U2AOS1: Civil Liability

Question 1

Purposes of civil law

Answer 1

Provide guidelines for acceptable behaviour so ppl uphold each others rights —> SC
Provide syst for parties pursue rights protection through courts + tribunals
Provide remedy caused by infringement of rights

Question 2

Negligence

Answer 2

owe duty of care to prevent foreseeable harm

Question 3

nuisance

Answer 3

indiv enjoy public +private property w/o interference or annoyance

Question 4

civil law

Answer 4

defines rights and responsibilities of individuals groups and organisations in society + regulates private disputes

Question 5

remedy

Answer 5

orders made by court /tribunal address civil wrong /breach
restore plaintiff to original position
damages / injunctions

Question 6

Parties before court proceedings

Answer 6

Aggrieved- rights have been infringed
Wrongdoer- alleged to have infringed rights

Question 7

Parties during court proceedings

Answer 7

Plaintiff- rights have been infringed (was aggrieved)
Defendant- alleged to have infringed on another persons rights + breached civil law (was wrongdoer)

Question 8

types of loss

Answer 8

financial- loss of wages
property damage- damage to car
personal injury- cuts + bruises
pain and suffering-mental anguish
loss of amenity - loss of enjoyment of life

Question 9

breach

Answer 9

act or ommission that represents a failure to meet a legal obligation

Question 10

causation

Answer 10

direct r’ship btw defendant’s breach and plaintiff’s loss
‘but for’ test used to prove defendant x meet legal obligation + necessary condition of loss suffered

Question 11

intervening acts

Answer 11

break chain of causation and allows defendant to avoid liability f prove breach x true cause of loss

Question 12

BoP original lawsuit

Answer 12

plaintiff has responsibility of proving the facts of the case

Question 13

BoP counterclaim

Answer 13

defendant has the responsibility of proving the facts of the case

Question 14

counterclaim

Answer 14

separate claim made by a defendant that says the plaintiff is at fault
exists separately to the original dispute (like principle + accessory trials)

Question 15

SoP

Answer 15

on the balance of probabilities
–> plaintiff’s version of events is more likely to have happened than defendants

Question 16

Negilgence: purpose

Answer 16

requires individuals who owe a duty of care to another person to prevent foreseeable harm from occuring

Question 17

Negilgence: elements

Answer 17

1. d owed p a duty of care
2. d breached their duty of care
3. d’s breach caused harm to plaintiff
4. p suffered harm or loss

Question 18

duty of care

Answer 18

obligation to be careful to legal neighbour and act to prevent reasonably foreseeable harm

Question 19

class action

Answer 19

seven or more ppl with claims against the same d ref to same/ similar circumstances re common issue of fact/law

Question 20

vicarious liability

Answer 20

legal responsibility of employers to control activities of employees who are acting in an authorised manner in the course of their employmentt
x in a ‘frolic of their own’

Question 21

Negligence: Breach

Answer 21

Reasonably foreseeable that (specific breach) could cause harm to (type of person p is)

Question 22

Negligence: Loss

Answer 22

It is reasonably foreseeable that (specific breach) could cause the plaintiff to suffer (specific type of loss). t/f loss is not too remote

Question 23

Negligence: duty of care

Answer 23

reasonably foreseeable that the actions or omissions of (type of person d is) could harm (type of person p is). t/f p and d are legal neighbours

Question 24

Defences negligence: lack of elements

Answer 24

1. no DoC owed
2. Doc was not breached
3. no loss or harm or loss or harm caused by other means

Question 25

Defences negligence: voluntary assumption of risk

Answer 25

1. plaintiff was aware of the obvious risk 2. plaintiff voluntarily chose to take that risk- consent can be express (waiver) or implied (willingly engaged in activity)

Question 26

Defences negligence: voluntary assumption of risk medical field

Answer 26

does not apply- all risks must be stated

Question 27

Defences negligence: contributory negligence

Answer 27

- plaintiff contributed to harmful situation/ partly to blame for harm done - did plaintiff take reasonable care to avoid foreseeable harm?

Question 28

Defamation elements

Answer 28

1. statement is defamatory 2. statement is untrue 3. statement refers to p 4. statement has been published 5. caused/likely to cause serious harm to d

Question 29

Defamation: defamatory

Answer 29

lower rep of p in eyes of ordinary members of comm

Question 30

Defamation: untrue

Answer 30

must be substantially untrue

Question 31

Defamation: p named

Answer 31

referred to so that ordinary ppl could reasonably conclude about p (eg ms cohen or my y11 LS teacher) or as part of a small group (eg y11 LS teachers @ bcc)

Question 32

Defamation: published

Answer 32

communicated to 3rd party

Question 33

Defamation: serious harm

Answer 33

determined by judge b4 trial commences, otherwise case dismissed

Question 34

Defamation defences: honest opinion

Answer 34

1. statement =opinion x fact 2. matter of public interest 3. opinion based on proper material

Question 35

Defamation defences: innocent dissemination

Answer 35

1. published material as subordinate distributor/ employee or agent of one 2. did not know / shouldn't have statement contained defam info 3. did not have obligation to check for defam info

Question 36

Defamation defences: justification

Answer 36

statement is substantially true, does not matter if some inaccuracies if core imputation is sub true

Question 37

Defamation defences: contextual truth

Answer 37

if sub true statements are more serious than defam statements, defam statements discounted as x further harm p's rep

Question 38

Defamation defences

Answer 38

jusitification contextual truth honest opinion innocent dissemination lack of elements

Question 39

Types of damages

Answer 39

Compensatory damages exemplary damages

Question 40

Defamation: caps on damages

Answer 40

max $250 000 for non financial loss in the most serious case

Question 41

types of compensatory damages

Answer 41

special- loss can be calculated in monetary terms general-loss cannot be calculated in monetary terms aggravated- for lack of integrity, hyperbole/ exaggeration, sensationalising, not apologising

Question 42

injunctions

Answer 42

mandatory injunctions - force a party to do something restrictive injunctions - prevent a party from doing something

Question 43

Nuisance: elements

Answer 43

1. P has a property right in or over land 2. there has been interference with the p's use and enjoyment of the land 3. p suffers damage, loss or injury

Question 44

Nuisance: property right

Answer 44

must have property right (interest in or over land) --> owner, tenant, person accessing private property ppl w/ permission to use land (licensees) cannot sue eg, customers, couch surfers

Question 45

Nuisance: interference

Answer 45

substantially and unreasonably interfered w/ use and enjoyment of land -substantially and unreasonably: nature, time of day, neighborhood, necessary for community, ongoing, how long

Question 46

Nuisance: damage, loss, injury

Answer 46

material damage - phys property damage non material damage - injury to p 's sensibilities eg, loss of enjoyment, sleep deprivation public nuisance - p must show that they have suffered a special damage that extends beyond what has been suffered by other members of public