party for loss or harm caused to another party because of a breach of civil law |
| civil law purposes | provide guidelines for acceptable behavior, protect teh rights of individual, provide an avenue for people to seek compensation where a breach of civil law has occured, remedy the harm that ahs been suffered |
| provide guidelines for acceptable behavior | establishes what is and not acceptable so that social cohesion is maintained. if these guidelines did not exist then some individuals might exploit or abuse the rights of others |
| protect teh rights of individual | key righst are enshrined in civil law, including the right to be protected from false statements, the right not to be harmed etc |
| tort law | a term that literally means wrong, a wrong that interferes with a persons legally protected interests |
| provide an avenue for people to seek compensation where a breach of civil law has occured | individuals can seek compensation for a breach through the courts, tribunals, complaints bodies, if there were no bodies to help people resolve their disputes, so disagreement may linger in the community, impacts social cohesion and create disharmony |
| remedy the harm that ahs been suffered | when rights have been infringed, civil law provides a way to return teh harmed person to , as far as possible, the position they were in before the harm occured, achived through the awarding of civil remedies |
| remedy | and order made by a court designed to address a civil wrong or a breach. a remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant |
| damages | an amount of money that one party is ordered to pay to another party for loss or harm suffered. it is the most common remedy in a civil claim |
| contract law | an area of civil law governing the validity and enforceability of agreements made between two or more parties |
| contract law purpose | aims to ensure that people who make promises under a contract fulfill those promises or else they may have to compensate the other party to the contract if they fail to comply with it |
| laws relating to wills purposes | aim to provide a consistent set of rules about the way a persons will must be carried out, if a deceased person did not leave a will, teh law sets out the way this must be done to provide a fair distribution of assets |
| laws relating to nuisance purposes | recognise that people should have a right to enjoy and use their land or public land, free from interferences or annoyance, the purpose is to ensure that people can enjoy this right, by estbalishing guidelines on what counts as an interference or annoyanc |
| types of civil law | negligence, trespass, defamation, nuisance, contract, employment( relate to pay, conditions, harassment, discrimination and termination of employment) equal opportunity and discrimination(protects from bias, prejudice or vilification |
| nuisance | a type of tort that involves interference with a persons right to use and enjoy private and/or public property |
| trespass | a type of tort involving the interference with or intrusion upon a person body, property or goods, without the consent of that person |
| wills | a document that specifies how a person would like their assets to be distributed after they die, and who they would like to carry out their wishes |
| plaintiff | a party who makes a legal claim against another party in court, may use a dispute resolution body such as court or tribunal to sue the defendent and try to obtain a remedy to compensate for the loss they have suffered |
| defendent | a party who is alleges to have breached a civil law and who is being sued by a plaintiff |
| sue | to take civil action against another person, claiming that thy infringed some legal right of the plaintiff or did some legal wrong that negatively affected the plaintiff |
| breach | the breaking of or failure to fulfil or comply with a duty or obligation, the plaintiff has to prove there has been a breach by the defendent(has failed to observe a law or obligation imposed on them) |
| the nature of the breach depends on the area of law eg | contract law: plaintiff may allege that the defendant has breached an agreement that was reached between them sexual harassment claim: plaintiff may allege that the defendant breaches the relevant laws that prohibit someone from sexually harassing anothe |
| causation | the direct relationship betwen one event and another event where the first event was the reason event 2 happened and event 2 would not happen by itself without event 1, plaintiff must prove it (needs to identify a casual link) |
| loss | a type of harm or damage suffered by a person. it can involve both economic and non economic loss, plaintiff can only obtain a legal remedy if it can be proven that thye suffered loss or harm |
| loss includes | economic or financial loss, property damage, personal injury, pain and suffering, loss of amenity (loss of enjoyment of life, job satisfaction or family life etc) |
| limitations of actions | the restriction on bringing a civil law claim after the allowed time, a time period within which a wronged party can initiate a claim, once that time has passes then the defendant can use the defense that the plaintiff is too late to obtain any remedy |
| why is this time limit imposed | so that disputes can be resolved efficiently, and so that a defendant does not have to be subjected to a claim a significant time after the alleged acts, a delay in issuing can also impact the reliability of the evidence |
