unit 2: civil liability Flashcards
(141 cards)
1
Q
civil law
A
defines the rights and responsibilities of individuals, groups, and organizations in society and regulates private disputes.
2
Q
sue
A
to take civil action against another person by making a claim that they have infringed some legal right
3
Q
liability
A
the legal responsibility of a party for loss caused to another because of a breach of civil law
4
Q
remedy
A
orders made by a court or tribunal to address a civil wrong or breach
designed to restore the plaintiff back to their original position.
remedies can be in the form of damages (money) or injunctions
5
Q
types of civil law (negligence)
A
Requires individuals who owe a duty of care to another person to prevent foreseeable (predictable) harm from occurring.
6
Q
types of civil law (trespass)
A
Prevents individuals from interfering with another person, their land or goods.
7
Q
types of civil law (nuisance)
A
Ensures that individuals can enjoy public and private property without interference or annoyance.
8
Q
types of civil law (contract)
A
Ensures that people who make promises under enforceable agreements fulfill those promises or compensate the other party if they fail to comply.
9
Q
types of civil law (defamation)
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Protects a person’s reputation from being damaged by lies that are shared with the public
10
Q
purposes of civil law (guidelines)
A
Provide guidelines for acceptable behaviour so that people uphold each other’s rights and social cohesion can be achieved.
e.g. defamation outlines that publishing untrue statements is unacceptable > right to reputation is protected
e.g. negligence outlines situations where a duty of care exists > right to not be harmed Is protected
11
Q
purposes of civil law (system)
A
Provide a system for parties to pursue rights protection through courts and tribunals
- E.g. courts, tribunals, complaints bodies, ombudsmen.
12
Q
purposes of civil law (remedy)
A
Provide a remedy for harm or loss caused by an infringement of rights
13
Q
purposes of civil law (damages)
A
*Damages = amount of money to compensate for loss or harm
14
Q
purposes of civil law (injunction)
A
*Injunction = court order mandating or restricting an action
15
Q
teacher example of negligence
A
A teacher owes a student a duty of care. A teacher should not miss their yard duty as it is foreseeable that harm could occur if students play unsupervised.
16
Q
example of trespass
A
Destroying another person’s laptop could give rise to a claim for trespass to goods.
17
Q
example of nuisance
A
A person breeds cats in their home. There is a pungent dour that prevents the neighbours from entertaining in
their yard.
18
Q
example of contract
A
When a person creates an account on social media, they agree to a Terms of Service.
19
Q
example of defamation
A
Publishing an article in the newspaper that someone is a ‘war criminal’
20
Q
names of parties before court proceeding
A
aggrieved/wronged party=person whose rights have been infringed
wrong doer=person alleged to have infringed another persons rights
21
Q
name of parties during court proceedings- defendant
A
defendant=the party who is alleged to have breached a civil law and is being sued
22
Q
name of parties during court proceedings- plaintiff
A
plaintiff=the person whose rights have been infringed and who sues another party in a court or tribunal
23
Q
breach
A
an act or omission that represents a failure to meet legal obligation
the plaintiff has burden of proving the defendant is in breach
‘failure to….’
24
Q
loss
A
a type of harm/damage suffered by a person. it can involve both economic or non-economic loss
plaintiff only get remedy if they can prove they have suffered loss/harm
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types of loss (financial)
loss of wages, loss of earning capacity, loss of profits, medical expenses etc.
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types of loss(property damage)
damages or destruction of house, clothing, car etc.
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types of loss (personal injury)
cuts, bruises, broken bones, loss of limb etc.
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types of loss (pain and sufering)-example
mental anguish, anxiety, depression
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types of loss (loss of amenity )
loss of enjoyment of life, loss of job satisfaction, loss of family life etc.
