On the basis of given information below make a report of 1200 words on Australianlegalsystems,corporationsand trustlaw ResearchandwriteareportontheAustralian legalsystemsandprocessesrelevanttocorporationsandtrustlaw (800 1000 words) Yourreportis to cover Basicprinciples,currentstatute,commonlawandequitableprinciples Rolesandresponsibilitiesofkey organisations Constitutionalconsiderations Separationofpowers Basicprinciplesofthelawoftorts,particularly relatingtonegligenceandnegligentmisstatement Courtsandregulatorybodies Howlawsareenactedandtheirunderlyingpolicyaims Howthoselawsmaybeinterpretedbyexistingcommonlawandequitablerulesandapplied tocorporationsand trusts The given information is as below Origins of Law in Australia When the First Fleet in arrived in Australia in 1788, this marked the beginning of British law being enforced in Australia In 1901, Australia was declared a nation after amalgamation of British colonies around Australia Despite achieving 'independence' the Australian legal system is still highly influenced by the British government For instance, within our constitution, the monarch of Great Britain, currently Queen Elizabeth II, can legally impose laws in Australia as well as dismiss the Australian Prime Minister The Australian Constitution Australia operates under a federal system of government This means there is a division of law making power between the central Commonwealth government and State governments When the Commonwealth government makes a law it applies to all States and Territories When a State government makes a law it only applies within that particular State The Commonwealth government cannot simply make laws about whatever it chooses and must act within the limits of the power given to it by the Constitution If a law made by the Commonwealth government is challenged by a claim that it falls outside the limit of its powers, the dispute is referred to the High Court of Australia Categories of Law Making Powers There are three key categories of law making powers Exclusive powers Held by the Commonwealth Examples Customs and excise, Currency, Military Concurrent powers Shared between Commonwealth and the States Example Taxation, Industrial Relations, Banking Residual powers Held by the States Example Education, Hospitals, Roads and Transport Strengths of Australian Federalism Federalism divides and limits the power of central governments, protecting individuals from one all powerful government Federalism provides increased choice Voters can vote for one political party at the State level and another at the national level for example Encourages co operation between States and Commonwealth e g proposals being more thoroughly debated and thought through Judicial Interpretation by the High Court The High Court has the jurisdiction to hear dispute that arise from the Constitution or cases involving disputes regarding the interpretation of the Constitution Referral of State Powers to the Commonwealth Commonwealth power has increased in the area of commercial law as a result of the referral of State law making power to the Commonwealth government, provided for under s51 (xxxvii) of the Constitution Types of Law Public Law Public Law involves laws relevant to all in society It deals with the structure of government, the relationship between governments and the relationship between governments and citizens Private Law Private law deals with the relationships between individuals and private corporations and organisations Criminal Law A unlawful act which involves harm to society in dealt with by the State government, as they prosecute in legal proceedings Civil Law Civil laws concerns wrongdoings which are not necessarily a problem for society, but a party Sources of Law The application of commercial law within Australia is subject to legislation, common law and equity, which together form case law Main sources of law Legislation Delegated legislation or subordinate legislation Common Law Equity Law STATUTE LAW Passed by Parliament and Subordinate authorities Can be referred to as Legislation or Statute law COMMON LAW Laws made by Judges Can be referred to Common law (Case law) OR Statutory interpretation Legislation is law made by the elected Parliament and it is also referred to as statute law or enacted law The parliament can delegate its law making powers to an executive body Common law is when judges make decisions on disputes brought before them, on a case by case basis At the heart of this system is the concept of precedent This means that if a case with particular facts has been previously decided by a higher court, a lower court hearing a similar case at a later date is bound to follow the decision of the higher court If a similar case has been heard in a court from a different hierarchy, or lower in the same hierarchy, then the precedent is only considered to be persuasive This means the judge hearing the case may be influenced by the decision, but it is up to them whether or not to follow it Equity Law Equity, the law of 'fairness and good conscience' was developed to provide fairness in those