Tort Law in Australia: Legal Framework Overview
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Questions and Answers

What does Section 51 of the Constitution deal with?

  • Qualifying age to vote
  • Electoral representation
  • Division of powers between states and federal governments (correct)
  • Requirements for law amendments

    • A referendum is required to amend the Constitution.

    True

    What are the three branches of government in Australia?

    Legislative, Judicial, Executive

    Every member of parliament represents an area called an __________.

    <p>electorate</p> Signup and view all the answers

    Which of the following is NOT one of the main elements of negligence?

    <p>Intent</p> Signup and view all the answers

    Match the following terms with their definitions:

    <p>Legislative = Makes statute law Judicial = Interprets and applies laws Executive = Carries out the laws Electorate = Area represented by a member of parliament</p> Signup and view all the answers

    The Attorney-General's Department is responsible for promoting the rule of law.

    <p>True</p> Signup and view all the answers

    What is the main reason for the separation of powers in government?

    <p>To ensure distinct roles and functions for each arm of government.</p> Signup and view all the answers

    The High Court is the lowest court in the Australian judicial hierarchy.

    <p>False</p> Signup and view all the answers

    What is the primary purpose of the concept of equity in the legal system?

    <p>To supplement common law and prevent injustice</p> Signup and view all the answers

    What term is used to describe the reason for a court's decision?

    <p>Ratio decidendi</p> Signup and view all the answers

    In Australia, the party that brings a case to court is called the ______.

    <p>Plaintiff</p> Signup and view all the answers

    Match the following court-related terms with their definitions:

    <p>Obiter dicta = Persuasive statements made in a judgment Bill = Proposal for new legislation Statute law = Law enacted by parliament Appeal = Request to a higher court to review a decision</p> Signup and view all the answers

    Which of the following statements is true regarding the Australian Constitution?

    <p>It creates the Federal Parliament.</p> Signup and view all the answers

    All legal systems in Australia are based solely on statute law.

    <p>False</p> Signup and view all the answers

    What is a 'precedent' in a legal context?

    <p>A previous court decision that serves as a rule or example for future cases.</p> Signup and view all the answers

    What is the primary role of a solicitor in legal proceedings?

    <p>To organize the case before it goes to court</p> Signup and view all the answers

    A jury is utilized in every criminal case in Australia.

    <p>False</p> Signup and view all the answers

    What standard of proof is required in criminal litigation?

    <p>beyond reasonable doubt</p> Signup and view all the answers

    The head of state in Australia is the _____, represented by the Governor-General.

    <p>Queen</p> Signup and view all the answers

    Match the following legal professionals with their roles:

    <p>Defendant = The party defending the proceedings Barrister = A specialised advocate who presents the case Judge/Magistrate = Hears the case and decides the outcome Jury = A group that decides the outcome in some cases</p> Signup and view all the answers

    Which statement best describes the compensatory philosophy of civil litigation?

    <p>It aims to restore the injured party to their original position.</p> Signup and view all the answers

    Each Australian state has a parliament that consists of two houses.

    <p>True</p> Signup and view all the answers

    What did the Australian Constitution recognize?

    <p>the 6 colonies</p> Signup and view all the answers

    What must be established to determine if there has been a breach of duty?

    <p>A reasonable person would have foreseen the risk</p> Signup and view all the answers

    In the case of Donoghue v Stevenson, a duty of care is owed to anyone affected by an action, regardless of proximity or foreseeability.

    <p>False</p> Signup and view all the answers

    What is the concept that describes when damages must be directly linked to a breach?

    <p>Causal chain</p> Signup and view all the answers

    In cases of contributory negligence, the award of damages reflects the plaintiff's ________ in the loss.

    <p>partial responsibility</p> Signup and view all the answers

    Match the following concepts with their definitions:

    <p>Voluntary assumption of risk = When the plaintiff accepts the risk, reducing damages Vicarious liability = Liability of an employer for the negligent acts of an employee Negligent misstatement = Financial loss due to reliance on bad advice Mitigation = The obligation to limit losses sustained</p> Signup and view all the answers

    Which case established the concept of negligent misstatement?

