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Legal Studies - Unit 1 > AOS 3 > Flashcards

AOS 3 Flashcards

1
Q

Neighbour Principle

A
  • Common law principle
  • A person must take reasonable care to avoid acts and omissions that can be reasonably foreseen as likely to injure their ‘neighbours’
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2
Q

Representative Proceeding

A

A legal proceeding in which a group of people who have a claim based on similar or related facts bring that claim to court in the name of one person (also called a class action or a group proceeding)

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3
Q

Lead Plaintiff

A

The person named as the plaintiff in a representative proceeding (ie. a class action) and who represents the group members.

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4
Q

Defamation Defence - Innocent Dissemination

A

Protects individuals/companies who accidentally published defamatory information

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5
Q

Defamation Defence - Qualified Privilege

A

A person who has no malice in publishing information that is damaging to another person.

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6
Q

Types of Civil Law

A
  • Negligence
  • Trespass
  • Defamation
  • Nuisance Laws
  • Will and Inheritance Laws
  • Contract Law
  • Family Law
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7
Q

Elements of Negligence

A
  • Duty of Care
  • Breach of Duty of Care
  • Causation
  • Injury, Loss or Damage
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8
Q

Defamation Defence - Fair Report of Proceedings of Public Concern

A
  • Statements made by a judge in a trial
  • A speech made by a city council member during a council meeting
  • Testimony during a trial
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9
Q

Plaintiff

A

(In civil disputes) A party who makes a legal claim against another party (ie. the defendant) in court.

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10
Q

Nuisance

A

A type of tort that involves interference with a person’s right to use and enjoy private and/or public property.

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11
Q

Negligence

A

A type of tort law involves a breach of a duty of care, causing loss or harm.

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12
Q

Rights Protected (Defamation)

A
  • Freedom of expression.
  • Considered of good character and reputation
  • Protection of reputation
  • Quick and effective method of resolving a dispute.
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13
Q

Defences to Defamation

A
  • Justification
  • Contextual truth
  • Absolute privilege
  • Publication of public documents
  • Fair report of proceedings of public concern
  • Qualified privilege
  • Honest opinion
  • Innocent dissemination
  • Triviality
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14
Q

Defences to Negligence

A
  • Contributory Negligence
  • Assumption of Risk (Volenti Non Fit Injuria)
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15
Q

Loss

A

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

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16
Q

Assumption of Risk (Volenti Non Fit Injuria)

A
  • A Latin term meaning ‘to a willing person injury is not done’
  • Defendant claims that the plaintiff accepted the dangers of a known and understood risk, either expressly or by implication.
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17
Q

Limitation of Actions

A

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

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18
Q

Group Member

A

A member of a group of people who is part of a representative proceeding (ie. class action)

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19
Q

Employment Laws

A

Deals with disputes between employers and employees.

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20
Q

Defamation

A

A type of tort that involves the action of damaging a person’s personal or professional reputation in the community through the communication of false and untrue statements or information.

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21
Q

Defendant

A

(In civil disputes) a party who is alleged to have breached a civil law and who is being sued by a plaintiff.

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22
Q

Appeal

A

An application to have a higher court review a ruling (ie. a decision) made by a lower court.

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23
Q

Causation

A

The direct relationship between one event (ie. Event 1) and another event (ie. Event 2), where Event 1 was the reason Event 2 happened, and Event 2 would not have happened by itself, without Event 1.

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24
Q

Equal Opportunity and Discrimination Laws

A

Aim to protect individuals from bias, prejudice or vilification based on a personal attribute such as their sex, marital status, race or religion.

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25
Q

Accessorial Liability

A

The way in which a person can be responsible or liable for the loss or harm suffered by another person because they were directly involved in causing the loss or harm (eg. they encouraged another person to cause the harm)

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26
Q

Remedy

A

Any order made by a court that is designed to address a civil wrong or a breach. A remedy should provide a legal solution for the plaintiff for a breach of civil law by the defendant and (as much as possible) restore the plaintiff to the position they were in before they were wronged or their eights were breached.

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27
Q

Defamation Defence - Publication of Public Documents

A

Only if the statement was published in the public interest or for educational purposes.

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28
Q

Defamation Defence - Absolute Privilege

A
  • Gives defendant complete immunity from being sued in certain cases.
  • eg. Proceedings in parliament, parliamentary bodies, courts or tribunal.
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29
Q

Negligence - Role of Common Law

A
  • Neighbourhood principle
  • Makes sure every person in the chain of delivery is legally responsible
  • Direct connection to loss to be able to sue
30
Q

Right of Subrogation

A

The right to ‘step in the shoes’ of an insured person and act on their behalf - this includes taking legal actions in their name.

31
Q

Negligence - Impact on Defendant

A
  • Loss of Business
  • Public Humiliation
  • Physical Injury
  • Costs
  • Need to Sell Assets
32
Q

Defamation - Impact on Plaintiff

A
  • Loss of reputation
  • Emotional impact of the defamatory material
  • Loss of wages and livelihood
  • Unemployment
33
Q

Defamation Defence - Triviality

A

The circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.

34
Q

Family Law

A

Deals with disputes between family members that are of family nature.

