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Civil Law

Year 10 Commerce

Defining Civil Law

Civil law protects the rights of individuals by providing

Most common remedy

Civil laws are effectively a set of guidelines for acceptable behaviour, in order to maintain the rights of individuals.

Criminal Civil

Person ‘bringing the case’

Prosecution

Other party Accused

Standard of proof

Beyond Reasonable Doubt

Consequences Punishments include: • Fine • Imprisonment • Community-

based order

Pre-trial Proceedings

Committal hearing

Instigate Action

Issue of summons or warrant

Aim of the law To punish offenders

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Law-making through the courts

Some cases may be difficult to determine by what has been written in the law (might not fit neatly into what has already been written/decided), HOWEVER: Courts will still be required to make a decision!! Statutory Interpretation

Decisions that are the first of its kind will set a

They are said to follow the ratio decidendi of the higher court

• Ratio decidendi -the rationale for the decision.

Why is this important??

LATIN

101


Applying Precedent to a Case.

Binding precedent ! It will be used when the facts in the new case are similar to that in the precedent case. Example: Persuasive precedent -

Precedents set by court proceedings, will be used in subsequent courts in either of two ways:

Example:

Obiter-dictum (said in passing) – an important statement made by the judge during a case that relates to the main issues, though not part of the ratio decidendi. Obiter-dictum’s may be influencing in future cases. LA

TIN

101


When examining the Precedent, the court may apply the Precedent of a previous case in a number of ways…

Match the below terms to their definition (in regards to application of a precedent).

Distinguish

Reverse

Overrule

Disapprove Court decides main facts are sufficiently different, that precedent is not binding

Higher court makes a different decision that a lower court in the same case.

Higher court makes different decision than in a previous case (not the same case).

Court expresses dissatisfaction of previous precedent but is bound by it.

NOTES:


Case Study

Donoghue v. Stevenson (1932) – UK

A manufacturer, Stevenson, made bottles of ginger beer. A bottle was purchased for Donoghue to drink. After she had drunk half the contents of the bottle, a decomposed snail was poured out of the bottle. She became ill. She did not have a contract with the manufacturer because she did not buy the bottle of ginger beer.

She claimed the manufacturer had been negligent in the washing of the bottles before filing them with ginger beer. She sued the manufacturer for

Grant v. Australian Knitting Mills (1936) – AUS

A man (Grant) purchased a pair of underpants and found when he wore them that he got a rash. He had the underwear tested and discovered that a chemical residue from the manufacturing process was still in the finished garment.

At this time, the ‘buyer beware’ principle applied to the purchase of all goods – it was the purchaser’s responsibility to look for defects in goods before buying them. However, in this case the purchaser could not have detected the fault even if he inspected the goods.


Court Ruling…

Donoghue v. Stevenson (1932) – UK

The court found that the manufacturer had been negligent and that because the bottle was opaque and Donoghue could not see the contents of the bottle, she did not have the opportunity to check the bottle’s contents before drinking it.

Grant v. Australian Knitting Mills (1936) – AUS

The court followed the precedent set in Donoghue v. Stevenson and ruled that the actions or omissions of the manufacturer directly caused Grant the injury and that the ‘manufacturer owed a duty of care to the ultimate consumer.

Question 1 Why are these old cases still considered important today?

Question 2 Explain why Donoghue v. Stevenson is a persuasive precedent for Grant v. Australian Knitting Mills.


Question 3 In what way is Grant v Australian Knitting Mills binding on future cases in Australia?

Question 4 How do the precedents set in these cases apply in the following scenarios?

a) Emma bit into a hazelnut cream chocolate that contained a piece of metal from the manufacturing process. She broke her tooth and suffered severe pain as a result.

b) A hospital gave Taylor the wrong drug and as a direct result he suffered a stroke, which left him paralysed on one side.


TORTS

Year 10 Commerce

Civil Wrongs - Torts

The law of torts deals with the

that people owe to other’s as well as considerations for when these

There are four types of torts:


Negligence

A person is negligent when they

and

This tort of law was established under:

Key principles of Negligence There are three key points that need to be proved if negligence is to have occurred:

1.

2.

3.

** If able to prove these three measures, the wronged person can claim damages.


1. The injured person was owed a Duty of Care. A person owes a duty of care if:

• The risk was

• The risk was

• A reasonable person in the same position would have

** If any of these three measures are not met, no duty of care is owed.

Exemptions to the Duty of Care

There are a number of exemptions to the duty of care:

• If a

• The person is a

** We will not go into these (or other exemptions) in any further detail.


2. Breach of Duty of Care

When determining if there has been a breach of the duty of care, courts will

However, generally speaking:

• The duty is breached when

BUT!!!! What does a ‘reasonable’ person mean? Who is this Mr. or Mrs. Reasonable???

In order to determine what a ‘reasonable’ person would have done, courts will consider the following variables:

• Likely

• Likely

• Burden of

• The

that creates the risk of harm.


3. The breach caused loss or damage For the third requirement to be fulfilled (causation) it needs to be shown that:

• The harm was

i.e. If there was no breach, there would be no harm.

If the harm is from the breach, then the claim of negligence will not be successful

• E.g. Shock (mental and physical harm) caused of hearing a car crash, rather than actually seeing it, would be too remote form the breach.

The harm itself could be

Defences to negligence

Defence Number 1: That the three elements of negligence have not been established. Any one of the following:

• A duty of care was

• There was of the duty of care.

• The harm/injury was from the defendant’s action/inaction.


Defence Number 2: Contributory negligence - The

or is

The court will examine the actions taken by the defendant, the risks that they aught to have known, and the actions that a reasonable person would have believed to have taken.

