Unit 2

 Civil law can be defined as the body of law that is concerned with private disputes between two individuals or groups. Civil law protects individual rights and establishes responsibilities we all must comply with.
 Generally, we are all aware of criminal law and crime — newspapers and television constantly report on violence on our streets and television shows such as Underbelly brought the criminal underworld into our lounge rooms. But, we probably know less about civil law despite the fact that it is far more likely we will be involved in a civil dispute than a criminal matter. Civil law consists of a large, complex body of rules that deals with our rights and responsibilities.

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Criminal law provides a means to prosecute a drunk driver
Civil law offers the injured person the right to sue for compensation

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1.) Protect our rights . For example, our right to safely consume the products we buy, to purchase a good that is not faulty and to enjoy living at home without constant noise and interruption from neighbours. Not all civil cases end up in court. Often the parties reach an out-of-court settlement . Unfortunately, not everyone is aware of his or her civil law rights and, therefore, do not realise the law can be of assistance.
 2.) Impose a duty on others not to do anything to cause us harm . The duty not to cause harm is not only imposed on an individual. It also applies to groups such as football clubs, schools, business corporations and government agencies. For example, the parents of a 16-year-old boy who died within hours of being sent home from a Perth hospital, plan to sue the Department of Health. It was later discovered the boy had both swine flu and pneumonia.
 3.) Provide a remedy such as compensation in the event of a breach of a civil right .
The main purpose of a civil remedy is to return the injured person to his or her original position before the harm was done. Although compensation , in the form of an award of money is the main remedy, it may not be appropriate in all circumstances. Sometimes, the injured party may simply want the conduct to stop or a promise to be honoured. (See chapter 9 for further discussion of civil remedies.)

 Physical injury— for example, broken bones, loss of limbs
 nervous shock — for example, post-traumatic stress syndrome, severe depression
 Damage to property — for example, damage to a car, fire damage to a house
 financial loss — for example, loss of present and future income because of physical injury or death, loss of company profits
 loss of a good reputation — for example, the publication of false statements that damages a person's reputation.

 The word ‘tort’ originated from the Latin word tortus, meaning ‘twisted’ or ‘crooked’. It migrated into the
French language and then into English where it is now understood to mean ‘wrong’. The tort of negligence is concerned with wrongful conduct or omission that causes loss or injury to a person. Tort also protects our right to enjoy a good reputation through the tort of defamation, and to enjoy our property and possessions without interference from others through the torts of nuisance and trespass.

 The law of contract is concerned with legal agreements. If one party fails to carry out his or her side of a bargain, that person can be sued for breach of contract. You may be surprised to know that, during your life, you will enter into many legally enforceable contracts. Every time you buy a bus or train ticket, hire a DVD, purchase a mobile phone or buy food and drink, you are a party to a legal contract.

 n some cases, an injured party can sue the defendant in either tort or contract law, or both. Take the imaginary example of Christie who was attracted by an advertisement promising an awesome, exciting, but entirely safe, ride in a microlight plane. Even though the weather forecast was for high winds, the pilot, John, accepted $180 from Christie for a flight around Melbourne's Port Phillip Bay. Within 20 minutes, the microlight plane was battling strong winds and had to make an emergency landing on a beach. Christie suffered spinal injuries.
 John and Christie had formed a legally binding contract that included the advertised condition that the ride would be safe. Christie could sue also in the tort of negligence as
John should not have taken the microlight plane out when strong winds were forecast.

Feature
Purpose
Parties involved as a whole
The state, acting on behalf of
Protection of individual rights
the community, prosecutes the
The injured party, the plaintiff, sues the wrongdoer, the defendant.
accused.
Burden of proof
Standard of proof
Use of a jury
Possible court finding
The prosecution has the task of proving the accused is guilty of the criminal charge..
The prosecution must prove beyond reasonable doubt that the accused is guilty.
County and Supreme Courts have Jury of 12 (usually)
Guilty, not guilty, or no decision (hung jury)
The plaintiff has the task of proving the defendant breached his or her civil rights.
The plaintiff must prove on the balance of probabilities that the defendant is liable.
Either party may request that a jury of six (usually) be used in the county or supreme courts.
Defendant liable for the injuries suffered by the plaintiff, or defendant not liable
Possible outcomes A penalty such as a fine or imprisonment in order to punish the offender
A civil remedy such as compensation, in order to return the plaintiff to their original position as far as possible

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In March, 2008, when he was drinking in a nightclub,
Australian swimmer Nick D'Arcy king hit Simon Cowley, also a swimmer. The damage to Cowley's face was significant and he required corrective surgery, including the insertion of titanium plates in his face. As a result of the attack, D'Arcy lost his place in the 2008 Olympic team. He was charged with the criminal offence of recklessly inflicting grievous bodily harm for which he received a suspended jail sentence of 14 months.
 As well as facing criminal charges, D'Arcy was sued for compensation by Cowley in the New South Wales District
Court (the equivalent of the County Court). The judge ordered that D'Arcy pay Cowley at least $180 000 in compensation.

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1.) What is meant by the term ‘burden of proof ’?
2.) Explain what is meant by the standard of proof and how and why this standard is different in a civil trial compared to a criminal trial.
3.) Explain the purpose of civil remedies.
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4.) What is the difference between tort and contract law?
5.) For each of the terms below, state the ‘equivalent’ term in civil proceedings:
A.) prosecution
B.) defendant
C.) sanction
D.) fine.

 7.) Civil law is not as important as criminal law.’
Provide two arguments that disprove this statement.
(4 marks)
 9.) Explain why the facts in the same case may involve both civil and criminal law. To illustrate your answer, make up a hypothetical case and indicate reasons for its likely outcome.