Unit 2: Issues in Civil Law
This knowledge includes:
- The need for civil law
- Key principles of civil law
- The distinction and relationship between civil law and criminal law
- An overview of law-making through the courts
- Torts, including negligence, defamation, and related defences
Week Ending: 23rd June
Key Knowledge 1: The need for Civil Law
The body of law referred to as ‘Civil Law’ plays an important role in preserving order within society. Its main focus is protecting the rights of individuals, and as all people have rights, it makes this a very relevant and interesting area of law. When an individual or group has been wronged, it is only fair that this person or group of people be provided with a legal remedy to rectify the wrongdoing. This is the purpose of
civil law.
Civil law protects the rights of individuals by allowing a person whose rights have been infringed to seek a legal remedy (often in the form of monetary compensation) in order to restore them to, or as close to, the position they were in prior to the wrongdoing. For example, if somebody suffered personal injury as a result of another person’s carelessness, the person who suffered the injury could seek compensation for the medical costs they incur. Alternately, a person who suffers financially because a contract is not fulfilled could recoup their loss in the civil law courts. This is very different to criminal law, whereby offenders may face much harsher consequences for their actions.
Without laws to protect the rights of individuals, it would be very easy for people to take advantage of others, put other people at risk of harm or even cause harm to others and their property without facing any consequences for their actions. Civil law ensures that individuals within society interact appropriately and places responsibility on individuals for their acts and omissions (an omission being a failure to act).
civil law.
Civil law protects the rights of individuals by allowing a person whose rights have been infringed to seek a legal remedy (often in the form of monetary compensation) in order to restore them to, or as close to, the position they were in prior to the wrongdoing. For example, if somebody suffered personal injury as a result of another person’s carelessness, the person who suffered the injury could seek compensation for the medical costs they incur. Alternately, a person who suffers financially because a contract is not fulfilled could recoup their loss in the civil law courts. This is very different to criminal law, whereby offenders may face much harsher consequences for their actions.
Without laws to protect the rights of individuals, it would be very easy for people to take advantage of others, put other people at risk of harm or even cause harm to others and their property without facing any consequences for their actions. Civil law ensures that individuals within society interact appropriately and places responsibility on individuals for their acts and omissions (an omission being a failure to act).
Key Knowledge 2: Key Principles of civil law
The person who brings a civil case before the courts is known as the plaintiff. They bring their case before the court by suing the person, or group of people, who infringed upon their rights. This person (or group) is referred to as the defendant. The plaintiff has the onus of proving that the defendant infringed upon their rights. This onus, or responsibility, is known as the burden of proof.
The standard of proof, that is the degree to which the plaintiff must persuade the court, is based on the balance of probabilities. This means that the court is required to make a decision based on the likelihood that the defendant did in fact infringe upon the rights of the plaintiff. It is important to realise that this is much less rigorous than the standard of proof required in a criminal case, whereby the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime. If a defendant claims to have a legal defence to their action, they too must prove this defence on the balance of probabilities.
Unlike criminal law, which seeks to punish offenders, civil law provides remedies such as damages (compensation) and injunctions (court orders preventing certain types of behaviour) to restore injured parties, as humanly possible, to their original position prior to the wrongdoing of the defendant.
A jury is not mandatory in a civil dispute but can be empanelled at the request of either the plaintiff or defendant. Unlike a criminal case, a jury in a civil matter will consist of six people, with a majority verdict (five of the six jurors) accepted by the courts if deliberations exceed three hours.
The standard of proof, that is the degree to which the plaintiff must persuade the court, is based on the balance of probabilities. This means that the court is required to make a decision based on the likelihood that the defendant did in fact infringe upon the rights of the plaintiff. It is important to realise that this is much less rigorous than the standard of proof required in a criminal case, whereby the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime. If a defendant claims to have a legal defence to their action, they too must prove this defence on the balance of probabilities.
Unlike criminal law, which seeks to punish offenders, civil law provides remedies such as damages (compensation) and injunctions (court orders preventing certain types of behaviour) to restore injured parties, as humanly possible, to their original position prior to the wrongdoing of the defendant.
A jury is not mandatory in a civil dispute but can be empanelled at the request of either the plaintiff or defendant. Unlike a criminal case, a jury in a civil matter will consist of six people, with a majority verdict (five of the six jurors) accepted by the courts if deliberations exceed three hours.
Key Knowledge 3: The distinction between Civil Law and Criminal Law
There are many differences between civil and criminal law. Most importantly, civil law deals with relationships between individuals within society and provides a means of rectifying wrongdoing through compensation and injunctions. Instead of the courts issuing a summons (an order for someone to appear in court) or police making an arrest, an individual sues another individual in order to resolve their grievance. Quite often these civil issues can be resolved without the need to go to court - through communication between both parties and their legal representatives or through the tribunal system. Should the case go before a court, the onus of proof lies with the plaintiff, who must prove their case on the balance of probabilities. Either party may choose to have the case heard before a jury, consisting of six people, if the case goes before the County or Supreme Court.
In contrast, criminal law deals with offences considered crimes against society as a whole and offenders are prosecuted on behalf of the state. An offender may be issued a summons or be arrested by police. The prosecutor, acting on behalf of the Crown (or state) then has the burden of proof and must prove beyond reasonable doubt that the accused is guilty of a crime. Cases heard in the Magistrates’ Court are not heard before a jury; however, the accused has the right to a trial by jury (of twelve people) for serious offences if they plead guilty. Offenders may face harsh penalties, including suspended sentences and imprisonment.
In contrast, criminal law deals with offences considered crimes against society as a whole and offenders are prosecuted on behalf of the state. An offender may be issued a summons or be arrested by police. The prosecutor, acting on behalf of the Crown (or state) then has the burden of proof and must prove beyond reasonable doubt that the accused is guilty of a crime. Cases heard in the Magistrates’ Court are not heard before a jury; however, the accused has the right to a trial by jury (of twelve people) for serious offences if they plead guilty. Offenders may face harsh penalties, including suspended sentences and imprisonment.
