Civil liability

Purposes of civil law

Achieve social cohesion

Protect the rights of individuals

Provide an avenue for people to seek a remedy (e.g. damages or injunctions)
Provide a mechanism to resolve private disputes

Burden of proof

Balance of Probabilities

Breach

defendant has failed to observe a law or obligation they hold.

Causation

plaintiff must prove that the defendant's breach caused their injury or loss.

Loss

plaintiff must show they suffered actual loss or damage as a result of the defendant's breach.

Statute of limitation

the time period in which a plaintiff is able to make a claim.

Limitation of actions definition

A limitation of actions is the legal time limit within which a civil claim must be commenced.

Limitation of actions purpose

• Ensure disputes are resolved while evidence and witness memories are still reliable.

• Provide certainty and finality for defendants, so they are not exposed to legal action indefinitely.

• Encourage plaintiffs to bring claims promptly.

Good neighbour principle

you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your "neighbours."

Negligence

failure to take reasonable care to avoid causing foreseeable harm to another person, resulting in injury, damage, or loss.

Negligence protected interest and rights

• Personal physical safety: Right to be free from bodily injury and medical malpractice.

• Mental and emotional well-being: Right to protection from recognized psychiatric or severe mental harm.

• Property protection: Right to have personal and real property safe from careless destruction or damage.

• Financial protection: Right to economic security against pure economic loss in specific professional or advisory relationships

Elements of Negligence

1. The plaintiff was a ‘neighbour’ of the defendant and was thus owed a duty of care by the defendant

2. The defendant was careless and breached that duty of care

3. The defendant’s carelessness caused the plaintiff damage or injury

Statute of limitations for negligence

limitation period ranges from 3 to 12 years depending on the type of case, begins from the date of the act or omission that causes the harm

Possible defences

Contributory Negligence,

Voluntary Assumption of Risk,

Illegality,

Absence of Elements

Contributory Negligence

plaintiff failed to take a reasonable standard of care for themselves and contributed to their own loss/harm

Voluntary assumption of risk

The plaintiff willingly consented to the activity that caused injury and was made aware of the risk of injury before completing the action

Illegality

If both the plaintiff and defendant were undertaking an illegal activity, the defendant may not owe the plaintiff a duty of care

Absence of Elements

• A defendant may also try to demonstrate that an element of negligence was not present

  • No duty of care was owed

  • The duty of care was not breached

  • No damage occured or injury was caused by other means

Impact on Plaintiff

Physical: Injuries

Psychological Impact: Fear, anxiety, stress, loss of enjoyment of an activity

Financial: pay medical bills, absence from work, legal and court fees

Impacts on Defendant

• Damage to reputation: negligence claims can damage reputation and social standing of defendants. E.g. business

• Loss of business: resulting from reputational damage

• Financial impact: this may result from loss of business or due to the remedy sought by the plaintiff. Damages may ordered by the court

• Cultural change: cases may prompt cultural changes and behavioural improvements with individuals and businesses looking to avoid negligence claims. This can lead to new industry standards.

• Need to sell assets: to cover damages

Defamation

A statement or other published material is regarded as defamatory if it is untrue and lowers the reputation of a person.

What right does defamation protect

The tort of defamation is aimed at protecting the character and reputation of individuals against

attempts to discredit them.

Elements of Defamation

1. Statement is defamatory

2. Statement is untrue

3. Statement identifies the plaintiff

4. Statement is published

5. The statement is likely to cause, or has caused serious harm to plaintiff’s reputation

Statement is defamatory

• the plaintiff must prove the statement made by the defendant lowers the plaintiff’s reputation or standing in the eyes of ordinary, reasonable members of the community.

Statement is untrue

• the plaintiff must prove that the defamatory statement is untrue. 

A plaintiff cannot be defamed if the statement is substantially true.

 Statement identifies the plaintiff

• the material identified the plaintiff (the person who claims to have been defamed) directly or indirectly.
  
