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Legal Studies Exam (Unit 2)
Terms in this set (13)
Outline 3 reasons for civil laws. (3 marks)
One of the reasons for civil laws are to protect individual rights. For instance, the Fair Work Act (2006) provides entitlements to workers and establishes guidelines to ensure workers are not exploited, such as minimum wage.
Another reason for civil law is to provide acceptable guidelines of behaviour. For instance, defamation laws ensure that individual's in society do not tarnish each others reputation through slander.
Lastly, civil laws provide avenues to return those whose rights' have been infringed back to their original position. For instance, damages provide a means of returning an individual to their original position.
What is the standard of proof in a civil case?
On the balance of probabilities.
Who has the burden of proof in a civil case?
What is one difference between civil and criminal law.
One of the differences between criminal and civil law is the standard of proof. In a criminal trial, the standard of proof is beyond reasonable doubt. This means that all evidence must diminish any reasonable doubt about the defendant committing the crime. Whereas in civil law, the standard of proof is on the balance of probabilities. This refers to what is more probable, or likely, to have occurred. It must be proven that on the balance of probabilities, an individual was liable for negligence.
Distinguish between a binding and persuasive precedent.
A binding precedent is one set in a higher court that must be followed by all lower courts in the same hierarchy. For instance, a precedent established in the Supreme Court (Trial Division) is binding on a case in the County Court where the facts are similar. Whereas a persuasive precedent does not have to be followed by a court. Persuasive precedents can be established in a different court hierarchy, a court on the same level, or even a lower (or inferior) court. These precedents are only ever influence a courts decision, as seen in the Grant v A.K.M (1936), where the court followed a precedent set in the U.K's court hierarchy through the case of Donoghue v Stephenson.
Distinguish between ratio decidendi and obiter dictum.
Ratio decidendi = the reason for the decision, and forms the precedent (binding)
Obiter dictum = a statement made by the way, does not form the reason for the decision, however; may be persuasive on courts in the future.
Outline the facts of the case in Donoghue v. Stephenson (1932)
Donoghue's friend purchased a bottle of ginger beer from the manufacturer, Stephenson.
After she drank half the ginger beer, she realised that there was a decomposed snail within the bottle.
Because the bottle was opaque, Donoghue had no way of knowing that the snail was within the bottle.
Donoghue had no grounds to sue, as she did not purchase the bottle (contract law).
She claimed that the manufacturer was negligent in the washing of the bottles before filling them with ginger beer.
How can a court avoid precedents?
A court can distinguish a case from the previous one. This means that the court decides that the facts of the case are dissimilar and therefore, the precedent is not binding.
A court may decide to reverse a precedent. This occurs when the same case is taken to a higher court on appeal, and the higher court reverses the decision of the lower court.
A court could decide to overrule a precedent. This occurs when a higher court makes a decision different to a previous case, therefore overruling the precedent.
A court may show their disapproval of a precedent. However, it is important to note that despite a courts' disapproval of a precedent, they are still bound to follow it.
Define statutory interpretation.
Statutory interpretation is the process whereby a judge interprets or clarifies an Act of Parliament.
What are 3 reasons statutory interpretation is necessary?
- The Act may not consider new types of technology, e.g data retention.
- Wording of the Act may be ambiguous, e.g 'external affairs' (Franklin Dam case)
- Meaning of words changes over time, e.g de facto relationship can now include same-sex relationships
What are the four principles of negligence?
1. The defendant owed a duty of care to the plaintiff.
2. The duty of care was breached.
3. The breach of the duty of care caused the loss or damages.
4. The wronged person suffered loss or damages.
Defences to negligence.
Contributory negligence - the defendant may try to prove that the plaintiff is partly to blame for the loss or damages. The court will look at the defendants actions to determine the degree of care taken.
Assumption of risk - the voluntary acceptance of the risk of injury. The defendant must prove that the plaintiff was aware of the risk and that they voluntarily chose to take that risk.
What are the principles of defamation?
- The statement is defamatory.
- 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.
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