Legal studies unit two - AOS1

Civil law

Defines the rights and responsibilities of individuals, government entities and organisations while providing a legal framework for these parties to interact with each other

Remedy

Court order to enforce a right by preventing or correcting a civil breach by returning the plaintiff to the position they were in prior to the breach by the defendant

Purposes of civil law

• Uphold the rights of individuals

• Providing a system for parties to pursue rights protection

• Providing remedies

• Establishes guidelines for acceptable behaviour

guidelines for acceptable behavior

Establishes what conduct is acceptable and unnacceptable so that people can live together in harmony and social cohesion can be achieved

providing remedies

when a persons rights have been infringed civil law provides a way to return the harmed person to the position they were in prior to the harm incurred

Types of civil law

• Workplace law

• Contract law

• Consumer protection law

• property law

Plaintiff

• Individual claiming they have been legally wronged

• holds the burden of proof to prove the defendant liable

• must meet the standard of proof on the balance of probabilities.

Defendant

• The individual who has allegedly breached a civil law.

• Goal - defend themselves against the plaintiff and avoid a remedy being awarded against them.

Breach

• The breaking of or failiure to comply with a duty or obligation

• The responsibility of proving that the defendant is in breach is on the plaintiff

Causation

The plaintiff must prove a direct and clear link between the defendant’s actions and the harm or loss suffered by them , a causal link.

Loss

The plaintiff will need to prove that a type of harm, loss or damage was suffered as a result of the defendant’s actions (different forms may be financial or non-financial).

Burden of proof

The responsibility of a party to prove a case, rests with the plaintiff as they are the party that initiates the action.

Standard of proof

The degree or extent to which a case must be proved in court by the plaintiff. This degree is on the “balance of probabilities”

balance of probabilities

Requires the plaintiff to prove that their claim is more likely probable then not.

Limitations of actions

• The maximum time after an event within which legal proceedings must be initiated

• If a claim is brought after this time it is legally barred.

Positives of limitations of actions

• Efficient

• Ensures evidence and witness accounts are reliable

Possible Plaintiffs

• Aggrieved party

• insurers

• other victims

Aggrieved party

the individual who has directly suffered the loss and has their rights breached.

Other victims

People who have indirectly suffered a loss as a result of the actions against the aggrieved party. EG. Family members, friends.

Insurers

Individuals or cooperations that provide insurance to another party. They may be entitled to compensation (payments) if they have paid out insurance for a loss caused by another party.

Possible plaintiffs class action

A legal proceeding brought by one or numerous plaintiffs acting for themselves as well as on the behalf of a wider group of people with a claim of similar facts.

Why is this useful?

• Access to the justice system

• Efficiency in court

Access to the legal system

Provides a large number of people access to the civil justice system as well as the costs which are often covered by the lead plaintiff

Efficiency in court

Saves the court time and resources as they will not have to hear and determine each case individually.

Criteria for a class action

Criterion One

Seven or more people are claiming against the same defendant.

Criteria for a class action

Criterion Two

The claim must be in respect of the same or similar related circumstances.

Criteria for a class action

Criterion Three

The claim must give rise to a common issue of law or fact

Possible defendants

• Wrongdoer

• Employers

• Insurers

Wrongdoer

The individual/group who has directly caused or instigated the loss or suffering of a plaintiff, breaching their civil rights.

Employers

An individual or corporation that employs the plaintiff and has either directly or indirectly caused their loss or suffering.

Insurer

The individual or corporation that provides insurance to another party. A plaintiff may initiate a claim against an insurer if they were denied compensation for loss or suffering they believe is covered by their insurance.

Donoghue v Stevenson (1932), facts

Donoghue drank beer with a decomposed snail, becoming sick. She sued the manufacturer, even though she didn’t buy the drink herself.

Donoghue v Stevenson (1932), legal issue

Whether a manufacturer owed a duty of care to someone who didn’t directly buy the product (no contract).