cases where the common law was unable to Equity provides alternative remedies in cases where money simply cannot resolve a dispute, or where technicalities would result in an unfair result at common law Equitable remedies include 1 An injunction an order by the court requiring a person not to do something 2 An order for specific performance an order by the court requiring a person to complete the conduct they promised to perform in a contract Ch 1 Framework of the Australian Legal System 1 What is the purpose of the principle of separation of powers How does it work The principle of separation of powers serves to prevent tyranny, promote accountability and transparency, balance competing interests and protect individual rights By dividing power among multiple branches or institutions, it establishes a system of checks and balances, ensuring a more democratic and accountable form of governance The Australian legal systme has three branches 1 Legislative Branch The legislative branch is responsible for making laws It consists of a representative body, known as parliament, which is elected by the people It makes the laws, sets public policies, and represents the interests of the citizens 2 Executive Branch The executive branch is responsible for implementing and enforcing laws It includes the head of state, such as a president or prime minister, and the executive agencies and departments The executive branch executes laws, manages day to day governance, and ensures the administration of public affairs 3 Judicial Branch The judicial branch is responsible for interpreting laws and administering justice It comprises the courts and judges who apply and interpret laws to resolve disputes and uphold justice The judiciary ensures that laws are consistent with the constitution and safeguards individual rights and liberties 2 Other than the principle of separation of powers, list three other matters addressed by the Constitution Other than the principle of separation of powers the Constitution Created the commonwealth Parliament Outlines how the commonwealth, States and Territories divide law making power Created the High Court and allowed the commonwealth parliament to create other federal courts to hear federal matters such as the federal court, family court and family circuit court Reference Book Corporations and trusts laws 3 What is the difference between a concurrent power and a residual power under the Constitution In Australian legal system concurrent powers refer to those powers that are shared by both the federal government and the state governments These powers are set out in Section 51 of the Australian Constitution For example Both the federal government and the state governments have concurrent powers to make laws with respect to Taxation, industrial relation ,banking Whereas Residual Powers are not mentioned in Constitution and left for states to make laws with in states For example The laws with respect to education, health, police, and other matters that affect the daily lives of citizens No 4 The federal government is formed by the political party who holds the majority of the seats in the House of Representatives If a bill is voted on and passed by a majority of members in the House of Representatives does it become a law Give reasons for your answer Passing a bill in the House of Representatives is an essential step, but it does not automatically make it a law The bill needs to go through additional stages The steps of a bill becoming a law are as follows 1 A bill is introduced into parliament in the House of Representatives 2 The minister introducing the bill explains the bill Debate may follow for approval, rejection, or further amendments to the bill 3 The bill is then brought to the floor of the House of Representatives for voting If a majority of the members vote in favour of the bill, it passes in the House of Representatives 4 The bill then goes through a similar process in the Senate It is assigned to a committee, reviewed, potentially amended, and brought to the Senate floor for debate and voting 5 Once both the House of Representatives and the Senate have passed the same version of the bill, it is sent to the Governor General The Governor General sign the bill and bill becomes a law No 5 How does the doctrine of precedent work What are its advantages The doctrine of precedent is a fundamental principle of the common law legal system It refers to the practice of courts following and applying the legal principles established in previous court decisions when deciding similar cases When a higher court decides a legal issue, its ruling becomes binding on lower courts Lower courts must follow and apply the legal reasoning and principles established by the higher court in similar cases This creates a hierarchy of precedent, where decisions of higher courts bind lower courts It's advantages can be as follows It ensures that similar cases are treated consistently, providing stability in the interpretation and application of the law People can have reasonable expectations about the outcome of their legal disputes