Unit 2 AOS1 Civil Liability

Purposes of civil law

• to restore the plaintiff back to their original position prior to the wrong occurring as far as is practicable

• provide an avenue for people to seek compensation

• protect rights of individuals

Purpose: to restore the plaintiff back to their original position prior to the wrong occurring as far as is practicable

• rectify harm done

• helps maintain fairness and justice within society by upholding individuals rights and providing mechanisms for accountability and restitution.

Purpose: provide an avenue for people to seek compensation

offers legal framework for individuals to seek redress for losses or damages they have suffered

Purpose: protect rights of individuals

by enforcing laws that prevent and remedy wrongful actions

how civil law establishes purposes

establishes law

decides law

enforces the law

Types of civil law:

Torts:

• negligence: duty of care to another

• nuisance: interference w peaceful enjoyment of private property

• defamation: false statements

• trespass: the interference w land or person

contract law

employment law

wills and probate

occupational health and safety

family law

equal opportunity and discrimination law

Concepts of Civil Law

Causation

Breach

Loss

Limitation of Actions

Burden of Proof

Standard of Proof

Breach

the defendant has in some way failed to comply with a duty or obligation (w regards to contracts, negligence etc)

• plaintiff has to prove that there has been a breach by defendant

Causation

Direct relationship between event 1 causing event 2 and event 2 could not have happened without event 1

• plaintiff must establish causation

• must prove that defendants actions directly causes/contributed to the harm experienced by the plaintiff

• harm would not have occurred had it not been for the actions or negligence of the defendant

• causal connection/definite link between defendants actions or inactions and harm suffered by plaintiff

Loss

• plaintiff only able to obtain a legal remedy if it can be proved that he/she suffered loss or harm

• e.g. economic or financial loss, property damage, personal injury, pain and suffering, loss of amenity

Limitation of Actions

There is a time within which a wronged party must sue the wrongdoer. once that period has passed, then defendant will be able to raise a defense that the plaintiff is too late to obtain any form of remedy leading to the dismissal of the case solely on the grounds of timing

breach of contract: 6

tort law: 6

defamation: 1

limitations can be extended

purpose of limitation of actions

• ensures legal disputes are resolved in a timely manner

• preserves the integrity of fairness and prevents unfairness due to delayed claims

• promotes legal certainty by providing clear and predictable framework

• predictability is crucial as it allows individuals/businesses to plan/manage legal risks

Burden of Proof

Plaintiff: responsibility of proving the facts of the case

follows idea that it is only fair that if someone alleges another person is liable for loss/damage suffered by them, they they should prove the allegation

Standard of Proof

Balance of Probabilities: level of certainty required to establish a case

class action

when a group brings forward one case (representing others as well)

• promotes efficiency

possible plaintiffs

• the aggrieved party

• other victims: someone who indirectly suffered loss/damage

• insurers

possible defendants

• the wrongdoer

• employer

• persons involved in the wrongdoing

• insurers

Negligence

• The law relating to duty of care is known as negligence which was established by the Donoghue vs Stevenson case

• When a person is negligent in civil law, the person has failed to take reasonable care that was due to another. duty arises when it is reasonably foreseeable that one’s actions or omissions could cause harm to others

• established neighbor principle that says you owe a duty of care to anyone who could be directly or indirectly impacted by your actions

• grant vs Australian knitting mills (1936)

rights protected by law of negligence

protect people from wrongful acts

allows parties to seek compensation

Elements of Negligence

• Duty of Care Owed

• Duty of care breached

• Injury, loss or damage occured as a direct result of the breach

Duty of Care Owed

a person owes a duty of care if their actions are likely to affect the Plaintiff

they owe a duty of care if:

• the risk was foreseeable

• the risk was significant

• a reasonable person in the same circumstances would have taken precautions to eliminate or mitigate the risk

Duty of care breached

• a breach of a duty of care occurs when a person does not take all the care they should

• duty breached when defendant fails to do what a reasonable person would’ve done.