Differences between Criminal and Civil Law
Area of comparison1. Purpose
2. Definition 3. Burden of Proof 4. Standard of Proof 5. Case citation 6. Outcomes 7. Decision 8. Nature of the action 6. Examples 7. Consequences 8. Decision is based on |
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The relationship between Civil Law and Criminal Law
Despite the many differences between civil and criminal law, there are times when an incident may give rise to both criminal and civil proceedings. For example, taking a car without permission could bring charges for stealing but may also lead to a civil lawsuit for trespass to goods. Therefore it is possible that in some situations an act or omission is considered a wrong against society as a whole but will allow an individual to seek compensation for damage caused by the act or omission.
Key Knowledge 4: An overview of law-making through the courts
Role of courts
The main role of the judiciary (judges) in civil cases is to interpret and apply statute law to cases that come before the courts. Statute law refers to laws made by parliament. So in a sense, one way judges make law is by interpreting the laws created in parliament. But what happens in situations where there is no statute law?
It would not be practical for courts to wait for parliament to enact legislation for every new set of circumstances that arise. In cases where statute law does not exist, judges are expected to make a determination based on the facts heard in court and give reasons for their decision. This judge-made law is called common law.
It would not be practical for courts to wait for parliament to enact legislation for every new set of circumstances that arise. In cases where statute law does not exist, judges are expected to make a determination based on the facts heard in court and give reasons for their decision. This judge-made law is called common law.
What is Statutory Interpretation?
Statutory interpretation, or sometimes referred to as statutory construction, is the process by which courts derive meaning from legislation. In order for statute law to be effective, the wording used in the legislation cannot be too vague or too specific. Of course, the English language itself can also create problems in that words can have more than one meaning or be used to refer to a number of things. This can leave legislation open to interpretation.
Take for instance the word ‘vehicle’. Most people would think of cars, trucks, motorbikes and possibly even boats. But does the word ‘vehicle’ encompass a horse, a canoe or even a skateboard?
Judges use a range of materials and rules to make sense of legislation in order to best apply the law as it was intended by parliament. In fact, state and commonwealth parliaments have passed legislation outlining how judges should go about interpreting legislation (in Victoria this is the Interpretation of Legislation Act 1984 (Vic)). Judges may also access a range of materials including parliamentary debates, reports and dictionaries to clarify and make meaning of legislation. These types of materials which do not form part of the Act but which assist in its interpretation are known as extrinsic material. Parts of the Act itself, in addition to the main text, such as the long and short title, section headings and notes, can aid in statutory interpretation and are referred to as intrinsic material.
Take for instance the word ‘vehicle’. Most people would think of cars, trucks, motorbikes and possibly even boats. But does the word ‘vehicle’ encompass a horse, a canoe or even a skateboard?
Judges use a range of materials and rules to make sense of legislation in order to best apply the law as it was intended by parliament. In fact, state and commonwealth parliaments have passed legislation outlining how judges should go about interpreting legislation (in Victoria this is the Interpretation of Legislation Act 1984 (Vic)). Judges may also access a range of materials including parliamentary debates, reports and dictionaries to clarify and make meaning of legislation. These types of materials which do not form part of the Act but which assist in its interpretation are known as extrinsic material. Parts of the Act itself, in addition to the main text, such as the long and short title, section headings and notes, can aid in statutory interpretation and are referred to as intrinsic material.
Tasks:
1. Explain the two ways in which courts are involved in law-making 2. What are judges doing when they are involved in Statutory Interpretation? 3. During Statutory Interpretation, who is interpreting the law? 4. When a judge interprets the law and makes a decision on the dispute they are attempting to resolve, what happens if there has been no previous decision made regarding this type of case and interpretation? |
Reasons for Statutory Interpretation:
One reason why statutes may need to be interpreted is due to ambiguous wording within legislation. At the time of drafting, legislation may have been rushed through parliament in order to meet a dire need and as such, wording that is used may have been unclear, broad or ambiguous. As such, when a dispute appears before the courts, judges are given the responsibility of interpreting what context the words should be given and what can be deemed reasonable. An example of this is found within the Studded Belt case of what constitutes as a "regulated weapon".
Another reason for statutory interpretation is the changing meaning of words over time. Legislation written by parliament may have been written many, many years ago and as such, due to changing society values and technology, the context of the words may change. This can be seen within Kevin and Jennifer's case whereby what constitutes as a "man" has changed. When the marriage Act was written, it may not have been possible to have gender re-assignment surgery and as such this word was updated to include people that have chosen to lead a different lifestyle due to elective surgery.
Another reason for statutory interpretation is the changing meaning of words over time. Legislation written by parliament may have been written many, many years ago and as such, due to changing society values and technology, the context of the words may change. This can be seen within Kevin and Jennifer's case whereby what constitutes as a "man" has changed. When the marriage Act was written, it may not have been possible to have gender re-assignment surgery and as such this word was updated to include people that have chosen to lead a different lifestyle due to elective surgery.
Examples of Statutory Interpretation:
Studded Belt Case:
The plaintiff was arrested by a police officer charged with an offence for having a "regulated weapon". This offence is part of the Wrongs Act whereby an individual could be charged if they possessed items with raised studs. Within the Magistrates court the plaintiff was found guilty and appealed. The supreme court on appeal found the original decision unreasonable. Here the judges were required to interpret the meaning of the words 'regulated weapon' and found that; at the time of the arrest the plaintiff was wearing the belt as an accessory despite it having raised studs. Secondly, although the belt could be used as a weapon, it was being used as such at the time.
From this ruling, the judges took a narrow interpretation of the words "regulated weapon" and limited the parameters in which the words could be applied. In doing so, the judges reversed the decision of charging the plaintiff for wearing a belt with raised studs. This also led to parliament amending the wording of the Wrongs Act to reflect the decision of the courts and become more reasonable and its use.
