Week 3 Everything Flashcards
(33 cards)
Forms of legal liability
Harmful conduct can lead to:
Criminal liability Tortious liability Statutory liability Vicarious liability Contractual liability
FORMS OF LEGAL LIABILITY: Criminal Liability
Criminal Liability attaches to acts which constitute a crime. It involves a relationship between an individual and Government on either a Federal or State level. If the harm caused to another constitutes a crime, this act will be prosecuted and punishment in some form, will eventuate. Both Federal and State governments have laws in place which deal with criminal matters.
TORT LAW
Some harmful acts may be defined as a ‘tort’. A tort is a civil wrong.
A tort is a civil wrong.
This brief definition says two things:
There is a wrong doing; This wrong doing committed attaches to a civil jurisdiction. This means the dispute is between two or more individuals: no one is accused of committing a crime. It also means that the wrong doing in this context, does not involve a criminal prosecution.
This does not mean that a tort may not also constitute a crime. It can.
Example: The tort of deceit may constitute a civil wrong and form the subject of a civil action. It may also constitute a crime and be the subject of an action in a criminal jurisdiction. The crime is that of fraud. So one act of harmful wrong doing may constitute both a tort and a crime.
Tortious liability: tort law liability explained
The liability which attaches to the commission of a tort derives from a breach a civil law on either a Federal or State level and which applies to every person equally.
Tort law examples
I may not trespass on your land and you may not trespass on mine. I am prohibited from defaming you and you, me. I may not be negligent towards you, nor you towards me. Tort law therefore derives from a legal rule or principle which is applied by a Government to every individual in society equally, and to which liability attaches if that rule or principle is breached by that individual.
Tort distinguished from contract
Tort law is different from contract law where the parties themselves determine what their rights and liabilities are, by agreeing to the terms of the contract. They are responsible for the type of breach and its importance. The promises agreed to, therefore, can literally be about anything at all `1and that is acceptable, provided the subject matter agreed to is a legal one and so constitutes a legally enforceable contract.
Tort distinguished from contract
Examples: A contract to deliver goods on a certain date - at which time the goods will be paid for.
The breaches which may arise here are in relation to the failure to deliver the goods -and if delivered, the failure to pay. A contract to sell a car to A in return for which A has agreed to pay a specific price. The breaches here will arise if the car is sold to someone other than A - and if sold to A, A’s failure to pay the agreed sum.
Tort distinguished from contract: uniformity
Tortious law is more uniform than contract law when it comes to what constitutes a breach of the law because in tort law, the law applies to every person in exactly the same way.
Tort distinguished from contract: uniformity examples
No one is permitted to trespass on another’s land.
No one is permitted to defame another.
The type of breach of the civil law is therefore, more uniform in tort than in contract law.
CONTRACT LAW
This is a liability which arises from the relationship which exists between two or more parties because they have entered into a contract with each other and agreed to its terms. Contractual liability arises as a result of the breach of one of more promises made by a party to the contract. A breach of contract may also constitute a tort.
Contractual liability example
If an employee is injured as a result of the careless act of an employer, that employee may take action in the tort of Negligence and sue for breach of contract on the part of the employer in relation to the duty implied in a contract of employment for the employer to take reasonable care to ensure employee safety.
STATUTORY LIABILITY
Sometimes the wrongful action committed, may, in addition to constituting a crime, a tort, and/or a breach of contract, amount to a breach of a Statutory provision.
STATUTORY LIABILITY example
The sale of a defective product may breach one or more of the statutory guarantees in the Australian Consumer Law (ACL) which apply to the retailer and/or manufacturer. In addition, such a breach may also amount to a breach of contract and may form the basis of a suit in the tort of Negligence.
Distinction Between Criminal Law and Civil Law
The commission of a crime involves the presence of police and charges and arrests being made which are usually followed by a prosecution by the department of public prosecutions which is an arm of the government. Any law which does not involve the above factors and parties is known as civil law – that is, law which is the subject of dispute between two or more individuals and therefore includes the two areas already discussed – Tort and Contract law.
some more differences between criminal and civil law
In a criminal matter the party alleging the commission of a crime is referred to as the prosecution.
The person charged is referred to as the accused.
In a civil matter (including tort or contract law), the person suing is called the plaintiff.
The person being sued is referred to as the defendant.
Vicarious Liability
The liability owed for the harm by another person. This often arises in the context of the relationship between employer and employee. The employer is liable for the harm caused to another by an employee provided the employee was undertaking authorised work. The fact that the employee was performing such work in an unauthorised matter does not affect the liability of the employer.
Types of trespass
To land
To goods in the form of detinue or conversion
To the person in the form of:
Assault
Battery
False Imprisonment.
THE TORT OF TRESPASS
The commission of the tort of trespass involves the intentional or negligent interference, directly, either with the plaintiff’s person or property. If one or more of these elements of the definition is missing, then an action in trespass in general, will fail.
Trespass To Land
A person commits the tort of trespass to land if they interfere with another person’s exclusive possession of land and the interference is direct; and the interference is either intentional or negligent; there is no consent or lawful justification for the interference.
Trespass To Goods
A person commits the tort of trespass to goods if they interfere with another person’s possession of goods and the interference is direct and the interference is either intentional or negligent and there is no consent or lawful justification for the interference.
Assault
A person commits the tort of assault if they cause another person to develop an apprehension of imminent physical contact; and the act is direct; and the act is either intentional or negligent; and there is no consent or lawful justification for the act. An example is speaking aggressively and close to someone’s face. No physical contact is necessary for behaviour to constitute assault.
Battery
A person commits the tort of battery if they cause some sort of physical interference with the body of another person; and the act is direct; and the act is either intentional or negligent; and there is no consent or lawful justification for the act.
