Unit 1 AoS3 - Civil Liability (SAC 3)

Question 1

Describe the purposes of civil law

Answer 1

Social cohesion: provides guidelines for acceptable behaviour - didn’t exist people exploit or abuse the rights of others.

Protect the rights of individuals: protected from false statements, contracts and harm.

Provide a means to seek compensation: provides a way to return the person harmed as far as possible to the position they were in before the harm.

Question 2

Explain the types of civil law

Answer 2

Negligence/tort - breaching duty of care

Defamation/tort - published material causing harm to someone’s reputation

Family law

Wills and inheritance laws

Contract law

Employment laws

Question 3

Explain what is meant by the standard of proof and identify the standard in a civil case.

Answer 3

the amount of evidence needed to prove a case or to establish the liability of the defendant. ‘on the balance of probabilities

Question 4

Explain what is meant by the burden of proof and identify who has the burden of proof in a civil case.

Answer 4

the responsibility to prove the facts of a case. this lies with the plaintiff

Question 5

Explain the elements of negligence

Answer 5

1. Duty of care: The risk was foreseeable, the risk was significant, and a reasonable person would take precautions.
2. Breach: Defendant failed to do what a reasonable person would do.
3. Causation: Must be proven that the injury was caused by the breach and that it would not have occurred if not for the breach.
4. Injury, loss, or damage: Plaintiff can only receive remedies if it proved they suffered an injury, loss, or damage.

Question 6

Explain the rights negligence protects

Answer 6

• Protect individuals from harm
• Protect people from wrongful conduct
• Allows parties to seek compensation

Question 7

Define Negligence

Answer 7

A person failing to take reasonable care and this failure resulting in loss or damage to another.

Question 8

Explain the possible defences to negligence

Answer 8

Contributory negligence: plaintiff helped cause harm or is partly to blame.

Assumption of risk: Voluntary acceptance of the risk of injury.

Question 9

Explain/identify the elements of defamation

Answer 9

1. The statement is defamatory: lowers the reputation
2. The statement is untrue: Plaintiff = not defamed if substantially true
3. The statement refers to the plaintiff
4. The statement has been published/communicated by the defendant

Question 10

Identify the rights defamation protects

Answer 10

• Freedom of expression
• Considered of good character and reputation
• Reputation protected
• People whose reputations have been harmed seek remedies
• Quick and effective dispute resolution.

Question 11

Define defamation

Answer 11

An untrue statement that lowers a person’s personal or business reputation in the community.

Question 12

Explain the possible defences to defamation

Answer 12

1. Truth (Justification/Contextual truth): Substantially true.
2. Absolute privilege: Free communication of information is considered to be so important.
3. Publication of public documents: Driven by a legal or moral duty and the matter was a fair copy or summary of a public document.
4. Fair report on proceedings of public concern
5. Qualified privilege: A legal or moral duty. (no malice)
6. Honest opinion: The matter must be of public interest and the opinion must be based on proper material.
7. Innocent dissemination: Unknowingly distributes defamatory information.

Question 13

Define/explain the limitation of actions

Answer 13

The time within a wronged party must sue the wrongdoer. The reason for this is cases are resolved efficiently, the defendant is protected, and to ensure no risk of the reliability of evidence.

Negligence: 3-12 years after the conduct of the defendant

Defamation: 1 year

Question 14

Possible impacts of defamation

Answer 14

On the plaintiff:
- Loss of reputation
- The emotional impact of the defamatory material
- Loss of wages and livelihood

On the defendant:
- Need to pay costs
- Need to sell assets
- Public humiliation

Question 15

Possible impacts of negligence

Answer 15

On the plaintiff:
- Loss of life
- Serious injury
- Loss of wages and livelihood

On the defendant:
- Need to pay costs
- Public humiliation
- Physical injury

Question 16

How have parliament and the courts played a role in developing negligence laws?

Answer 16

Although common law has played, and still continues to play, a significant role in developing the law of negligence in Victoria, statute law in part now governs various aspects of negligence laws.
The law of negligence has been developed through cases and was adopted in Australia from the English cases, in particular Donoghue v Stevenson. Over the years cases have developed various elements and defences for negligence, including the test to establish causation (and the establishment of the ‘but for’ test), and the ‘voluntary assumption of risk’ defence. Courts have also established over time various categories of people who are presumed to owe a duty of care to another person. Courts continue to develop the law of negligence through deciding cases.
However, statute law has also had a role to play in developing the law of negligence. In particular, Part X of the Wrongs Act 1958 (Vic) introduced a statutory regime for dealing with negligence cases. This includes establishing what the standard of care is, general principles around causation and defences, such as voluntary assumption of risk. Other statutes have also developed the law of negligence. For example, trade practice laws in Australia and the states have created standards for goods and services, requiring vendors to meet a certain standard of care and skill.

Question 17

Explain why you are able to sue two defendants in a case.

Answer 17

In Australia individuals can sue multiple defendants in civil cases this is called vicarious liability. This means the ability to sue not only the wrongdoer but the employer of the wrongdoer as they have the ability or duty to control the activities of their employee.