Kevin and Jennifer case
The plaintiffs were married and sought to have their union recognised under Australian law. Here, the dispute came about based on whether Kevin could be considered a man. Kevin was originally born female however had undergone gender re-assignment surgery and taken hormones to become a male. The Attorney General intervened and tried to argue that a legal marriage was between a man and woman and Kevin, was not a male. The Family court was then required to interpret the wording of "man" and ruled in favour of the plaintiff.
Here the judges found that, a person's sex should only be relevant at the time of the marriage. When Kevin married Jennifer, he was living his life as a male, undergone surgery and taken hormones to change his sex. He had even gone so far as registering with births, deaths and marriages to change is sex. As such, although he was not born a male, technology has allowed him to become one in the most reasonable manner and therefore should be considered a man. The decision undertaken by the judges took a broad interpretation of the word man to include not only those born male but also catered for technological advancements providing the ability to gender re-assignment.
As a result of this decision, the definition relating to the word "man" was expanded.
The plaintiff was arrested by a police officer charged with an offence for having a "regulated weapon". This offence is part of the Wrongs Act whereby an individual could be charged if they possessed items with raised studs. Within the Magistrates court the plaintiff was found guilty and appealed. The supreme court on appeal found the original decision unreasonable. Here the judges were required to interpret the meaning of the words 'regulated weapon' and found that; at the time of the arrest the plaintiff was wearing the belt as an accessory despite it having raised studs. Secondly, although the belt could be used as a weapon, it was being used as such at the time.
From this ruling, the judges took a narrow interpretation of the words "regulated weapon" and limited the parameters in which the words could be applied. In doing so, the judges reversed the decision of charging the plaintiff for wearing a belt with raised studs. This also led to parliament amending the wording of the Wrongs Act to reflect the decision of the courts and become more reasonable and its use.
Kevin and Jennifer case
The plaintiffs were married and sought to have their union recognised under Australian law. Here, the dispute came about based on whether Kevin could be considered a man. Kevin was originally born female however had undergone gender re-assignment surgery and taken hormones to become a male. The Attorney General intervened and tried to argue that a legal marriage was between a man and woman and Kevin, was not a male. The Family court was then required to interpret the wording of "man" and ruled in favour of the plaintiff.
Here the judges found that, a person's sex should only be relevant at the time of the marriage. When Kevin married Jennifer, he was living his life as a male, undergone surgery and taken hormones to change his sex. He had even gone so far as registering with births, deaths and marriages to change is sex. As such, although he was not born a male, technology has allowed him to become one in the most reasonable manner and therefore should be considered a man. The decision undertaken by the judges took a broad interpretation of the word man to include not only those born male but also catered for technological advancements providing the ability to gender re-assignment.
As a result of this decision, the definition relating to the word "man" was expanded.
Common Law and Precedent
What is Precedent?
The doctrine of precedent simply means that like cases should be decided alike. In order for the law to be seen as fair, it must be applied consistently. For example, imagine the consequences if a sporting referee did not apply the rules of the game consistently? When a player trips another intentionally and is sent from the field, you would hope that if another player did the same they would receive the same punishment. If not, the referee would come under scrutiny and players would be unsure of the consequences of their actions.
On the other hand, if a player accidentally tripped an opponent, the referee might let the game continue or award a penalty, rather than sending the player from the field. The referee distinguishes this behaviour from that of the previous example.
In much the same way, courts make decisions and provide reasons for these decisions – this is known as the ratio decidendi (ratio). In addition to this, a judge might make comments, which do not form part of the ‘reason for deciding’. These ‘by-the-way’ statements are referred to as obiter dictum (obiter). When a similar case arises in the future, the judge will make a decision in keeping with this precedent.
Binding or Persuasive?
Precedent is binding on all lower courts in the same hierarchy. For example, a decision made in the Supreme Court of Victoria would be binding on both the Magistrates’ Court and County Court. Decisions made in equal or lower courts, or in other jurisdictions, are not binding but are considered persuasive in nature.
When courts consider precedent, they are bound by the ratio only. Statements that are considered obiter are merely persuasive.
The Role of the Court Hierarchy in Civil Disputes
As with criminal law, courts also have jurisdiction over civil cases (that is, the authority to hear civil disputes).
Courts lower in the hierarchy deal with less serious cases involving smaller claims for damages and courts higher in the hierarchy deal with more
serious cases where the plaintiff is seeking a much larger quantum (amount) of damages.
The benefits to having a court hierarchy in relation to hearing civil disputes is that minor cases may be heard more efficiently and inexpensively.
Should a party to a hearing wish to appeal a decision, it can be referred to a higher court. Having the hierarchy of courts also allows for specialisation of court personnel and procedures, with lower courts having fewer formalities than higher courts.
The Civil Jurisdiction of Courts
The Magistrates’ Court
The Magistrates’ Court hears civil disputes in which the plaintiff seeks damages up to $100 000. For matters involving less that $10 000 the parties will go to arbitration, whereby each party states there case before the magistrate and he or she will decide the matter. This decision
is legally binding. Arbitration is a less formal process similar to what we see on American TV shows like ‘Judge Judy’. Fewer formalities equate to lower costs and therefore provide an appropriate means to resolve minor disputes. The Magistrates’ Court often hears civil cases relating to a breach of contract, personal injury and motor vehicle accidents.
The County Court
The County Court hears civil disputes for claims over $100 000. There is no upper limit to the quantum of damages in a case heard in the County Court; however the Supreme Court will also deal with much larger claims, often in excess of $200 000. The County Court mainly hears personal injury claims and cases involving damage to property.
