Key Terms

Question 1

Ratio Decidendi

Answer 1

The Reason for deciding. This is used as an interpretative device. Involves a range of possibilities. The ratio or parts of the decision which is binding per the Doctrine of Precedent.

Question 2

Obiter Dictum

Answer 2

A judges expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore is not legally binding but is persuasive depending on the class of the court and the repute of the judge.

Question 3

Continuance (Ellis v R [2022] NZSC 114)

Answer 3

Continuance is what a court may grant to delay proceedings until a later date. Parties in a suit or the judge themselves may wish to have a continuance granted in order to prepare proceedings.

Question 4

What are the two types of Precedents?

Answer 4

Binding and Persuasive precedents.

Question 5

What are the two types of cases?

Answer 5

1. Cases which involve the interpretation of a statute
2. Cases where there is no statute on the point.

Question 6

What are the elements of Civil Battery, Civil Assault/Criminal Assault?

Answer 6

Intent to apply force

Plus

Application of force: touching of another (civil battery)

Or

Attempt to apply force (civil assault)

Or

Threat of force (civil assault)

Question 7

What is the Ratio Decidendi of Wilkinson v Downton?

Answer 7

Intentionally do an act that is calculated to and does cause physical harm.

Question 8

What is battery?

Answer 8

Battery is the unwanted, unprivileged, intentional touching of another. Actual touching is required.

Question 9

What is the Hierarchy of Sources when framing a legal argument?

Answer 9

• Statute law
• Binding Precedent
• Persuasive Precedent/Obiter Dicta
• Cases from other jurisdictions
• Textbooks and other books of authority
• Justice, Policy, Conscience, Expediency

Question 10

What is the Ratio Decidendi for Fagan v Commissioner of Metropolitan Police (1969)

Answer 10

The application of force for the crime of assault is a continuing act which may be carried out by the medium of an object such as a car.

Question 11

What does the Accident Compensation Act 2001 state broadly?

Answer 11

Cannot pursue court action for personal injury. The Government pays it automatically without the need for court action. However, a person can sue for exemplary damages.

Question 12

What are material facts?

Answer 12

The facts crucial in the application of the principle are called (by lawyers) “material facts”. Without these facts the case would have been decided differently. Material facts are used as an interpretative device for extending, limiting, or distinguishing a particular decision.

Question 13

What is the formula for Ratio Decidendi?

Answer 13

Suppose that in a certain case facts A, B and C exist; and suppose that the court finds that facts B and C are material and fact A is immaterial, and then reaches conclusion X (which means judgement for plaintiff or defendant). The doctrine of precedent says that in any future case in which facts B and C exist, or in which facts A and B and C exist, the conclusion must be X.

If in a future case facts A,B,C and D exist, and fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.

Question 14

What is Abstraction?

Answer 14

Abstraction is the mental operation of picking out certain qualities and relations from the facts of experience.

Example: The individual dog Caesar is, at a low level of abstraction, a terrier, at a high level he is a dog; higher still, a mammal and then an animal and a living thing.

Question 15

Criminal cases need to be proven …. (Standard of proof)

Answer 15

Beyond reasonable doubt.

Question 16

Civil cases need to be proven… (standard of proof)

Answer 16

On the balance of probabilities.

Question 17

What are the objectives of Criminal prosecution?

Answer 17

Punish.

Deter.

Rehabilitate.

Question 18

What are the objectives of Civil prosecution?

Answer 18

• Revenge
• Compensate
• Stop and activity

Question 19

What is the Obiter Dictum in Cole v Turner?

Answer 19

“Touch gently in a corridor is not a battery”.

“Forcing way in a rude inordinate manner is a battery”

Question 20

What was the Ratio Decidendi in I De S et ux. v. W de S?

Answer 20

Intentionally striking at another and missing is civil assault.

Question 21

What was the important Obiter Dictum in Tuberville v Savage?

Answer 21

To strike and miss is assault. To threaten by gesture is an assault.

Question 22

What are exemplary damages?

Answer 22

The punitive and exemplary damages definition is as follows: an award given to victims when the conduct of the individual who caused the victim harm is wilfully malicious, violent, oppressive, fraudulent, wanton, or grossly reckless.

Question 23

How to draft an argument by analogy?

Answer 23

Show precisely what the similarities are between the precedent case and the facts of the problem.

Question 24

How to draft an argument by distinguishing a case?

Answer 24

Show precisely what the significant difference(s) are between the precedent case and the facts of the problem.

Question 25

How to draft an argument by using the rationale behind the principle of law on the case.

Answer 25

For example: the reason for the law of assault is to protect bodily integrity.