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causation
the direct relationship between the defendants breach and the plaintiff loss
the plaintiff must prove that the defendants breach was a necessary condition of the loss suffered
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causation 'but for...'
but for the defendants breach would the harm have occurred
'but for [defendants breach] plaintiffs loss would not have occurred. T/F [defendants breach] was a necessary condition
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causation-intervening event
event may occur that breaks chain of causation
possible for defendant to avoid liability if they can prove their breach was not the true causes of the loss
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burden of proof
responsibility of proving the facts of the case (onus)
burden of proof rests on the plaintiff. This means that they must present evidence to establish the elements of the civil wrong.
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standard of proof
the degree to which the a case must be proven in court
In civil law, the plaintiff must proves that the wrongdoing occurred on the 'balance of probabilities.'
This means that the plaintiff’s version of events is more likely to have occurred than the defendants
35
counter claims
*A separate claim made by the defendant in response to the plaintiff’s claim, asserting that it is the plaintiff who is actually at fault
* Counterclaims have independent procedural existence
* The defendant has the burden of proof in relation to proving the elements of the counterclaim.
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limitation of action
*the restriction on bringing a civil claim after the allowed time
* For almost all civil claims, there is a time period within which the aggrieved party can sue the
wrongdoer.
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purpose of limitation of action
* Ensure civil cases are resolved in a timely manner
* Ensure reliable evidence is readily available
* Ensure that the defendant does not have a potential case pending for an unlimited amount of time
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Limitations of actions act 1958 (vic)
sets out the time limits
*Defamation - 1 year
*Under tort law where there is personal injury - 3 years
*Under tort law where there is no personal injury (e.g. negligence, nuisance) - 6 years
*Breach of contract - 6 ears
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planintiffs -class actions
(representative proceedings or group proceedings.)
*The lead plaintiff represents the class in the proceeding. The other people in the class are called group members.
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components of a class action
1. seven or more people have claims against the same defendant; and
2. The claims concern the same, similar or related circumstances; and
3. The claims give rise to a common issue of law or fact
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Becoming part ot a class action opt out system
* Victoria has an opt-out system for class actions.
* Once the class has been defined by the court, it a person meets the relevant criteria, they are automatically part ot the class action
* People can opt out of a class action via writing.
* The case can only be argued once. All members of the class are considered to have their claim heard and settled by its conclusion (i.e. can't bring an individual claim after the class action)
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Plaintiffs - Other victims
A plaintiff can also be a person who has indirectlv suffered loss as the result of another party
* A person suffers loss due to the death of a family member and sues the party that they believe is responsible
* A witness of a traumatic event who has suffered nervous shock
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Defendants - employers
Employers have the right, ability and duty to control the activities of their employees. Therefore, employers can become vicariously liable for the breaches of their employees.
has vicarious responsibility
The employee must have been acting in the 'course of their employment as opposed to a 'frolic of their own'
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defendants - employers
Vicarious liability
the legal responsibility of a third party for the wrongful acts of another
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negligence purpose
negligence requires individuals who owe a duty of care to another person to prevent foreseeable (predictable) harm from occurring
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negligence
a type of tort (a civil wrong)
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elements of negligence
1. Defendant owed the plaintiff a duty of care
2. Defendant breached their duty of care
3. Defendant's breach caused harm to the plaintiff
4. Plaintiff suffered harm or loss
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duty of care - negligence
obligation to be careful towards another person and prevent foreseeable harm from occurring to them
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when is duty of care owed
a person owes a duty of care to another if the risk of harm was 'reasonably foreseeable'
if the risk is reasonably foreseeable than the 'neighbor principle' applies
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presumed duty of care examples
*it is reasonably foreseeable that the actions of a teacher will harm a student
*it is reasonably foreseeable that the actions of a doctor will harm a patient
*it is reasonably foreseeable that the actions of a manufacturer will harm a consumer
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when is duty of care breached- negligence
the duty of care is breached when a person fails to do what a reasonable person would have done in the same situation
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a person has breached their duty if
*it is reasonably foreseeable that the breach will result in harm to the plaintiff
*the risk was not insignificant (not far fetched/fanciful)
*a reasonable person in the same situation would have taken precaution to eliminate the risk
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neighbour principle
neighbour refers to the relationship between two parties who are directly impacted by each others actions or omission
established in
donoghue v stevenson
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negligence- causation
the plaintiff must prove that the defendants breach was a necessary condition of their loss or harm
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negligence- loss, damages, injury
plaintiff can only seek legal remedy if they can prove that they have suffered injury, loss of damages
the loss cannot be too remote from the breach . the plaintiff must prove that this specific type of loss was reasonably foreseeable
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reasonable foreseeability structure- breach
it is reasonably foreseeable that [specific breach] could cause harm to [type of person P is]
* It is reasonably foreseeable that leaving a hammer unattended in the Middle School could harm to Clarendon students.
