legal studies CIVIL LAW

what are the purposes of civil law?

1. Primarily to return the wronged party to their original position before the wrong had occurred.

other purposes include:

• Provide guidelines for acceptable behaviour.

what are the types of civil law?

1. workplace law: regulates the relationship between employees and their employers and includes matters such as pay and working conditions. This is enforced by numerous Acts, including the Fair Work Act 2009

2. Consumer protection law: ensure individuals purchasing goods and services from businesses do not have their rights infringed. established in the Competition and Consumer Act 2010

3. Negligence: when someone owes a duty of care to another person and breaches that duty, causing harm or loss to the other person.

4. Defamation: relates to the publication of material that is not factual, that causes damage to another person’s reputation.

what are the key concepts of civil law?

1. Breach: The plaintiff has to prove that there has been a breach by the defendant. This means that the defendant has failed to observe a law or obligation imposed on them.

2. Causation: The plaintiff must prove that the defendant’s actions caused or resulted in the harm suffered by the plaintiff, and that the harm would not have occurred if the defendant had not acted in the way they did.

3. Loss: A plaintiff can only obtain a legal remedy if it can be proved that they have suffered loss or harm.

   → types of loss include: economic/financial loss, property damage and personal injury.

Limitation of actions: a time period within which a wronged party can sue the wrongdoer.

→ breach of contract: 6 yrs, under tort law: 6 years, defamation: 1 yr.

Burden of proof: The burden of proof lies with the plaintiff. The plaintiff must present evidence to establish that the defendant is in the wrong (or liable for the harm that has been inflicted on the plaintiff).

Standard of proof: in civil cases, the plaintiff must prove the case on the balance of probabilities.

→ This means that the plaintiff must prove that they are most likely to be in the right, and the defendant is more likely to be in the wrong. In other words, the plaintiff has to prove that their version of events were more likely than not to have occurred.

define plaintiff and defendant

• The plaintiff is the person or party who starts the lawsuit. They claim that they have been wronged.

• The defendant is the person or party being sued. They are accused of causing harm or violating the rights of the plaintiff.

the elements required to establish liability for negligence

• element 1: duty of care

  The plaintiff must first establish that the defendant owed them a duty of care.

• element 2: breach of a duty of care

  Once the plaintiff has established that the defendant owed them a duty of care, they must then prove the defendant breached that duty of care. It is not an absolute duty to ensure the plaintiff will not be harmed, rather, it is a duty to take reasonable care to prevent the harm from occurring.

• element 3: causation

  Once the plaintiff has established a duty and breach of care, causation must also be proven. Causation is a link between the breach of duty and the harm caused and that the harm would not have occurred if the duty of care had not been breached.

• element 4: harm/loss/damage

  A plaintiff can only seek a legal remedy through the law of negligence if it can be proved that they suffered injury, loss or damage, even if it is minor. The injury, loss or damage can be physical, or mental, or it can be damage to property.

Limitation of actions: refers to the period of time in which a
person, who feels their rights have been breached, can initiate a civil action.

→ property damage/economic loss: 6 yrs of plaintiffs knowledge, personal injury: 3 yrs of plaintiffs knowledge

what are the defences to a negligence claim

Contributory negligence-Not a complete defence

The defendant attempts to prove the plaintiff contributed to their own loss or damage by failing to take reasonable care of themselves.

→ In order to establish contributory negligence, the defendant must prove that:

1. the plaintiff themselves behaved negligently and did not take reasonable care in taking sensible steps to avoid a foreseeable risk of injury.

2. the plaintiff’s negligence was a contributing cause of the damage suffered.

Voluntary risk of assumption - complete defence:

A defence in which it is claimed the plaintiff willingly accepted the likelihood of risk when participating in an act.

→ In order to establish the defence of voluntary assumption of risk, the defendant must show the plaintiff:

1. Had full knowledge of the risk

2. Appreciated and understood the risk involved

3. Freely and voluntarily agreed to incur the risk of injury.

what are the remedies for negligence

remedies for negligence: are usually in the form of money payments for the injury/loss/damage someone has suffered.

Specific damages (countable)

• Specific accurate and measurable value or amount of money

• Typical examples are medical bills or lost earnings

General damages (non countable)

• damages to compensate for loss that cannot be accurately measured in monetary terms, such as loss of enjoyment of life, pain, suffering, reduction in life expectancy

Aggravated damages

• Typically awarded if the defendant shows reckless disregard for the plaintiff’s feelings. Defendant humiliating or causing shame to plaintiff.

• The purpose of aggravated damages is to compensate the plaintiff for this distress,

Impacts of negligence on the parties

Impacts of negligence on plaintiff:

• harmed physically/mentally

• property damage

• loss of income

• loss of amenity (enjoyment of life)

• emotional stress

• financial strain

Impacts of negligence on defendant:

• company at risk of closure/loss of staff

• loss of reputation

• financial liability - need to pay for plaintiffs damage

• bankruptcy

• community exclusion

• future business deals may be lost

• mental/emotional stress

• public shame

what is an award

an award is a legal document that sets out the minimum pay rates for employees who work in a particular occupation or industry.

the elements required to establish liability for underpayment

Element 1-the plaintiff was an employee of the employer:

The plaintiff must first establish that they were an employee of the employer, and not another type of worker, such as an independent contractor.

Element 2-The plaintiff received less than their entitlement

Employee needs to demonstrate is that they
were paid less than their entitlement.

→ To establish this, the employee needs to show that:

1. a particular award or agreement applied to them

2. they were classified under the award

3. they received less than their specified entitlement at any particular point in time.

Limitation of actions: an employee must make a claim within 6 years of underpayment.

what are the defences to an underpayment claim

There are no defences, however the defendant could agree that:

1. the plaintiff was not an employee

2. the employee had received their entitlement

what are the remedies for underpayment

Damages: requires the employer to pay a certain amount of money to compensate an employee for the breach of their employment rights and any injury/loss/damage suffered.

Injunction: requires the employer to either undertake a specific action, or not to undertake a specific action to stop and prevent a further breach of the employees rights.

Impacts of underpayment on the parties

Impacts of underpayment on plaintiff (employee):

• mental anguish

• loss of trust

• loss of income

• Loss of self worth, depression, stress and
  embarrassment

• Overwhelmed and loss of motivation in life

Impacts of underpayment on defendant (employer):

• Reputation loss or damage

• Financial loss-must compensate for loss

• Loss of well paying opportunities

• Mental health issues

• Bankruptcy