AOS 3 Flashcards
(23 cards)
Define civil law
Body of law that aims to protect the rights of individuals, groups and organisations, and provides a wronged party an avenue to seek redress for breach of civil law.
What are the purposes of civil law?
- ) achieve social cohesion
- ) protect the rights of individuals
- ) provide an avenue for people to seek compensation
- ) provides a mean to seek compensation
What are the types of civil law (7)?
Negligence Trespass Defamation Nuisance law Wills and inheritance laws Contracts Family law
Who are the possible plaintiffs in a civil dispute?
Aggrieved party - person whose rights have been infringed and has suffered loss
Other victims - indirectly suffered loss or damage as a result of actions against another party
Insurers - indivs or companies who enter an insurance policy with a person
Who are the possible defendants in a civil dispute?
The wrongdoer - person who allegedly caused harm or loss to the plaintiff
Employers- vicarious liability ( when someone becomes responsible for the actions of another), for an employer to be liable (for the employee) they must be acting in the course of employment when the wrong occurred. eg. misconduct.
Person involved in wrongdoing- if they aided or helped, encouraged or induced, were in any way a party to it, conspired with others to cause the wrong doing (accessorial liability)
Insurers- its possible to sue the insurer of the person who caused the loss. Eg. May commence proceedings against authority if their claim is rejected.
What is the tort of negligence?
When a person is negligent they have failed to take reasonable care that was owed to another. A person is obliged to take care when it’s reasonably foreseeable that other people could be harm by their actions or omissions.
What are the elements of negligence (4)?
1) duty of care was owed by the defendant
2) breach of duty of care
3) a loss or harm was suffered
4) causation- the loss was caused by the defendant’s breach of duty
What is the calculation of time in negligence?
The start of limitation periods for negligence claims depends on the type of injury
- for negligence time starts from the date of action
- for actions involving a disease or disorder, time starts from when it’s found and known to be caused by the defendant
What is the limitation for death or personal injury claims?
Which ever expires first;
- 12 years from the date of the event that caused the death or injury (“long stop limitation period”).
- 3 years from the discoverable date
What are the defences to negligence?
Contributory negligence- a way for the defendant to reduce liability in situations where the plaintiff is partly to blame for the harm suffered
Assumption of risk- voluntary acceptance of the risk of injury that a plaintiff is assumed to be taking upon themselve. (Arguing that there was an obvious risk and the plaintiff voluntarily chose to take that risk)
What role did common law play in negligence law?
- Donoghue and Stevenson established the neighbour principle (The principle is that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour).
- first case adopting the neighbour principle in Australia was grant vs Australian knitting mills
What role did parliament play in negligence law?
- added part x into the wrongs act- which codifies a lot of negligence law. This was done to ensure clarity as concerns were raised over some unclear areas.
What are the possible impacts of the breach in negligence?
Plaintiff:
- loss of life, serious physical injury, mental health effects, loss of wages and livelihood
Defendant:
- loss of business, costs (if a defendant loses the case), public humiliation, need to sell assets
What is a remedy?
A legal solution to restore the plaintiff to their original position. Most common form is damages (money needed to pay from one party to another)
What is causation?
Direct relationship between one event and another (a was the reason b happened, couldn’t happen without a)
What is workplace law?
Workplaces are governed by federal and state workplace laws to protect the rights of employees and to promote harmonious and cooperative workplaces. Protects against: - underpayment of workers - safety - bullying - discrimination and harassment
Describe awards
Minimum wages and conditions that an employer is legally required to pay a worker for a particular industry.
FWC make it
What rights are protected by workplace law?
Workplace pay and condition law aims to protect employees. All should have the right to:
- fair equitable wages and conditions
- safe, productive, harmonious and cooperative workplace
- balance work and family responsibilities through appropriate conditions
- seek compensation, if they haven’t received the correct pay and conditions
What are the elements to establish liability?
- ) plaintiff was an employee of employer
- was employed, not a contractor
- employee is paid wages regularly, entitles to paid leave
- have expectations, directly controlled by employer - ) plaintiff received less than what they were entitled to
- paid less
- particular award or agreement applied to them
- classified under the award or agreement
- received less than stated
What is the limitation of actions for workplace law?
6 years
What are the defences for workplace law?
No defences, just have to prove one element is not satisfied
What role did common law play in workplace law?
Decide minimum wages or awards
- made the system of minimum wage, now FWC does this.
Courts ruled there are no defences
What is the role of parliament in workplace law?
Passed laws around minimum wage such as
- enterprise agreements
- further changes to pay and conditions
- work choices
- fair work act which replaced work choices as the law which governed pay and conditions