The Supreme Court
The Supreme Court usually deals with civil cases involving claims of over $200 000 in damages. Due to the cost of having a case heard in the Supreme Court, many people choose to have their case heard in the County Court if given the option. The Supreme Court of Victoria is divided into the Trial Division, which has original jurisdiction (the authority to hear cases for the first time) and appellate jurisdiction (the authority to hear an appeal, in this case, from the Magistrates’ Court) and the Court of Appeal, which has the authority to hear appeals from both the County and Supreme Courts.
Appeals can be made by either party based on –
· A point of law: whereby the judge’s interpretation or application of the law is called into question.
· A matter of fact: which calls into question the facts of the case and how they were applied to reach a decision.
· The quantum of damages: where a party may feel that the damages awarded were either too little or too much.
The High Court of Australia
The High Court has both original and appellate jurisdiction. Disputes heard under original jurisdiction mainly relate to the interpretation and application of the Constitution. The High Court is the highest court of appeal in Australia and hears appeals from the Supreme Courts, the Federal Court and the Family Court of Australia. In order to have an appeal heard in the High Court, an appellant (the party appealing a decision) must seek leave to appeal from the High Court (meaning that there is no automatic right to appeal to the High Court). The High Court will decide whether to hear the appeal or not. Decisions in the High Court of Australia are binding on all courts.
On the other hand, if a player accidentally tripped an opponent, the referee might let the game continue or award a penalty, rather than sending the player from the field. The referee distinguishes this behaviour from that of the previous example.
In much the same way, courts make decisions and provide reasons for these decisions – this is known as the ratio decidendi (ratio). In addition to this, a judge might make comments, which do not form part of the ‘reason for deciding’. These ‘by-the-way’ statements are referred to as obiter dictum (obiter). When a similar case arises in the future, the judge will make a decision in keeping with this precedent.
Binding or Persuasive?
Precedent is binding on all lower courts in the same hierarchy. For example, a decision made in the Supreme Court of Victoria would be binding on both the Magistrates’ Court and County Court. Decisions made in equal or lower courts, or in other jurisdictions, are not binding but are considered persuasive in nature.
When courts consider precedent, they are bound by the ratio only. Statements that are considered obiter are merely persuasive.
The Role of the Court Hierarchy in Civil Disputes
As with criminal law, courts also have jurisdiction over civil cases (that is, the authority to hear civil disputes).
Courts lower in the hierarchy deal with less serious cases involving smaller claims for damages and courts higher in the hierarchy deal with more
serious cases where the plaintiff is seeking a much larger quantum (amount) of damages.
The benefits to having a court hierarchy in relation to hearing civil disputes is that minor cases may be heard more efficiently and inexpensively.
Should a party to a hearing wish to appeal a decision, it can be referred to a higher court. Having the hierarchy of courts also allows for specialisation of court personnel and procedures, with lower courts having fewer formalities than higher courts.
The Civil Jurisdiction of Courts
The Magistrates’ Court
The Magistrates’ Court hears civil disputes in which the plaintiff seeks damages up to $100 000. For matters involving less that $10 000 the parties will go to arbitration, whereby each party states there case before the magistrate and he or she will decide the matter. This decision
is legally binding. Arbitration is a less formal process similar to what we see on American TV shows like ‘Judge Judy’. Fewer formalities equate to lower costs and therefore provide an appropriate means to resolve minor disputes. The Magistrates’ Court often hears civil cases relating to a breach of contract, personal injury and motor vehicle accidents.
The County Court
The County Court hears civil disputes for claims over $100 000. There is no upper limit to the quantum of damages in a case heard in the County Court; however the Supreme Court will also deal with much larger claims, often in excess of $200 000. The County Court mainly hears personal injury claims and cases involving damage to property.
The Supreme Court
The Supreme Court usually deals with civil cases involving claims of over $200 000 in damages. Due to the cost of having a case heard in the Supreme Court, many people choose to have their case heard in the County Court if given the option. The Supreme Court of Victoria is divided into the Trial Division, which has original jurisdiction (the authority to hear cases for the first time) and appellate jurisdiction (the authority to hear an appeal, in this case, from the Magistrates’ Court) and the Court of Appeal, which has the authority to hear appeals from both the County and Supreme Courts.
Appeals can be made by either party based on –
· A point of law: whereby the judge’s interpretation or application of the law is called into question.
· A matter of fact: which calls into question the facts of the case and how they were applied to reach a decision.
· The quantum of damages: where a party may feel that the damages awarded were either too little or too much.
The High Court of Australia
The High Court has both original and appellate jurisdiction. Disputes heard under original jurisdiction mainly relate to the interpretation and application of the Constitution. The High Court is the highest court of appeal in Australia and hears appeals from the Supreme Courts, the Federal Court and the Family Court of Australia. In order to have an appeal heard in the High Court, an appellant (the party appealing a decision) must seek leave to appeal from the High Court (meaning that there is no automatic right to appeal to the High Court). The High Court will decide whether to hear the appeal or not. Decisions in the High Court of Australia are binding on all courts.
Tasks:
1. What is the purpose of civil law? 2. Write a short paragraph explaining the difference between civil law and criminal law. 3. What is the doctrine of precedent and how does it operate? 4. What part of a judge's decision may be binding on other courts? 5. Under what circumstances will a judge be bound to follow a decision made by a judge in a previous case? 6. What is persuasive precedent? 7. Can precedent change? Explain. 8. How can the interpretation of an Act become a precedent? 9. Using your textbook, complete the case study questions on pages 250-252. |
Key Knowledge 5: Torts including, negligence, defamation, and related defences
Tort of Defamation
Definition: A written or oral statement that injures a person’s good reputation
Three criteria:
These elements must be present in order for defamation to have occurred.
Publication
1. A comment is only considered to be defamatory if it is published
2. A comment is only considered to be published if it is communicated to at least one other person besides the person being defamed.
Identification
1. The plaintiff must be identified in the defamatory statement.
2. This does not necessarily mean naming the plaintiff. If a reasonable person would have connected the statement to the plaintiff– this can be considered to be identification.