The reasoning (purpose) of the law is important to strengthen your legal argument. Why do we have this particular law?

Question 26

Name of the Court (anatomy of a case)

Answer 26

(Head of first page) states which court the case belongs to and thus the status of the case as precedent.

Question 27

Names of Parties and Case (anatomy of a case)

Answer 27

(at the top which become the name of the case)

Question 28

Marginal Notes (anatomy of a case)

Answer 28

State the court, date of hearing, and the names of the judge or judges hearing the case. (Located on the sides in the margin)

Question 29

Catchwords (anatomy of a case):

Answer 29

Catchwords are beneath the names of the parties and state in point or summary the key concepts raised in the case, as well as the names of any statutes or delegated legislation involved. Good summary, but do not presume on their accuracy (the whole case should be read).

Question 30

Headnote (anatomy of a case)

Answer 30

Headnotes appear beneath the catchwords. Two things a summary of the facts and a summary of the stated reasons for the decision. Facts first, then the reasons. Use when researching and trying to ascertain broad principles in the preliminary stage of investigation. Headnotes have limitations of being broad overviews and the case should be read in full.

Question 31

Nature of hearing (anatomy of a case)

Answer 31

Describe the method by which proceedings are commenced or in the case of action, the type of proceeding. (after headnote).

Question 32

Summary of facts and proceedings (anatomy of a case)

Answer 32

Helpful to have a summary of the facts. Also helpful to know if there have been any previous proceedings or appeals. Essential to know the context or what has taken place already. The judges indication of what the case is about. Issue, reasoning, conclusions and order of finding. Judges sub parts facts, issues, reasons, conclusions and order of finding. (after the nature of the hearing).

Question 33

Appearances (anatomy of a case)

Answer 33

These indicate the names of the barristers or solicitors who argued the case. If a party appears for himself, this is also stated. Where the argument is summarised, appearances are stated at the beginning of the summary of the argument.

Question 34

Argument (anatomy of a case)

Answer 34

Some law reports summarise the arguments put on behalf of each party. This is useful information because:

1) It helps you to understand the issues before the court, and hence the ratio; and

2) One factor which affects the standing of a case as a precedent is the arguments considered by the court.

Where arguments are not formally summarised in the law report, they may still be mentioned or summarised in the judgement(s).

Question 35

Case cited (anatomy of a case)

Answer 35

This lists the cases which were cited to the court by those arguing the case. Often they are divided into two classes, cases cited in the judgement(s) and other cases cited. Cases cited are similar to arguments in that they affect the standing of the case.

Question 36

Reserved Judgement (anatomy of a case)

Answer 36

A reserved judgement is one which is not given immediately after the hearing concludes, but after the court has adjourned to consider the matter further. Cur Adv Vult is Reserved. Curia Advisart Cult means the court wishes to be adviser, or to consider the matter.

Question 37

Date of Judgment (anatomy of a case)

Answer 37

The date on which the judgement is “handed down” is stated on the margin on the left hand side. If it is a reserved judgment, then it will normally not be the date of hearing.

Question 38

Judgement (anatomy of a case)

Answer 38

(Judges often re-draft their judgements) and (there is not a standard format for a case, and there is none for a judgement)

Normally a judgement will commence with a statement of the issues before the court. The reasoning. The conclusion. And the order of finding.

Question 39

Order of finding (anatomy of a case)

Answer 39

The order of finding of a judge is stated in the judgement, the formal order of the court is stated after the judgement or, where there are several judgements, after the last judgement.

Question 40

Solicitor (anatomy of a case)

Answer 40

The names of the firms of solicitors representing the parties are stated at the end of a case.

Question 41

Reporter (anatomy of a case)

Answer 41

Beneath the case the name or initials of the reporter is given. The full names of the reporters are normally given at the front of each volume of law reports.

Question 42

What is Lord Coleridge’s reasoning in Dudley v Stephens?

Answer 42

There is no absolute or unqualified necessity to preserve one’s own life.

The highest duty is to sacrifice rather than take the life of another.

Extreme temptation is not an excuse for a crime.

If this was allowed it would be a cloak for atrocious crimes.

Question 43

What was our ratio decidendi for Dudley v Stephens

Answer 43

Apart from the incidents of war, the deliberate killing of an innocent person to save your own life or the life of others is murder.

Question 44

What are minority judgements?

Answer 44

One or two judges beg to differ and come to a different overall result.

If there are a variety of reasons for the holding, then the lower court has a lot more room to manoeuvre in deciding just exactly what the implications of the higher court are.

