legal studies - unit 2 flashcards 🐚

Explain the difference between the civil and criminal justice systems

There are multiple differences between the civil and criminal justice systems. Firstly, criminal law deals with offences against society, whereas civil law deals with disputes between individuals or organisations.

In a civil jurisdiction, the plaintiff brings a claim against the defendant. In contrast, criminal charges are made by the police/prosecutor (on behalf of the crown) against the Accused.

The standard of proof in a civil trial is on the balance of probabilities, whereas in a criminal trial is beyond reasonable doubt. Additionally, the party with the onus of proof is the plaintiff in civil cases, and the prosecutor/Crown in criminal cases. The defendant is liable or not liable in a civil case, while the Accused is found guilty or not guilty in a criminal case.

In the civil justice system, remedies (typically compensation and/or an injunction) are awarded with the aim to place plaintiff in the same position prior to the defendant’s act or omission. Meanwhile, in the criminal justice system, remedies aims to preserve peace and good order of society, and typically involve punishment such as imprisonment, fines and community-based orders

Finally, in a civil hearing, the costs are paid by the loser of the case. In comparison, in a criminal hearing, the state pays the cost of bringing the manner to court, while the Accused pays their own costs regardless of the outcome.

Explain the advantages and disadvantages of alternative dispute resolution:

Alternative dispute resolution (ADR) involves settling a dispute without going to court.

Advantages include that it gives control over the outcome of a dispute back to the parties (ensuring it meets their needs) rather than having it controlled by the State. It is considered cheaper, faster and more accessible than going to court, as there is less formality and paperwork involved, legal costs are lower, and settlement is likely to occur with less delay. Furthermore, it ensures that disputes remain confidential and private. The emphasis on on finding common ground between the parties, rather than finding a winner of the dispute. This provides greater justice to litigants while being less stressful and adversarial. As a result, cooperation/compromise can help maintain personal, family or business relationships.

However, disadvantages include potential power imbalances, where one party may have greater negotiation power and/or legal representation. The decision is not automatically legally binding and enforceable unless a contract or court order is written up. Furthermore, privately settled ADR does not allow a clear and consistent history of decisions (precedent) to develop, causing inconsistencies in outcomes. It can perpetuate costs and time if unsuccessfully resolved, as the parties still have to go to trial. Finally, it may be inappropriate for serious disputes, as some matters require an authoritative court decision or urgent legal protection

Explain the differences between mediation, conciliation and arbitration:

Mediation is when an independent third party tries to assist both of the parties in discussing and resolving the dispute. The mediator facilitates communication, encourages parties to meet an agreement and identifies possible solutions, however, they cannot force a decision, provide advice or interfere. The parties make the decision themselves and the agreement is not automatically binding unless formalised.

In contrast, conciliation involves seeking the opinion of an expert and having their advice of the best possible outcome. They have specialist knowledge and have the authority to provide advice, suggest solutions or recommend potential outcomes. However, they cannot force a decision - the parties still ultimately make the decision. The agreement is not automatically binding unless formalised.

Meanwhile, arbitration is a formal process in which parties must agree to be bound by the decision of a third-party arbitrator. The arbitrator listens to evidence and arguments presented from both parties and imposes a decision about how the dispute should be resolved. The arbitrator determines an outcome that the parties typically must legally abide by.

Explain the difference between courts and tribunals

Tribunals are set up to deal with legal disputes that arise in special areas. Unlike courts, cases may not be conducted by lawyers. That is, courts allow and encourage legal representation, whereas tribunals are designed for self-representation, sometimes refusing the use of legal counsel. Courts have more formal rules and procedures, whereas procedures and protocols are more relaxed in tribunals. Likewise, strict rules of evidence may be relaxed or not followed in tribunals.

Court decisions are made by judges, while tribunal decisions are often made by subject-matter experts (i.e: builders or social workers). Tribunals do not have to follow precedent, with exceptions (i.e. principles).

In contrast, courts must follow precedent if a previous case is shown to be similar. Lastly, tribunals are more accessible and cheaper compared to courts.