Harm
1. Defamatory comments can cause harm
- lowered reputation
- loss of earnings/opportunities
- exposure to ridicule/judgement/avoidance
Even if the defendant did not intend to cause harm– if the plaintiff suffered, there may be grounds for defamation
Civil Remedy:
•Damages: to compensate for the harm caused
•Injunction: an order from the court to prevent a statement from being published.
Definition: A written or oral statement that injures a person’s good reputation
Three criteria:
These elements must be present in order for defamation to have occurred.
Publication
1. A comment is only considered to be defamatory if it is published
2. A comment is only considered to be published if it is communicated to at least one other person besides the person being defamed.
Identification
1. The plaintiff must be identified in the defamatory statement.
2. This does not necessarily mean naming the plaintiff. If a reasonable person would have connected the statement to the plaintiff– this can be considered to be identification.
Harm
1. Defamatory comments can cause harm
- lowered reputation
- loss of earnings/opportunities
- exposure to ridicule/judgement/avoidance
Even if the defendant did not intend to cause harm– if the plaintiff suffered, there may be grounds for defamation
Civil Remedy:
•Damages: to compensate for the harm caused
•Injunction: an order from the court to prevent a statement from being published.
Tort of Negligence
Donoghue vs Stevenson
(1932) AC 562
On the 26 August, 1928 Donoghue and a friend were at a café in Glasgow. Donoghue's companion ordered and paid for a bottle of ginger beer for Donoghue. The ginger beer was in an opaque bottle. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains of
a snail in a state of decomposition dropped out of the bottle into the
tumbler. Donoghue later complained of stomach pain and her doctor diagnosed
her as having gastroenteritis and being in a state of severe
shock.
Donoghue sued Stevenson, the manufacturer of the drink, for negligence. She
was unsuccessful at trial and appealed the decision to the House of Lords.
Donoghue vs Stevenson
(1932) AC 562
On the 26 August, 1928 Donoghue and a friend were at a café in Glasgow. Donoghue's companion ordered and paid for a bottle of ginger beer for Donoghue. The ginger beer was in an opaque bottle. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. The remains of
a snail in a state of decomposition dropped out of the bottle into the
tumbler. Donoghue later complained of stomach pain and her doctor diagnosed
her as having gastroenteritis and being in a state of severe
shock.
Donoghue sued Stevenson, the manufacturer of the drink, for negligence. She
was unsuccessful at trial and appealed the decision to the House of Lords.
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Case Study: Defamation
Man wins landmark defamation case against Google
A 42-year-old Australian man has won a landmark defamation case against Google over two separate matters. The first was that images of the man were published next to photos of gangland figures in the company’s image search results. The second was that a Google search for the man’s name brought up stories of an unsolved shooting in 2004. He said that the image and web results had damaged his reputation, leading to him being ostracised within his migrant community.
The man moved to Australia in the early 1970s and became a prominent member of the migrant community. In 2004 he was shot in the back by a man wearing a balaclava while at a restaurant. The crime was never solved, but a newspaper report later said that police did not link the attack to Melbourne’s underworld.
As a result of the attack, the man said that entering his name into Google Images brought up images of other people beneath which his name appeared. He said some of these people were allegedly criminals and the caption ‘Melbourne Crime’ appeared beneath a number of the photos. He also complained that the first web search result showed his name and the words ‘Melbourne Crime—Underworld—Ganglands’, beneath which was a sentence about the shooting incident. He said that this suggested that he had been involved in crime and that this had resulted in him being shunned by people he knew.
In 2009 the man’s lawyers contacted Google to ask them to amend its results, but the company did not do so, stating that the man should contact the owners of the website concerned instead. The company argued that the results were based on automated software processes.
On 30 October 2012, a Victorian Supreme Court jury found Google liable for defamation.
Google used the defence of ‘innocent dissemination’ claiming that that it could not be a publisher as a matter of law as search engine operators are ‘active intermediaries’. It said that it is not responsible for online content produced using its search engine. In other words, a search engine provider cannot know whether a string of words entered by users will produce defamatory results. In the past, courts have agreed with this argument.
The jury agreed that the defence used was a reasonable argument, but only up to the point that Google received the complaint about its search results. The jury therefore found that the firm was liable for defamation because it did not remove the content when it received the complaint. It awarded the man $200 000 in damages. However, the jury found that Google was not liable fort the web search results since the man had filled out the complaint form incorrectly, leaving out the web address of the offending material.
The court decision came eight months after the man won a similar case against Yahoo!, which was ordered by the Victorian Supreme Court to pay damages of $225 000.
A 42-year-old Australian man has won a landmark defamation case against Google over two separate matters. The first was that images of the man were published next to photos of gangland figures in the company’s image search results. The second was that a Google search for the man’s name brought up stories of an unsolved shooting in 2004. He said that the image and web results had damaged his reputation, leading to him being ostracised within his migrant community.
The man moved to Australia in the early 1970s and became a prominent member of the migrant community. In 2004 he was shot in the back by a man wearing a balaclava while at a restaurant. The crime was never solved, but a newspaper report later said that police did not link the attack to Melbourne’s underworld.
As a result of the attack, the man said that entering his name into Google Images brought up images of other people beneath which his name appeared. He said some of these people were allegedly criminals and the caption ‘Melbourne Crime’ appeared beneath a number of the photos. He also complained that the first web search result showed his name and the words ‘Melbourne Crime—Underworld—Ganglands’, beneath which was a sentence about the shooting incident. He said that this suggested that he had been involved in crime and that this had resulted in him being shunned by people he knew.
In 2009 the man’s lawyers contacted Google to ask them to amend its results, but the company did not do so, stating that the man should contact the owners of the website concerned instead. The company argued that the results were based on automated software processes.