    <p>Shaddock v Parramatta Council</p> Signup and view all the answers

    The Civil Liability Act in NSW modifies the aspects of breach and causation in negligence cases.

    <p>True</p> Signup and view all the answers

    What is the primary philosophy behind awarding damages in tort?

    <p>To put the injured party in the position they would have been in had the tort not been committed.</p> Signup and view all the answers

    Study Notes

    • Australia follows a common law system influenced by English legal traditions after colonization.
    • Historical developments include regional feudal systems evolved into a central government post Norman conquest in 1066.
    • Case law, created by judges, creates uniformity through reporting decisions and precedents.
    • Key terms:
      • Ratio decidendi: Binding reason for a decision.
      • Obiter dicta: Persuasive remarks not binding.

    Legislation and Statute Law

    • Statute law, or legislation, is created by Parliament, with the Australian Constitution forming the Federal Parliament.
    • A Bill becomes an Act after parliamentary debate and assent, interpreted by courts through a mix of literal and purposive approaches.

    Court Hierarchy and Structure

    • The court system is hierarchical; lower courts are bound by higher court decisions.
    • The High Court is the apex; State courts are led by the Supreme Court in NSW.
    • Various forms of dispute resolution exist, including arbitration and mediation.
    • Plaintiff: Initiates proceedings; in criminal cases, it's typically the State.
    • Defendant: Responds to proceedings.
    • Solicitor: Manages cases prior to court and may represent clients.
    • Barrister: Specialized advocate representing clients typically in court.
    • Judge/Magistrate: Oversees and adjudicates cases.
    • Jury: Used in some criminal and civil cases.

    Litigation Types and Characteristics

    • Civil litigation focuses on compensation, requiring a balance of probabilities as proof.
    • Criminal litigation prioritizes punishment and deterrence, demanding proof beyond a reasonable doubt.

    Political System Fundamentals

    • The Constitution introduced a federation, recognizing six colonies as states and establishing a common market.
    • Australia operates under the Commonwealth structure, with the Queen as the head of state, represented by the Governor-General.

    Separation of Powers

    • Government functions are divided into three branches:
      • Legislative: Creates laws.
      • Judicial: Interprets laws.
      • Executive: Implements laws.
    • The Westminster system underpins this structure of parliamentary democracy.

    Tort Law Overview

    • Torts include various categories like assault, battery, defamation, and primarily negligence.
    • Negligence requires understanding:
      • Duty of care owed to individuals.
      • Breach of duty based on reasonable foreseeability.
      • Direct causation of damage.

    Notable Cases in Tort Law

    • Donoghue v Stevenson: Established the principle of foreseeability in duty of care.
    • Shaddock v Parramatta Council: Negligent misstatement resulting in financial loss from bad advice.
    • Esanda v Peat Marwick: Highlighted reliance on accurate advice from professionals.

    Key Principles of Negligence

    • Breach of Duty: Determined by a reasonable person’s response to risk.
    • Factors influencing breach assessments:
      • Probability of risk.
      • Gravity of potential harm.
      • Effort to eliminate risk versus the utility of actions.

    Liability Considerations

    • Vicarious Liability: Employers may be held accountable for employees' negligent actions within the scope of employment.
    • Contributory Negligence: Allows for reduced damage awards if the plaintiff shares responsibility.
    • Mitigation: Plaintiffs must take reasonable steps to limit their losses.

    Damages in Tort Law

    • Aim to restore the injured party to their pre-tort position. Includes considerations for:
      • Pain and suffering.
      • Economic losses.
      • Future medical expenses.

    Statutory Modifications

    • The Civil Liability Act in NSW modifies aspects of negligence, particularly concerning recreational activities and actions involving professionals or public authorities.

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    Related Documents

    ACCG2051 2020 Lecture Area 1 PDF

    Description

    This quiz covers the legal framework surrounding Tort law within Australia, exploring its common law roots and historical context. You'll learn about the evolution of the legal system from the Saxon period to modern-day Australia, highlighting the need for equity in law. Test your knowledge on these fundamental concepts and their implications in the Australian legal context.

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