based on prior court decisions, which enhances confidence in the legal system It ensures fairness and equality in the application of the law It saves time, and streamlines the judicial process as courts build on existing legal principles rather than reinventing them in each similar case No 6 How does equity differ from common law What remedies do you have under Equity law Common law Common law is the system of law that emerged from judicial decisions and legal principles established by courts over time is based on legal principles, rules, and statutes Common law typically provides monetary damages as the primary remedy for legal wrongs Equity, on the other hand, developed as a separate system alongside common law to address situations where common law remedies were inadequate or unjust It is based on principles of fairness, justice, and conscience It provides flexibility to address individual circumstances It offers a broader range of remedies that focus on achieving fairness and justice in specific cases Remedies of Equity Law are An injunction is an equitable remedy that orders a party to either do something or refrain from doing something Specific performance is an equitable remedy that requires a party to fulfil their contractual obligations as outlined in a valid agreement No 7 What is the most important source of law in Australia Why Legislation is often considered the primary and most significant source of law for number of reasons such as legislation clarify or address gaps or specific issues that have been passed down through common law legislation plays a vital role in addressing new situations or changing social and economic circumstances As society evolves and faces new challenges, the legislative body has the power to enact laws that respond to these emerging issues It can reforms or amends existing common law It has the power to amend or repeal existing legislation Legislation codifies the law means that it consolidates and organizes legal principles, rules, and provisions related to a specific subject matter into a single comprehensive statute Ch 2 Negligence and Risk No 8 What is the reason for imposing the foreseeability test to decide whether a duty of care is owed in a particular situation The reason for imposing the foreseeability test to determine whether a duty of care is owed in a particular situation is to establish a fair and reasonable standard for determining legal obligations in negligence cases The foreseeability test assesses whether a reasonable person could have foreseen the potential harm or injury that could result from certain actions or omissions No 9 What is the difference between contributory negligence and voluntary assumption of risk as defences to negligence The difference between contributory negligence and voluntary assumption of risk is that contributory negligence focuses on the plaintiff's own negligence and failure to exercise reasonable care, while voluntary assumption of risk centers around the plaintiff's voluntary acceptance of known risks associated with an activity or situation Contributory negligence involves the plaintiff's failure to meet their duty of care, while voluntary assumption of risk involves the plaintiff knowingly accepting the risks involved No10 What is the difference between factual causation the scope of liability Factual causation focuses on whether the defendant's actions or omissions were a necessary factor in causing the harm, while the scope of liability examines whether it is fair and just to hold the defendant legally responsible for the harm based on factors such as foreseeability and the extent of the harm caused Factual causation establishes a causal link between the defendant's conduct and the harm, while the scope of liability determines the extent to which the defendant should be held liable for the consequences of their actions No 11 To establish the tort of negligence, there are three prerequisites List the three items To establish the tort of negligence, there are three prerequisites 1 A duty of care must be owed by one person to another 2 There must be a breach of that duty 3 Loss, injury or damage must have resulted as a result of that breach Meaning of a Tort DEFINITION TORT a wrong by an individual against another The law of tort protects individuals against infringements of their rights against person, property or reputation There are many different torts including trespass defamation nuisance negligence BASIC PRINCIPLE members of society we all have a legal obligation to avoid causing injury to others by our actions or lack of action (carelessness) The law states that if an injury is caused to another by a person failing to take care, the wrongdoer should provide a remedy to the injured party, usually monetary compensation What Law Applies to Negligence The law of torts has historically evolved through the common law 'Tort law crisis' of the early 2000's was a result of a huge increase in litigation and an inevitable rise in the cost of insurance premiums This 'crisis' saw many businesses and some non profit organizations forced to