| burden of proof in civil cases | falls on the plaintiff, therefore they have to present evidence to establish that the defendant is in the wrong or liable for the harm that has been inflicted onto them |
| counter claim | a separate claim made by the defendant in response to the plaintiffs claim and is usually heard at the same time by the court |
| standard of proof in civil cases | balance of probabilities |
| balance of probabilities | the standard of proof in civil disputes, requires th plaintiff to establish that is more probable than not that their claim is true, the plaintiff is most likley right and the defendent is most likely wrong |
| civil disputes | a disagreement between tow or more individuals in which one of the individuals makes a legal claim against the other |
| how many parties can be in a civil dispute | there can be more than one plaintiff and more than one defendant, but when faced with a civil claim, the parties need to consider who the plaintiff might be, who the defendent might be |
| possible plaintiffs | an aggrieved party, other victims |
| aggrieved party | the person whose rights have been infringed and who has suffered loss, it is possible for a civil action to incude more than one aggrieved person |
| class action | a legal proceeding in whcih a group of seven or more people who have a claim against the same person based on similar or related facts bring that claim to the court in the name of one person, also called a representative proceeding or a group proceeding |
| parts of a class action | the lead plaintiff represents the group in the proceeding (named as the plaintiff in the class action) and the people who are part of that group are the group members |
| other victims | a plaintiff can be a person who has indirectly suffered loss as a result of the actions of another party eg a person who may suffer loss as a result of the death of a family member may sue another person who they allege has caused their death |
| possible defendents | the wrongdoer, employers, person involved in the wrongdoing |
| wrongdoer | a person or company that ahs been sued by the plaintiff and have alleged that they have direclty causes them loss, could be tow wrongdoers and both of them may be liable for the loss suffered by the plaintiff |
| employers | an employer of a wrongdoer may become a defendant becuase of the principle of vicarious liability, the reasoning is as the employer has a right, ability and duty to control the activities of the wrongdoer therefore they are responsible |
| vicarious liability | the legal responsibility of a third party for the wrongful acts of another (generally arises in negligence claims) |
| what needs to happen for a employer to be liable | the plaintiff needs to establish that the employee was acting in the course of their employment when the wrong occured, must be a connection between the act and the employment |
| person involved in wrongdoing | a person who is involved in the wrongdoing of another may, they could be involved if they aided, assisted or organised, induced or encouraged it, were in any way, directly or indirectly a party to the wrongdoing and conspired with others to cause it |
| accessorial liability | the responsibility imposed on one person for the wrongdoing of another, where there is a connection to the wrongdoing, plaintiff may sue a person involved in wrongdoing |
| duty of care | the legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them |
| negligence | a type of tort that involves a breach of a duty of care, causing loss or harm |
| negligence in context | when a person has failed to take reasonable care that was due to another person, and that failure causes loss to the other person, then the person who owes the duty of care may be found to have been negligent |
| how have negligence laws developed | negligent conduct have developed over many decades through common law and through statute law, the wrong Act 1958 is now the main piece of legislation in Vic that deals with negligence claims |
| purpose of negligence | protect and individuals right to be safe from harm, harm to the person and harm to their property. it is expecting that while engaging with others we are aware of the potential for harm that our actions could cause and we take reasonable steps to avoid it |
| what does the law of negligence aim to do | establish legal principles about when someone is owed a duty of care and what sort of precuations they need to take to fulfill that duty, allow parties to seek an aprop remedy, establish limitations for remedies |
| elements required to establish liability for negligence | duty of care, breach of duty of care, causation, injury loss or damage (if all of these elements can be proved than the pliantiff may be entitles to a remedy such as damages. |
| Element 1: Duty of Care | the plaintiff must first establish that the defendant owed them a duty of care, if the risk or harm was foreseeable, was significant or not insignificant , a reasonable person in the same circumstances would have taken precautions to eliminate risk/harm |
| who is presumed to owe a duty of care to another category of person | teachers and schools-students doctors and nurses-people they are treating motorists who are driving-road users manufacturers-consumers |
| Element 2: Breach of duty of care | duty is breached when a person fails to do what a reasonable person would have done, in determining what standard of care is expected a court considers the likley risk of harm, seriousness of risk, burden of taking precuations to avoid, social utlility |
