LEGAL STUDIES UNIT 2 CHAPTER 05- Civil Law

Question 0

❓❓❓what does civil law deal with?

Answer 0

-disputes between 2 parties where one party’s rights have been infringed

Question 1

❓❓❓what are two reasons for needing civil law in society?

Answer 1

• provides an avenue for people who ha be their rights infringed to receive compensation
• provides a system for resolution of disputes rather than people resolving it through their own method

Question 2

❓❓❓what is the main purpose of civil law?

Answer 2

-to restore the party that has been wronged to their original position, usually through financial compensation

Question 3

☀️☀️☀️EXAMPLES OF CIVIL DISPUTES

Answer 3

• a person makes a false statement that damages another’s reputation
• a person carelessly causes harm to another
• family disputing a relative’s will
• a person using a company’s trademark to sell their own goods
• not meeting a promise or obligation made in a contract

Question 4

❓❓❓what are the two parties in a civil case called?

Answer 4

PLAINTIFF
(The person who is ‘bringing the case’ and wants to sue the defendant)

DEFENDANT
(Person who is being sued and is ‘defending the case’

Question 5

❓❓❓what is the burden of proof in a civil case? (Person who needs to prove who is in the wrong)

Answer 5

-the plaintiff has the burden of proof

Question 6

❓❓❓what is the standard of proof in a civil case?

Answer 6

-“on the balance of probabilities”

Question 7

❓❓❓what is a precedent?

Answer 7

-when a court makes a decision in a case that is the first of its kind, they are setting a precedent

Question 8

❓❓❓what is a binding precedent?

Answer 8

-a precedent that must be followed by all lower courts in the same hierarchy

☀️☀️☀️
A precedent is said to be binding on a new case when:
-the material facts of the precedent are similar to the material facts of the new one
-the precedent was set in a higher court of the same hierarchy

E.g. A precedent set in the Supreme Court of Victoria is binding in all lower courts (county, magistrates) in the same hierarchy

Question 9

❓❓❓what is a persuasive precedent?

Answer 9

-a precedent made in a court from a different hierarchy and is therefore not binding, but the facts in the case may persuade the judge to make a decision based on it

☀️☀️☀️
E.g.
Case of Donoghue vs. Stevenson (court hierarchy of the UK) is persuasive on the case of Grant vs. Australian Knotting Mills (court hierarchy of Australia)

Question 10

❓❓❓define Obiter Dictum

Answer 10

-a statement that a judge makes that is not part of the reason for the decision, but is an important statement relating to the main issue of the case and can influence the decisions of the other trials in any other court

Question 11

❓❓❓Define Jurisdiction

Answer 11

-the power of a court to hear and determine a case

Question 12

❓❓❓define remedy

Answer 12

-the means by which a court restores a successful plaintiff to their original position

Question 13

❓❓❓define Ratio Decidendi

Answer 13

-the reason for a decision, which forms the precedent for future cases

Question 14

❓❓❓define Stare Decisis

Answer 14

-the law that courts will stand by what has been decided by higher courts in the same hierarchy in similar cases

Question 15

❓❓❓define what it means to Distinguish cases

Answer 15

-when a judge decides that a precedent does not apply to the case being heard because the facts are not similar enough to the previous case

Question 16

❓❓❓define what it means to Overrule a precedent

Answer 16

when a judge in a higher court makes a different decision than in a previous case

Question 17

❓❓❓define what it means to Disapprove a precedent

Answer 17

-when a judge makes a comment indicating that the precedent is not appropriate, but is bound to it

Question 18

❓❓❓define what it means to Reverse a precedent

Answer 18

-when a higher court makes a different decision than a lower court in the same case

Question 19

❓❓❓what is common law?

Answer 19

-law developed through the courts (judge-made law)

Question 20

❓❓❓what is case law?

Answer 20

-law developed by the courts through the application of precedent

Question 21

❓❓❓what is the primary function and secondary function of the court in a civil case?

Answer 21

PRIMARY FUNCTION
-to settle disputes by applying existing law to the facts of the cases

SECONDARY FUNCTION
-law making (decisions from court become law)

Question 22

❓❓❓define Statutory Interpretation

Answer 22

-involves clarifying or interpreting the laws written by parliament

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Parliaments create laws that are designed to cover a huge range of circumstances. Because of this. It’s written in general terms which can be ambiguous and may require interpretations

Courts have to determine the meaning of words in a statute. They consider:

• definitions set out in the act, in dictionaries or ‘common usage’
• previous cases (precedents), some of which are binding
• Obiter dicta from precedents that may be relevant
• parliament’s intention when creating the law (may use records of parliamentary speeches to figure this out, called ‘hansard’

Question 23

❓❓❓what is a Tort?

Answer 23

-a civil wrong

Question 24

❓❓❓define negligence

Answer 24

-a failure to take reasonable care, where it is reasonably foreseeable that others could be harmed by an action or omission

Question 25

❓❓❓what are the four key principles of Negligence?

Answer 25

• a duty of care was owed
• the duty of care was breached
• harm or loss was suffered
• the breached of the duty of care caused the loss or damaged suffered (causation)

Question 26

☀️☀️☀️WHAT IS HARM OR LOSS?

Answer 26

Harm: injury, death, damage to property or economic loss

• the harm must not be too remote from the wrongful act
• there must be a link between the negligent act/omission and the harm/loss sustained

Question 27

❓❓❓what are three things that determine whether someone owes a duty of care?