Question 45

If there are more than one judgement in which there are differences of opinion as to the material facts, how is this decided?

Answer 45

The principle of the case is generally considered to be limited to the sum of all facts held to be material by the various judges, unless there is a majority which is in agreement. In that event, the case would be an authority on the facts considered material by the majority. Your statement of the facts and of the ratio should reflect accordingly and divergence in the judges views of the facts.

Question 46

Cases which a minority differs from the majority as to the ground of the Court’s order.

Answer 46

In cases in which a minority gives one or more grounds for making the order which is in fact made by the Court but the majority reaches the same result by another route, the ratio decidendi concurred by the majority is all that is strictly binding on subsequent tribunals, although the minority views may be entitled to the weightiest consideration as Dicta.

Question 47

Where should you extract the reasoning from a case with several judgements?

Answer 47

In briefing a case with several seperate judgements you should therefore extract the reasoning that is common to all members forming the majority. You should also note briefly, either at the end of your summary of reasoning or at the appropriate point in it, the respects in which individual judges parted company with the reasoning of the majority. Such propositions are preceded by the word “per” and the name of the judge. E.g per North P.

Question 48

What was the precedent established in Sturges v Bridgman (1879) in the case Miller v Jackson (1977)?

Answer 48

When litigating nuisance, it doesn’t matter if the plaintiff came within the proximity of the defendant after they had already established their operations. Even if you move to nuisance, you can still litigate it.

Question 49

What was Lord Denning’s main arguments in Miler vs Jackson (1977)?

Answer 49

Ignored precedent of Sturges v Bridgman (1879) and posited that this case should be argued on modern conditions where public interests (i.e., cricket) exceed private interests (i.e., plaintiff concerns).

Question 50

What did Lord Justice Geoffrey Lane say in response to Sturges v Bridgman in Miller v Jackson (1977)?

Answer 50

My duty is to follow the law even if it goes against my instincts of justice and is unfair to the cricketers. Hence, he accepted and applied the precedent.

Question 51

What was the Judgement broadly for Miller v Jackson (1977)?

Answer 51

Majority of judges (two) upheld precedent for nuisance and there was negligence (so should pay damages). However, majority also held no injunction would be enforced with the argument that public interest outweighed private interest.

Question 52

When will NZ court of appeal depart from one of its own decisions?

Answer 52

-Changing social conditions

• Socially just results outweigh predictability.
• New thinking abroad.
• More Judges agree.
• Cannot always leave it to Parliament.

Question 53

Is NZ Court of Appeal bound by its own decisions?

Answer 53

No. NZ Court of Appeal decisions can be overturned by themselves, as it is unjust to be bound by their own incorrect precedent.

Question 54

Are Privy Council decisions appealed from other countries binding or persuasive in NZ?

Answer 54

Decisions appealed from other countries after NZ Supreme Court was founded are only persuasive.

Question 55

NZ Supreme Court is not bound by its own decisions. True or False?

Answer 55

True.

Question 56

What are the requirements for a case to be brought before the Supreme Court?

Answer 56

According to the Supreme Court Act 2003:

• General or public importance
• Substantial miscarriage of justice
• General commercial significance

Question 57

Is the Supreme Court Bound by Previous Privy Council decisions?

Answer 57

Not bound by PC decisions otherwise the law will never change.

Question 58

What does the term “legal issue” mean?

Answer 58

The link between the legal concept or concepts which were relevant to the particular facts of the case.

Connecting the facts with some pre-existing rule, principle.

Question 59

Act of God/Vis Major requirements (Rylands v Fletcher)

Answer 59

Sudden and unprecedented.

Question 60

Act of a stranger (Rylands v Fletcher)

Answer 60

Wrongful act of a person outside your control. (A trespasser on the defendants land).

Question 61

How to answer Rylands v Fletcher question

Answer 61

1. Be brief on non-contentious issues
2. Focus on contentious issues
3. Use principles and the material facts of the cases to either draw analogies or distinguish
4. The status of the precedent, the rationale behind it, and the trend of the law can all be used to justify conclusions
5. Conclude with reasons on every issue.

Question 62

Under Rylands v Fletcher is it the foreseeability of the type of damage or the escape which is used to determine whether an individual is liable or not liable.

Answer 62

Foreseeability of the type of damage.

Question 63

Elements of Rylands v Fletcher

Answer 63

• Things likely to do mischief if they escape.
• Brings onto land.
• For own purposes
• Escape - area outside control (outside your control/jurisdiction)
• Non-natural use - risk of damage and harm, less emphasis on benefit.

-Foreseeability of damage of the relevant type (the damage this is likely to be done if it escapes)

Question 64

What was the Rationale of Donoghue v Stevenson [1932].