On 30 October 2012, a Victorian Supreme Court jury found Google liable for defamation.
Google used the defence of ‘innocent dissemination’ claiming that that it could not be a publisher as a matter of law as search engine operators are ‘active intermediaries’. It said that it is not responsible for online content produced using its search engine. In other words, a search engine provider cannot know whether a string of words entered by users will produce defamatory results. In the past, courts have agreed with this argument.
The jury agreed that the defence used was a reasonable argument, but only up to the point that Google received the complaint about its search results. The jury therefore found that the firm was liable for defamation because it did not remove the content when it received the complaint. It awarded the man $200 000 in damages. However, the jury found that Google was not liable fort the web search results since the man had filled out the complaint form incorrectly, leaving out the web address of the offending material.
The court decision came eight months after the man won a similar case against Yahoo!, which was ordered by the Victorian Supreme Court to pay damages of $225 000.
Tasks:
Read the case study above and then answer the following questions:
Questions
1. Who is the defendant in this case, what is the standard of proof and who does the burden of proof rest with in this case?
2. Explain why this is a civil case rather than a criminal case and explain two key differences between the two.
3. With reference to the case study, explain two reasons why civil law is needed.
4. Define the term ’defamation’.
5. With reference to the case study, explain the three elements of defamation.
6. Explain the defence of ‘innocent dissemination’ and explain one other defence a defendant in a civil case could use.
Read the case study above and then answer the following questions:
Questions
1. Who is the defendant in this case, what is the standard of proof and who does the burden of proof rest with in this case?
2. Explain why this is a civil case rather than a criminal case and explain two key differences between the two.
3. With reference to the case study, explain two reasons why civil law is needed.
4. Define the term ’defamation’.
5. With reference to the case study, explain the three elements of defamation.
6. Explain the defence of ‘innocent dissemination’ and explain one other defence a defendant in a civil case could use.
Wednesday 13th July: Continuation of Defamation
Complete the 'Defamation Worksheet' using your own research and the YouTube links on the Defamation PowerPoint above.
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Defences to defamation
Absolute privilege
There are some special circumstances in which people are free to say what they please about others. These are referred to as privileged circumstances. For instance, statements made in parliament by members of parliament are considered to be privileged. This allows parliamentarians to speak freely during parliamentary sittings. It means that parliamentarians can discuss the actions and activities of others without the fear of legal action. It is believed that the interests of the public are best served by allowing parliament to be an open and free forum for views and ideas. There are other circumstances that enjoy the status of absolute privilege. These are statements made between husband and wife, and those made between lawyer and client. This is also the case for statements made during court proceedings.
Qualified privilege
In some circumstances privilege is qualified or limited. To claim a qualified privilege the defendant must prove that:
● the person given the information has an interest in the information
● the matter is published in the course of giving to the recipient information on that subject
● the conduct of the defendant in publishing that matter is reasonable in the circumstances.
This qualified privilege allows people to speak freely about matters that concern them. Examples include comments made between a teacher and parents, statements made to the police, and employment references. The motives behind these statements are important if the statements are to enjoy qualified privilege. They must be made fairly and without malice.
Justification
A statement will not be considered defamatory if there was a good reason for publishing it. The most obvious defence to an action in defamation is to justify the defamatory statement by proving it is true. The plaintiff has no burden of proof—they do not have to prove it was not true. The defendant must prove that the statement is true. Truth is a total defence.
Contextual truth
It is possible for a publication to contain some defamatory statements as part of a larger article. In this situation the defendant may claim contextual truth. In other words, although some untrue statements have been published, these statements are part of an imputation about the plaintiff that is substantially true. If a person makes a statement in a situation of absolute privilege, they cannot be sued for defamation. If a person makes a statement in a situation of qualified privilege, they cannot be sued for defamation. The Defamation Act sets out the criteria for qualified privilege. Truth is a defence to defamation. If an untrue statement is made in the context of an accusation that is substantially true, it may not be considered a defamation. Chapter 9 Civil disputes 255 For instance, a journalist writes: ‘Convicted murderer Edward Kelly appeared in court yesterday charged with importing drugs’. Edward Kelly has been convicted of murder—that is a true statement. However, the journalist has made an error and, in fact, Edward Kelly was charged in this instance with possession of drugs. In the context of the other true statements, does the untrue statement amount to a defamation? The defence would claim that the defamatory statements do no further harm in the context of the truthful statements.
Honest opinion
In most cases, reviewers and commentators are protected from defamation actions because they present an honest opinion. (This defence is sometimes referred to as fair comment.) An honest opinion is an opinion honestly held by the author rather than as a statement of fact. For a statement to be considered an honest opinion:
● the statement must be a comment, such as an opinion, criticism, observation or conclusion
● the facts on which the opinion is based must be stated unless they are widely known It is very important that the comment can be distinguished from the facts
● the communication has to be on a matter of public interest.
An opinion can be extremely critical as long as it is honestly held by the author
Fair report of proceedings of public concern
A defendant can claim that a statement was contained in a fair report of any proceedings of public concern. The term ‘proceedings of public concern’ includes reports from parliament, international bodies, Australian and international tribunals and courts, law reform bodies as well as public meetings of associations and corporations. The defendant must prove that:
● it was in an earlier published report of proceedings of public concern
● it was a fair copy, extract or summary of the published report
● they had no knowledge that would reasonably make them aware that the earlier report was not fair.
This defence will not be accepted if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
Publication of public documents
It is not a defamation to publish a statement that is contained in:
● a public document or a fair copy of a public document
● a fair summary of, or a fair extract from, a public document.
Public documents include parliamentary documents, judgments of a court or tribunal and government documents. This defence will not be accepted if the plaintiff proves that the statement was not published honestly for the information of the public or the advancement of education.
