Key concepts
Identify who has the burden of proof in a civil case
The plaintiff
Explain what defamation means
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.
Identify the limitation of actions for death or personal injury negligence claims
3 years from discoverability or 12 years from the date the incident occurred that caused the death or injury
What is needed for a distinguish question?
Explain two processes/concepts, and show points of difference. You must use a distinguish word such as whereas, on the other hand, in comparison, etc
Tiffany v Kookai
Identify who is the plaintiff and who is the defendant
Tiffany = Plaintiff
Kookai = Defendant
Define the balance of probabilities
It is the standard of proof in a civil case and means who is more right
Outline two impacts defamation has on the defendant
-Costs
-Public humiliation
-Financial loss
Explain what the tort of negligence means
When a person is negligent in civil law, the person has failed to take reasonable care that was due to another. A person is obliged to take care when it is reasonably foreseeable that other peoplecould be harmed by their actions or omissions
What is needed for a discuss question?
Examine the issue by looking at both sides (flip it)
Why is the Donohuge v Stevenson (1932) case important?
It firmly established the tort of negligence and created a persuasive precedent for Australia.
Explain what a representative proceeding is
A representative proceeding is when 7 or more people with a similar claim against the same defendant join one civil proceeding.
Identify the four elements needed to prove defamation
-Statement is defamatory
-Statement is untrue
-Statement refers to the plaintiff
-Statement was published by the defendant
Outline two defences to negligence
-Disprove an element
-Contributory negligence
What is needed for an explain question?
Give details that make the points clear. Do not just state points – they must be expanded on.
Explain why Johnny Depp v Amber heard was a defamation case.
-Amber heard published defamatory comments indicating that Johnny Depp was abusive online (Defendant published the statement)
-The comments resulted in Johnny Depp losing movie roles (the statement caused loss)
-The comments directly referred to Johnny Depp
-The statement was found to be untrue
Other than the injured party outline one other possible plaintiff in a civil dispute
-Insurers
Insurance policy provides insurer with right of subrogation, meaning the right to ‘step into the shoes of the insured’. This means that the insurer can recover what it has paid out to the insured by initiating civil action against the person who caused the loss
Explain two defences for defamation
Disprove element = if any one element cannot be established, the defendant cannot be found liable for defamation
Honest opinion = If the defendant can prove that the statement published was a review of their honest opinion and experiences
Truth = The defence of justification applies when a defamatory statement is substantially true.
Absolute privilege = The defence applies to statements made on an occasion where the free communication of information is considered to be so important that it must be exempt from defamatory law.
Explain the four elements needed to prove negligence
-A duty of care was owed
-The defendant breached their duty of care
-Causation (the defendants breach of duty of care directly caused the harm or loss suffered by the plaintiff)
-There was injury, loss, or harm
What is needed for a justify question?
Show a reason for something being done, and give evidence to support the argument. (What would happen if that feature/concept did not exist?)
Bob is a baker who knowingly decided to use out of date milk in his pastries. This then caused ten of his customers to get food poisoning. Explain whether or not this could be a representative proceeding and if so for what type of civil law.
Yes it could be a representative proceeding for a negligence dispute as it involves ten people who all have a similar case (food poisoning) against the same person (Bob the baker).
Outline all five key concepts of civil law
Breach = The defendant has in some way failed to observe a law or obligation imposed on them.
Causation = The plaintiff will only be able to obtain a legal remed if it can be proved that they suffered loss or harm.
Limitation of actions = The time within which the plaintiff must sue the wrongdoer.
Burden of proof = The burden of proof is on the plaintiff
Standard of proof = Balance of probabilities
Explain how statute law influenced defamation
Defamation law in Australia underwent major reform in 2005 when uniform legislation was introduced creating the 'Defamation Act 2005 (Vic)'
Identify the statute law that negligence falls under
The Wrongs Act 1958 (Vic)
To show points of similarity and difference.
Explain why the Lange v ABC case was important for defamation.
Established the absolute privilege defence -
The High Court has found that there is an implied freedom of political communication in the Australian Constitution. This is not an absolute right to freedom of speech, but is a right to discuss political matters freely and openly without fear of being subjected to a defamation claim.