Answer 64

• Love thy neighbour
• Moral wrongdoer should pay
• Practical world must limit range of complaints and extent of their remedy
• Must not injure your neighbour
• Persons so closely and directly affected that I ought reasonably to have them in contemplation.

Question 65

Who is your neighbour in Donoghue v Stevenson [1932]?

Answer 65

An individual closely or directly affected that you should reasonably have them in your contemplation.

Question 66

In which case was the sixth element of Rylands v Fletcher established and what is the sixth element?

Answer 66

Cambridge Water Co v Eastern Counties Leather.

Foreseeability of the harm.

Question 67

Foreseeability of damage of the relevant type.

Answer 67

Would the reasonable person forsee this type of damage IF the thing escapes? (Doesn’t matter if the defendant did not foresee it but would a reasonable person foresee if it escaped)

Consistent with nuisance (nuisance also has foreseeability)

Needed legislation for pollution.

Question 68

Main points of Cambridge Water Co v Eastern Counties Leather judgement

Answer 68

PCE seepage under the land was not foreseeable in 1976. (Was not foreseeable that it would go through the concrete, they thought it would go through the concrete and evaporate and no further problem) No evidence that it would do anything else.

PCE ending up in the CWC borehole not foreseeable in 1976. No way of foreseeing that it would end up in the borehole.

Unforeseeable that PCE would effect the water. Couldn’t foresee even if it did get to the borehole they didn’t think it would do any effect to the water. As they thought it was a reasonably harmless solvent that washed the leather.

Because they couldn’t see these things the judge stated that damage to this particular borehole was unforeseeable therefore no liability under Rylands v Fletcher.

Resultant damage not foreseeable.

Question 69

What was the important Obiter Dicta by Lord Goff in Cambridge Water Co v Eastern Counties Leather?

Answer 69

Disagreed with first judge.

Creation of employment = not enough (for natural use)

Benefit to small industrial community = not enough (for natural use)

Common practice of tanning = not enough (for natural use)

These arguments don’t make it natural. These things do not take it away from being a dangerous thing. Too much weight being put on natural use (Rickard’s v Lothian).

Storage of substantial quantities of chemicals on industrial premises = classic case of non-natural use. Large amount of chemicals are highly dangerous. Even if it is an industrial area. Large volumes of anything are highly dangerous and are non-natural use. Chemicals are inherently dangerous. (Rickards v Lothian small quantity of things). Large volumes for industrial use clear non-natural use. Small volume for domestic use possibly natural use.

Benefit to the community = too wide (Read v Lyons bomb making) because bombs are highly dangerous.

Foreseeability of harm = less pressure to extend natural use. Benefit of the community has less weight. More room for non-natural use to be a factor. Sixth requirement, but levelled with more room for non-natural use.

Emphasis after Cambridge Water now more on the risk of damage and harm than benefit to the community when deciding non-natural use. More dangerous less weight on natural use. If it is inherently risky/dangerous. Not liable because your careless liable because you took part in an inherently risky activity so you have to pay for it. Rickards v Lothian limited non-natural use now theres room for it. If inherently dangerous and high volumes, it is more likely to be non-natural use.

Question 70

What was the emphasis after Cambridge Water Co v Eastern Counties Leather?

Answer 70

Emphasis after Cambridge Water now more on the risk of damage and harm than benefit to the community when deciding non-natural use. More dangerous less weight on natural use. If it is inherently risky/dangerous. Not liable because your careless liable because you took part in an inherently risky activity so you have to pay for it. Rickards v Lothian limited non-natural use now theres room for it. If inherently dangerous and high volumes, it is more likely to be non-natural use.

Question 71

What did Parliament do in response to “new and distinct” damages established by Cooke J in Bowen v Paramount Builders, based on The Limitation Act 1950?

Answer 71

The Limitation Act 1950 has been replaced by the Limitation Act 2010. However for this class and your legal opinion we continue to use the Limitation Act 1950.

• The Builders got the Parliament to put a clause in the building act because they were scared that they would be liable for extended periods of time.

Section 393 Building Act 2004:

• Civil proceedings relating to building work may not be brought against a person after 10 years or more from the date of the act or omission on which the proceedings are based.

Cannot sue 10 years from the negligent act, new and distinct thing stops because you have got 10 years from the negligent act not the damage. Its a limitation. Once you are negligent under the Building Act and you are doing building work then 10 years, so in that 10 years you can have six years plus 4, with a new damage but can’t go any further because the negligence stops. Parliament intervention to stop the new and distinct damage thing going to far.