Answer 27

• the risk was foreseeable (the person knew or ought to have known about the risk
• the risk was significant, or not insignificant
• in the same circumstances a reasonable person in the same position. Would have taken precautions to eliminate any risk or harm

Question 28

❓❓❓what is a waiver? (Exceptions to the duty of care)

Answer 28

-something you sign when doing something risky which will waive your rights and accept responsibility for injuries

doesn’t apply if operator is grossly negligent. E.g. Using damaged ropes on a bungee jump

Question 29

❓❓❓what is a Good Samaritan? (Exceptions to the duty of care)

Answer 29

-when someone is exempt from legal liability when they try to help some in an emergency, as long as they are acting in good faith, whithin their competence and without payment

E.g. You find a choking person who can’t breath and try to remove the obstruction from their throat. You would be exempt from causing minor injuries (bruising) in the process

Question 30

❓❓❓when does a breach of duty of care happen? What four things does the court consider to determine whether or not someone has breached their duty of care?

Answer 30

-a breach happens when a person doesn’t take all the care they should

To determine if someone has breached their duty of care, the court considers:

• likely risk of harm
• likely seriousness of the harm
• the burden of taking precautions to avoid the risk of harm
• the social utility of the activity that creates the risk of harm (e.g. Public train is useful, street performer twirling fire is not useful)

Question 31

❓❓❓

• To successfully claim under the law of negligence, it must be proven that the injury was caused by what?
• If the harm was too remote from the breach, what happens to the claim?
• A break in the chain of causation is caused by what?

Answer 31

• injury must be caused by the breach of the duty of care
• if the harm was too remote from the breach, the claim will not be successful
• a break in the chain is caused by a new intervening act

Question 32

☀️☀️☀️LOSS OR HARM

Answer 32

-the plaintiff can only rely on a legal rights remedy through the law of negligence if it can be proved that he/she suffered a loss or harm, even if it is minor

Question 33

❓❓❓what are the two defences to negligence?

Answer 33

• Contributory Negligence

- Assumption Of Risk (volenti non fit injuria)

Question 34

❓❓❓define Contributory Negligence (defences to negligence)

Answer 34

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

Question 35

❓❓❓define Assumption Of Risk (volenti non fit injuria) (defences to negligence)

Answer 35

-refers to the voluntary acceptance of the risk of injury
-the defendant must try to prove the plaintiff was aware of an obvious risk and that they voluntarily took the risk
E.g. Getting into a car with a drunken driver

Question 36

❓❓❓what is the purpose of the Tort of Defamation?

Answer 36

-to protect the character of individuals from being discredited in the eyes of the community

Question 37

❓❓❓what are the three key principles of defamation?

Answer 37

• the statement was defamatory
• the defamatory statement refers to the plaintiff
• the statement has been published by the defendant

Question 38

☀️☀️☀️WHO CAN SUE FOR DEFAMATION?

Answer 38

• individuals
• non profit organisations or small private companies with under 10 employees can sue to protect their business reputation
• large compagnies canot sue for defamation

Question 39

❓❓❓when is statement considered defamatory?

Answer 39

-if it lowers a person’s standing or reputation in the community, exposing the, to ridicules, contempt or hatred

☀️☀️☀️

• onus is on the plaintiff to prove that their reputation had been damaged
• the defendant doesn’t need to show intention

Question 40

❓❓❓define the key principle “the defamatory statement must refer to the plaintiff”

Answer 40

-the defamed person does not need to be named, but it may be sufficient to prove that the person reading/hearing/seeing the statement would reasonably conclude it was about the plaintiff

☀️☀️☀️
The plaintiff can be defamed as part of a group if the group is small enough to be recognised as part of that group

Question 41

❓❓❓define the key principle “the defendant published the defamatory statement”

Answer 41

-the statement must be communicated to someone other than the plaintiff, but not necessarily to the general public

Question 42

❓❓❓what are the four defences to defamation?

Answer 42

• justification
• absolute privilege
• honest opinion
• innocent dissemination

Question 43

❓❓❓define Justification (defences to defamation)

Answer 43

-applies if a statement is substantially true

If you say something that is defamatory but true, the claim will not be successful

Question 44

❓❓❓define Absolute Privilege (defences to defamation)

Answer 44

-if a defendant can prove that the defamatory material was published in relation to the proceeding of parliament, parliamentary bodies, courts, tribunals, or communication between husband and wife, then the claim will not be successful

Question 45

❓❓❓define Honest Opinion (defences to defamation)

Answer 45

-the defendant can claim that the defamatory statement if their ‘honest opinion’ rather than a statement of fact but the matter just be of public interest and the opinion must be based on proper material
(Something that is substantially true)

statement must be in the realm of what would be reasonably expected of the person e.g. Commentator

Question 46

❓❓❓define Innocent Dissemination (defences to defamation)

Answer 46

-protects people who knowingly distribute defamatory material, such print companies, libraries, internet providers

Question 47

❓❓❓what three things must be shown in order to use Innocent Dissemination as defence to defamation?

Answer 47

• they published the material as a subordinate distributor (not author, primary distributor, or editor of publication)
• they didn’t know (nor should they have known) that the statement was defamatory
• they didn’t have an obligation to check for defamatory material