Donoghue v Stevenson (1932), decision

The court ruled the manufacturer did owe a duty of care to Donoghue — it was reasonably foreseeable she could be harmed.

Donoghue v Stevenson (1932), Neghbour principle

A person must take reasonable care to avoid acts or omissions that could foreseeably cause harm to their ‘neighbour’ ( anyone who is closely and directly affected by your actions)

Duty of care

People have legal obligations to be cautious and careful by keeping other people in mind when doing anything that could harm them.

A person owes a duty of care if

• The risk of harm was foreseeable

• The risk was significant

• A reasonable person in the same circumstances would have taken precautions to eliminate the risk of harm

Law relating to duty of care - Negligence

A tort that occurs when someone owes a duty of care to another person and breaches that duty, causing harm or loss as a result.

Tort

A civil wrong that interferes with a persons legally protected interests

The Wrongs Act 1958 (Vic)

principal statute in Victoria governing claims for damages for personal injury and death as a result of negligence or fault

The law of negligence aims to

• Establishes legal principles about when someone is owed a duty of care and the precautions they need to fulfil

• Allow parties to seek appropriate remedies

• Establishes limitations for what remedies may be sought

 

Elements required to establish liability for negligence

• Duty of care

• Breach of a duty of care

• Causation

• Injury, loss or damage

Duty of care - to establish liability for negligence

The duty is breached when a person fails to take the precautions a reasonable person in the same circumstance would have done in avoiding the risk of harm

What does the court consider when determining if precautions against a risk of harm shold have been taken

• The likely risk of harm

• The likely seriousness of harm

• The burden of taking precautions to avoid the harm

• The social utility of the activity that creates the risk of harm

Causation

The breach of the duty of care caused harm to the plaintiff

WHo must prove causation and how

• plaintiff must prove causation

• With a direct link between harm and a breach of a duty of care, and that the harm would not have been incurred if the duty of care had not been breached.

injury, loss or damage

The wronged person has suffered harm; that is an injury, loss or harm

Remoteness of damage

• limits the extent to which a defendant can be held liable for the harm that was caused to the plaintiff.

• determines whether the damage suffered by the plaintiff was a foreseeable result of the defendant's breach of duty

• if harm is remote, then the consequence of the defendants negligencee could not be reasonably foreseen and therefore cannot be liable

The Limitations of actions act 1958 (Vic)

Sets out the limitation periods of negligence claims; that is the period which within a negligence claim must be made.

Limitation periods for General negligence claims (eg. Property damage)

6 years

Negligence where the plaintiff contracted a disease or disorder

3 years

Negligence claims where the plaintiff died or suffered personal injury

• 3 to give the plaintiff time to identify harm and therefore have a fair chance at making a claim

• 12 years to ensure the defendant is not sued decades later no matter the harm discovered

Defences to a negligence claim

• Contributory negligence

• Assumption of risk

Contributory negligence

the plaintiff contributed to the harmful situation without taking sufficient steps to reasonably care for their own safety therefore adding onto the harm they suffer.

Assumption of risk

The plaintiff was aware of the risks of an activity and voluntarily choose to participate regardless, understanding and accepting the known dangers of the risk

Possible remedies

• Special damages

• General damages

• Aggravated damages

Special damages

A type of remedy that requires the payment of a sum of money from one party to another to compensate for loss that are be easily quantified (eg. medical expenses)

General damages

A type of remedy that requires the payment of a sum of money from one party to another to compensate for loss that cannot be easily quantified (eg. Pain and suffering)

Aggravated damages

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 defendants conduct.

Impact of a breach on the plaintiff

• Loss of life

• Permanent physical injury or incapacity

• Loss of wages and livelihood

• Unemployment

• Effect on mental health

Impact of the breach on the defendant

• Loss of business

• Public humiliation

• Physical injury

• Costs

• Need to sell assets