civil law Flashcards
(35 cards)
The 2 main types of civil law
Contract law
Tort law
Remedy the harm that has been suffered
Where a person’s rights have been infringed, civil law provides a way to return/restore the person harmed, as far as possible, to the position they were in before the harm occurred.
This is done through courts awarding civil remedies.
protect the rights of individuals
individuals have the right to be protected from false statements that might damage your reputation, the right to have a promise made under a contract fulfilled, and the right not to be harmed
The purposes of the 2 main types of civil law
provide guidelines for acceptable behaviour
protect the rights of individuals
The purposes of Contract Law
Contract law deals with legal agreements.
Contract law aims to protect the rights of those with a legal contract to ensure that people who make promises under a contract stick to those promises.
The purposes of Tort Law
Tort law is designed to provide remedies for individuals who have suffered harm due to the wrongful actions of others. The main purpose is to compensate the victim for losses or injuries suffered, deter future wrongful conduct, and hold the responsible party accountable. Tort law covers a wide range of wrongs, including negligence, defamation, and intentional infliction of harm.
parties to a dispute
An aggrieved party who takes a case to court is called a plaintiff. The plaintiff claims that their rights have been infringed by the other party and that they have suffered a loss as a result.
The defendant is the person alleged to have infringed the rights of the plaintiff.
breach
In most types of civil claims, one of the key elements in a case that the plaintiff will have to prove is that there has been a breach by the defendant. This means that the defendant has in some way failed to observe a law, responsibility or obligation imposed on him or her.
A breach must generally be intentional or negligent.
causation
The plaintiff will need to prove that the actions or inactions of the defendant caused or resulted in the harm suffered by the plaintiff, and that the harm would not have occurred if not for the actions/inactions of the defendant.
If a break in the chain of causation occurs, and another event results in the harm/loss suffered, then causation is not proven.
loss
As a general rule, the plaintiff will only be able to obtain a legal remedy, such as damages, if it can be proved that he or she suffered loss or harm as a result of the breach.
The type of loss in a civil claim can include:
economic or financial loss
property damage
personal injury
pain and suffering
loss of amenity
limitation of actions
A plaintiff may not be able to take action in certain cases due to limitations imposed by the law.
One limitation is time.
For almost all civil claims, there is a time within which a wronged party must sue the wrongdoer. This is known as limitation of actions. It commence from the breach and continues until a claim is filed.
Once that period has passed, a plaintiff cannot usually commence civil action. The defendant will be able to raise a defence that the plaintiff is too late to obtain any form of remedy.
the burden of proof
In civil law, the burden of proof is the party who has the responsibility of proving the case.
The burden in civil law is on the plaintiff, as they are the party bringing allegations to court.
The plaintiff has the responsibility of proving the defendant is liable or responsible for the harm/loss inflicted on the plaintiff. The defendant has no responsibility to prove that they are not liable.
the standard of proof
The standard of proof refers to the degree or extent to which a case must be proven.
In a civil case the plaintiff must prove the case on the balance of probabilities. This means the plaintiff must prove that they are more likely in the right, and the defendant is more likely in the wrong.
2 possible plaintiff and defendants to a civil dispute
A class action (representative proceeding) is where 7 or more people have a similar claim against the same defendant. They form a ‘class’. There is a lead plaintiff, and the others become group members.
A plaintiff can also be any person who has indirectly suffered loss or damage as a result of actions by against another party.
‘Wrongdoer’
The person or company who directly caused the loss or damage to the plaintiff. There may be more than one wrongdoer.
E.g. in an unpaid wages dispute – the wrongdoer is likely to be the employer.
Employers
An employer of a wrongdoer may become a defendant due to the principle of ‘vicarious liability’. This is when someone becomes responsible for the actions of another. This can be the case if the plaintiff can show that the employee was acting in the course of his/her employment, then the employer is responsible for the employees actions/inactions.
What is Defamation
Defamation is a 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.
outline of the elements required to establish liability for defamation
The statement is defamatory
The statement is untrue
The statement refers to the plaintiff
The statement has been published (i.e. communicated to people other than the person it refers to) by the defendant.
The publication caused, or is likely to cause, serious harm.
The tort of Negligence
The law relating to duty of care is known as negligence . Negligence is a type of tort . When a person has failed to take reasonable care that was due to another person, and that failure causes loss to the other person, then the person who owes the duty of care may be found to have been negligent
Negligence rights protected
establish legal principles about when someone is owed a duty of care and what sort of precautions they need to take to fulfil that duty
allow parties to seek an appropriate remedy against those people who have breached the duty of care
establish limitations for what remedies may be sought where there has been a breach of conduct, such as imposing a cap on how much a person can be compensated for harm
the elements required to establish liability in Negligence
duty of care – the defendant owed a duty of care to the person injured
- breach of a duty of care – the defendant breached the duty of care
- causation – the breach of the duty of care caused harm to the plaintiff
- injury, loss or damage – the wronged person has suffered harm; that is, injury, loss or damage. If it can be proved that the plaintiff was owed a duty of care, that the duty of care was breached and that the breach caused harm, then the plaintiff may be entitled to a remedy, such as damages .
the limitations of actions to Negligence
A limitation period is the time period within which a civil claim must be made. These range from three to 12 years from the date of the act or omission that resulted in harm.
for general negligence claims (e.g. property damage), the limitation period starts from the date on which the cause of action occurred (i.e. the date the harm was suffered by the plaintiff) *
for actions involving the plaintiff contracting a disease or disorder, the limitation period starts from the date on which the plaintiff first knew they had the disease or disorder and that the disease or disorder was caused by the defendant
possible defences in Negligence
contributory negligence
assumption of risk ( volenti non fit injuria ).
possible remedies in Negligence
When participating in a risky recreational activity, consumers can sign a waiver stating that they accept responsibility for any injuries suffered while participating in the activity.
A Good Samaritan is a person who gives care, help and advice in an emergency situation. Good Samaritans are exempt from legal liability in negligence claims as long as they act in good faith (i.e. with honesty and integrity), within their competence, and without payment.
- A person who donates food in good faith for charitable purposes is protected from legal liability if a person is harmed by consuming the food. This only applies if the food was safe to consume at the time it left the possession or control of the person who donated it.
Volunteers (i.e. people who do community work for a community organisation, association, local government or public authority) cannot be held personally liable if they cause damage or injury to another.
the impact of the breach on the parties in Negligence
Plantiff:
Loss of life
permanent physical ingury
loss of wages
unemployment
effect on mental health
Defendant:
loss of buissnes
public himiliation
The statement is defamatory
The plaintiff must first establish that the statement made by the defendant is defamatory. A statement is defamatory if it lowers a person’s reputation or standing in the eyes of ordinary members of the community.