close because they were unable to afford insurance Elements of Negligence To establish the tort of negligence, there are three prerequisites A duty of care must be owed by one person to another There must be a breach of that duty Loss, injury or damage must have resulted as a result of that breach Elements of Negligence 1 Duty of Care The Good Neighbour Principle, Foreseeability, Proximity, The 'Vulnerability and Control' Test 2 Breach of Duty of Care QUESTION Has there been a breach of duty 3 Loss, injury or damage must have resulted as a result of that breach Causation, Remoteness of Damage, Eggshell Skull Rule Duty of Care The common law position with respect to duty of care did not change under the civil liability reforms The various pieces of legislation simply try to clarify what amounts to a duty of care and reiterate that negligence does not arise in every case where a foreseeable risk occurs Defendants are entitled to disregard some risks as insignificant and then consider whether a reasonable person would have taken action to avoid or reduce the risk Breach of Duty of Care Standard of Care Once it has been established that a duty of care is owed by the defendant to the plaintiff, the plaintiff must then establish the standard of care that applies in the circumstances and whether that standard has been breached Civil liability legislation uniformly sets out factors which should be considered by the court in deciding whether a reasonable person would have taken precautions against the identified risk Civil Liability Act 2002 (NSW) s5B 5B General Principles (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) (a) The probability that the harm would occur if care were not taken (b) The likely seriousness of the harm (c) The burden of taking precautions to avoid the risk of harm (d) The social utility of the activity that creates the risk of harm (a) The probability that the harm would occur if care were to be taken (b) The likely seriousness of the harm This is essentially a restatement of the 'gravity of harm' concept The more serious the harm is likely to be, the more likely a reasonable person would have taken precautions against the risk of the harm occurring If the activity in which the plaintiff is concerned is particularly hazardous, a warning should be given c) The burden of taking precautions to avoid the risk of harm The plaintiff must identify the precautions the defendant should have taken, and then show, on the balance of probabilities, that the burden of cost, difficulty and inconvenience to the defendant was not unreasonable in the circumstances (d) The social utility of the activity that creates the risk of harm The social utility of the defendant's conduct must be assessed as against the seriousness of the risk of injury In some situations, the benefit of the conduct may outweigh the risk of injury and may change the duty of care ascribed to the person involved Wrongs Act 1958 (Vic) s 49 Other Principles In a proceeding relating to liability for negligence (a) The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible (b) The fact that a risk of harm could have been avoided by doing something in a different way, does not of itself, give rise to, or affect liability for the way in which the thing was done (c) The subsequent taking of action that would, (had the action been taken earlier), have avoided a risk of harm, does not of itself give rise to or affect liability in respect of the risk, and does not of itself constitute an admission of liability in connection with the risk Res ipsa loquitur 'The Facts Speak for Themselves' This is a rule of evidence that allows the plaintiff to treat the actual facts of the case as evidence of the defendant's negligence i e 'the facts speak for themselves' For res ipsa loquitur to apply, the following conditions must be present The injury suffered by the plaintiff would ordinarily not have happened if proper care had been taken The plaintiff was injured by an act or omission exclusively within the control of the defendant There is an absence of any other explanation and no room for interference Standard of Care for Professionals Civil Liability Acts The state legislation addresses both the standard of care required of professionals and a defence for professionals if accused of breaching that standard of care Essentially, a 'professional' refers to a person practicing a certain profession and includes doctors The standard of care required of persons professing a particular skill is to be determined by the court as that reasonably expected of a person professing that skill, in the circumstances at that time State and Commonwealth Resources State and Commonwealth resources relating a particular jurisdiction can be found online as such information is always available to the public State governments and the Commonwealth government also provide their own 'homepages' which are essentially portals for information and services relating to the region in question

The Answer is in the image, click to view ...

Answered step by step

Verified Expert Solution

Link Copied!

