area of study 3 Flashcards
(30 cards)
purposes of civil law
- achieve social cohesion (guidelines for acceptable behaviour)
- protect rights of individuals
- ensure people have the opportunity to resolve disputes
- provide mechanism to seek compensation
types of civil law
- negligence
- trespass
- defamation
- nuisance
- contract law
- wills and inheritance laws
- family law
- employment law
- anti-discrimination laws
remedy
Any order made by a court designed to address a civil wrong or breach e.g. injunction or compensation
breach
In civil claims, the plaintiff normally has to prove that the defendant failed to observe a law or obligation.
It could be a breach of an agreement that the plaintiff and the defendant had entered into, or a breach of a duty of care.
causation
The plaintiff also needs to prove that the breach caused or resulted in harm to the plaintiff.
There needs to be a casual link between the defendants breach and plaintiffs harm.
If there was an intervening event that occurred after the defendants breach and that event caused the harm, the defendant will not be liable.
loss
economic or financial loss- loss of wages, medical expenses
property damage- damage to goods, house
personal injury- cuts, bruises, broken bones
pain and suffering- mental anguish, anxiety
loss of amenity- loss of enjoyment of life
limitation of actions
The plaintiff must initiate their claim within a specified time limit.
In Victoria the limit for most claims is six years, though in some cases, the limit can be extended.
the burden of proof
The onus or responsibility of proving the facts lies with the plaintiff as they made the allegation against the defendant
the standard of proof
The degree to which a civil case must be proven is the balance of probabilities, meaning the plaintiff is more likely to be right
possible plaintiffs
-aggrieved party
The person or people whose rights have been infringed and who has suffered loss.
For example, the party to a contract who has suffered loss due to breach of the contract.
Where several people claim against the same person for the same event, this is called a representative proceeding or class action
possible plaintiffs
-other victims
Could include family and friends who suffered due to the harm caused to the aggrieved party
possible plaintiffs
-insurer
Quite often insurance companies who have made a payment to a client can try to recover this payment back from a defendant who has caused the loss to the insurance company’s client
possible defendants
-wrongdoer
Those that directly caused the harm to the plaintiff.
It can be more than one party- for example doctor, nurse and hospital involved in surgery might all be sued by patient
possible defendants
-employer
If the employee was acting in the course of their employment when the wrong occurred, the employer can be sued and found to be vicariously liable (legally responsible for someone else actions).
If the employee was acting in an unauthorised way, the employee will not be liable
possible defendants
-others involved in the wrongdoing
Those who are encouraged, organised, planned or were indirectly involved can also be sued and found to be liable.
This is known as accessorial liability
possible defendants
-insurer
Sometimes the plaintiff can sue the insurer of the person who caused the loss.
For example, employees injured at work often sue both their employer but work safe Victoria, insure to many employees
tort law
A tort is a civil wrong that one person (defendant) commits against another.
The main aim of tort law is to restore the wronged person to their pre-wronged position.
This is often achieved by the remedy of damages, the payment of money by the defendant to the plaintiff.
The main torts are negligence, defamation and nuisance
negligence
rights protected by the law
The law of negligence protects an individuals right to be safe from harm.
People are expected to be aware of potential harm that their acts or omissions may cause, and to take reasonable steps to avoid such harm.
The law of negligence allows parties to seek compensation from those who do not take such reasonable steps
negligence
elements required to establish liability
- duty of care
- breach of duty of care
- causation
- injury, loss or damage
negligence
-duty of care
A person owes a duty of care if the risk of harm was foreseeable, significant and a reasonable person would have taken precautions to eliminate the risk.
e.g. teachers owe students a duty of care
negligence
-breach of duty of care
The person does not take the care they should and they fail to meet the required standard of care.
Courts consider the risk of harm, the seriousness of the harm and what precautions could have been taken to avoid the risk.
negligence
-causation
The injury was caused by the breach of duty of care and would not have happened had that duty not been breached
negligence
-injury, loss or damage
Plaintiff must establish that some sort of harm has been suffered
negligence
limitation of actions
general negligence claims- 6 years
action for damages where personal injury includes a disease or disorder- 3 years
action for damages where injury was death or personal injury- either 3 or 12 years
Limitation periods can be extended in certain situations.
