Legal Studies Unit 2 AoS 1: Civil Law

Introductory video VEA Video “Tort Law” http://online.clickview.com.au/MyLibrary/Play?Id=c781c51d-b7ba-b119-d3c2-b7a2d2d17729&m=False

Unit 2: Area of Study 1 The need for civil law You may notice that this is largely revision. The need for civil law Key principles of civil law The distinction & relationship between civil & criminal law An overview of law-making through the courts Torts, including negligence, defamation, and related defences. This is the bulk of the work.

What can you do to start off? We’re covering chapter 5. Start reading / note taking. Start your glossary by creating definitions for the following: Civil law Overruling precedent Damages Reversing precedent Remedy Tort Liable Negligence Not liable Defamation Compensation Nuisance Precedent Trespass ratio decidendi “Neighbour” Binding precedent Duty of care Persuasive precedent Contributory negligence Distinguishing precedent Disapproving precedent

What is civil law?

Civil law settles disputes between two parties where one party (the plaintiff) believes that their rights have been ‘breached’ by the other party (the defendant). The plaintiff ‘sues’ the defendant. Civil law aims to return the plaintiff to their ‘pre-breach’ position by offering them a ‘remedy’. The remedy offered by the courts is most often in the form of monetary compensation.

Why do we need civil law?

The need for civil law – Why does civil law exist? Protect our rights: For example, our right to safely consume the products we buy, to purchase a good that is not faulty and to enjoy living at home without constant noise and interruption from neighbours. Impose a duty on others not to do anything to cause us harm: The duty not to cause harm is not only imposed on an individual. It also applies to groups such as football clubs, schools, business corporations and government agencies. Provide a remedy such as compensation in the event of a breach of a civil right: The main purpose of a civil remedy is to return the injured person to his or her original position before the harm was done. p.172 “Key concepts in VCE Legal Studies”

What are the key principles of civil law?

Key principles of civil law A person's rights must have been infringed for a civil dispute to have occurred. A person must suffer damage or loss as a result of the infringement of their rights. Burden of proof: A person who believes his or her rights have been infringed upon bears the burden of proving a case. In a civil case, the burden of proof rests with the person bringing the dispute to court. This person is known as the plaintiff. Standard of proof: Unlike a criminal case, the standard required in a civil case is less strict. A person must prove only on the balance of probabilities that his or her version of the facts is correct to be successful in a civil action. Outcome / consequences: In civil cases a plaintiff is seeking a remedy. In civil cases, a remedy seeks to compensate a plaintiff for loss or damage or injury suffered and restore that person to the position (where possible) he or she was in prior to the infringement. p.172 “Key concepts in VCE Legal Studies”

The distinction and relationship between civil and criminal law

Criminal law and civil law work together to ensure that members of society are able to live their lives free from unwanted interference. A car crash might be the result of a driver breaking a criminal law. As a result, the driver may be prosecuted for drink driving (for instance). If someone was injured in the crash, they may be able to claim for damages against the driver. Criminal law provides a means to prosecute the drunken driver. Civil law offers the injured person the right to sue for compensation.

An overview of law making through the courts Judges play an important part in law- making. Laws made by judges are known as judge-made law, common law or case law.

When do the court’s create law? Sometimes a Judge comes across a case that is not covered by the current legislation. Since there is no current law covering the facts of the case, the Judge has to consider the facts of the case and make a decision. The decision that is made by the Judge becomes the law for all future cases with similar facts.

Precedent: “An example serving for the future.” When a Judge makes a decision on a case that is the first of its kind the Judge is setting a precedent. The precedent that has been set forms part of the law. This type of law is called ‘common law’ or ‘Judge made law’ to distinguish it from legislation(laws made by parliament). Judges that come across cases with similar facts in the future will refer to the precedent set by the first Judge. The precedent explains how the law should be applied in certain circumstances.

The operation of precedent The decisions of courts are recorded in law reports, which record the judgement in a case. The judgement outlines: the facts of the case the decision the reasons for the decision [the most important part!] ratio decidendi: the legal reasoning used by the judge to reach the decision in the case. This is what is used by other judges as a guide when facing similar cases in the future.

The operation of precedent (cont’d) Lower courts must follow the decision (or ratio decidendi) of higher courts of the same court hierarchy in similar cases. This is called binding precedent. When judges are referred to a precedent set by another judge in a court of the same level and in the same state, they are generally bound to follow it, except in the High Court.

The operation of precedent (cont’d) Precedents made in courts in other states or countries are not binding on judges in Victoria. When an unusual or unique case comes up that has not been considered in the Victorian court system, the judge may look to decisions made by other courts as a guide to determining what the law should be in the Victorian system. These precedents are known as persuasive precedents.

The Donoghue v. Stevenson precedent created the tort of negligence in the United Kingdom 1932 p.245 “The Legal Maze”

Donoghue v. Stevenson precedent Lord Atkin’s judgement: Ratio decidendi p.245 “The Legal Maze”

Donoghue v. Stevenson precedent Lord Atkin’s judgement – a translation! A person who manufactures products that cannot be inspected prior to use, owes a duty of care to consumers of the product. General application in law: A person must take reasonable care to avoid acts or omissions that can reasonably be foreseen as likely to injure their ‘neighbours.’ A “neighbour” is someone who would be closely and directly affected by another person's acts or omissions.

