Civil Liability Flashcards
(22 cards)
The purpose of Civil Law
- Achieve social cohesion
- Protect the rights of individuals
- Provide an avenue for people to seek compensation where a breach of civil law has been occurred
- Provide a means to seek compensation
Types of Civil Law
- Negligence
- Trespass
- Defamation
- Nuisance law
- Wills and inheritance laws
- Contract laws
- Family law
- Employment laws
- Equal opportunity and discrimination law
Breach
Breaking or failing to fulfill a duty of obligation
Causation
The direct relationship between one event (i.e Event 1) and another event (i.e Event 2), where Event 1 was the reason Event 2 happened, and Event 2 would not have happened by itself, without Event 1.
Loss
A type of harm or damages suffered by a person, and can involve both economic and non-economic loss. Property damages Personal injury Pain and Suffering Loss of amenity
Limitation on action
The restriction on bringing a civil law claim after the allowed time. Once that time period has passed, then the defendant can use the defence that the plaintiff is too late to obtain any remedy.
The burden of proof
The obligation (i.e responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e the plaintiff in a civil dispute and the prosecution in a criminal case) Responsibility of proving the facts of a case. ‘Onus of proof’, Provide evidence to establish that the defendant is in the wrong
The standard of proof
The degree or extent to which a case must be proved in court. The plaintiff must prove the case on the balance of probabilities. Prove that the plaintiff is more likely in the right, and the defendant is in the wrong. Their version of facts is correct.
Possible plaintiffs in a civil dispute
The aggrieved party (person who has suffered a loss), Insurers. Whose rights have been infringed and who has suffered a loss. Representative proceeding - also known as class action or group proceeding. Seven or more come together for a group proceeding.
Possible defendants in a civil dispute
The wrongdoer (i.e the person or company that caused the loss or damage to the plaintiff), Employers, person involved in the wrongdoing, Insurers. The person who directly caused the harm.
The rights protected by Negligence law
- To protect an individual’s right to be safe from harm.
- Protect people from the wrongful conduct by others, particularly where a person acts recklessly or with complete disregard for another person.
- Allow parties to seek compensation against those people who have acted contrary to those laws.
The rights protected by Defamation law
- Aimed at protecting the character and reputation of individuals against attempts to discredit them.
- The right to freedom of expression
- The right to be considered of good character and reputation
- The right to have that reputation protected by placing limits on freedom of expression (right to reputation)
- The right of people whose reputations have been harmed to seek effective and fair remedies
- The right to a quick and effective method of resolving a dispute in relation to defamation.
The elements required to establish Liability in Negligence
- Duty of care - the defendant owed a duty of care to the person injured.
- Breach of duty of care (standard of care) - the defendant breached the duty of care
- Causation: the breach of duty of care caused the harm to the plaintiff.
- Injury, loss or damage: the wronged person has suffered injury, loss or damage.
- If it can be proved that the person was owed a duty of care and that the duty of care was breached and harm was caused, then the wronged person may be entitled to a remedy, which will ordinarily be damages.
The elements required to establish Liability in Defamation
- The statement is defamatory
- The statement is untrue
- The statement refers to the plaintiff
- The statement has been published by the defendant
The limitation of actions in Negligence case
Range from 3 years up to 12 years
General negligence claim (e.g a claim for property damage) - 6 years
An action for damages for negligence where personal injury includes a disease or disorder - 3 years
An action for damages for negligence where the injury was death or personal injury - Either 3 or 12 years
The limitation of actions in Defamation case
An action for defamation must be brought within one year from the date of the publication of the defamatory material.
Possible defences in a Negligence case
- Contributory negligence: A defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done. Generally reduces the amount of damages that a defendant is required to pay to the plaintiff to compensate them for their loss, damage or injury. A formal defence to negligence that claims the plaintiff contributed to the harm caused by the defendant. If proved, this reduces the damages the defendant has to pay.
- Assumption of risk: The defence of volenti no fit injuria is the voluntary acceptance of the risk of injury. Meaning to a willing person, injury is not done. This means that the defendant must prove that the plaintiff was aware of an obvious risk and that they voluntarily chose to take the risk.
Possible defences in a Defamation case
- Justification: when a defamatory statement is substantially true. Meaning that the vast majority of the statement is true.
- Contextual truth: truth applies when defamatory statements are made within the same context as statements that are substantially true, and do not further harm the reputation of the plaintiff.
- Absolute privilege: gives a defendant complete immunity from being sued in certain cases.
- Publication of public documents: If it was published, the statement was a fair copy, summary or extract of a public document, for educational purposes.
- Fair report of proceedings of public concern: that the statement is a first report of proceedings, and that the report was published for the public’s information or for educational purposes.
- Qualified privilege: has no malice in publishing information that is damaging to another person, and who published the information for various good reasons.
- Honest opinion: that the defamatory material is an expression of their honest opinion (as a commentator) rather than a statement of fact.
- Innocent dissemination: protects people who may be unknowingly disputing damatory information.
- Triviality: plaintiff is unlikely to be harmed by the publication of the defamatory material.
The role of statute law and common law in developing Negligence law
- Common law - principles established in Donoghue v Stevenson allow a plaintiff to to take legal action on the grounds that a defendant did not act in a way to protect the interests of their neighbour. Established in courts -
- Statute law - Wrongs Act in 2003 is the main legislation that governs negligence claims.
The role of statue law and common law in developing Defamation law
- Common law - allowed to sue, libel (written form), slander (actual injury suffered injury
- Statute law - Defamation Act 2005
The impact of the breach on the parties in Negligence law
The Impact on the Plaintiff of a Negligence case:
- Loss of life
- Permanent physical incapacity: This could require the use of personal carers for the remainder of the person’s life.
- Serious physical injury: this could require treatment such as surgery and physiotherapy.
- Emotional impact of the breach: This could manifest as fear of certain places or engaging in social situations
- Loss of wages and livelihood: This could be a consequence of requiring surgery or treatment.
- Unemployment: This could be a consequence of physical injury or mental health issues.
- Effect on mental health: This could include conditions such as depression or anxiety
- Impact on the Defendant of a negligence claim:
- Loss of business
- Public humiliation
- Physical injury
- Costs: defendants loss of the case
- Need to sell assets: high damages award
The impact of the breach on the parties in Defamation law
- Impact on the Plaintiff of defamation claim:
- Loss of reputation- loss of status
- Emotional impact of the defamatory material- consequence of the publicity of the claim
- Loss of wages and livelihood- need to take time off work to attend court proceeding
- Unemployment - employees might lose their job if the defamatory statement negatively alters the reputation of their employer.
- Impact of the Defendant of the defamation claim:
- Costs- when the defendant loses the case
- Need to sell assets- consequence of high damages award.
- Public humiliation- consequence of the publicity of the claim