35
Q

Rights Protected (Negligence)

A
  • Protect people from wrongful conduct by others
  • Compensation
36
Q

Standard of Care (Negligence)

A

The degree of caution required by a person who owes a duty of care to another.

37
Q

Negligence where personal injury includes a disease or disorder (Limitation Period)

A

3 Years

38
Q

Defamation Defence - Contextual Truth

A
  • Defamatory statements are made within the same context as statements that are substantially true.
  • Defamatory statements don’t further harm the plaintiff.
39
Q

Balance of Probabilities

A
  • The standard of proof in civil disputes.
  • The plaintiff must prove their version of events is more probable than the defence claims.
40
Q

Limitation Period (Defamation)

A

1 Year

41
Q

Trespass

A

A type of tort involving the interference or intrusion of a person’s body, property or goods without the consent of that person.

42
Q

Negligence Where the Injury was Death (Limitation Period)

A

3-12 Years (Depending on circumstances)

43
Q

Contract Laws

A

An area of civil law governing the validity and enforceability of agreements made between 2 or more parties.

44
Q

Freedom of Political Communication

A
  • Is not an absolute right to freedom of speech.
  • The right of the Australian People to freely discuss and debate political issues, subject to certain restrictions.
45
Q

Damages

A

An amount of money that the court (or tribunal) orders one party to pay to another party. It is the most common remedy in a civil claim.

46
Q

Negligence - Role of Statute Law

A
  • Created defences
  • The wrongs act as a likely defence
47
Q

Burden of Proof

A
  • The obligation of a party to prove a case.
  • Usually rests with the party who initiates the plaintiff.
48
Q

Defamation - Role of Statute Law

A
  • Uniform Defamation Legislation (2005)
  • Victoria - Defamation Act
  • Proposed uniform defamation laws
49
Q

Contributory Negligence

A
  • Claims that the plaintiff contributed to the harm caused by the defendant.
  • If proved, this reduces the damages the defendant has to pay.
50
Q

Negligence - Impact on Plaintiff

A
  • Loss of Life
  • Permanent Physical Incapacity
  • Serious Physical Injury
  • Emotional Impact of the Breach
  • Loss of Wages and Livelihood
  • Unemployment
  • Effect on Mental Health
51
Q

Defamation Defence - Justification

A

A defamatory statement is substantially true.

52
Q

Civil Law

A

An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes (as opposed to criminal law)

53
Q

Possible Defendants

A
  • Wrongdoer
  • Employers
  • Persons involved in the wrongdoing:
  • (Aided, abetted or procured the wrongdoing)
  • (Induced or encouraged the wrongdoing)
  • (Were in any way directly or indirectly a party to the wrongdoing)
  • (Conspired with others to cause the wrongdoing.)
  • Insurers
54
Q

Civil Liability

A

The legal responsibility of a party (ie. an individual, group or organisation) for loss or harm caused to another party because of a breach of civil law.

55
Q

Standard of Proof

A

The degree or extent to which a case must be proved in court.

56
Q

Types of Loss

A

Economic or Financial Loss
- Loss of wages
- Profits
- Medical costs

Property Damage
- eg. Damaged car or house

Personal injury
- eg. broken bones

Pain and Suffering
- eg. anxiety, depression, mental anguish

Loss of Amenity
- Loss of enjoyment of life
- Job satisfaction

57
Q

Insurers

A

A person or company that is contracted to compensate another person in the event of damage or loss.

58
Q

Elements of Defamation

A
  • The statement is defamatory
  • The statement is untrue
  • The statement refers to the plaintiff
  • The statement has been published by the defendant (communicated to someone other than the defendant)
59
Q

Duty of Care (Negligence)

A

The legal obligation to be cautious and careful, keeping other people in mind when doing anything that could harm them.

60
Q

Possible Plaintiffs

A
  • Aggrieved Party
  • Other Victims (eg. A family member, grieving after the traumatic death of a loved one)
  • Insurers
61
Q

Purposes of Civil Law

A
  • Social cohesion
  • Protect the rights of individuals
  • Provide an avenue to seek compensation
  • Provide a means to seek compensation
62
Q

Defamation - Impact on Defendant

A
  • Costs
  • Need to sell assets
  • Public humiliation
63
Q

General Negligence claim, eg. Property Damage (Limitation Period)

A

6 Years

64
Q

Defamation Defence - Honest Opinion

A
  • The statement must be a statement of opinion, not a statement of fact.
  • The opinion stated must be one that could have been held by an honest person in possession of the facts.
65
Q

Vicarious Liability

A

The legal responsibility of a 3rd party for the wrongful acts of another (eg. an employer’s liability for what their employees do.)

66
Q

Breach

A

Breaking or failing to fulfil a duty or obligation.

67
Q

Will and Inheritance

A

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.

68
Q

Counterclaim

A

A separate claim made by the defendant in response to the plaintiff’s claim (and heard at the same time by the court)

69
Q

Sue

A

To take civil action against another person, claiming that they infringed some legal right of the plaintiff (or did some legal wrong that negatively affected the plaintiff.)

70
Q

Defamation - Role of Common Law

A
  • The distinction between liable and slander
  • Implied freedom of political communication.

Legal Studies - Unit 1 (3 decks)

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