Example: Pennington v. Norris (1956) the High Court ruled that where a person suffers injury partly as the result of his or her own fault, the court would apportion blame and then reduce the claim for damages accordingly. In this case a pedestrian carelessly stepped on the road in front of a speeding car.

Defence Number 3: Assumption of risk - ‘volenti non fit injuria’ (no injury is done to a person who consents).

LATIN 101

Case Studies


Wider v. Vecchiore – Supreme Court TAS

Mrs Wider was on a dance floor of about three meters by three meters in size in a ‘dine and dance’ restaurant. She slipped while participating in the vigorous rhythmical movements inspired by Zorba the Greek. Twelve couples were dancing at the time she slipped. Wider was carried downstairs and then taken to hospital where it was discovered she had suffered a fracture dislocation of her ankle.

Wider sued the restaurant owner for negligence. She claimed that there must have been something slippery, like butter, on the floor that made her slip. She maintained that the restaurant owed a duty of care to her to keep the restaurant safe for use by patrons. The restaurant owner checked the floor the next day and said he could not find anything she could have slipped on. People had continued to dance on the floor for the rest of the night without mishap.

Case Study

1. Did the restaurant owner owe a duty of care to Wider? Explain.

Questions


2. If there was a duty of care, was there a breach? Explain.

3. If there was a breach, was there causation?

5. Suggest a different situation in which it could have been held that the restaurant was in fact negligent.

4. You’re ruling (were the actions of the restaurant negligent)?


Bourhill v. Young (1943)

Mrs Bourhill, was getting off a tram when a motorcyclist sped past on the other side. She heard the collision between the motorcycle and a car. Bourhill was eight months pregnant at the time. The accident occurred about 15 metres from Bourhill. She walked around the tram and saw the aftermath of the accident. There was blood on the road and the driver of the motorcycle

was dead.

Bourhill suffered nervous shock. As a result of the shock, she had miscarriage and gave birth to a stillborn baby.

Bourhill sued the estate of the motorcyclist claiming his negligence had caused her nervous shock and subsequent miscarriage.

2. Did the motorcyclist owe Mrs Bourhill a duty of care?

1. If there was a duty of care, was there a breach? Explain.

3. Did the motorcyclist owe Mrs Bourhill a duty of care? Explain.


3. If there was a breach, was there causation? Explain.

4. You’re ruling (were the actions of the cyclist negligent)?

5. Suggest a different situation in which it could have been held that the cyclist was in fact negligent.


Defamation

The tort of defamation is aimed at protecting

against attempts to

The tort gives people the right to take legal action against persons who have

Key principles of Defamation

There are three key points that need to be proved if defamation is to have occurred:

1.

2.

3.

NOTES


1. Statement is defamatory The plaintiff must prove that their reputation has been damaged by the publication of ‘defamatory’ material.

*

Applicable to individuals, non-profit organisations and small private companies (less than 10 employees).

*

2. Defamatory statement refers to the plaintiff A conclude that the statement is about the plaintiff.

* The person

3. Defendant published the defamatory statement The defamatory statement is communicated

For Example: It will not be defamation if remarks are made directly to the plaintiff in private, though it will be if a third party hears or sees it.


Defences to defamation

Justification – Applies when the statement is

Absolute Privilege – the defamatory material was published in relation to

Honest opinion – The defamatory material is an expression of

• The matter must be of public interest, and the opinion based on proper material.

Triviality – the publisher proves that the plaintiff is

Other possible defences include:

• Contextual Truth

• Fair report of proceedings of public concern

• Innocent dissemination

• Publication of public documents

• Qualified privilege


When Richard was 19 he was convicted of two motor vehicle offences. He was ordered to pay a $500 fine. At age 35, Richard decided to stand as a member of his local council. Another candidate for election distributed pamphlets in the local area stating that Richard ‘had a criminal record and he was unreliable and untrustworthy in his business dealings with people’.

When Richard lost the election, he threatened to sue the other candidate and the person hired to print the pamphlets.

1. Detail how the elements of a defamation case apply to the above scenario?

Worked Example

2. Would any defences apply in this case and how successful would they be? Discuss.


In September 2003, the Sydney Morning Herald published a review of Coco Roco’s restaurant at Sydney’s King Street Wharf. The review scored the restaurant at 9/20 in a ‘stay home’ category. The restaurant went into administration in March 2004. The article was found to have conveyed three defamatory meanings:

• That it sold some unpalatable food. • That it provided some bad service. • That the owner were incompetent

restaurant owners because they employed a chef who made poor quality food.

The owners of the restaurant sued the newspaper publisher and the food critic who wrote the review, for defamation.

Case Study

1. Detail how the elements of a defamation case apply to the above scenario?


2. Would any defences apply in this case and how successful would they be? Discuss.

Other Torts

• - Deals with the violation of the right of a person to reasonable convenience and comfort in life. Two forms:

o Private nuisance – interference with use and enjoyment of private land.

o Public nuisance – interference with use and enjoyment of public land.

• - deals with interference with a person’s self, goods or land.

NOTES:


Example Question

Kahlid’s neighbour Kevin repeatedly burned a foul substance in his backyard. One day, Kevin lit a fire on a windy day and Kahlid’s fence and shed burned down. Kahlid suffered burns when he was trying to put the fire out.

Kaylid retaliated by distributing a letter to his immediate neighbours saying that Kevin was ‘lazy, dirty around the home, untrustworthy, unreliable, thoroughly unlikeable and he would be highly risky as an employee’. Kevin worked in the neighbourhood.

The two parties took each other to court.

1. List two torts that might be relevant in this case and explain what has to be proved for each tort. Show how the elements of these torts can be applied to the case.


2. Explain one defence that is applicable for each type of tort mentioned above.

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