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reasonable foreseeability- duty of care
it is reasonably foreseeable that the actions or omissions of [type of person D is] could harm [type of person P is]. The plaintiff and defendant are therefore legal neighbours.
* It is reasonably foreseeable that the actions or omissions of a construction worker building a project at Clarendon could harm Clarendon students.
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reasonable foreseeability-loss
it is reasonably foreseeable that [specific breach] could cause plaintiff to suffer [specific type of loss]. Therefore, the loss is not too remote.
* It is reasonably foreseeable that leaving a hammer unattended in the Middle School could cause Clarendon students to suffer personal injuries in the form of bruises.
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defense to negligence-
lack of elements (no duty of care was owed )
defendant may claim that there was no neighbour relationship because it was no reasonable to foresee that their actions could cause loss or damage to plaintiff
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defense to negligence-
lack of elements (the duty of care was no breached)
a duty of care was not breached if the defendant acted as any reasonable person would have and the injury was the result of an accident and could not be stopped
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defense to negligence-
lack of elements (no loss or harm occurred)
the defendant claims that although they may have breached their duty of care, the plaintiff suffered no harm / injury was not the result of the breach
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what the defendant must prove for voluntary assumption of risk
*the plaintiff was aware of an obvious risk
*plaintiff voluntarily chose to take the risk- consent can be expressed (e.g. sign a waiver) or implied (e.g. willingly engaging in the activity)
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defense to negligence-
voluntary assumption of risk
complete defence--> if proven the defendant avoids liability
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example of voluntary assumption of risk
knowingly accepting a ride with a drunk driver is accepting obvious risk of being injured in a car accident
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medical profession- voluntary assumption of risk
VAOR doesn't apply to provision of health services
health provider have legal responsibility to warn people of any inherent risk with the procedure
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defense to negligence-
contributory negligence
not a complete defence---> if proven the amount of damages owed to the plaintiff will be reduced.
defendant must prove that the plaintiff contributed to the harmful situation or is partly to blame for the harm done
if plaintiff was intoxicated when event occurred there is presumption of contributory negligence
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name of parties during court proceedings-plaintiff
the person whose rights haven been infringed and who sues another party in a court or tribunal
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aim of remedies
a court order that aims to enforce a right by
* correct a civil breach by returning the plaintiff back to their original position
* preventing loss from occuring or worsening; or
* deter others civil breaches
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damages
a type of remedy in which monetary compensation is awarded to the plaintiff in a civil dispute to compensate their loss caused by a civil breach
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special damages
compensate for loss that can be accurately measured in monetary terms
eg medical bill, loss of past wages, loss of amenity
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purpose of compensatory damages
purpose is to restore plaintiff, as nearly as possible, to the position that they would have been in had the tort not been committed
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general damages
compensate for loss that cannot be accurately measured in monetary terms
eg emotional loss, loss of future earning capacity,loss of amenity
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aggravated damages
awarded if defendant shows reckless disregard for the plaintiffs feelings and causes them them unnecessary distress, shame or humiliation
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exemplary (punitive) damages
if the defendants conduct is particularly reprehensible, the court can impose exemplary damages to make an example of them and to deter others from that type of behavior. these will be awarded if the defendant has acted consciously and in extreme disregard for the rights of others (e.g. violence, cruelty, abuse of power, excessiveness)
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impact of negligence: the plaintiff
Loss of life
* Loss of life: a workplace accident or a car accident can result in death.