Explain the Role of QCAT:

Queensland Civil and Administrative Tribunal (QCAT) is an independent, accessible tribunal in Queensland that resolves a range of civil and administrative disputes. It provides a cheaper, faster and less formal alternative to courts. It deals with matters such as minor civil claims (under $25000), tenancy issues, guardianship, minor debts, consumer disputes and reviews decisions made by government agencies. It can make binding decisions and orders, and helps improve access to justice.

Explain the relationship between the Courts and ADR processes:

Alternative Dispute Resolution is governed under the Civil Proceedings Act 2011 (Qld) part 6, which mandates that Queensland court action founded on a personal injuries claim must undergo ADR before courts allow it to proceed to trial.

In some jurisdictions, courts have the authority to order parties to engage in ADR processes during the pre-trial phrase. This provides an opportunity for litigants to achieve negotiated settlements and satisfactory resolution with less costs and reliance on the legal system. Consequently, this reduces the burden on the courts, allowing them to provide access more efficiently.

Explain the role of the ombudsman:

The Ombudsman is an independent, impartial legal representative that investigates whether government actions were unfair, unreasonable or unlawful. The Ombudsman’s role is to investigate, inquire and report on any complaints by the public about the actions and decisions of government agencies and public authorities. They cannot impose penalties, however, they can make a report to parliament detailing recommendations on how to correct a decision, improve their practices or provide remedies. Any recommendations are not legally binding. They help aggrieved parties seek justice against state institutions without undergoing costly legal processes. They help to promote fairness, accountability and good administration.

Describe the elements of negligence

The three elements of negligence are the existence of a duty of care, breach of that duty of care and a reasonably foreseeable damage as a consequence of that breach.

Firstly, duty of care refers to a legal obligation and responsibility imposed on all individuals to ensure they accept a reasonable and identifiable standard of care while doing something to avoid harm to others. The plaintiff must show that the defendant owed the plaintiff a legal duty to take reasonable care to avoid foreseeable harm.

Secondly, breaches of a duty of care is established when the defendant fails to meet the required standard of care. Under s9 of the Civil Liability Act 2003 (Qld) (CLA), the risk must be foreseeable, not insignificant and one against which a reasonable person (in the defendant’s position) would have taken the precautions. This element relies on the ‘reasonable person’s test’.

Lastly, to establish ‘foreseeable damage’ the plaintiff must prove that damage was suffered by the defendant’s negligence, and that it is not too remote from the defendant’s act/omission. To establish damage, the plaintiff must have suffered recognised loss or harm, such as physical injury, psychological injury or financial loss. Meanwhile, this element relies on the ‘but for’ test to establish that the defendant caused the plaintiff’s harm. Under s11 of the CLA, a defendant’s breach must be a necessary condition of the harm (factual causation). Additionally, it must be appropriate for liability to extend to that harm (scope of liability). That is, if the defendant wouldn’t have been able to foresee that someone could be harmed from their act/omission, then the possibility of damage is too remote.

Explain the concept of the ‘neighbour’ principle

The ‘neighbour’ principle is used to determine whether a duty of care exists. It states that one must take reasonable care to avoid act or omissions that one can reasonably foresee are likely to cause harm to others. This was established by Lord Atkin in the case of Donoghue v Stevenson [1932]. From this precedent case, duty of care could arise where there’s a risk of injury, damage or loss suffered, even if there is no contractual relationship. A ‘neighbour’ is someone who is closely and directly affected by someone’s actions and should reasonably be considered when actions are taken. Any ‘neighbour’ is owed a duty of care. This principle has become an important foundation in the modern law of negligence and duty of care.

Describe the defences to negligence

The two types of defences for negligence is voluntary assumption of risk and contributory negligence.

If the defendant can prove that there was ‘voluntary acceptance of the risk’ by the plaintiff, then it can be used as a complete defence, meaning the plaintiff will receive no damages. For this defence to be successful, it must be established that the plaintiff knew of and fully understood the risk and voluntarily accepted it. For example, participants in a dangerous sport (i.e. NRL) have accepted risks that are inherent in the sport and thus cannot successfully claim that a duty of care is owed to (within reason)

Additionally, contributory negligence is used when the plaintiff has acted/omitted to act in such a way that they have contributed to or partly caused damaged to themselves. That is, they have failed to exercise reasonable care for their own safety. This can be used as a partial or complete defence. If successfully used, the court may reduce the damages awarded according to the plaintiff’s level of responsibility.

