C7 Civil liability AOS3

Question 1

List three purposes of civil law

Answer 1

Social cohesion, protects the rights of individuals, and provides an avenue for people to seek compensation where a breach of civil law has occurred.

Question 2

Social cohesion in the context of civil law

Answer 2

Provides guidelines and boundaries for acceptable behavior in order to achieve societal harmony, as if these guidelines did not exist it would allow for exploitation and abuse of other citizens’ rights.

Question 3

Protect the right of individuals in the context of civil law

Answer 3

Key rights are described in civil law (e.g. the right for a promise held under a contract to be upheld by the adjacent or other party involved) and are made to be upheld so individuals feel as though they can have justice if they are breached.

Question 4

Provide an avenue for people to seek compensation where a breach of civil law has occurred

Answer 4

Allows for individuals to seek compensation for a breach of civil law through courts and tribunals, complaints bodies and ombudsmen. Provides a way to remedy the plaintiff and return to their prior position before the harm or loss happened.

Question 5

Civil law

Answer 5

An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes.

Question 6

Civil liability

Answer 6

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

Question 7

Remedy

Answer 7

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 the civil law by the defendant and restore the plaintiff to the position they were in before they were wronged or their rights were breached.

Question 8

Damages

Answer 8

An amount of money that the court or tribunals order one party to pay another party as compensation.

Question 9

List the nine types of civil law

Answer 9

Negligence, trespass, defamation, nuisance (public and private), wills and inheritance, employment, contract, family, and equal opportunity and discrimination.

Question 10

Private nuisance

Answer 10

A private nuisance is an activity or condition that interferes with the use and enjoyment of neighbouring privately owned lands.

Question 11

Public nuisance

Answer 11

An unlawful act that obstructs or interferes with the public in the exercise or enjoyment of public rights.

Question 12

Sue

Answer 12

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

Question 13

Breach

Answer 13

Breaking or failing to fulfil a duty or obligation.

Question 14

Limitation of action

Answer 14

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

Question 15

Counterclaim

Answer 15

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

Question 16

List the possible plaintiffs in a civil dispute

Answer 16

The aggrieved party, and other victims;

Question 17

Aggrieved party

Answer 17

The party in which the person has had their rights infringed and who has suffered a loss.

Question 18

Representative proceeding (class action)

Answer 18

When seven or more people have claims against the same party and those claims arise out of the same circumstances. The lead plaintiff (one of the members of the class), represents the group in the proceeding and the group members are the people who are part of the action.

Question 19

List the possible defendants in a civil dispute

Answer 19

The wrongdoer, and people involved in the wrongdoing;

Question 20

Wrongdoer

Answer 20

The subject who has directly caused the plaintiff harm, loss, or damage.

Question 21

Vicarious liability

Answer 21

The legal responsibility of a third party for the wrongful acts of another. It applies when the third party has a duty to control the activities of the wrongdoer, therefore, making the third-party partially liable.

Question 22

Assessorial liability

Answer 22

A person who can be responsible or liable for the loss or harm suffered by the plaintiff because they aided (encouraged), or abetted (organised) the wrongdoing, were directly or indirectly a party to the wrongdoing or conspired with others to cause the wrongdoing.

Question 23

What are the rights protected by the law of negligence?

Answer 23

Protects an individual’s rights to be safe from harm (harm to the person and harm to their property) and protects people from wrongful conduct by others (i.e. if and when a person acts recklessly or with complete disregard for another person).

Question 24

Negligence

Answer 24

A tort law that involves a breach of a duty of care causing harm or loss. It is when a person has failed to take reasonable care that was due to another and a person was obliged to take care when it is reasonably foreseeable that another person could be harmed by their actions or omissions.

Question 25

List the elements required to establish liability for negligence

Answer 25

Duty of care, breach of duty of care, causation, and injury, loss or damage;

Question 26

Duty of care

Answer 26

The plaintiff must establish that the defendant owed them a duty of care.

Question 27

How do you know if a person owes a duty of care to another?

Answer 27

A person owes a duty of care if the risk was foreseeable, that is if the person knew or should have known about the risk of loss or harm, if the risk was significant and if a reasonable person in the same circumstance would have taken precautions to eliminate any risk of harm.

Question 28

Breach of a duty of care (standard of care)

Answer 28

If a person breaches the standard that applies to them and their actions cause harm to another person, they will be liable for negligence. The standard of care usually revolves around the concept of whether someone acted with care as the average person would have in those circumstances.

Question 29

Causation

Answer 29

The plaintiff has to prove that the injury or loss was caused by a breach of a duty of care and that the injury would not have occurred if the duty of care had not been breached.

Question 30

Injury, loss, or damage

Answer 30

A plaintiff can only seek legal remedy through negligence if it can be proven that they suffered an injury, harm, or loss which can be physical, mental or damage to property.

Question 31

Duty of care (defenition)

Answer 31

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

Question 32

What are the exceptions to duty of care?

Answer 32

Risky recreational activity, the good Samaritan, a person who donates food, and volunteers;

Question 33

What are the defences to duty of care?

Answer 33

If it can be shown that the harm was too remote from the breach of duty of care the plaintiff will not have a claim against the defendant for negligence If there is a break in the chain of causation in which there was a new act that occurred between the tort happening and the loss or damage is claimed;

Question 34

Limitation of actions

Answer 34

A time period within which a civil claim must be made.

Question 35

Calculation of time

Answer 35

This describes the start of the limitation periods for negligence claims which is dependent on the type of injury suffered by the plaintiff (e.g. general negligence claims’ limitation period starts on the date on which the loss or damage was suffered).

Question 36

Long-stop limitation period

Answer 36

A limitation period for death or personal injury claims in which it has to be brought to court within 12 years from the date of the conduct of the defendant that caused the death or injury.

Question 37

Discoverable date

Answer 37

A date the plaintiff knew or ought to have known that the death or personal injury occurred in death or personal injury claims.

Question 38

Defence 1 Contributory negligence

Answer 38

The plaintiff contributed to the harm caused by the defendant and if proven reduce the damages the defendant has to pay. For example, the plaintiff argues that they suffered personal injury as a result of being pushed by the defendant. However, the plaintiff was intoxicated. The injury would not have been as severe if they were conscious.

Question 39

Defence 2 Assumption of risk (volenti non-fit injuria)

Answer 39

A defence to negligence that is seen as a voluntary acceptance of the risk of injury on the plaintiff’s part. In this defence, the defendant claims that the plaintiff accepted the dangers of a known and understood risk, either expressly or by implication.

Question 40

Neighbour principle

Answer 40

The common law rule that a person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their ‘neighbours’ (i.e. people who would be closely and directly affected by their actions or omissions).

Question 41

Impact of negligence on the plaintiff

Answer 41

Serious physical injury, and loss of wages and livelihood;

Question 42

Impact of negligence on the defendant

Answer 42

Public humiliation, need to sell assets, unemployment;