Question

1 Approved Answer

Posted on Jun 11, 2024

On the basis of given information below make a report of 1200 words on Australianlegalsystems,corporationsand trustlaw ResearchandwriteareportontheAustralian legalsystemsandprocessesrelevanttocorporationsandtrustlaw. (800 - 1000 words) Yourreportis to cover:

On the basis of given information below make a report of 1200 words on

Australianlegalsystems,corporationsand trustlaw

ResearchandwriteareportontheAustralian legalsystemsandprocessesrelevanttocorporationsandtrustlaw. (800 - 1000 words)

Yourreportis to cover:

Basicprinciples,currentstatute,commonlawandequitableprinciples
Rolesandresponsibilitiesofkey organisations
Constitutionalconsiderations
Separationofpowers
Basicprinciplesofthelawoftorts,particularly relatingtonegligenceandnegligentmisstatement
Courtsandregulatorybodies
Howlawsareenactedandtheirunderlyingpolicyaims
Howthoselawsmaybeinterpretedbyexistingcommonlawandequitablerulesandapplied tocorporationsand trusts.....The given information is as below"*Origins of Law in Australia:When the First Fleet in arrived in Australia in 1788, this marked the beginning of British law being enforced in Australia. In 1901, Australia was declared a nation after amalgamation of British colonies around Australia. Despite achieving 'independence' the Australian legal system is still highly influenced by the British government. For instance, within our constitution, the monarch of Great Britain, currently Queen Elizabeth II, can legally impose laws in Australia as well as dismiss the Australian Prime Minister. *The Australian Constitution:Australia operates under a federal system of government. This means there is a division of law-making power between the central Commonwealth government and State governments. When the Commonwealth government makes a law it applies to all States and Territories. When a State government makes a law it only applies within that particular State. The Commonwealth government cannot simply make laws about whatever it chooses and must act within the limits of the power given to it by the Constitution. If a law made by the Commonwealth government is challenged by a claim that it falls outside the limit of its powers, the dispute is referred to the High Court of Australia. *Categories of Law Making Powers:There are three key categories of law making powers: .Exclusive powers Held by the Commonwealth. Examples; Customs and excise, Currency, Military .Concurrent powers Shared between Commonwealth and the States. Example; Taxation, Industrial Relations, Banking .Residual powers Held by the States. Example; Education, Hospitals, Roads and Transport *Strengths of Australian Federalism:Federalism divides and limits the power of central governments, protecting individuals from one all-powerful government. Federalism provides increased choice - Voters can vote for one political party at the State level and another at the national level for example. Encourages co-operation between States and Commonwealth - e.g. proposals being more thoroughly debated and thought through. *Judicial Interpretation by the High Court:The High Court has the jurisdiction to hear dispute that arise from the Constitution or cases involving disputes regarding the interpretation of the Constitution. *Referral of State Powers to the Commonwealth:Commonwealth power has increased in the area of commercial law as a result of the referral of State law-making power to the Commonwealth government, provided for under s51 (xxxvii) of the Constitution. *Types of Law:Public Law Public Law involves laws relevant to all in society. It deals with the structure of government, the relationship between governments and the relationship between governments and citizens. Private Law Private law deals with the relationships between individuals and private corporations and organisations. Criminal Law A unlawful act which involves harm to society in dealt with by the State government, as they prosecute in legal proceedings. Civil Law Civil laws concerns wrongdoings which are not necessarily a problem for society, but a party. *Sources of Law:The application of commercial law within Australia is subject to legislation, common law and equity, which together form case law. Main sources of law: .Legislation .Delegated legislation or subordinate legislation .Common Law .Equity Law *STATUTE LAW:Passed by Parliament and Subordinate authorities Can be referred to as Legislation or Statute law *COMMON LAW:Laws made by Judges Can be referred to Common law (Case law) OR Statutory interpretation *Legislation is law made by the elected Parliament and it is also referred to as statute law or enacted law. The parliament can delegate its law-making powers to an executive body. *Common law is when judges make decisions on disputes brought before them, on a case-by-case basis. At the heart of this system is the concept of precedent - This means that if a case with particular facts has been previously decided by a higher court, a lower court hearing a similar case at a later date is bound to follow the decision of the higher court. If a similar case has been heard in a court from a different hierarchy, or lower in the same hierarchy, then the precedent is only considered to be persuasive. This means the judge hearing the case may be influenced by the decision, but it is up to them whether or not to follow it. *Equity Law:Equity, the law of 'fairness and good conscience' was developed to provide fairness in those cases where the common law was unable to. Equity provides alternative remedies in cases where money simply cannot resolve a dispute, or where technicalities would result in an unfair result at common law. Equitable remedies include: 1. An injunction - an order by the court requiring a person not to do something. 