| Element 3 : Causation | to succeed the negligence claim, a pliantiff must prove causation meaning that the harm was caused by a breach of duty of care and the harm would not have happened if the duty of care was not breached |
| when can it be shown that harm was too remote from the breach of duty of care | eg a person may suffer nervous shock from hearing a car accident but if they didnt actually see the incident then this harm may be too remote from the evnt, or there could be break in the chain if causation |
| nervous shock | a psychological reaction, psychological harm that is more serious than ordinary grief or stress |
| Element 4: Injury, loss or damage | a plaintiff can only seek a legal remedy through the law of negligence if it can be proved that they suffered injury, loss or damage even if it is minor (it can be physical, mental or a damage to property) |
| Limitations of actions (negligence) | Limitations of Actions Act 1958 (Vic) sets out the limitation periods for negligence claims which is the period of time which a civil claim must be made and range from 3-12 years from the date of the act or ommision that resulted in harm, can be extended |
| general negligence claims eg property damage | 6 years limitation period |
| negligence claims where the plaintiff contracted a disease of disorder | 3 years limitation period |
| negligence claims where the plaintiff died or suffered personal injury | either 3 or 12 years (depends on whichever expires first, 12 years from the date of the conduct of the defendant that caused it ot three years from the date on which the cuase of action was discoverable (the date the pliabtiff knew that the harm occured) |
| defences to negligence claim | defendent can claim that the plaintiff has not established the four elements of negligence and can also rely on contributory negligence or assumption of risk |
| contributory negligence | a defence that can be used by a defendant who alleges that the plaintiff contributed to the harm caused by the defendant, if proved this reduces the damages the defendent has to pay |
| determining contributory negligence | a court examines the conduct of the plaintiff and assesses how they might have contributed to their own injury , loss or damage |
| assumption of risk | means to a willing person injury is not done, refers to a defence in which the defendant claims that the plaintiff accpeted the dangers of a known and understoof risk, either expressly or by implication |
| what must the defendent prove | that the plaintiff was aware of an obviois risk and that they voluntarily chose to take the risk |
| possible remedies | a remedy is a legal solution to a breach of civil law so person who has suffered injury, loss or damage as a result of negligence may seek a remedy to adress a wrongdoing |
| compensatory damages | an amount of money awarded to a plaintuff for harm, injry, or other losses suffered, it includes general damages, special damages and aggravated damages |
| special damages | the amount of money that one party is ordered to pay abother party to compensate for losses that are easily quantifiable like medical expenses or loss of wages |
| general damages | a type of remedy that requires the payment of a sum of money to compensate for loss that cannot be easily by quantified and measured in monetory terms like pain and suffering, loss of ejoyment of life, |
| aggravated damages | an aount of money that a defendant may be orderd to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendants conduct, awarded if the defendent shows reckless disregards for the plaintiffs feelings |
| exemplary damages | form of damages that the court uses to make an example of the defendant and deter others from that type of behaviour where the defendant can be shown to have acted consciously and in extreme disregard for the rights of the plaintiff |
| the amount and type of damages awarded depends on various factors including: | whether the loss is financial or non economic, whether the loss is significnat or minor, caps on damages and thresholds that apply |
| impacts on the plaintiff | loss of life, permanent physical incapacity, serious physical injury, emotional impact of the breach, loss of wages and livelihood, unemployment, effect on mental health |
| impacts on the defendant | loss of business, public humiliation, physical injury, costs, need to sell assets |
| right to freedom of expression | protected by the Charter of Huamn Right and Responsibilities Act 2006, does have limitations as we cannot say everything about anyone |
| defamation | a type of tort that involves the action of damaging a persons personal or professional reputation in the community through the communication of false and untrue statements or information |
| law of defamation purpose | seeks to protect individuals against material or free speech that would harm their reputation, aims to protect the character and reputation of individuals against attempts to discredit them, seeks to find a balance of rights |
| rights protected by defamation laws | the right to freedom of expression, to be considered of good character and reputation and that protected by placing limits on freedom of expression, of people whose reputations have been harmed to seek effective and fair remedies , quick method of resolve |
| elements required to establish liability for defamation | the statemant is defamatory, the statement is untrue, the statement refers to the plaintiff, the statement has been published, the defamatory material has caused or is likley to cause serious harm to the reputations of the plaintiff |
