Civil Law T1/T2

Question 1

Aim of Civil law

Answer 1

Protection of individual rights

Question 2

Parties of civil law

Answer 2

Plaintiff-party whose rights have been infringed
Defendant-party being sued

Question 3

Burden & standard of proof of civil law

Answer 3

Burden: plaintiff
Standard: On the balance of probabilities

Question 4

Outcomes of civil law

Answer 4

Remedies (damages & injunctions)

Question 5

Are juries necessary in civil law?

Answer 5

No-they are optional

Question 6

Negotiation

Answer 6

1st step of resolving most disputes

Discussing the problem, either early or through exchange of written documents, and presenting options for resolution

Question 7

Mediation

Answer 7

The parties met with an independent 3rd party who acts as a mediator (who may NOT suggest any particular resolution to the parties)
May/May not be legally binding

Question 8

Conciliation

Answer 8

Parties meet with an independent 3rd party who acts as a conciliator (who may make suggestions for how to resolve the dispute however the parties must decide on an outcome themselves)

Question 9

Arbitration

Answer 9

Formal-arbitrator makes a decision as to how best to resolve the issue
Legally binding
e.g. VCAT

Question 10

Litigation

Answer 10

Party whose rights have been infringed can seek remedy via court system

Question 11

Breach

Answer 11

A person who has failed in their responsibility

Violation of law, promise/obligation

Question 12

Causation

Answer 12

A connection between the actions of the defendant and the loss suffered by the plaintiff

Question 13

Loss

Answer 13

Person injury
Economic loss
Loss of reputation
Mental illness
Loss of income
Death

Loss must be recognised by the law and able to be quantified

Question 14

Limitation of actions

Answer 14

They may not be able to take action against the defendant or if they do, they may have their case thrown out of court due to limitation of action
(Statutory/non-statutory)

Question 15

Negligence elements

Answer 15

1. The negligent part must have owed a duty of care
2. They must have somehow breached their duty
3. The breach of duty of care caused the plaintiff to suffer a loss or harm

Question 16

Tort law

Answer 16

A tort is a civil wrong
Tort law aims to ensure that a party who owes a duty of care to another party does not breach that duty, or is held accountable if they do

Question 17

Neighbour principle

Answer 17

One must take responsible care to avoid acts or omissions that could reasonably be foreseen as likely be foreseen as likely to injure one’s neighbours

Question 18

Precedent

Answer 18

A legal principle that has been established by judges when ruling by judges when ruling over a case

Question 19

Binding precedent

Answer 19

Established in a higher court in the same court hierarchy with similar material facts
Must be followed by lower courts for consistency and fairness

Question 20

Persuasive precedent

Answer 20

Established by lower/same level court, in different court hierarchy, with material facts not similar
Does not have to be followed but can persuade judges to make decisions

Question 21

Defence to negligence
Lack of elements

Answer 21

1. No duty of care was owed-no ‘neighbour relationship’ because not reasonable to foresee actions would cause harm/loss
2. Duty of care was not breached-acted as reasonable person would act
3. No loss/harm occurred or if so, it was caused by other means

Question 22

Defence to negligence
Voluntary assumption of risk

Answer 22

Defendant can demonstrate that the plaintiff: was fully aware of the risk, fully appreciated its nature & extent, freely & willingly accepted the risk

Question 23

Defence to negligence
Contributory negligence

Answer 23

The defendant can show that actions of the plaintiff contributed to their injury/loss. Plaintiff failed to take the the standard of care a person should ensure their own safety

Question 24

Aim of defamation

Answer 24

To protect the reputation of individuals against unjustified attempts to discredit their character in their eyes of others in the community

Question 25

Defamation elements
The statements was defamatory

Answer 25

The defamatory matter may be a blatant lie or an imputation, a false representation

Question 26

Defamation elements
The statement identifies the plaintiff

Answer 26

The person who is defamed need not to be mentioned by name
People reading the statement would reasonably conclude that it was about the plaintiff

Question 27

Defamation elements
Publication/communication to a third party

Answer 27

A defamation statement is broadly constructed to include visual/verbal statements across all types of media
Must be made by someone other than the aggrieved
Does not matter whether the material is published to the general public or a small group

Question 28

Defence to defamation
Lack of elements
Justification

Answer 28

A statement will not be considered defamatory is there was a good reason for publishing it.
e.g. proving it was true

Question 29

Defence to defamation
Honest opinion

Answer 29

The statement communicated was their opinion & not written as fact
The opinion was honestly held
The opinion was based upon proper material (based upon truth)
The opinion was a matter of public interest

Question 30

Defence to defamation
Contextual truth

Answer 30

The defamatory statement is substantially true
Defamation act 2005 (vic)

Question 31

Intentions to create legal relations

Answer 31

Demonstrate intention is through a written document in the form of a contract which both parties read, agree & sign/actions and behaviours

Social agreements are not legally binding

Question 32

Agreement

Answer 32

Must be an agreement between both parties-> offer/acceptance
Offeror=make the offer to enter legally binding agreement
Offeree=to whom the offer is being made/party who accepts offer

Question 33

Agreement
Offer

Answer 33

Written/spoken/made by conduct (can require certain conditions be met in order for acceptance to be valid & can be revoked as long as withdrawal is clearly communicated)

Question 34

Agreement
Acceptance

Answer 34

Made by the party whom the offer was made (offeree) -> written/spoken/made by conduct
Once acceptance is communicated it cannot be withdrawn except with the consent of the person making the offer (offeror)

Question 35

Purpose of civil remedies

Answer 35

The general purpose of a remedy is to restore the plaintiff to the position they were in prior to infringement of their rights

Question 36

Damages

Answer 36

An amount of money to be paid to the infringed party to compensate for the losses suffered
Specific (pecuniary) damages: compensation for items that can be exactly calculated e.g. medical expenses
General damages: compensation for items that cannot be exactly calculated e.g. loss of enjoyment of life
Aggravated damages: compensation for humiliation or insult

Question 37

Injunctions

Answer 37

A court order to force a party to complete or stop an action in an attempt to rectify the situation which has risen
Mandatory injunctions: compel a party to perform an action
Restrictive injunctions: prevent a party from doing something

Question 38

Defence to negligence

Answer 38

1. Lack of elements
2. Voluntary assumption of rock (plaintiff was fully aware of the risk; fully appreciated its nature and extent; and freely and willingly accepted the risk)
3. Contributory negligence (actions of the plaintiff contributed to their own loss/harm)

Question 39

Defence to defamation

Answer 39

1. Lack of elements
2. Justification (good reason for publishing it/it was true)
3. Honest opinion
4. Contextual truth (partly true)