2. An order for specific performance - an order by the court requiring a person to complete the conduct they promised to perform in a contract. Ch 1 Framework of the Australian Legal System 1 What is the purpose of the principle of separation of powers? How does it work? The principle of separation of powers serves to prevent tyranny, promote accountability and transparency, balance competing interests and protect individual rights. By dividing power among multiple branches or institutions, it establishes a system of checks and balances, ensuring a more democratic and accountable form of governance. The Australian legal systme has three branches 1. Legislative Branch: The legislative branch is responsible for making laws. It consists of a representative body, known as parliament, which is elected by the people. It makes the laws, sets public policies, and represents the interests of the citizens. 2. Executive Branch: The executive branch is responsible for implementing and enforcing laws. It includes the head of state, such as a president or prime minister, and the executive agencies and departments. The executive branch executes laws, manages day-to-day governance, and ensures the administration of public affairs. 3. Judicial Branch: The judicial branch is responsible for interpreting laws and administering justice. It comprises the courts and judges who apply and interpret laws to resolve disputes and uphold justice. The judiciary ensures that laws are consistent with the constitution and safeguards individual rights and liberties. 2 Other than the principle of separation of powers, list three other matters addressed by the Constitution. Other than the principle of separation of powers the Constitution: *Created the commonwealth Parliament. *Outlines how the commonwealth, States and Territories divide law making power. *Created the High Court and allowed the commonwealth parliament to create other federal courts to hear federal matters such as the federal court, family court and family circuit court. Reference: Book Corporations and trusts laws 3 What is the difference between a concurrent power and a residual power under the Constitution? In Australian legal system concurrent powers refer to those powers that are shared by both the federal government and the state governments.These powers are set out in Section 51 of the Australian Constitution. For example: Both the federal government and the state governments have concurrent powers to make laws with respect to Taxation, industrial relation ,banking. Whereas Residual Powers are not mentioned in Constitution and left for states to make laws with in states. For example: The laws with respect to education, health, police, and other matters that affect the daily lives of citizens. No. 4 The federal government is formed by the political party who holds the majority of the seats in the House of Representatives. If a bill is voted on and passed by a majority of members in the House of Representatives does it become a law? Give reasons for your answer. Passing a bill in the House of Representatives is an essential step, but it does not automatically make it a law. The bill needs to go through additional stages.The steps of a bill becoming a law are as follows: 1. A bill is introduced into parliament in the House of Representatives. 2. The minister introducing the bill explains the bill .Debate may follow for approval, rejection, or further amendments to the bill. 3. The bill is then brought to the floor of the House of Representatives for voting. If a majority of the members vote in favour of the bill, it passes in the House of Representatives. 4. The bill then goes through a similar process in the Senate. It is assigned to a committee, reviewed, potentially amended, and brought to the Senate floor for debate and voting. 5. Once both the House of Representatives and the Senate have passed the same version of the bill, it is sent to the Governor General. The Governor General sign the bill and bill becomes a law. No. 5 How does the doctrine of precedent work? What are its advantages? The doctrine of precedent is a fundamental principle of the common law legal system. It refers to the practice of courts following and applying the legal principles established in previous court decisions when deciding similar cases. When a higher court decides a legal issue, its ruling becomes binding on lower courts. Lower courts must follow and apply the legal reasoning and principles established by the higher court in similar cases. This creates a hierarchy of precedent, where decisions of higher courts bind lower courts. It's advantages can be