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impact of negligence: the plaintiff
* Permanent physical incapacity:
the plaintiff might require carers for the remainder of his or her life.
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impact of negligence: the plaintiff
* Serious physical injury:
the need for medical expenses, such as operations and ongoing care
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impact of negligence: the plaintiff
* Loss of wages and livelihood:
Being out of work for the duration of the recovery.
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impact of negligence: the plaintiff
*Emotional impact of the breach:
Fear of social situations or certain places.
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impact of negligence: the plaintiff
* Unemployment:
Might be as a consequence of physical or mental injury.
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impact of negligence: the plaintiff
Effect on mental health:
Depression, anxiety, loss of self-esteem.
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impact of negligence: the defendant
*Loss of business:
Potentially due to the negative publicity associated with the negligence claim.
E.g. A restaurant where a customer has become ill might lose patronage.
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impact of negligence: the defendant
Public humiliation and loss of reputation:
Again, this can stem from the negative publicity of the
claim.
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impact of negligence: the defendant
° Physical injury:
In cases of contributory negligence, the defendant might also suffer injury, such as in a car accident; a counterclaim can also be launched by a defendant.
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impact of negligence: the defendant
cost
If the defendant loses the case, the prospect of paying some of the plaintiff's legal costs exists.
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impact of negligence: the defendant
Need to sell assets:
This will potentially result from a high award of damages against the defendant.
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defamation purpose
defamation protects a person's reputation from being damaged by lies that are shared with the public
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defamation
Defamation is a type of tort (a civil wrong)
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elements of defamation
1. The statement is defamatory
2. The statement is untrue
3. The statement refers to the plaintiff
4. The statement has been published
5. The defamatory statement caused serious harm, or is likely to cause serious harm to the reputation of the defendant
90
defamation- statement is defamatory
* A statement is defamatory if it lowers a person's reputation in the eyes of ordinary members of
the community.
* It is not necessary to prove that the defendant intended to hurt the plaintiff. Malice is not a factor
will ordinary members of the community think less of the plaintiff
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defamation-the statement is untrue
* The plaintiff must demonstrate that the statement made about them is false.
* If the statement is found to be substantially true, the plaintiff cannot be defamed.
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defamation-the statement refers to the plaintiff
The plaintiff must be referred to in the defamatory statement
*The plaintiff can be explicitly named.
*It may be sufficient to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff
The plaintiff may be defamed as part of a Group
* The group must be sufficiently small enough for the plaintiff to be recognised as a part of
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defamation-the statement has been published
* The statement must be communicated to a person other than the plaintiff. The plaintiff can sue once a third party reads, sees or hears the defamatory material.
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defamation- publication caused or likely cause, serious harm
* 2021 legislative changes to the Defamation Act 2005 (Vic) now require plaintiffs to establish that they have suffered, or may suffer, 'serious harm' as a result of the defamatory comments
* This element must be determined by the judge before the trial commences, unless there are special circumstances (e.g. cost implications, available resources)
* If the serious harm element is not satisfied, the case will be dismissed.
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examples of defamatory matter
An article, report, or advertisement
Television, radio, the Internet, or any other form of electronic communication
A letter, note, or other writing
Any other thing by means of which something may be communicated to a person
A picture, gesture, or oral utterance
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what act are examples of defamatory statements found
examples of defamatory matter are included in s4 of the Defamation Act 2005 (Vic)
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Some defamatory comments that are actionable in a defamation case include those stating the plaintiff:
* has committed a crime
* associates with known criminals
* is dishonest or deceitful
* has been adulterous
*is a hypocrite
* engaged in misconduct in public office
* is incompetent or lacks qualification to hold a specific job.
