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23 Cards in this Set
- Front
- Back
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Precedents |
Principle of law set down by a higher court that are binding on lower courts on the same hierarchy. |
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Way Judges Make Laws |
- No law exists. - Law exists in legislation but is ambiguous or outdated. |
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Ratio Decidendi |
Judges reasoning for a decision in ruling/ making precedent. |
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Obiter Dictum |
A statement make by judge that's not part of the reason for decision but is relevant and important and relates to the main issue which may influence others judges decisions in the future. |
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Binding Precedent |
A precedent that must be followed by lower courts in the same hierarchy when a new case has similar material facts to the precedent case. |
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Reversing |
Same case is taken to higher court on appeal and the decision is changed going against the precedent and it's then reversed and no longer applies. |
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Overruling |
A precedent can be dismissed in a superior court in the hierarchy when a different case is presented and the court goes against the precedent. |
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Distinguishing |
Judges/ Lawyers may point out the differences between the president case and the current one so that he/she is not blinded to follow the precedent because the variables are different. |
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Disapproving |
In cases where courts are bound by precedent Judges may express disapproval, but this doesn't change the precedent. But a higher court when deciding a later case may choose to agree with the disapproval and overrule this precedent. |
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Advantages of Precedent |
- Certainty and Consistency - Flexible - Allows Judges to create new areas of law |
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Disadvantages of Precedents |
- Inflexible - No two cases are the same - Restricted, making to wait for a case to be brought up. |
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Torts |
The law of torts deals with the rights and obligations that people owe to others and the infringement of these rights and obligations |
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Negligence |
Failure to take reasonable care. A person is obligated to take reasonable care in regards to others, where it is reasonably. |
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Key Principles of Negligence |
- the person who was negligent owed a duty of care to the person injured - the duty of care was breached - the breach of duty of care caused the loss or damaged (causation) - the wronged person suffered loss or damage |
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Defamation |
Statement writer or verbal that lowers ones personal reputation in the eyes of community. |
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Key Principles of Defamation (List) |
- Statement is Defamatory: stemming lowers person's reputation/ standing in the community exposing them to ridicule, contempt and hatred. - Defamatory Statement does no need to name Plaintiff: The plaintiff doesn't need to be named but if a reasonable person reading.hearing/seeing statement would come to the conclusion it's about the plaintiff this may be sufficient. - Defendant published the defamatory Statement: Statement must be communicated to a third party. |
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Defences to Defamation (5) |
- Justification - Contextual Truth - Absolute Privilege - Honest Opinion - Innocent + Dissemination - Triviality |
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Defamation on the Internet |
If provider is unaware that defamatory is being transmitted though it's service it cannot be sued. But users who publish the defamatory information can be held accountable. |
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Breach of Duty of Care |
- the likely risk of harm - the likely seriousness of the harm - the burden of taking precautions to avoid the risk of harmthe social utility (benefit or worth) of the activity that creates the risk of harm. - the social utility (benefit or worth) of the activity that creates the risk of harm. |
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Duty of Care |
- the risk was foreseeable (the person knew or ought to have known about the risk) - the risk was significant or not insignificant (not far-fetched or fanciful) and - in the circumstances, a reasonable person in the same position would have taken precautions to eliminate any risk of harm. |
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Defences to Negligence |
- Contributory Negligence - Assumption of Risk (volenti non fit injuria) |
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Causation |
- not too remote - no break in the chain |
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Loss or Harm |
As a general rule, the plaintiff can only rely on a legal remedy through the law of negligence if it can be proved that he or she suffered a loss or harm, even if it is minor. The loss or harm can be physical, mental or damage to property. |
