AOS 1 - Civil Liability

Question 1

Civil Law

Answer 1

An area of law that aims to protect individuals, businesses and organisations by providing them with the legal framework to seek a remedy when their rights have been breached by another party

Question 2

Sue

Answer 2

To take civil action against another person by making a claim that they have infringed some legal right

Question 3

Liability

Answer 3

The legal responsibility of a party for loss or harm caused to another because of a breach of civil law

Question 4

Remedy

Answer 4

Orders made by a court or tribunal to address a civil wrong or breach- designed to restore plaintiff back to their original position. Can be in the form of damages (money) or injunctions.

Question 5

Types of Civil Law

Answer 5

Negligence, trespass, nuisance, contract, defamation

Question 6

Negligence

Answer 6

Requires individuals who owe a duty of care to another person to prevent foreseeable harm from occuring

Question 7

Trespass

Answer 7

Prevents individuals from interfering with another person, their land or goods

Question 8

Nuisance

Answer 8

Ensures individuals can enjoy public and private property without interference or annoyance

Question 9

Contract

Answer 9

Ensures that ppl who make promises under enforceable agreements fulfill those promises or compensate the other party if they fail to comply

Question 10

Defamation

Answer 10

protects a persons rep from being damaged by lies which are shared w the public

Question 11

Purposes of Civil Law (3)

Answer 11

1. Provide guidelines for acceptable behaviour so that ppl uphold each other’s rights and social cohesion can be achieved
2. Provide a system for parties to pursue rights protection through courts and tribunals
3. Provide a remedy for harm or loss caused by an infringement of rights.

Question 12

Parties

Answer 12

Before Court: Wronged Party, Wrongdoer

During court proceedings: Plaintiff, Defendant

Question 13

Breach

Answer 13

An act or omission that represents a failure to meet a legal obligation

Question 14

Loss

Answer 14

A type of harm or damage suffered by a person. It can involve both economic and non-economic loss.

Question 15

Causation

Answer 15

The direct relationship between the defendants breach and the plaintiff’s loss.
Must prove that the defendant’s breach was a necessary condition of the loss suffered.

Can be found using the but for test.

Question 16

Plaintiff

Answer 16

the person whose rights have been infringed and who sues another party

Question 17

Defendant

Answer 17

the party who is alleged to have breached a civil law and is being sued

Question 18

Types of Loss

Answer 18

-Financial
-Property damage
-Personal Injury
-Pain and suffering (ie emotional damages)
-Loss of amenity (eg loss of enjoyment of life…)

Question 19

Burden of Proof

Answer 19

The onus/responsibility of proving the facts of there case. In civil, it rests with the plaintiff, meaning that they must present evidence to establish the elements of the civil wrong.

Question 20

Standard of Proof

Answer 20

The degree to which a case must be proven in court. In civil law, the plaintiff must prove the wrongdoing occurred on the balance of probabilities.
This means that it is more likely to have occurred then not.

Question 21

Limitation of Actions

Answer 21

The restriction on bringing a civil law claim after the allowed time ie the expiration date.

Question 22

Counter Claims

Answer 22

Separate claim made by the defendant in response to the plaintiff’s claim, asserting that it is the plaintiff who is actually at fault. Is an independent procedure which is separate to the plaintiff’s case.

Question 23

Purposes for the Limitation of Actions

Answer 23

-Ensures civil cases are resolved in a timely manner
-Ensures reliable evidence is readily available.
-Ensure that the defendant does not have a potential case pending for an unlimited amount of time.

Question 24

Limitation of actions legislation and examples

Answer 24

Limitation of Actions Act 1958 (Vic)
-Defamation= 1 yr
-Under tort law with personal injuruy= 3 yrs
-Under tort law with no personal injury (eg negligence, nuisance) = 6 yrs
-Breach of contract = 6 yrs

The court can grant a time extension depending on the circumstances
Some civil cases have no time limit eg a plaintiff’s claim for phys or sexual abuse suffered as a minor

Question 25

Parties to a civil dispute

Answer 25

Plaintiffs and defendants- there can be two or more people joined as either IF the remedy being sought arises from the same occurence or there is a question of common law or fact.

Question 26

Class Actions

Answer 26

The lead plaintiff represents the class in the proceedings. The other people in the class are called group members. Vic has an opt-out systen. Once the criteria for the class has been defined, relecant persons are automatically part of the class action. people can opt out via writing. 1. Seven or more people have claims against the sa,e defendant 2. 2. The claims concern the same, similar or related circumstances 3. The claims give rise to a common issue of law or fact.

Question 27

Vicarious liability

Answer 27

A legal responsibility of a third party for the wrongful acts of another. Eg. employers held liable for the breaches of their employees as they control the activities of their employees.

Question 28

Negligence - Purpose

Answer 28

Requires individuals who ower a duty of care to another person to prevent forseeable harm from occuring

Question 29

Negligence - Elements

Answer 29

1. Defendant owed the plaintiff a duty of care 2. Defendant breached their duty of care 3. Defendant's breach caused harm to the plaintiff 4. Plaintiff suffered harm or loss

Question 30

Tort

Answer 30

A civil wrong

Question 31

Settled Law

Answer 31

Certain relationships whereby the law has enshrined that a duty of care relationship exists eg doctor and patient

Question 32

Novel Situation

Answer 32

There is no settled law and so a duty of care is arguable based on the circumstances

Question 33

Duty of care

Answer 33

The plaintiff must establish that the defendant owed them a duty of care DoC owed if risk of harm was reasonably forseeable ('neighbour principle' appies)

Question 34

Neighbour Principle

Answer 34

Two parties who are directly impacted by one another's acts or omissions. Established in Donoghue v Stevenson

Question 35

Breach (Negligence element)

Answer 35

The plaintiff must establish that the defendant breached their duty of care. Duty breached if -It was reasonably forseeable that the breach would result in harm to the plaintiff -The risk was not insignificant -A reasonable person in the same situation would have taken precautions to eliminate the risk

Question 36

Causation (Negligence Element)

Answer 36

The plaintiff must prove that the defendant's breach was a necessary condition of their loss or harm. -But for test -May be intervening acts that break the chain of causation

Question 37

Loss, Injury or damage (Negligence element)

Answer 37

The plaintiff can only seek a legal remedy if they can prove that they have suffered injury, loss of damage (even if it's minor) -Can be financial, property damage, personal injury, pain and suffering etc -Cannot be too remote from the breach. Plaintiff must prove this specific type of loss was reasonably forseeable.