| statement is defamatory | if it lowers a persons reputation or standing in the eyes of ordinary members of the community, not necesary to prove that the defendent had intent |
| the statement is untrue | the plaintiff must prove that the defamatory statement is untrue, cannot be defamed if the statement is substantially true |
| the statement refers to the plaintiff | establish that they were the person reffered to in the statement, person defamed does not need to be mentioned by name but sufficient proof must be shown that people who read or hear the statement would reasonably conclude that it was about the plaintiff |
| the statement has been published by the defendent | must prove that the statement was communicated to a person other than the plaintiff, cannot be defamation if comments are private and one on one, however these commets can become actionable once a third person reads, hears or sees the defamatory material |
| The publication caused or is likely to cause serious harm | establishing that the publication has caused harm to their repuatation, this serious harm element msut be determined before the trial commences unless special circumstances(courts consider the extent of readership or grapevine effects) |
| why is this important | this reform prevents trivial or frivolous defamation claims, limits the burden of unwarranted defamation cases on businesses, individuals and the courts and encourages the parties to resolve cases without going to court and so avoiding the costs |
| limitations of actions | must be brought within one year from the date of the publication of the defamatory material, could be extended up to three years but only if the plaintiff commenced an action within one year from teh date of publication |
| defences to defamation claim | justification, contexual truth, absolute privelege, publication of public documents, fair report of proceedings of public concern, public interest, honest opinion and innocent dissemination |
| Justification | applies when a defamatoru statement is subtantially true meaning that the vast majority of the statement is true |
| contextual truth | applies when defamatory statements are made within the same context as statements that are substantially true, and the defamatory statements so not further harm the repuatation of the plaintiff, |
| absolute privilege | gives a defendent complete immunity from being sued in certain cases as a person may be able to use it when thye can prove that the defamatory statement was published in the course of proceedings of parlimentary bodies, courts or tribunals |
| publication of public documents | if the publication statement was a fair copy, summary or extract of a public document (one that is readily available from a parliemntray ody, cort, tribunal, govement etc) but only if the statement was published for the public or for educational purposes |
| fair report of proceeding of public concern | can argue that the statment is a fair report of proceedings and that the report was published for the public information or for educational purposes |
| what do proceedings of public concern involve | a parliementary body, local government, court or tribunal, government inquiries, law reform bodies, learned or proffessional associates where membership is involved and companu shareholders or other meetings dealing with a matter of public interest |
| public interest | if the defendent reasonaby belived that the publication of the matter was in public interest and aims to assist people of bodies in publishing matters that are of public interest |
| factors that are taken into consideration: | the seriousness of the imputataions, if the pblication clearly distinguishes suspicins and allegations, the material relates to the perfomance, sources of info have been relied on by the defendent, there were reasonable attmepts to contact or verification |
| honest opinion | may claim that the defamatory material is an expression of their honest opinion rather than a statement of fact, must be of public interest and the opinion must be based on proper material(substantially true or relates to the public documents) |
| innocent dissemination | protects people who may unknowingly distribute defamatory info like printing comp, booksellers, libraries, email providers etc |
| defendant needs to establish that... | published the material as a subordinate distributor or as an employee or agent of one, did not know that the publication contained defamatory material and did not have an obligation to check for it |
| injunction | a remedy in the form of a court order requiring the defendant to do something or not to do something, an injunction is designed to prevent a person doing hamr or to rectify a wrong, non financial remedy and can be awarded in conjuction with damages |
| an injunction can... | compel behaviour (mandatory injunction), force someone to do soemthing like to take down a post proibit behviour (restrictive injunction)-stop someone fro doing something like stop postinf |
| when is an injunction awarded | depends on the nature, if there is a risk of further publications or maybe there is a desire to remove teh publications |
| impacts on the plaintiff | loss of reputation, emotional impact of the defamatory materail, loss of wages and livelihood, unemployment |
| impacts on teh defendant | costs, need to sell assets, public humiliation |
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