DP8 The Doctrine of Precedent Flashcards
How is precedent set?
Precedent is set by the courts through previous decisions, which are binding upon lower courts in the same court system, where the facts are similar.
What are the three main (Latin) phrases in precedent, and what do they mean?
Stare decisis - to stand by what has been decided. This is the underlying principle of the doctrine of precedent, where lower courts should stand by the decisions of higher courts
Ratio decidendi - ‘reasons for the decision’. This is the binding part of precedent, and is the legal reasoning behind a judge’s decision
Obiter dicta - things said by the way. This is where disapproval may be given, or where comments which are persuasive are provided.
When is precedent binding?
- Case being decided has materially similar facts
- Decision (precedent) set in superior (higher) court
- Decision was from court in same hierarchy
When is precedent not binding (persuasive)?
- From court on same or lower level
- Court in different hierarchy (such as another state or country)
- Legal principle being followed comes from obiter dicta
○ Rather than ratio decidendi
What is an example of precedent being set and used?
Donoghue v Stevenson 1932 was a British case where a decomposed snail was found in a ginger bottle. The court found that the manufacturer owed a duty of care to avoid injury and thus was negligent in preventing such loss. This was applied in Grant v Australian Knitting Mills in 1935, where a person got dermatitis from wearing a pair of woolen underwear as the manufacturer left chemicals in the materials. The precedent in Donoghue v Stevenson was used, however it was persuasive only, and thus the courts were not required to follow it as it was from a different court hierarchy.
How can judges change precedent?
Judges can reverse a decision made when it is appealed to a higher court on the same case. For example, a decision made in the Supreme court Trial Division may be reversed on appeal to the Court of Appeal, if it found that the Trial Division erred in its decision.
Additionally, the courts may also overrule a decision made. For example, a decision made in a case 10 years ago may be overruled in the future by a higher court when the facts are similar.
How can a judge decide not to follow precedent?
The judge may distinguish the case before them from precedent, by separating the facts of their case from the original case. Therefore, the facts will be different and the precedent may not apply.
Additionally, the judge may disapprove of precedent and record this in the obiter dicta of the decision, but they must still follow the decision. This was seen in the Trigwell case, where the judge did not approve of precedent where a farmer should be liable for damage caused by sheep escaping the fence, but did not change the precedent himself.
