Judicial Precedent

Question 1

Situations where judges make law indirectly

Answer 1

• Applying an established rule of principles to a new situation or set of facts
• Interpreting statutes enacted by the legislature

Question 2

In arriving at a decision, judges are bound to follow ____.

Answer 2

a certain accepted principles commonly known as precedents

Question 3

Definition of precedents

Answer 3

A judgement or decision of a court of law cited as an authority for the legal principle embodied in its decision.

Question 4

Stare decisis

Answer 4

Let the decision stand

Question 5

Stare decisis et non quieta movere

Answer 5

To stand by the decision, and not to disturb the settled matters

Question 6

Based on the principle,

Answer 6

‘like cases should be treated alike’

Question 7

A binding precedent

Answer 7

When determining a dispute before the courts, judges will follow what their predecessors had decided earlier in a similar situation

Question 8

When material facts are similar,

Answer 8

Court is required to follow the previous decisions of a higher court. Certain court must adhere to their own prior rulings and those of courts with equal/coordinate jurisdiction, whether from past or present, within the same judicial hierarchy.

Question 9

In coming to a decision as to which precedent is binding, the judge is influenced by 2 main factors

Answer 9

• origin of the precedent (must originate from a court of appropriate rank, namely higher or same level subject to certain exceptions)
• contents of the precedent (ratio decidendi/legal reasoning)

Question 10

The doctrine of precedent is based upon presumptions (2)

Answer 10

• Cases with the same or similar material facts should be decided in the same way
• Decisions made by the higher courts carry greater weight than lower courts, thus a court is normally bound by courts which are higher than them

Question 11

The neighbour principle

Answer 11

A person must take reasonable care to avoid acts of omission which he can reasonably foresee would be likely to injure another party

Question 12

Vertical stare decisis

Answer 12

The application of the doctrine from a higher court to a lower court (lower court accepts the decision of a higher court)

Question 13

Horizontal stare decisis

Answer 13

The notion that a judge is bound to follow or respect the decision of an earlier judge of similar or coordinate jurisdiction

Question 14

Obiter dictum

Answer 14

• In the course of judgement, a judge my express an opinion on a question of law not directly relevant to the case before him. His/her opinion is an obiter dictum (things said by the way)
• Not part of legal reasoning
• Not binding on courts although it may have a highly persuasive authority especially if it originates from a higher court
• Only the ratio decidendi is binding on subsequent cases

Question 15

Terminologies

Answer 15

• Binding precedent
• Persuasive precedent
• Overruling
• Reversing
• Disapproving
• Distinguishing
• Conflicting decisions

Question 16

Donoghue v Stevenson [1932] AC 562

Answer 16

• Mrs Donoghue’s friend bought a bottle of ginger beer in an opaque bottle for her. The beer was poured to her tumbler and she drank some of it.
• Hr friend proceeded to pour the remainder of the contents of the bottle to the tumbler, the remains of a decomposed snail floated out.
• Mrs Donoghue developed gastroenteritis as a result.
• Mrs Donoghue sued the manufacturer of the ginger beer for negligence as she had no contract with the retailer (she did not buy the bottle of ginger beer herself).
• The House of Lords held that the manufacturer owed her a duty of care
• Claimant could recover damages from the manufacturer due to their negligence

Question 17

The neighbour principle

Answer 17

Lord Atkin formulated the “neighbor principle,” stating that one must take reasonable care to avoid acts or omissions that could foreseeably harm their “neighbors”—those closely and directly affected by their actions.

Question 18

Binding precedent

Answer 18

One which a court considers it must follow. Eg: High Court is bound by the Federal Court’s decision.

Question 19

Persuasive precedent

Answer 19

One which a court is not bound to follow, but chooses to follow. Eg: The decisions of the superior courts in other parts of the Commonwealth jurisdictions.

Question 20

Overruling

Answer 20

When a higher court in a later case decides that a legal principle established in a previous case by a lower or equal court was incorrect, effectively invalidating the earlier decision but does not affect the position of the parties in the overruled case.

Question 21

Reversing

Answer 21

When a higher court changes the decision of a lower court in the same case on appeal, stating the lower court’s judgement was wrong.

Question 22

Disapproving

Answer 22

When a higher court expresses disagreement with a decision of a lower court, in the sense of casting doubt on the ratio of the earlier case while not formally overruling it.

Question 23

Distinguishing

Answer 23

Where a court distinguishes an earlier case on its facts, or on the point of law involved, it states some relevant points of difference between the earlier case and the present case, usually in order to conclude that the ratio of the earlier case is not binding on it.

Question 24

Conflicting decisions

Answer 24

Where a court decides that the legal reasoning of more than one earlier binding cases are inconsistent with one another, it may choose which to follow

Question 25

Appraisal of the doctrine

Answer 25

• There is a degree of certainty and predictability in the law so that people can plan their actions with a degree of confidence
• Strict adherence to precedent of the apex court is required so as to ensure certainty, stability and predictability in the judicial process
• The judicial precedent system is designed to be flexible enough to allow judges to adapt the law to meet the evolving needs of society, rather than being so rigid that it entirely limits judicial discretion.