Defence of innocent dissemination
Sometimes the defendant may have published a defamatory statement without realising that they were distributing the information. In these cases it may be possible to claim that the dissemination of the statement was innocent. The defendant would need to prove that:
● they published the statement merely as a subordinate distributor for someone else
● they did not know, and could not have reasonably known, that the statement was defamatory
● their lack of knowledge was not due to any negligence—they did not have editorial control before it was published. Subordinate distributors include booksellers, newsagents and librarians. Distributors may also include live television broadcasts and communication service providers.
Defence of triviality
It is a defence if the defendant proves that, in the circumstances, the plaintiff was unlikely to sustain any harm by the publication of the defamation.
There are some special circumstances in which people are free to say what they please about others. These are referred to as privileged circumstances. For instance, statements made in parliament by members of parliament are considered to be privileged. This allows parliamentarians to speak freely during parliamentary sittings. It means that parliamentarians can discuss the actions and activities of others without the fear of legal action. It is believed that the interests of the public are best served by allowing parliament to be an open and free forum for views and ideas. There are other circumstances that enjoy the status of absolute privilege. These are statements made between husband and wife, and those made between lawyer and client. This is also the case for statements made during court proceedings.
Qualified privilege
In some circumstances privilege is qualified or limited. To claim a qualified privilege the defendant must prove that:
● the person given the information has an interest in the information
● the matter is published in the course of giving to the recipient information on that subject
● the conduct of the defendant in publishing that matter is reasonable in the circumstances.
This qualified privilege allows people to speak freely about matters that concern them. Examples include comments made between a teacher and parents, statements made to the police, and employment references. The motives behind these statements are important if the statements are to enjoy qualified privilege. They must be made fairly and without malice.
Justification
A statement will not be considered defamatory if there was a good reason for publishing it. The most obvious defence to an action in defamation is to justify the defamatory statement by proving it is true. The plaintiff has no burden of proof—they do not have to prove it was not true. The defendant must prove that the statement is true. Truth is a total defence.
Contextual truth
It is possible for a publication to contain some defamatory statements as part of a larger article. In this situation the defendant may claim contextual truth. In other words, although some untrue statements have been published, these statements are part of an imputation about the plaintiff that is substantially true. If a person makes a statement in a situation of absolute privilege, they cannot be sued for defamation. If a person makes a statement in a situation of qualified privilege, they cannot be sued for defamation. The Defamation Act sets out the criteria for qualified privilege. Truth is a defence to defamation. If an untrue statement is made in the context of an accusation that is substantially true, it may not be considered a defamation. Chapter 9 Civil disputes 255 For instance, a journalist writes: ‘Convicted murderer Edward Kelly appeared in court yesterday charged with importing drugs’. Edward Kelly has been convicted of murder—that is a true statement. However, the journalist has made an error and, in fact, Edward Kelly was charged in this instance with possession of drugs. In the context of the other true statements, does the untrue statement amount to a defamation? The defence would claim that the defamatory statements do no further harm in the context of the truthful statements.
Honest opinion
In most cases, reviewers and commentators are protected from defamation actions because they present an honest opinion. (This defence is sometimes referred to as fair comment.) An honest opinion is an opinion honestly held by the author rather than as a statement of fact. For a statement to be considered an honest opinion:
● the statement must be a comment, such as an opinion, criticism, observation or conclusion
● the facts on which the opinion is based must be stated unless they are widely known It is very important that the comment can be distinguished from the facts
● the communication has to be on a matter of public interest.
An opinion can be extremely critical as long as it is honestly held by the author
Fair report of proceedings of public concern
A defendant can claim that a statement was contained in a fair report of any proceedings of public concern. The term ‘proceedings of public concern’ includes reports from parliament, international bodies, Australian and international tribunals and courts, law reform bodies as well as public meetings of associations and corporations. The defendant must prove that:
● it was in an earlier published report of proceedings of public concern
● it was a fair copy, extract or summary of the published report
● they had no knowledge that would reasonably make them aware that the earlier report was not fair.
This defence will not be accepted if the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.
Publication of public documents
It is not a defamation to publish a statement that is contained in:
● a public document or a fair copy of a public document
● a fair summary of, or a fair extract from, a public document.
Public documents include parliamentary documents, judgments of a court or tribunal and government documents. This defence will not be accepted if the plaintiff proves that the statement was not published honestly for the information of the public or the advancement of education.
Defence of innocent dissemination
Sometimes the defendant may have published a defamatory statement without realising that they were distributing the information. In these cases it may be possible to claim that the dissemination of the statement was innocent. The defendant would need to prove that:
● they published the statement merely as a subordinate distributor for someone else
● they did not know, and could not have reasonably known, that the statement was defamatory
● their lack of knowledge was not due to any negligence—they did not have editorial control before it was published. Subordinate distributors include booksellers, newsagents and librarians. Distributors may also include live television broadcasts and communication service providers.
Defence of triviality
It is a defence if the defendant proves that, in the circumstances, the plaintiff was unlikely to sustain any harm by the publication of the defamation.
Defences to negligence
A person being sued for negligence may present several defences to the court. These defences include the following.
No duty of care was owed
A defendant relying on this defence would claim that it was not reasonable to foresee that the actions would cause the loss or damage suffered.
The duty of care was not breached
A duty of care is not breached if the defendant acted as any normal person would and the injury was the result of an accident or could not reasonably have been stopped. For example, at a cricket match a ball may be hit into the spectator area and possibly injure someone; it may not be feasible to fence the entire ground to avoid such a possibility. To claim negligence the person needs to show that they were owed a duty of care. The plaintiff must prove that the defendant was careless. Chapter 9 Civil disputes 247 Defences to negligence include that there was no duty owed, the duty wasn’t breached, there was no damage, the plaintiff contributed to the damage or the plaintiff willingly took the risk.
No damage occurred or the injury was caused by other means
The defendant claims that although they may have breached their duty of care to the plaintiff, the plaintiff suffered no damage. Alternatively, the defendant may claim that the damage or injury suffered by the plaintiff was not the result of the defendant’s breach.
