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Flashcards in Civil Law Deck (30):
1

What is a precedent

A court decision that is followed by another court lower in the hierarchy

2

What is obiter dictum

A remark made by a judge in passing which is not binding

3

What is a binding precedent?

Decision of a higher court that must be followed by lower courts in the same hierarchy

4

What is a persuasive precedent

Decision of another court which is influential but not binding

5

What is defamation

Written or verbal statements that lower a persons reputation

6

What is sue

Start civil proceedings against another person

7

What is a tort

A civil wrong

8

What is overruling

When a judge of a higher court refuses to follow a decision in an earlier case and creates a new law for a SEPERATE case

9

What is reversing

When a higher court makes a different decision than a lower court on the SAME case (on appeal)

10

What is disapproving

When a court expresses its disapproval of a precedent but is bound by it

11

What is distinguishing

When a court decides that the main facts are SUFFICIENTLY DIFFERENT so a precedent that they thought was binding doesn't apply

12

What is statutory interpretation

When a judge clarifies or interprets the laws written by parliament

13

What are 3 reasons statutory interpretation is required

Mistakes can occur when drafting an act

The meaning of the words may be ambiguous

The act may not include new technology

14

3 facts of the ciabatta case

Had to be decided wether ciabatta is a bread or biscuit

If it's a bread it can be sold free of GST

court had to interpret the word bread

15

4 elements of negligence

1. The person who was negligent owed a duty of care to the person injured
2. The duty of care was breeched
3. The breach of duty of care cause loss or damage
4. The wronged persons has suffered loss or damage

16

When was Donoghue vs Stevenson

1932

17

Who is your neighbour

People who would be closely and directly affected by their acts or omissions and someone you ought to have had in contemplation when carrying our an action

18

What are 3 defences to negligence

Contributory negligence
Assumption of risk (volenti non fit injuria)
One or more element was absent

19

What is contributory negligence

The plaintiff helped to cause the harmful situation or is partly to blame

20

What is assumption of risk (volenti non fit injuria)

The voluntary acceptance of the risk or injury eg. Sport

21

3 elements of defamation

A statement is defamatory
The defamatory statement refers to the plaintiff
The statement has been published by the defendant

22

3 defences to defamation

Justification
Honest opinion
Absolute privilege

23

What is justification

When the defamatory statement is SUBSTANTIALLY true

24

What is honest opinion.

An expression of his/ her honest opinion rather than a statement or fact

25

What is he defence of absolute privilege

The defamatory statement was published in relation to proceedings of parliament, courts, tribunals or communication between husband and wife

26

What is slander

Defamatory statements made in a temporary reform

27

What is libel

Defamatory statements made in permanent form

28

What is the aim of civil law

To protect the rights of individuals

29

When does a person owe a duty of care (3)

The risk was foreseeable
The risk was significant or not insignificant
In the circumstances a reasonable person would have taken precautions to eliminate any risk of harm

30

What is the court of record?

They physically record the reasons for the decision