Unit 1 AOS 3 civil law

Question 1

purposes of civil law

Answer 1

• achieve social cohesion
• protect the rights of individuals
• provide an avenue for people to seek compensation
• provide a means to seek compensation

Question 2

types of civil law

Answer 2

• negligence
• trespass
• defamation
• nuisance laws
• wills and inheritance laws
• contract law
• family law

Question 3

explain law of negligence

Answer 3

a type of tort which occurs when someone owes a duty of care to another and breaches that duty, causing harm or loss to another person.

Question 4

plaintiff

Answer 4

the party in a civil dispute who makes a legal claim against another person in court

Question 5

defendant

Answer 5

the party in a civil case who is alleged to have breached a civil law and is being sued by the plaintiff

Question 6

concepts of civil law

Answer 6

• breach
• causation
• loss
• limitation of actions

Question 7

breach (concept of civil law)

Answer 7

• means that the defendant has failed to fulfil a duty or obligation imposed on them.
• in negligence, a plaintiff may argue that the defendant has breached their duty of care to the plaintiff

Question 8

causation (concept of civil law)

Answer 8

• the plaintiff must prove that the actions of the defendant caused the harm or loss suffered by plaintiff, and the harm would not have occurred if not for the actions of the defendant.
• causation is the direct relationship between one event and another, where event 1 was the reason event 2 happened.
• must be a causal link between the actions of the defendant, and the harm suffered by the plaintiff

Question 9

loss (concept of civil law)

Answer 9

• a type of harm suffered by a person, can involve economic and non-economic loss.
• the plaintiff will usually only be able to obtain legal remedy if it can prove they suffered loss or harm:
• economic or financial loss (eg. loss of wages)
• property damage (eg. damaged car, house or other)
• personal injury (eg. cuts, bruises, broken bones)
• pain and suffering (eg. anxiety, depression)
• loss of amenity (eg. loss of job satisfaction)

Question 10

limitation of actions (concept of civil law)

Answer 10

• the restriction on bringing a civil claim to court after the allowed time
• time limit is so that disputes can be resolved efficiently
• once the time limit has passed, the defendant will be able to raise a defence that the plaintiff is too late to obtain any form of remedy
• no limitation period on physical or sexual abuse suffered as a minor

Question 11

burden of proof

Answer 11

• refers to the responsibility of proving the facts of the case.
• in civil cases, the burden of proof lies with the plaintiff, meaning they must present evidence to establish that the defendant is in the wrong.
• a defendant can raise a counterclaim in response to the plaintiffs claims to prove they are not liable.

Question 12

standard of proof

Answer 12

refers to the extent to which a case must be proven. the plaintiff must prove the case on the balance of probabilities, meaning the plaintiff must prove that they are most likely in the right.

Question 13

explain element 1 in a case of negligence (duty of care)

Answer 13

the plaintiff must establish that the defendant owed a duty of care. a person owes a duty of care if:
- the risk was foreseeable
- a reasonable person in the same circumstances would have taken precautions to eliminate risk of harm

Question 14

explain element 2 in a case of negligence (breach of a duty of care)

Answer 14

breach of a duty of care (standard of care)
- occurs when a person does not take all the care they should. the duty is breached when the defendant fails to do what a reasonable person would have done. the court considers:
- the likely risk of harm
- the likely seriousness of the harm
- the burden of taking precautions to avoid the risk of harm

Question 15

explain element 3 in a case of negligence (causation)

Answer 15

• the plaintiff must prove that the injury or loss was caused by the breach of duty of care, and it would not have occurred without the breach.
• the plaintiff would not be successful in claiming negligence if it can be shown that the harm was too remote from the breach of duty of care.
• break in chain of causation means that some other act occurred between the tort occurring & the loss or damage being claimed

Question 16

explain element 4 in a case of negligence (injury loss or damage)

Answer 16

• the plaintiff can only seek legal remedy through the law of negligence if it can be proved that they suffered an injury, loss or damage
• can be physical, mental, or damage to property

Question 17

elements required to establish liability in a case of negligence

Answer 17

element 1- duty of care
element 2- breach of a duty of care
element 3- causation
element 4- injury, loss or damage

Question 18

possible defences to negligence

Answer 18

the defendant can claim that the plaintiff has not established the elements of negligence. that is that a duty was not owed, a duty was not breached, the damage/injury was too remote, or no loss or harm was suffered. if all elements are proven, the following defences can be used:
defence 1- contributory negligence
defence 2- assumption of risk (volenti non fit injuria)

Question 19

explain defence 1 to negligence (contributory negligence)

Answer 19

• the defendant may try to prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done.
• this will reduce the damages the defendant will need to pay if proved.

Question 20

explain defence 2 to negligence (assumption of risk)

Answer 20

• refers to the voluntary acceptance of the risk of harm or injury
• the defendant must prove that the plaintiff was aware of an obvious risk and they voluntarily chose to take the risk.

Question 21

cases in the development of negligence through common law

Answer 21

• the donoghue v stevenson case established the tort of negligence
• principles from this case were adopted by australia
• allow plaintiffs to take legal action on the grounds that a defendant did not act in a way to protect the interests of their ‘neighbour’
• grant v australian knitting mills adopted principles established in donoghue v stevenson.
• this allowed people to sue manufacturers who were negligent
• law of negligence was significantly developed by the courts after this time

Question 22

law of negligence through common law

Answer 22

• law of negligence has largely been developed through common law, and was inherited in australia through english common law

Question 23

neighbour principle

Answer 23

the common law rule that a person must take reasonable care to avoid acts & omissions that reasonably be foreseen as likely to injure their ‘neighbours’ (people affected by their acts)

Question 24

statute law in relation to negligence

Answer 24

• in victoria, part X of the ‘wrongs act’ is now in the main legislation in vic which governs negligence claims.
• wrongs act changes many common law principles related to negligence, but many aspects continue to apply. eg. section 54 of the wrongs act allows a defence of volenti non fit injuria to be raised, states that the common law continues to apply

Question 25

impacts of negligence on the plaintiff

Answer 25

• loss of life
• permanent physical incapacity
• serious injury
• emotional impact
• loss of wages & livelihood
• impact on family
• effects on mental health
• unemployment

Question 26

impacts of negligence on the defendant

Answer 26

• loss of business
• public humiliation
• physical injury
• costs (legal costs & damages)
• need to sell assets