as follows; * It ensures that similar cases are treated consistently, providing stability in the interpretation and application of the law. * People can have reasonable expectations about the outcome of their legal disputes based on prior court decisions, which enhances confidence in the legal system. * It ensures fairness and equality in the application of the law. * It saves time, and streamlines the judicial process as courts build on existing legal principles rather than reinventing them in each similar case. No. 6 How does equity differ from common law? What remedies do you have under Equity law? Common law Common law is the system of law that emerged from judicial decisions and legal principles established by courts over time is based on legal principles, rules, and statutes. Common law typically provides monetary damages as the primary remedy for legal wrongs. Equity, on the other hand, developed as a separate system alongside common law to address situations where common law remedies were inadequate or unjust. It is based on principles of fairness, justice, and conscience. It provides flexibility to address individual circumstances. It offers a broader range of remedies that focus on achieving fairness and justice in specific cases. Remedies of Equity Law are; * An injunction is an equitable remedy that orders a party to either do something or refrain from doing something. *Specific performance is an equitable remedy that requires a party to fulfil their contractual obligations as outlined in a valid agreement. No. 7 What is the most important source of law in Australia? Why? Legislation is often considered the primary and most significant source of law for number of reasons such as * legislation clarify or address gaps or specific issues that have been passed down through common law. * legislation plays a vital role in addressing new situations or changing social and economic circumstances. As society evolves and faces new challenges, the legislative body has the power to enact laws that respond to these emerging issues. *It can reforms or amends existing common law. *It has the power to amend or repeal existing legislation. *Legislation codifies the law means that it consolidates and organizes legal principles, rules, and provisions related to a specific subject matter into a single comprehensive statute. Ch 2 Negligence and Risk No. 8 What is the reason for imposing the foreseeability test to decide whether a duty of care is owed in a particular situation? The reason for imposing the foreseeability test to determine whether a duty of care is owed in a particular situation is to establish a fair and reasonable standard for determining legal obligations in negligence cases. The foreseeability test assesses whether a reasonable person could have foreseen the potential harm or injury that could result from certain actions or omissions. No.9 What is the difference between contributory negligence and voluntary assumption of risk as defences to negligence? The difference between contributory negligence and voluntary assumption of risk is that contributory negligence focuses on the plaintiff's own negligence and failure to exercise reasonable care, while voluntary assumption of risk centers around the plaintiff's voluntary acceptance of known risks associated with an activity or situation. Contributory negligence involves the plaintiff's failure to meet their duty of care, while voluntary assumption of risk involves the plaintiff knowingly accepting the risks involved. No10 What is the difference between "factual causation" the "scope of liability"? Factual causation focuses on whether the defendant's actions or omissions were a necessary factor in causing the harm, while the scope of liability examines whether it is fair and just to hold the defendant legally responsible for the harm based on factors such as foreseeability and the extent of the harm caused. Factual causation establishes a causal link between the defendant's conduct and the harm, while the scope of liability determines the extent to which the defendant should be held liable for the consequences of their actions. No 11 To establish the tort of negligence, there are three prerequisites. List the three items. To establish the tort of negligence, there are three prerequisites:- 1. A duty of care must be owed by one person to another. 2. There must be a breach of that duty. 3. Loss, injury or damage must have resulted as a result of that breach *Meaning of a Tort:DEFINITION TORT - a wrong by an individual against another. The law of tort protects individuals against infringements of their rights against person, property or reputation. There are many different torts including : - trespass defamation nuisance negligence. BASIC PRINCIPLE - members of society we all have a legal obligation to avoid causing injury to others by our actions or lack of action (carelessness). The law states that if an injury is caused to another by a person failing to take care, the wrongdoer should provide a remedy to the injured party, usually monetary compensation. *What Law Applies to Negligence:The law of torts has historically evolved through the common law. 