Untitled Quiz

Legal Framework Overview

• Australia operates under a common law system, derived from England, established post-Norman conquest in 1066.
• The Australian legal system focuses on uniformity, equity, and the need to address injustices.
• Case law, developed by judges, is essential for maintaining consistency through precedent.

Legal System Components

• Ratio decidendi refers to binding legal principles while obiter dicta are persuasive but not binding.
• Statute law, or legislation, is created by Parliament, and the Constitution establishes the Federal Parliament.
• Bills go through a parliamentary process, requiring debate and assent to become Acts, which courts interpret using a literal and purpose-based approach.

Court Hierarchy

• Courts are structured hierarchically, with lower courts adhering to decisions made by higher courts.
• Appeals can be made to higher courts if a party disagrees with a lower court's decision, with the High Court as the apex court.
• The Supreme Court is the highest state court in New South Wales, supported by various tribunals and alternative dispute resolution (ADR) methods.

Key Parties in the Legal System

• The Plaintiff initiates proceedings; in criminal cases, it is the State (Prosecution/Crown).
• Defendants contest the claims made against them.
• Solicitors prepare cases and may engage barristers for representation in complex matters.
• Judges/Magistrates preside over cases, while juries are utilized in specific criminal and civil defamation cases.

Litigation Characteristics

• Civil litigation focuses on compensatory outcomes, with a balance of probabilities as the standard of proof.
• Criminal litigation prioritizes punishment and deterrence, applying the beyond reasonable doubt standard.

Political System Fundamentals

• The Australian Constitution formed a federation, recognized the six colonies as states, and established federal/state powers.
• Section 51 allocates specific powers to federal parliaments, with residual powers belonging to states.
• Section 109 ensures Commonwealth law prevails in the event of conflict with state law.

Structure of Government

• Government operates under the separation of powers between legislative (Parliament), executive (Governor-General, Ministers), and judicial (courts) branches.
• The Westminster system facilitates parliamentary democracy within Australia.

Understanding Torts

• Torts can range from assault to defamation, with negligence as the most significant category.
• Key elements of negligence include duty of care, breach of duty, and resulting damage—establishing a causal link is crucial.

Landmark Cases in Negligence

• Donoghue v Stevenson established duty of care based on foreseeability and proximity.
• Shaddock v Parramatta Council emphasizes the reliance on accurate advice leading to a duty of care.
• Esanda v Peat Marwick concerns reliance by auditors.

Assessing Breach of Duty

• Determining breach involves evaluating risk probability, potential harm severity, burden of risk elimination, and utility of the defendant's actions.
• Overseas Tankship v Morts Dock addresses causation of damage in negligence claims.

Vicarious Liability

• Employers can be held liable for employees' negligence if it occurs within the scope of their employment, differentiating between contracts of service and contracts for services.

Defenses in Negligence

• Contributory negligence attributes partial fault to the plaintiff, adjusting damages awarded.
• Voluntary assumption of risk acknowledges the plaintiff's acceptance of risk, potentially reducing or eliminating damages.
• Mitigation obligates plaintiffs to minimize their losses.

Damages Philosophy

• The goal of tort damages is to restore the injured party to their pre-tort position, encompassing pain and suffering, economic loss, and future medical needs.

Statutory Modifications

• The Civil Liability Act in New South Wales modifies aspects of negligence, particularly concerning recreational activities and liability related to professionals and public authorities.