aos3 civil liability

damages

the amount of money that the court has ordered one party to pay another, awarded to the plaintiff who has suffered harm. It is the most common remedy in a civil claim

burden of proof

The responsibility of proving the facts of the case. Burden of proof lies with plaintiff, they must present evidence to establish that the defendant is in the wrong and liable for harm inflicted upon the plaintiff

development of statute law in discrimination

Vic laws in discrimination are recent in comparison to other areas such as negligence. In passed 30 years the Commonwealth Parliament has passed legislation prohibiting discrimination in certain areas

Benefits of representative proceedings

The group members can share the cost More efficient way of the court dealing with a number of claims, saves court time and the time of court personnel People can pursue civil actions they may not be able to afford in an individual case, and this gives them access to the courts to resolve their disputes

tortfeaser

The person who commits the wrong, and against whom the action may be taken. Known as the defendant if action is taken against them in court

Accessorial liability

a way in which a person can be found to be responsible or liable for the wrongdoing causing loss or harm suffered because they were involved in the wrongdoing e.g. aided, conspired, encouraged, organised

Role of statue law in defamation

defamation uniform legislation introduced in 2005 Each state passed a statute, developed through an agreement between the Commonwealth and the states Under Aus Law, any person or organisation who has defamatory material published about them can take legal action when needed

defences of discrimination

- An exception applied: there are a number of exceptions that apply to a persons or company which allows them to lawfully discriminate against another -e.g. education dress code - An exemption applied: particular persons or groups are also exempt from discrimination laws - Inherent requirements: only applies where there's an allegation that there has been discrimination in employment, and the employer can argue that the person, because of their age or disability cannot carry out the inherent requirements of the job - Unjustifiable hardship: only applies to employers. e.g. employer operates out of a particular building that is not accessible disabled people, adjusting it to allow accessibility would cost a lot of money, employer can argue that adjusting for disabled person would cause it unjustifiable hardship

Impact of defamation on the defendant

- costs - need to sell assets - public humiliation

role of the law in discrimination

- the charter of human rights and responsibilities act 2006 states that every person has the right to enjoy human rights without discrimination and every person is equal before the law - the equal opportunities act 2010 makes discrimination unlawful, prohibits discrimination baed on attributes such as age, gender

elements of discrimination

- the discrimination was based on a certain attribute - The discrimination took place in a particular area - The discrimination caused harm or less favourable treatment

elements of defamation

- the statement was defamatory - The statement is untrue - The defamatory statement refers to the plaintiff - The statement has been published (communicated to people other than the person it refers to) by the defendant - An action for defamation must be brought within one year from the date of publication of the matter - limitation of actions act 1958

tort

A civil wrong that one person commits against another includes: negligence, defamation, nuisance, trespass

Defamation

A type of tort which involves the action of damaging a person's personal or professional reputation in the community through the communication of false and untrue statements or information

purposes of civil law

Achieve: social cohesion, civil law provides guides for acceptable behaviour, so individuals can live in harmony together Protect: the rights of individuals, e.g. the right to be protected from false statements that might damage your reputation Provide: provide an avenue for people to seek compensation through avenues like courts, tribunals, compliant bodies and ombudsman Provide: a means to seek compensation. Civil law provides remedies to individuals in an attempt to restore the plaintiff back to their original position (before the harm occurred)

civil law

An area of law that defines the rights and responsibilities of individuals, groups and organisations in society and regulates private disputes (as opposed to criminal law).

absolute privilege

An immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties

justification

Applies as a defence when a defamatory statement is substantially true - when the vast majority of the article is true

Contextual truth

Applies when a number of defamatory statements are made within the same context of statements that are substantially true, and the defamatory statements don't further harm the reputation of the plaintiff

scope of liability

Before initiating a civil claim, a plaintiff needs to determine; - who are the possible defendants - To what extent the defendant may be liable

Black Saturday Class Action

Black Saturday bushfires in Kilmore East - Kinglake on 7th Feb, 2009 - Class action settled via mediation in 2014, payouts distributed in 2016-2017 - 119 dead - 1242 homes destroyed, 1084 homes damaged - 125,000 hectares of land burnt - Class action of negligence initiated in 2013 in the supreme court - fires started by an ageing SP AUSNET power line - Lead plaintiff Carol Matthews - 10,000 group members against Ausnet electricity provider and 4 other defendants - Trial lasted for 16 months - $494 million awarded in payout + $60 million lawyer fees

key concepts of civil law

Breach, causation loss, limitation of actions, vicarious liability, burden and standard of proof

Defences to defamation

Justification Contextual truth Absolute privilege Qualified privilege Triviality Fair report of proceedings of public concern Innocent dissemination Publication of public documents Honest opinion

types of civil law

Negligence: Trespass: Nuisance laws: Defamation: Family law: Wills and inheritance laws: Contract law:

limitation of actions in discrimination

No specific time period set out in the LOA act, however there are some time limits that a plaintiff needs to be aware of. discrimination claim under Vic Law: the VEOHR may decline to provide dispute resolution services if the discrimination occurred more than 12 months before the person complained Discrimination claim under a federal statute: claim lodged with the AHRC may be terminated if it was lodged more than 6 months after the alleged acts, omissions or practices took place

