Judicial Precedent - Types of Judicial Precedent

Question 1

Original Precedent

Answer 1

When a case raises a new point of law, i.e. no statute or case has covered this previously, judges must make a decision on that point of law. The judge’s decision will become an original precedent.

E.g. Donoghue v Stevenson which created negligence.

Question 2

Binding Precedent

Answer 2

When the ratio decidendi of a case in a senior court must be followed when a later case raising the same point of law is heard in a lower court. The ratio therefore forms a binding precedent.

E.g. Donoghue v Stevenson the ratio had to be followed in Grant v Australian Knitting Mills where C bought underwear which contained an irritant chemical. The manufacturer was held liable in negligence.

Question 3

Persuasive Precedent

Answer 3

This is the obiter dicta of a judgement. A lower court is not bound to follow this but can choose to follow it if it wishes.

E.g. In R v R the House of Lords chose to follow the ratio decidendi of the C of A in deciding if a man could be guilty of raping his wife. H of L did not have to follow as it is a higher court, however, the C of A precedent was persuasive on H of L.