civil liability

Question 1

civil law aim

Answer 1

to protect individual rights while resolving disputes between individuals, groups and organisations

Question 2

how does civil law meet its aim

Answer 2

• establishment of the law (statute and common)
• determining whether the law has been breached (dispute resolution bodies)
• enforcement of the law (remedies imposed if law is breached)

Question 3

Tort law

Answer 3

tort = a civil wrong
- exists in the absence of a contract between the disputing parties
- examples + negligence (wrongs act 1958) and defamation (defamation act 2005)

Question 4

aim of negligence

Answer 4

ensure that people who owe a duty of care to others do not breach that duty or , if they do, are responsible for any loss suffered as a result of the breach

Question 5

examples of civil law

Answer 5

donoghue v stevenson (1932)
Clarke v greater Shepparton city council (2016)
Grant v Australian Knitting Mills (1935)

Question 6

breach

Answer 6

breaking or failing to fulfil a duty or obligation

Question 7

Loss

Answer 7

A type of harm or damage suffered by a person which can involve both economic and non economic loss
(Financial, property, personal injury, pain, suffering, loss of amenity)

Question 8

limitation of actions

Answer 8

restriction bringing a civil claim to court after a given time (from alleged breach) - limitation of actions act 1958 (vic)
- 6 years (3 years personal injury, 1 year defamation)

Question 9

vicarious liability

Answer 9

situation in which a party is deemed responsible for wrongdoing and a breach of rights due to an association with another party

Question 10

burden of proof

Answer 10

the party which has the responsibility of proving the facts of the case. the burden falls on the plaintiff to prove the wrongdoing of the defendant

Question 11

standard of proof

Answer 11

the degree to which a case may be proven, in civil law this is on the balance of probabilities

Question 12

limitation of actions negligence

Answer 12

claim for negligence must be commenced
- within 3 years of the discovery of the cause of action
within 12 years from the date of the act or omission which resulted in the loss

Question 13

elements of negligence

Answer 13

• a duty of care exists
• the defendant has breached their duty of care
• link between breach of duty of care and loss or injury suffered
• the plaintiff has suffered a loss as a result

Question 14

elements of negligence - duty of care

Answer 14

• risk was foreseeable
• risk was significant
• a reasonable person in the circumstances would have taken precautions

Question 15

elements of negligence - breach

Answer 15

when the defendant fails to do what a reasonable person would’ve done in the circumstances
- court will consider risk, likely seriousness and burden of taking precautions

Question 16

elements of negligence - causation

Answer 16

direct link between the defendants breach of duty and loss suffered by the plaintiff

Question 17

elements of negligence - loss

Answer 17

• must be proven that the plaintiff suffered loss or damage as a result of a breach of duty of care
• physical, mental, financial, damage to property

Question 18

defences to negligence - lack of elements

Answer 18

duty of care, breach, cause and loss

Question 19

defences to negligence - voluntary assumption of risk

Answer 19

occurs when the defendant can demonstrate that the plaintiff:
- was fully aware of the risk
- fully appreciated its nature and extent
- freely and willingly accepted the risk

Question 20

defences to negligence - contributory negligence

Answer 20

plaintiff has contributed to the harm caused by the defendant ie= The plaintiff has contributed to their own negligence
- failed to take the standard of care a person should to ensure their own safety

Question 21

defences to negligence - neighbour principle

Answer 21

• legal neighbours, anyone who can be reasonable foreseen to be harmed by the defendants acts or omission

Question 22

impacts of negligence - plaintiffs

Answer 22

• loss of life
• permanent physical incapacity
• serious physical injury
• emotional impact
• loss of quality of life
• unemployment

Question 23

impacts of negligence - defendant

Answer 23

• loss of business
• public humiliation and loss of reputation
• physical injury - contributory negligence
• costs

Question 24

impact of negligence on broader society

Answer 24

• social impact = burden on families, health system, psych services
• psychological impact = potential loss of faith in individuals
• impact on the legal system: delays, costs, backlogs

Question 25

aim of defamation

Answer 25

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

Question 26

elements of defamation

Answer 26

• the statement was defamatory
• the statement identified the plaintiff
• the statement was published to a third party

Question 27

elements of defamation - statement was defamatory

Answer 27

lowers a persons reputation or standing in the community exposing them to ridicule or hatred

Question 28

elements of defamation - statement identified the plaintiff

Answer 28

people reading the statement would reasonably conclude that it was about the plaintiff
- may be as part of a group
- group needs to be specifically mentioned

Question 29

elements of defamation - published to a third party

Answer 29

• written or verbal statement was published (communicated to a person other than the person to which it referred) by the defendant

Question 30

defamation = origins and development

Answer 30

• historically = 2 categories under common law
• libel = permanent statements
• slander = non permanent statements
• codified under legislation
• defamation act 2005 (vic)

Question 31

defences to defamation - justification

Answer 31

• defendant can prove that the defamatory statement is true and that they were therefore justified in making the statement
• no unjustified damage to the plaintiffs reputation occured

Question 32

defences to defamation - honest opinion

Answer 32

• defendant may claim that the defamatory material is an expression of his or her honest opinion as a commentator
• matter must be of public interest and on proper material
• statement cannot be beyond what would reasonably be expected of a critic

Question 33

defences to defamation - absolute privilege

Answer 33

• used when the defamatory statement is made in parliament, courts, or tribunals
• protects those who participate in proceedings in parliament from outside interference or suit

Question 34

defences to defamation - qualified privilege

Answer 34

• where the defendant believes the recipient of the defamatory information has a moral or legal interest in receiving the information
• acts without malice or spite
• acts reasonably in the circumstances

Question 35

defences to defamation - contextual truth

Answer 35

when a defamatory statement is substantially true although there might be some inaccuracies
- substance or core issue of the publication is true

Question 36

defences to defamation - fair report of proceedings of public concern

Answer 36

• defendant can argue that the material was a fair report of proceedings published for the public or for educational purposes eg. a court judgement

Question 37

defences to defamation - triviality

Answer 37

the defendant can argue that the plaintiff was unlikely to suffer harm due to the statement
- minor another and trivial in nature

Question 38

defences to defamation - innocent dissemination

Answer 38

• protects people who unknowingly distribute defamatory information
• defendant must prove that they didn’t know that the publication contained defamatory information and that they didn’t have an obligation to check for defamatory material

Question 39

defamation - limitation of actions

Answer 39

1 yer for defamation