Law Making - Judicial Precedent

Question 1

what is judicial precedent?

Answer 1

the concept of judges making law or following previous decisions from other judges

Question 2

when a case is decided, what features are in the judgement?

Answer 2

facts
outcome
ratio decidendi
obiter dicta

Question 3

what is the ratio decidendi?

Answer 3

the reason for the decision

Question 4

what are some features of the ratio decidendi?

Answer 4

binding - must be followed
each judge gives a ratio so there might be more than one

Question 5

what case examples can be used for ‘ratio decidendi’?

Answer 5

Brown - the ratio said that you cannot consent to S&M activity.

DvS - The ratio said that a manufacturer owes a duty of care to the end consumer.

Hunter v Canary Wharf - the ratio said you cannot claim for loss of signal.

Question 6

what is the obiter dicta?

Answer 6

other comments made by the judges about the case

Question 7

what are some features of the obiter dicta?

Answer 7

not binding - do not have to be followed.
when a judge follows an obiter, it becomes a ratio.
can be used as persuasive.

Question 8

what case examples can be used for ‘obiter dicta’?

Answer 8

Brown - the obiter gave examples of things you cannot consent to, for example tattooing and branding.

DvS - the obiter gave examples of pre-established duties such as doctor and patient.

Hunter v Canary Wharf - the obiter also said you cannot claim for loss or light or view.

Question 9

what are the types of precedent?

Answer 9

binding
original
persuasive

Question 10

what is a binding precedent?

Answer 10

a law that must must be followed

Question 11

what are some features of a binding precedent?

Answer 11

the binding aspect is the ratio decidendi.

created by the higher courts.

Question 12

what case example can be used for ‘binding precedent’?

Answer 12

Brown - the binding aspect is that you cannot consent to S&M.
DvS - the binding aspect is that all future manufacturers have to follow law.
Hunter v Canary Wharf - the binding aspect is that interference with signal is not an indirect interference.

Question 13

what is an original precedent?

Answer 13

when a point of law is unique and has not been decided before.

Question 14

what are some features of an original precedent?

Answer 14

this may occur due to modern development.
original precedents are rare today.

Question 15

what case example can be used for ‘original precedent’?

Answer 15

DvS - manufacturers owe a duty of care to the end consumer.
Hunter v Canary Wharf - cannot claim for loss of TV signal.
Re A - doctors would not be liable for murder as it was done to prevent the greater evil.

Question 16

what is a persuasive precedent?

Answer 16

the aspect does not have to be followed, however a judge can look at the legal principles in other cases and may be persuaded and decide to follow it.

Question 17

what are the different types of persuasive precedent?

Answer 17

decisions from other courts
obiter dicta
lower courts
decisions from the privy council
dissenting judgements

Question 18

how does the method ‘decisions from other courts’ work?

Answer 18

judges are able to look at decisions from other courts, especially in other countries, as long as there are gaps in our laws.

Question 19

what case example can be used for ‘decisions from other courts’?

Answer 19

DvS - judge looked at consumer rulings from other countries to decide liability of the manufacturer.

Question 20

how does the method ‘obiter dicta’ work?

Answer 20

obiter dicta from old cases can be persuasive authority

Question 21

what case examples can be used for ‘obiter dicta’? (persuasive precedent)

Answer 21

Brown - they listed multiple things you could consent to, such as tattooing and branding.
Wilson - D branded his initials on his wife and she needed medical attention. judge used obiter from Brown and followed it to give the defence of consent.

Question 22

how does the method ‘lower courts’ work?

Answer 22

higher judges such as the Supreme Court judges are able to be persuaded by lower court judges in the hierarchy.
Supreme Court influences lower courts normally, but they could use judgements from lower courts to help them decide the ratio

Question 23

how does the method ‘decisions from the privy council’ work?

Answer 23

many members of the privy council are judges at the Supreme Court. Binding decisions, but they can look to it for guidance.

Question 24

what case example can be used for ‘decisions from the privy council’?

Answer 24

Wagon Mound - oil spill from a ship drifted into a harbour where electrical works were taking place and caused a fire. Held - not liable. Created remoteness.

Question 25

how does the method ‘dissenting judgements’ work?

Answer 25

these are judges that disagree with other judges.
often in the Court of Appeal there are 5 judges so a dissenting judgement may be a 3:2 or 4:1 split.
Higher judges can be persuaded by the 2 or 1.

Question 26

what case example can be used for ‘dissenting judgements’?

Answer 26

Brown - the decision in Brown was a 3:2 split.
a future case on S&M could come to the Supreme Court and the judges may follow the 2 dissenting judges.