Indirect discrimination

Policies or practices that appear to be the same for everyone but have an adverse effect on some people who share a particular attribute

impacts of discrimination on defendant

Public humiliation, loss of business and inconvenience

possible plaintiffs

The aggrieved party: the person who has suffered the loss Other victims: victims other than the aggrieved party- a family member may suffer loss and damage as a result of the death of a family member, and may sue the person they allege who has caused that death Insurers: they have the right of subrogation- the right to 'step into the shoes' of an insured person and act on their behalf, including taking legal actions in their name

Qualified Privilege

The freedom of the press to report what is discussed during legislative and court proceedings.

standard of proof

The degree or extent to which a case must be proven. The plaintiff must prove on the balance of probabilities, and prove that they're most likely in the right and that the defendant is most likely in the wrong

discrimination

The unfavourable treatment of a person based on a certain attribute (e.g. age, gender, disability). Discrimination can be either direct or indirect

aim of tort law

To return a wronged person back to the position he or she was in before the wrong occurred - usually done through awarding the remedy to the plaintiff, most commonly through damages

Vicarious Liability

When a person is held responsible for the actions of another person, whether or not they were personally involved or at fault

counter claim

When the defendant makes a counterclaim against the plaintiff, the defendant has the burden of proof in a civil dispute. The defendant makes a direct claim against the plaintiff and then will have the onus of proving that case.

defendant

a party who is alleged to have breached a civil law and who is being sued by a plaintiff

representative proceeding

also known as class action A type of civil proceeding where 7 or more people have claims against the same person, and those claims are in respect of, or arise out of the same type of circumstances.

contract law

an area of civil law governing the validity and enforceability of agreements made between two or more parties

remedy

any order made by a court designed to address a civil wrong or breach. A remedy should provide a legal solution for the plaintiff for a breach of the civil law by the defendant and aim to restore the plaintiff to their original position prior to the breach of their rights

negligence

involves a breach of duty of care to another person, causing loss or harm

trespass

involves interference or intrusion of a person's body, property or good without the consent of that person

nuisance laws

involves interference with a person's right to use and enjoy property

defamation

involves the action of damaging a person's personal or professional reputation in the community through the communication of false and untrue statements or information

wills and inheritance laws

laws which regulate wills, including when they're valid. They give guidelines about the decisions made by a will maker and how a person's estate is distributed if there is no will

impact of defamation on plaintiff

loss of reputation, emotional impact of the defamatory material, loss of wages and livelihood, loss of amenity, unemployment

role of common law in defamation

prior to 2006, defamation law in Vic was governed by common law. The elements and defence were developed through a series of cases. Libel and slander High Court found implied freedom of political communication in the Aus constitution and not an absolute right to freedom of speech, but a right to discuss political matters freely without being subject to a defamation claim

impacts of discrimination on plaintiff

public humiliation, loss of opportunities (e.g. career advancement, denied goods or services), effects on mental health

right of subrogation

right to step into the shoes of an insured person, act on their behalf, can take legal actions in their name

development of common law in discrimination

the court's role in interpreting discrimination is less significant that its role in interpreting other laws - e.g. negligence. This is because the Commonwealth and state human rights commissions resolve many of the discrimination cases so very few discrimination cases go to court

breach

the defendant has in some way failed to observe a law or obligation imposed on them. The plaintiff has the responsibility to establish that the defendant is in breach. They could be in breach of contract, breach of duty of care

plaintiff

the party who makes a legal claim against another

causation

the plaintiff must prove that the actions of the defendant caused or resulted in the harm suffered by the plaintiff, and that the harm would not have occurred if not for the actions of the defendant

loss

the plaintiff will only be able to obtain a legal remedy such as damages if it can be proved that he or she suffered loss or harm e.g. economic or financial loss- loss of wage, loss of amenity- loss of job satisfaction, loss of enjoyment in life.

possible defendants

the wrongdoer: the person who caused the loss or damage to the plaintiff Employers: who have vicarious liability- become responsible for the actions of another Persons involved in wrongdoing: have accessorial liability- where a plaintiff may decide to sue somebody else who was involved in the wrongdoing (e.g. aided, conspired, encouraged or organised the wrongdoing) Insurers

family law

this deals with disputes between family members and which are of a family nature, such as disputes over the division of property between divorced parties and the parenting of children

limitation of actions

time restriction within which a wronged party must sue the wrongdoer. Once that period of time has passed, then the defendant will be able to raise a defence that the plaintiff is too late to obtain any form of remedy. Reason for imposing a time limit is so disputes can be resolved efficiently and the defendant doesn't have to be subjected to a claim a significant time after the alleged act or omissions occurred. A delay in issuing a claim can also risk the reliability of evidence, including the evidence of witnesses and physical evidence. The limitation of actions for a breach of contract is 6yrs and for defamation it is 1 yr

Direct discrimination

when an assumption is made about what a person can or cannot do because of a personal characteristic or attribute