  

• The person defamed does not need to be mentioned by name. It may be sufficient to prove that people would reasonably conclude the statement was about the plaintiff.

Statement was published

the material was ‘published’ (written, spoken, illustrated or posted on the internet) to at least one other person, not just to the plaintiff. 

statement causes serious harm to plaintiff’s reputation

• Plaintiff must prove they have suffered, or may suffer, “serious harm” as a result of the defamatory statements.
  
  

• This prevents trivial or frivolous defamation claims.
  It also limits the burden of unwarranted defamation cases on businesses, individuals and the courts, and encourages the parties to resolve cases without going to court, and so avoiding the costs of a proceeding.

• ‘serious harm’ element must be determined before the trial commences unless there are special circumstances. If there is no “serious harm”, the case will be dismissed. 
  

Factors considered when determining the serious element

• the scale of the publication, including the extent of its readership, 

• what loss or harm has been suffered or could be suffered by the plaintiff (including financial and non-financial loss), and

• any ‘grapevine effect’ (i.e. whether the post or its contents had spread) that would be relevant in establishing serious harm. 

Statute of limitations for Defamation

• action for defamation must be brought within one year from the date of the publication of the defamatory material.

• court may extend the limitation period by up to three years from the date of the publication of the allegedly defamatory material if it was not reasonable for plaintiff to have commenced an action within one year

defamation defences

Justification, contextual truth, absolute privilege, qualified privilege, honest opinion, honest dissemination

Justification

a matter cannot be defamatory if it is true

the defendant must prove that the defamatory imputations or meanings conveyed by the words (not simply the words themselves) are true. 

“Substantial” truth means that the overall or vast majority of the statement is true, even if some of the details are inaccurate.

The statements must not be materially different from the truth. This means that ‘truth’ is possible even when the matter contains error, as long as the errors do not alter the overall conclusion a reasonable person would make

Contextual truth:

This defence applies when defamatory statements are made within the same context as statements that are substantially true, and the defamatory statements do not further harm the reputation of the plaintiff.

contextual truth elements which must be satisfied

1. Defamatory statements published alongside statement that are largely based on truth

2. Due to existence of true statements that lower the plaintiff reputation, statements do not further damage their reputation

absolute privilege

Absolute privilege is a complete defence to defamation that protects statements made in certain situations, such as during parliamentary or court proceedings. The defendant cannot be held liable for defamation, even if the statement is false or made with malice.

qualified privilege

Qualified privilege is a defence to defamation where a person makes a statement because they have a legal, moral, or social duty to communicate it to someone with a corresponding interest in receiving it. The defence applies only if the publication was reasonable and not made with malice.

Honest opinion

The opinion expressed doesn’t actually have to be fair, it just has to be one that a reasonable person might honestly hold. 

Honest opinion elements

1. The matter was a statement of opinion rather than fact. Publication needs to distinguish between the opinion and the underlying facts giving rise to the opinion. E.g. celebrity pushes fan (fact) → celebrity is rude (opinion)

2. The opinion was of public interest. E.g. political matter, conduct of public persons

3. The opinion was based on proper material. This is material that is substantially true, or relates to public documents or a fair report of proceedings of public concern.

Honest Dissemination

• While the author or editor of a defamatory statement is liable, and someone who passes it on could also be liable, some people (printers, newsagents, libraries, etc) can rely on the defence of innocent dissemination if:

  • They did not know about the defamatory content

  • They had no reason to suspect it was defamatory

  • Their ignorance was not due to negligence

CAN ONLY BE USED BY SUBORDINATE DISTRIBUTORS

Impact of defamation breach on plaintiff

• loss of reputation – this could include loss of status. For example, the plaintiff could be shunned by people with whom they once associated

• emotional impact of the defamatory material – this could be a consequence of the publicity of the claim. For example, a person could develop conditions such as depression and anxiety as a result of the defamation

• loss of wages and livelihood – this coul be a consequence of loss of reputation. For example,the plaintiff might need to take time off work because of the distress or anxiety caused by the loss of reputation

• unemployment – this could be a consequence of loss of reputation. For example, a person may lose business opportunities or may lose the support of their colleagues, resulting in unemployment.