• court considers: what was the risk of harm, how significant was it, how difficult was it to eliminate/mitigate the risk?

Causation

there is a direct relationship between the duty of care being breached and harm, loss, damage or injury that occurred

• injury would not have occurred without the breach of the duty of care

Harm, Injury, Damage, Loss

harm, loss, injury or damage occurred as a direct consequence of the breach of the duty of care

• can be physical, mental or damage to property

Negligence: Limitation of Actions

3yrs: a person contracted a disease or disorder

6yrs: general negligence

12yrs: death or serious injury

Negligence: Limitation of Actions explained

the time starts from the date on which the cause of action occurred

Negligence: Possible Defenses

contributory negligence

voluntary assumption of risk

contributory negligence

that through their actions the plaintiff in part contributed to their own loss, damage, harm or injury, thus they are partially or fully to blame

voluntary assumption of risk

that the plaintiff willingly took part in any activity that had an element of risk, harm, damage, loss or injury and therefore consented to the risk.

they knew about the potential risk and decided to partake anyway

Negligence: Exceptions

are necessary to ensure one society functions according to norms and conventions

good Samaritan rule

the donation of food to charities

volunteers

good Samaritan rule

if a person comes to another persons aid and provides assistance within their level of competence, without payment and in good faith

therefore if injury, loss, harm or damage occurs they cant be sued for negligence

the donation of food to charities

the donation of food to charities despite the best before date being reached

• ensure that feeding people is higher priority than the risk of contamination

  • its more important for a persons basic needs to be met and this overrides the ability to sue for negligence

volunteers

completing unpaid work for charity or local council indemnifies them from being sued if they cause loss, damage, injury or harm

specific damages

damages to compensate for loss that can be accurately measured in monetary terms such as loss of wages and medical costs

general damages

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

aggravated damages

awarded if defendant shows reckless disregard for the plaintiffs feelings (shame or humiliation) - compensates for it

Negligence: Impact on plaintiff

physical and emotional

financial

legal and court costs

impact on daily life

Negligence: Impact on defendant

financial liability

legal costs

reputation and public perception

insurance premiums

emotional stress

Defamation

the publication of material that unjustifiably damages someone’s personal or professional reputation

What torts of defamation protect rights

• freedom of expression

• the right to be considered of good character and reputation

• right to that reputation being protected whilst also protecting the right to freedom of expression

• the right to seek a remedy if reputation is damaged

place reasonable limits on freedom, but aim to uphold that right by balancing it against the right to reputation

Elements of Defamation

• the statement is defamatory

• the statement is untrue

• the statement must refer to the plaintiff

• the statement has been published by the defendant

• the statement has caused harm or is likely to cause serious harm to the reputation of the plaintiff

• the statement is defamatory

a statement is defamatory if it lowers a persons reputation in the eyes of an ordinary community member

onus on plaintiff

not necessary to prove that defendant had intention to hurt plaintiff

• the statement is untrue

plaintiff cannot be defamed if statement is substantially true, this is because truth is a defense to defamation

• the statement must refer to the plaintiff

can be explicit or can be implied

the person defamed doesn’t not have to be mentioned by name, it may be sufficient that to prove that people reading, hearing or seeing the statement would reasonably conclude that it was about the plaintiff

• the statement has been published by the defendant

plaintiff must prove that statement was communicated to another person other than the plaintiff

comments become actionable once a3rd party reads/hears/sees the statement then this is where an action can take place

size of audience is irrelevant

• the statement has caused harm or is likely to cause serious harm to the reputation of the plaintiff

plaintiff has to establish that they have suffered significant harm

• this is to prevent trivial or insignificant claims as this wastes courts time and resources. courts prefer matters are resolved between parties

there are cases where a specific exception regarding ‘seriousness’ can be granted - but this is at the discretion of the court. (bc ‘serious’ is not defined)

Defamation: Limitation of Actions

An action for defamation must be brought within 1 year from the date of publication of the matter, however an application can be made to extend this timeframe.