Sac 3 notessss - legal notes 3 PDF

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NEGLIGENCE The rights protected by the law of negligence -Negligence protects a person’s right not to be harmed by those who do not take reasonable care to prevent harm or loss. -If you are harmed or suffer injury or loss, and you can successfully argue in a court that another person caused that loss, they will reward you with a civil remedy (financial restoration) The elements required to establish liability • The person who was negligent owed a duty of care to the person injured • The duty of care was breached • The breach of the duty of care caused loss or damage (factual causation) • The wronged person has suffered loss or damage that is not “too remote” (scope of liability). Limitation of actions -There are various different sections of legislation which limit legal actions or defences, provide limitations on time periods, and cap or exclude awards of damages in certain circumstances. -Basically, a plaintiff only has the right to sue someone for a certain period of time after the relevant act causing loss/harm occurs. -According to Limitation of Actions Act (1958) (Vic) -An action for damages in respect of personal injuries must not be brought after the expiration of 3 years -Possible defences to negligence Volenti non fit injuria Elements that need to be proven • That the plaintiff actually knew of the risk (subjective knowledge); • That the plaintiff freely and willingly encountered the risk. Contributory negligence -Contributory negligence is the failure of the plaintiff to take reasonable care for her or his own safety or interests. Remedies for negligence • Specific: have a precise value and are easily quantifiable. – E.g.: medical bills resulting from injury obtained due to the defendant’s negligence. • General: do not have a precise value are not easily quantifiable. – E.g.: compensation for pain and suffering or loss of quality of life as a result of the defendant’s negligence. • Aggravated: further compensation for humiliation & insult. – E.g.: embarrassment or distress resulting from the defendant’s negligence.

Impact of the breach on the parties Plaintiffs • Have typically suffered significant physical, psychological, financial and emotional loss/harm. • Their experience has led to them feeling like justice has not been done and someone else owes them something for their loss. • May feel sad, frustrated, desperate… • May have lost significant relationships, for example in the context of school or employment Defendants • May have their reputation damaged or completely destroyed. For example, amusement parks, schools and corporations who are successfully sued for negligence typically experience public backlash. • May have to provide a significant remedy to the plaintiff/s if the plaintiff successfully sues for the breach of negligence law.

DEFAMATION The rights protected by defamation law -The objective of defamation law is to protect reputation -Where those statements or comments tend to lower a person’s reputation, a tension arises between protecting reputation and promoting freedom of speech, facilitating the public’s right to know about certain matters and getting to the truth. Role of common law and statute in developing the elements of the cause of action -Defamation Act 2005 (Vic) -Development of what it means to be ‘defamatory’ -Changes to defamation law as a result of uniform legislation -Abolition of common law Limitations of actions In Victoria this clause is Limitation of Actions Act 1958 (Vic) s 5(1AAA) which states: – An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of. -A court may order an extension of the limitation period to a maximum of three years where they are satisfied that it was not reasonable for the plaintiff to have commenced proceedings within the oneyear period.

Possible defences to defamation Justification (“truth”) -It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. • It is necessary for the defendant to prove on the balance of probabilities that the imputation complained of were true – the plaintiff does not have to prove they were false. • Justification is a complete defence to a defamation claim. Fair comment The common law has developed to say that the question of what is ‘fair’ is not whether the comment is justified, using that word in its ordinary meaning, but whether it expresses an opinion which any fair-minded person could honestly hold on the basis of the proven facts. Honest opinion -the published material must have been an expression of opinion – The opinion must relate to a matter of public interest – The opinion must be based on “proper material” Absolute privilege and related defences It is also a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: – A public document or a fair copy of a public document; or – A fair summary of, or a fair extract from, a public document; or – The matter was, or was contained in, a fair report of any proceedings of public concern Remedies for defamation Damages: The main form of damages awarded in negligence cases is compensatory damages. • Specific: have a precise value and are easily quantifiable. – E.g: lost income due to injured reputation. • General: do not have a precise value and are not easily quantifiable. – E.g: compensation for pain and suffering or loss of quality of life as a result of the defendant’s negligence. • Aggravated: further compensation for humiliation and insult. – E.g: distress resulting from the defendant’s continued publication of defamatory conduct, even after legal proceedings start....