Impact of defamation breach on defendant

• costs – this could occur when the defendant has to defend a claim, and/or loses a case. For example, the defendant might be ordered to pay the plaintiff’s legal costs, which could cause financial hardship

• need to sell assets – this could be a consequence of a high damages award. For example, the defendant might be forced to sell assets to meet the cost of the damages amount

• public humiliation – this could be a consequence of the publicity of the claim. For example, the defendant might suffer public humiliation as a result of widely reported court proceedings.

Remedies

a legal solution to a breach of civil law. A person who has suffered injury, loss or damage as a result of negligence may seek a remedy to address the wrongdoing.

Types of remedies

damages and injuctions

Types of damages

Special damages, General damages, Aggravated damages

Special damages

• type of compensatory damage, compensating for out of pocket loss that is quantifiable (usually economic). It is the sum of money one party is obligated to pay another to compensate for losses easily measurable.

  • Eg. medical expenses, loss of wages

• The goal of special damages is to restore the plaintiff to the financial position they were in before the harm occurred.

General Damages

Damages that are unable to be measured accurately in monetary terms.

To compensate for the physical and/or psychological effects of an accident, as well as the loss of amenity, where the injuries are clearly linked to the defendant’s actions or negligence. 

Aggravated Damages

Awarded if the defendant shows reckless disregard for the plaintiff’s feelings. The court not only looks at the civil wrong that has occurred, but also at the manner in which the defendant infringed the plaintiff’s civil rights.

an amount of money that a defendant may be ordered to pay when a plaintiff has suffered extreme humiliation, embarrassment or insult because of the defendant’s conduct

Factors considered for damages

Financial or not

Significant or minor

Legal caps

Thresholds met

 Factors Considered: Economic

includes loss of wages, medical expenses, and other costs such as the cost of property that has been damaged. This loss can be easily quantifiable and compensated through special damages (damages to compensate for loss that can be accurately measured in monetary terms).

Factors Considered: Non- Economic

such as pain and suffering, psychiatric injury and physical injury – is harder to quantify, but can be compensated through general damages

Factors Considered: Minor

Minor damages, such as mild illness or minor economic loss, can result in a smaller award of damages. Damages such as nominal damages or small compensatory damages may be appropriate.

Factors Considered: Significant

More serious and impactful damages, such as loss of life expectancy or property damage, could result in a larger award of damages. There may be a need to award compensatory damages, or even exemplary damages if the court finds appropriate. 

Factors Considered: Legal caps

Cap: limits the amount of damages that can be rewarded for different type of losses. This is based on location as well.

Eg. Maximum amount of damage that can be given for loss of earnings

The cap on damages for non-economic loss is around $650,000

Factors Considered: Thresholds met

Certain minimums that a plaintiff must satisfy before damages can be awarded. 

Injunctions

a court order requiring the defendant to do, or not do something. It’s a non-financial remedy and can be awarded by themselves or along with other damages.

Types of injunctions

Mandatory

Restrictive

Mandatory Injunctions

are injunctions that force someone to do somethig

Eg. taking down defamatory material, or publishing a statement to clarify the untrue statements

Mandatory Injunctions Considerations

• The nature of the publication (may be awarded where there is a need to remove publications to prevent further damage).

• Whether the injunction would have a lasting effect (if someone who posts defamatory content receives an injunction, they may still publish material anonymously)

Restrictive Injunction

Restrictive injunctions prohibit behaviour, stopping someone from doing something. It can last forever or expire quickly depending on its classification.

• A restrictive injunction would usually be enforced to stop the further publishing of any defamatory material.

Eg.  may involve ordering the person to stop publishing any further material, or to stop them from publishing the material