The plaintiff contributed to the damages
This defence is known as contributory negligence. Contributory negligence is when the person injured is in some way partly responsible for the injury. In these cases, the court may award a lesser payout.
The plaintiff willingly took a risk
There can be no claim of negligence where a person willingly consents to the risk that caused the injury and fully appreciates the dangers involved in the action. This is the case with many sporting injuries occurring within normal game play
No duty of care was owed
A defendant relying on this defence would claim that it was not reasonable to foresee that the actions would cause the loss or damage suffered.
The duty of care was not breached
A duty of care is not breached if the defendant acted as any normal person would and the injury was the result of an accident or could not reasonably have been stopped. For example, at a cricket match a ball may be hit into the spectator area and possibly injure someone; it may not be feasible to fence the entire ground to avoid such a possibility. To claim negligence the person needs to show that they were owed a duty of care. The plaintiff must prove that the defendant was careless. Chapter 9 Civil disputes 247 Defences to negligence include that there was no duty owed, the duty wasn’t breached, there was no damage, the plaintiff contributed to the damage or the plaintiff willingly took the risk.
No damage occurred or the injury was caused by other means
The defendant claims that although they may have breached their duty of care to the plaintiff, the plaintiff suffered no damage. Alternatively, the defendant may claim that the damage or injury suffered by the plaintiff was not the result of the defendant’s breach.
The plaintiff contributed to the damages
This defence is known as contributory negligence. Contributory negligence is when the person injured is in some way partly responsible for the injury. In these cases, the court may award a lesser payout.
The plaintiff willingly took a risk
There can be no claim of negligence where a person willingly consents to the risk that caused the injury and fully appreciates the dangers involved in the action. This is the case with many sporting injuries occurring within normal game play
Wednesday 13th July: Trespass and Nuisance
Trespass and Nuisance
Trespass When people think about the term ‘trespass’ they often think about signs reading ‘trespassers will be prosecuted’. Although there are many such signs, most are misleading, as trespass to land is usually the concern of civil law rather than criminal law. It would be more appropriate in most instances to say ‘trespassers will be sued’. The tort of trespass can take a number of forms: trespass to the person, trespass to land and trespass to goods. Cases of trespass to goods are not common. Trespass includes trespass to the person, trespass to land and trespass to goods. Cases of trespass to goods are not common. Model forces Google to reveal ‘skank’ blogger’s identity Asher Moses A formerVogue Australia cover girl has won a landmark court battle to reveal the identity of an anonymous blogger who called her a ‘skank’ and an ‘old hag’. Model Liskula Cohen sued Google in January in the hope of forcing the company to reveal the person responsible for allegedly defamatory comments on a blog called Skanks in NYC, which was hosted by Google’s Blogger service. ‘I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,’ the anonymous blogger wrote. ‘How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.’ Cohen, who is actually 37, believed the posts were defamatory but was forced to take action against Google in order to unmask the blogger’s identity before she could take further action. On Monday in the US, Judge Joan Madden ruled that Cohen was entitled to sue the blogger for defamation and, in an unprecedented move, forced Google to provide the blogger’s name. The name will presumably be revealed in court. It is unclear when the matter will return to court … Judge Madden rejected the claims by the blogger’s lawyer that the comments were mere opinion or ‘trash talk’, and that only factual assertions could be considered libellous … Cohen’s lawyer, Steven Wagner, told reporters that he hoped the decision would send a message that the internet was ‘not a free-for-all’. Anne Salisbury, the lawyer for the blogger, warned that the ruling would open the ‘floodgates’ for anyone who has been the subject of a nasty comment online to take legal action … In July, a landlord filed a lawsuit against a Chicago woman for writing on Twitter that her apartment was ‘moldy’. The landlord claimed the tweet damaged the company’s reputation, even though the woman had only 20 Twitter followers at the time. Source: The Age, 19 August 2009 260 The Legal Maze Trespass to the person Trespass to the person covers the right that a person has to their own personal safety and freedom from personal inconvenience. Trespass to the person is commonly referred to as assault. This is an example of an action that may result in both a criminal prosecution and a civil action. Such a trespass can result in a criminal hearing and the right to sue for compensation. Assault The tort of assault occurs when the defendant’s actions places the plaintiff in a position where they reasonably believe that they are in immediate physical danger. It can be assault, for example, to menacingly approach another with a knife in hand, to point a gun at someone, or to throw a punch that misses. Even an unwanted kiss or cuddle could be seen as assault (as well as being a form of sexual harassment). Pointing a toy gun at another person and threatening to use it is an assault if the victim believes the gun to be real. To prove assault, the plaintiff must show all of the following. ● The defendant posed a direct threat to the plaintiff. ● The plaintiff held a reasonable fear of harm due to the threat. ● The plaintiff had knowledge of the threat made by the defendant. Battery Often an assault is combined with battery. This occurs when the defendant actually carries out the action feared, such as firing the gun, stabbing with the knife or contacting with the punch. Of course, it is possible to be battered by surprise, without first being threatened, and therefore not necessarily suffer an assault. To prove battery, the plaintiff must show all of the following. ● The defendant made direct contact with the body of the plaintiff. ● The defendant intended to make contact. ● The defendant acted voluntarily.
Complete the Trespass and Nuisance worksheet
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14th July 2016: Related defences
Learning Intention:
- Defences to negligence
- Defences to defamation
Tasks:
1. Write down all of the 'defences to negligence'
2. Complete 'Apply your understanding' Page 259
3. Complete 'Apply you understanding' Page 263
4. Write down all of the 'defences to defamation'
- Defences to negligence
- Defences to defamation
Tasks:
1. Write down all of the 'defences to negligence'
2. Complete 'Apply your understanding' Page 259
3. Complete 'Apply you understanding' Page 263
4. Write down all of the 'defences to defamation'