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defamation- publication caused or likely cause, serious harm
There is no set definition for 'serious harm'. Court will consider:
* Meaning of words and gravity of allegation
* scale of the publication and any grapevine effect (if statement spread beyond recipients to a wider audience)
* reaction of the recipients
* What financial and non-financial loss has been suffered or could be suffered
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purpose of defamation- publication caused or likely cause, serious harm
* This element seeks to prevent frivolous and trivial defamation claims where the costs of taking the case to court exceed the damages awarded.
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specific defamation defence- justification
defamatory statement is substantially true
doesn't matter if there are some inaccuracies, as long as the core imputation of the statement is substantially true
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specific defamation defence- contextual truth
defamatory statements are made within the same context as statements that are substantially true
if the contextual, substantial true statement are more serious than the defamatory statements, the defamatory statements are essentially cancelled out as they do no further harm to the plaintiffs reputation
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defamation defence- contextual truth
example
a person commits an act of indecent exposure in front of a crowd of 30 people.
A publication wrongly states the exposure occurred in front of 40 people.
The core imputation (that the person committed an act of indecent exposure to the detriment of the public) remains true.
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defamation defence- justification
example
a person commits an act of indecent exposure in front of a crowd of 30 people. A publication correctly states this fact but wrongly states that the person also used offensive language.
The defamatory statement about the offensive language was made in the same context as more serious and substantially true statements of a similar nature.
Therefore, the defamatory statements do no further harm to the plaintiff's reputation.
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general defamation defence-
defendant can argue that any or all of the elements of defamation have not been proven on balance of probabilities
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defamation defence- honest opinion
The defendant may claim that their statement is an expression of their honest opinion (as a commentator) rather than a statement of fact:
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elements of honest opinion
1.The matter was a statement of opinion rather than a statement of fact.
2.The opinion was related to a matter of public interest.
3.The opinion was based on proper material.
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1.The matter was a statement of opinion rather than a statement of fact.
honest opinion
*statement must appear to be an opinion to the ordinary, reasonable reader having regard to all the circumstances of the publication - e.g. a deduction, conclusion, criticism, judgement, remark or observation drawn from a set of facts
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2.The opinion was related to a matter of public interest.
honest opinion
* public must have an interest in receiving the information. There is no exhaustive list of matters but can include politics, activities of large corporations, sports, literary and artistic works etc.
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3.The opinion was based on proper material
honest opinion
* The material providing the basis for the opinion must be set out in the defamatory publication, notorious or accessible from a reference/link.
* That material must be substantially true, a public document or a report on public proceedings
110
defamation defence-innocent dissemination
This defence protects people who unknowingly distribute defamatory information
e.g. printing companies, booksellers, libraries and internet or email providers.
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elements of innocent dissemination
1. They published the material as a subordinate distributor or as an employee or agent of one
2. Did not know (nor should have known) that the publication contained defamatory information
3. Did not have an obligation to check for defamatory material
112
subordinate distributor - innocent dissemination
someone other than the author, editor or primary distributor
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defamation-damages
plaintiff can receive componentry damages including special, general and aggravated,
however exemplary damages cannot be awarded as the right to free speech must be protected.
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caps on defamation damages
in Victoria, there is a $250,000 limit for damages for non-financial loss in defamation claims. The maximum amount can only be awarded in the most serious case.
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mitigating factors of defamation damages
there are some factors that weigh towards a smaller award:
* If the defendant has apologised or published a correction
* If the plaintiff has already recovered damages in relation to any other publication that defamed them on the same subject matter
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injunctions
Injunctions = a court order that compels a party to do something or prevents a party from doing something.
* Mandatory injunctions force a party to do something
* Restrictive injunctions prevent a party from doing something
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mandatory injunctions
* Mandatory injunctions force a party to do something
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restrictive injunctions
* Restrictive injunctions prevent a party from doing something
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defamation impacts- plaintiff
* Loss of reputation - e.g. loss of status by being shunned by associates
* Emotional toll - e.g. if defamatory material has had a lot of publicity a person could develop anxiety or depression
* Loss of wages and livelihood - e.g. taking time off work due to shame
* Unemployment - e.g. losing business opportunities or support from colleagues
120
defamation impacts - defendant
* Financial impact - e.g. if defendant loses the case, they may be ordered to pay damages and the plaintiff's costs. They may need to sell assets to achieve this
* Public humiliation - e.g. if claim is widely reported then the credibility and accuracy of the defendant's conduct and speech may be questioned in the future
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purpose of nuisance
Nuisance is a type of tort (a civil wrong).
