Chapter 5- Civil law Flashcards
(20 cards)
Precedent
When a court makes a decision in a case that is the first of its kind.
Why are precedents made and referred to?
To ensure a consistent approach to similar cases.
What is ratio decidendi?
The reason for making a decision.
When does precedent apply?
~For the decision and not the remedy
~does not apply to sanctions or remedies
Damages
Sum of money paid by the defendant to the plaintiff for loss or injury caused
What are 3 alternative methods of dispute resolution that going to court?
- arbitration
- ciliation
- mediation
Negligence
Failure to take reasonable care of another person where it is reasonably foreseeable that harm could occur
For negligence to occur, what must be proved?
- A duty of care was owed
- Duty of care was breached
- Breach caused loss or damage (causation)
- The victim suffered the loss or damage
How was the law of negligence established?
Through common law, Donoghue v Stevenson
When does a person owe a duty of care?
- The risk was foreseeable
- The risk was significant or not insignificant
- a reasonable person in the same circumstances would’ve taken precaution
What does the court consider when determining whether a reasonable person would have taken precaution?
- The likely risk of harm
- Likely seriousness
- Burden of taking precaution to avoid risk of harm
- social utility of the activity that creates the risk of harm
What are the defences to negligence?
- Contributory negligence
2. Assumption of risk
Volenti non fit injuria
The voluntary acceptance of risk or injury
Aim of tort of defamation
To protect the individual to against a bad reputation
What are he key principles of defamation?
- A statement is defamatory
- The statement refers to the plaintiff
- The statement has been published to the community by the defendant
What are the defences to defamation?
- Justification
- Contextual truth
- Absolute privilege
- Publication of public documents
- Fair report of proceedings of public concern
- Qualified privilege
- Honest opinion
- Innocent dissemination
- Triviality
What is justification?
When a defamatory statement is substantially true
What is absolute privilege?
When the plaintiff can prove that the defamatory material was published in relation to parliament proceedings
What is honest opinion?
An expression of the defendant’s honest opinion rather than a statement of fact. It must be of public interest and of proper material
What is innocent dissemination?
It protects people who may unknowingly distribute defamatory information.
