Legal Studies U2 2 AOS 1

Yippee

What does Restitutio in integrum mean?

To ‘put the plaintiff back in the position they were in prior

to the harm’

Duty of care

a legal obligation to ensure the safety and wellbeing of others, and to avoid conduct that could be reasonably foreseen to harm the other person/s.

What is the overall purpose of civil law?

To achieve social cohesion, restitutio in integrum, and set minimum standards of behaviour between individuals

Name 5 types of civil law

Contract law, negligence, defamation, wills and inheritance, family law, intellectual property

Tort

a civil wrong that a person can sue for in a court

Torts law

the right to sue when a defendant causes injury to a plaintiff by committing

one of a specific list of wrongs – eg negligence

What does civil law allow a plaintiff to do?

To allow a plaintiff to claim a remedy, usually damages (compensation) from a defendant

Breach

To be able to sue, a plaintiff must show a defendant breached a civil legal obligation.

Courts don’t allow a plaintiff to sue a defendant simply because a defendant caused injury to a plaintiff

Causation

For many (but not all) civil causes of action, a plaintiff will need to show that it was the defendant’s breach or fault that caused the loss and damage they suffered

Name one area of civil law that requires “Loss” to be present

Negligence

Name 3 types of Loss

• personal (physical) injury

• property damage

• pain and suffering

• psychological / psychiatric injury

• economic loss

What is the limitation of actions act name?

The Limitation of Actions Act 1958 (Vic)

What is the limitation of actions for negligence?

Property damages or economic loss - within 6 years of the plaintiffs knowledge of the harm

Personal injury - within 3 years of the plaintiffs knowledge of the harm

What is the limitation of actions for defamation, and why?

a claim of defamation must be brought within one year of the fate of publication.

This is to ensure that the information is still relevant.

Who does the burden of proof usually rest on in civil cases?

The Plaintiff

What is the standard of proof in a civil case?

On the balance of probabilities, meaning more likely than not

Who are possible defendants to a case, if not the actual person who caused the harm? ( If the defendant had no money, for example, suing would be useless )

Insurance companies

Parents of a child wrongdoer

The employer of the wrongdoer (vicarious liability)

What is vicarious liability?

A legal concept where one party is held responsible for the actions of another party, even if they were not directly involved in the wrongful act.

Name 4 possible plaintiffs to a civil case

An aggrieved party

An insurer of an injured party

The estate of a dead aggrieved party

A lead plaintiff in a representative proceeding (when there are 7 or more plaintiffs injured by a defendant) and class plaintiffs

What are the rights protected by negligence law?

To protect an individuals right to be safe from unjust harm, loss, or damage

To determine when someone is owed a duty of care

To allow parties to seek remedies when a duty of care has been breached

To help restore the wronged party to their original position

What are the elements of negligence law required to establish liability?

Duty of care - a legal obligation to ensure the safety and wellbeing of others

Breach of duty of care - an act or omission by the defendant that fails to meet the duty of care

Causation - the direct link between the action and its resulting damage or loss to the plaintiff

Injury, loss, damage - the harm suffered by the plaintiff that is the result of the defendants act or omission

Name all possible defences to negligence

Contributory negligence - where the plaintiff has not taken sufficient steps in order to reasonably care for their own safety. This may in turn add to the harm they suffer.

Voluntary assumption of risk - where to plaintiff is aware of the inherent risks of an activity, and chooses to participate nonetheless, understanding and accepting the known dangers and risk.

Name 3 remedies for negligence or defamation

Specific damages - measurable damages with a specific price, such as medical bills, or lost earrings.

General damages - do not have a specific value and are less easily quantifiable; general pain and suffering, a loss of amenities, or a shortened life expectancy.

aggravated damages - extra damages awarded in cases where the defendants behaviour is particularly harmful, or reprehensible and are typically awarded when the defendants conduct involves malicious or oppressive actions.

Name the 3 types of reputation protected by defamation law

Personal reputation - (for example) a false statement claiming a student stole the answer to a chemistry test.

Professional reputation - (for example) a false statement claiming a person is acting unethically or irresponsibly in their workplace.

Business reputation - (for example) A false statement claiming a small business is supplying faulty goods

What are the elements required to establish liability for defamation?

1. The matter is defamatory

2. The matter is false

3. The matter is about the plaintiff

4. The matter has been published to a third party

5. The matter has or will cause serious harm to the plaintiffs reputation

Whether material is defamatory or not is evaluated from the perspective of an ‘ordinary, reasonable person’. True or false?

True!

A defendant can still be liable for defamation if:

They were unaware of the plaintiffs existence

They were referring to an imaginary character

They were referring to a different person with the same name

How many years can a defamation case be bought to court after the material has been published, and how long can this be extended to if the plaintiff can demonstrate that they were unable to bring the action earlier?

1 Year

3 Years

Absolute privellage

Protects statements made in the course of parliamentary proceedings, judicial proceedings, and certain other official proceedings.

Includes people like: Judges, witnesses, lawyers, members of parliament during parliamentary debates

Justification

Proving that their statement was actually true (burden of proof on the defendant)

Contextual truth

A mixture of true and untrue statements - due to the damaging truthful statements, the false statements do not further damage it.

Honest opinion

Must be presented as opinion rather than fact, and based on substantially true facts that are of public interest. Also must be an opinion that a reasonable person would have.

Mandatory Injunction

When the court forces a party to do something, such as publish an apology

Restrictive injunctions

When the court prevents a party from doing something, such as publishing future content about a plaintiff

What are remedies for defamation?

Mandatory injunction, restrictive injunction, and damages (general, specific, and aggravated)

What are the impacts of defamation on the plaintiff?

Tarnished reputation, Unemployment, Emotional impact, Financial impact

What are the impacts of defamation on the defendant?

Tarnished repuation, Unemployment, Emotional impact, Financial impact

What are the impacts of negligence on the plaintiff?

Physical injuries, psychological impact, Financial impact

What are the impacts of negligence on the defendant?

Reputational damage, Financial impact, Cultural changes, Third-party claims and class actions