The Donoghue v. Stevenson precedent was used as a persuasive precedent to establish the tort of negligence in Australia

The Donoghue v. Stevenson precedent has been used in other cases and its application has been extended The law of negligence has been extended to cover: Schools owe a duty of care to students. Road users owe a duty of care to other road users. Employers owe a duty of care to employees. Bus companies owe a duty of care to passengers. Professionals giving advice owe a duty of care to their clients.

When does the doctrine of precedent apply? p.181 “Key concepts in VCE Legal Studies”

Disregarding / altering precedents Distinguishing Judge decides a binding precedent does not apply. WHY? The facts are not the same, so not bound. Judge may come up with a different decision. Precedent not applied - different decision made. New precedent formed. Disapproving If facts are similar, judge must apply. Judge can comment if they think the precedent is inappropriate. This is known as “disapproving”. Overruling A judge in a higher court may overrule a precedent set by an earlier case, in a lower court. WHY? The higher court is not bound by the precedent of the lower court, although it may consider it as a persuasive precedent. Precedent overruled - different decision made. Original precedent no longer applies. Reversing Parties can appeal decision of lower courts. The case is taken to a higher court. The higher court may reverse the precedent made by the lower court.

Statutory interpretation Acts of parliament need to be written in general terms so that they can apply to lots of different situations. These general terms need to be interpreted because sometimes, they are unclear. The interpretation of acts of parliament is called ‘statutory interpretation’. When judges interpret legislation their interpretations become part of the law. The same interpretation must be made in all future cases with similar facts concerning the same legislation.

Statutory interpretation - Example p.253 ‘Access and Justice’

Tort law A tort is a civil wrong. Tort law is all about the rights and obligations people owe to one another and the infringement of those rights. A wrong that allows the individual who has suffered to take legal action. Designed to give a person remedy for suffering damage or harm. Most of the rules come from common (judge made) law.

Civil wrong: Torts Torts we will look at Related defences Negligence No breach No duty No damage Contributory negligence Voluntary assumption of risk Defamation Privilege Justification Contextual truth Honest opinion

What do you know about the tort of negligence?

Negligence – A definition A failure to take reasonable care to ensure that your actions do not cause harm to others.

Applying negligence The person who was negligent owed a duty of care to the person injured. The duty of care was breached. The breach of care caused loss or damage (causation). Harm or loss was the result of the breach of the duty of care. Look at Donoghue v. Stevenson as an example

Duty of care: to whom is a duty of care owed? Were the two parties involved ‘neighbours’? Neighbour: someone who would be closely and directly affected by that person’s acts or omissions. A person must take reasonable care to avoid acts or omissions that can reasonably be foreseen as likely to injure their ‘neighbours.’

Breach of duty: when is a duty of care breached? A duty of care will have been breached if: The risk of injury was foreseeable. The defendant failed to act as a reasonable person would in the same situation. KEY PRINCIPLES The standard of care required will increase with the seriousness of the injury that could result. The greater the likelihood of injury, the greater the care that should be taken to avoid it. The easier the task of avoiding the injury, the more reasonable it is to expect those measures to be taken.

Damage or injury caused: what damage or injury must be compensated? The plaintiff must prove that they suffered damage or injury as a direct result of the defendant’s careless behaviour and not as the result of some other factor or incident. The defendant may argue that he or she is not liable because the injury, harm or loss was too remote from the wrongful act. They may claim remoteness of damage.

Exceptions to negligence When the plaintiff has signed a waiver. When the defendant is acting as a good Samaritan within their competence and without payment. When the defendant is donating food to charity. When the defendant is a volunteer.

Defences to negligence No duty of care was owed. The duty of care was not breached. No damage occurred. The injury was caused by other means. The plaintiff contributed to the damages (contributory negligence). Voluntary assumption of risk.

DEFAMATION What is defamation?

“No joking, misplaced humour can be a serious matter”

Defamation is… The dissemination of a statement or other public material that lowers the reputation or standing in the community of the plaintiff in the eyes of the community. PURPOSE: Protects our right to a good reputation.

Introductory article: “Payback for the internet's creepy cowboys” “…the laws of defamation apply equally to the online world and these days anonymous bloggers can be found.”

Defamation P has the burden of proof. There are three elements to prove: The statement was defamatory. The defamatory statement refers to the plaintiff. The defendant communicated the defamatory statement to a third person.

Worked example: p.252 of “The Legal Maze”

Step 1: Is the statement defamatory? A defamatory statement: Is an untrue statement. Lowers the reputation of the individual in the eyes of the community, exposing them to hatred, contempt or ridicule. Intention is irrelevant. It doesn’t matter whether the defendant intended to damage the plaintiff’s reputation or not. The point is that it did damage their reputation.

Step 2: Is the statement about the plaintiff? Even if the defendant does not name the plaintiff in the statement, the plaintiff may still be able to sue for defamation if the third party or parties may reasonably be able to conclude that the person in the statement is the plaintiff.

Step 3: Has the statement been communicated to a third person? The defendant must communicate (orally or in written form) the alleged defamatory statement about the plaintiff to a third person (i.e., to a person other than the plaintiff).

Exceptions to defamation The plaintiff must be an individual. Statements about a group are not defamatory. E.g., “All lawyers are crooks”. Companies generally cannot sue for defamation. Representatives of dead persons cannot sue for defamation. p.252 “The Legal Maze”

Defences to defamation Justification (truth) Contextual truth Absolute privilege Publication of public documents Fair report of proceedings of public concern Qualified privilege Honest opinion Innocent dissemination Triviality