In Queensland, these defences are addressed by the Civil Liability Act 2003 (Qld).

Describe the remedies available to a plaintiff in a negligence case

If the plaintiff is successful, the judge will award damages and/or an injunction.

There are three types of damages that are awarded in a negligence case. General damages cover non-economic loss such as pain and suffering, loss of amenities and loss of enjoyment of life.

Special damages cover economic losses already incurred and capable of being given a precise value, such as medical expenses, rehabilitation costs and past loss of income.

Future economic loss compensates plaintiffs for injury (caused by defendant) that leads to financial loss in the future. For example reduced earning capacity and future medical, rehabilitation or care expenses. They are capped by the Civil Liability Act

Lastly, an injunction is a court order requiring a party to do something or stop an unlawful act if the defendant is still engaging in it.

Explain the effect of the Civil Liability Act 2003 (Qld) on the elements of negligence

The Civil Liability Act (CLA) 2003 (Qld) governs personal injury claims resulting from negligence. It effects the elements in these ways:

The CLA does not explicitly define when a duty of case arises, instead, they courts mostly rely on common law.

However, the CLA establishes when a duty of care is breached. As per section 9, a person does not breach their duty of care unless the risk was foreseeable (a risk of which the person knew or reasonably ought to have known), not insignificant and in the circumstances, a reasonable person in the position of the person would have taken the precautions. The CLA also governs the ‘reasonable person’s test’ which courts use to determine what a reasonable person would have done. Courts must consider the probability that the harm would occur if care was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm (how costly it would have been for the defendant) and the social utility of the activity that creates the risk of harm, and so on.

In addition, section 11 of the CLA governs causation. The breach of duty is a necessary condition of the harm that occurred (factual causation). Consequently, the ‘But for’ test was established to prove factual causation. This legal rule asks whether the damage would not have occurred ‘but for’ the negligent actions of the defendant. If this cannot be proven, then the test fails and foreseeable damage cannot be proven.

Explain the advantages and disadvantages of a no-fault compensation scheme

A no-fault compensation scheme provides compensation to any injured individuals without having to enter the civil justice system and prove that another party is liable for damages. This scheme is mostly used when accidents and injuries are inevitable, such as vehicle accidents and workplace compensation claims.

Advantages include that it provides faster access to compensation, as the injured person does not have to prove negligence. It promotes rehabilitation over litigation, lowering legal costs as lengthy court proceedings are avoided. It provides greater access to justice, as it shifts reliance away from legal representation and the courts, where litigants can be undercompensated when struggling to prove fault. Moreover, it reduces the number of negligence claims before the courts.

However, disadvantages include that no-fault compensation schemes do not hold the responsible person/corporation financially or legally accountable, leading to a lack of deterrence. Furthermore, compensation may be lower than damages that could potentially be awarded through a successful negligence claim, as no-fault schemes use standardised financial compensation that does not account for individual losses and circumstances. It can be expensive to operate and fund, particularly if many people are eligible to claim. Finally, it may restrict an injured person’s right to sue for damages in some circumstances.

describe foreseeability

Foreseeability refers to the outcome being able to be seen or predicted beforehand. For example, it is a foreseeable that a skier hits a bump/obstruction on a run, falls and breaks their leg.

Courts use this to determine whether a defendant could have reasonably foreseen that their actions would cause the kind of damage suffered by the plaintiff. If not, then the damage is too remote from the defendant’s act/omission and the negligence claim will fail.

Describe reasonableness

Reasonableness refers to the objective test courts apply to measure whether a defendant’s actions are appropriate and justified. Courts consider what a ‘reasonable’ person (in the defendant’s position) would have done in the same circumstances. To establish reasonableness, courts must consider the likely seriousness of the harm, the burden of taking precautions (how costly it would have been for the defendant), the social utility of the risky activity, amongst other relevant factors (i.e. standard procedures in a profession, etc). This is used to determine a standard of care, and whether that duty was breached.

describe vicarious liability

Vicarious liability refers to the doctrine that states that an employer is liable for the negligent performance of the employee. If an employee in their role has a duty of care to another party and breaches it, the employer will be held vicariously liable for any damages.