'Tort law crisis' of the early 2000's was a result of a huge increase in litigation and an inevitable rise in the cost of insurance premiums. This 'crisis' saw many businesses and some non- profit organizations forced to close because they were unable to afford insurance. *Elements of Negligence:To establish the tort of negligence, there are three prerequisites:- A duty of care must be owed by one person to another. There must be a breach of that duty. Loss, injury or damage must have resulted as a result of that breach *Elements of Negligence:1. Duty of Care- The Good Neighbour Principle, Foreseeability, Proximity, The 'Vulnerability and Control' Test 2. Breach of Duty of Care- QUESTION - Has there been a breach of duty? 3. Loss, injury or damage must have resulted as a result of that breach- Causation, Remoteness of Damage, Eggshell Skull Rule Duty of Care The common law position with respect to duty of care did not change under the civil liability reforms. The various pieces of legislation simply try to clarify what amounts to a duty of care and reiterate that negligence does not arise in every case where a foreseeable risk occurs. Defendants are entitled to disregard some risks as insignificant and then consider whether a reasonable person would have taken action to avoid or reduce the risk. *Breach of Duty of Care Standard of Care Once it has been established that a duty of care is owed by the defendant to the plaintiff, the plaintiff must then establish the standard of care that applies in the circumstances and whether that standard has been breached. Civil liability legislation uniformly sets out factors which should be considered by the court in deciding whether a reasonable person would have taken precautions against the identified risk. Civil Liability Act 2002 (NSW) - s5B 5B General Principles (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) The probability that the harm would occur if care were not taken. (b) The likely seriousness of the harm. (c) The burden of taking precautions to avoid the risk of harm. (d) The social utility of the activity that creates the risk of harm. (a) The probability that the harm would occur if care were to be taken. (b) The likely seriousness of the harm. This is essentially a restatement of the 'gravity of harm' concept. The more serious the harm is likely to be, the more likely a reasonable person would have taken precautions against the risk of the harm occurring. If the activity in which the plaintiff is concerned is particularly hazardous, a warning should be given. c) The burden of taking precautions to avoid the risk of harm. The plaintiff must identify the precautions the defendant should have taken, and then show, on the balance of probabilities, that the burden of cost, difficulty and inconvenience to the defendant was not unreasonable in the circumstances. (d) The social utility of the activity that creates the risk of harm. The social utility of the defendant's conduct must be assessed as against the seriousness of the risk of injury. In some situations, the benefit of the conduct may outweigh the risk of injury and may change the duty of care ascribed to the person involved. Wrongs Act 1958 (Vic) - s 49 Other Principles In a proceeding relating to liability for negligence: (a) The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. (b) The fact that a risk of harm could have been avoided by doing something in a different way, does not of itself, give rise to, or affect liability for the way in which the thing was done. (c) The subsequent taking of action that would, (had the action been taken earlier), have avoided a risk of harm, does not of itself give rise to or affect liability in respect of the risk, and does not of itself constitute an admission of liability in connection with the risk. Res ipsa loquitur - 'The Facts Speak for Themselves' This is a rule of evidence that allows the plaintiff to treat the actual facts of the case as evidence of the defendant's negligence - i.e. 'the facts speak for themselves'. For res ipsa loquitur to apply, the following conditions must be present: The injury suffered by the plaintiff would ordinarily not have happened if proper care had been taken. The plaintiff was injured by an act or omission exclusively within the control of the defendant. There is an absence of any other explanation and no room for interference. Standard of Care for Professionals - Civil Liability Acts The state legislation addresses both the standard of care required of professionals and a defence for professionals if accused of breaching that standard of care. Essentially, a 'professional' refers to a person practicing a certain profession and includes doctors. The standard of care required of persons professing a particular skill is to be determined by the court as that reasonably expected of a person professing that skill, in the circumstances at that time. *State and Commonwealth Resources:State and Commonwealth resources relating a particular jurisdiction can be found online as such information is always available to the public. State governments and the Commonwealth government also provide their own 'homepages' which are essentially portals for information and services relating to the region in question.