Purpose: nuisance ensures that individuals can enjoy public and private property without interference or annoyance.
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elements of nuisance
1. The plaintiff has a property right in or over the land
2. There has been interference with the plaintiff's use and enjoyment of the land
3. The plaintiff suffers damage, loss or injury
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property right-nuisance
The plaintiff must have a property right (interest) in or over the land
* As the owner of the property
* As a tenant (renter) of the property
* As an individual accessing public property (e.g. public park or roadway)
125
property right (licensees)
people with mere permission to be on land - cannot sue
e.g. customers in a hotel or shop; couch-surfers
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interference-nuisance
The plaintiff must establish that the defendant substantially and unreasonably interfered with their use and enjoyment of the land.
127
interference (use and enjoyment)
* Use and enjoyment = living, commercial or agricultural purposes
128
interference examples
* Interference = noise, dust, vibration, water run-offs, objects (e.g. golf balls), obstruction
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what will courts consider in substantial and unreasonable
court will consider:
* Nature of interference (e.g. act or omission of defendant and whether it was necessary)
* Nature of neighborhood (e.g. inner city, outer suburban area, rural area)
* Time of day interference occurs
* necessity of interference for the community
* Whether interference is ongoing or intermittent
* How long the interference has existed (e.g. whether the nuisance was present before plaintiff moved to property)
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what must plaintiff establish for valid breach of civil rights
The plaintiff must establish that the they have suffered some sort of injury, loss or damage
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damages, loss, injury (material damages)
nuisance
physical property damage (e.g. damage to crops)
* Material damage is deemed a substantial and unreasonable interference - prima facie claim
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damages, loss, injury (non material damages)
injury to the plaintiff's sensibilities (e.g. loss of enjoyment, sleep deprivation) or financial loss (e.g. loss of revenue)
133
damages, loss, injury (public nuisance)
to sue for a public nuisance, the plaintiff must show that they have suffered a special damage that extends beyond what has been experienced by other members of the public
134
nuisance defenses (elements have not been proven on balance of probabilities)
*The plaintiff did not have a property right in or over the land
*There was no unreasonable interference - rather, the defendant was using their own land in a reasonable manner
*The plaintiff did not suffer damage, loss or injury
135
nuisance defenses (statutory authorization)
This defence can be raised if legislation passed by the Victorian or Commonwealth Parliament allows for the defendant's conduct.
This defence will require a careful analysis of the statute and the facts of the case.
136
statutory authorization covers the actions of:
*Post office staff
*Council officers
*Gas, water and electricity meter readers
* Police entering a house with a warrant
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nuisance defenses (the plaintiff consented to the activity)
The plaintiff consented to the activity that they are now claiming to be a nuisance
138
Reasonable use-neighbours
The court must balance the rights of neighbours
give and take rule - people must tolerate interferences caused by normal, everyday activities of neighbours.
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what must the defendant prove in statutory authorization
The defendant must show that the legislation confers a mandatory duty to undertake an action
and
that the nuisance is an inevitable consequence of performing that duty
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nuisance impacts- plaintiff
* Impact on mental health - e.g. anxiety caused from noise disturbance
* Impact on quality of life - e.g. malicious use of surveillance cameras can greatly affect a person's right to enjoy their property
* Financial impacts - e.g. loss of productivity or customers
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nuisance impacts- defendant
* Inconvenience - e.g. defendant may be required to stop using their property in the way they choose
* Business failure - e.g. defendant may be required to change or stop operations to pacify the neighbours
* Costs - e.g. defendant may be required to pay a remedy or legal costs if a nuisance is established
