Law Making - Judicial Precedent Flashcards
what is judicial precedent?
the concept of judges making law or following previous decisions from other judges
when a case is decided, what features are in the judgement?
facts
outcome
ratio decidendi
obiter dicta
what is the ratio decidendi?
the reason for the decision
what are some features of the ratio decidendi?
binding - must be followed
each judge gives a ratio so there might be more than one
what case examples can be used for ‘ratio decidendi’?
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.
what is the obiter dicta?
other comments made by the judges about the case
what are some features of the obiter dicta?
not binding - do not have to be followed.
when a judge follows an obiter, it becomes a ratio.
can be used as persuasive.
what case examples can be used for ‘obiter dicta’?
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.
what are the types of precedent?
binding
original
persuasive
what is a binding precedent?
a law that must must be followed
what are some features of a binding precedent?
the binding aspect is the ratio decidendi.
created by the higher courts.
what case example can be used for ‘binding precedent’?
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.
what is an original precedent?
when a point of law is unique and has not been decided before.
what are some features of an original precedent?
this may occur due to modern development.
original precedents are rare today.
what case example can be used for ‘original precedent’?
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.
what is a persuasive precedent?
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.
what are the different types of persuasive precedent?
decisions from other courts
obiter dicta
lower courts
decisions from the privy council
dissenting judgements
how does the method ‘decisions from other courts’ work?
judges are able to look at decisions from other courts, especially in other countries, as long as there are gaps in our laws.
what case example can be used for ‘decisions from other courts’?
DvS - judge looked at consumer rulings from other countries to decide liability of the manufacturer.
how does the method ‘obiter dicta’ work?
obiter dicta from old cases can be persuasive authority
what case examples can be used for ‘obiter dicta’? (persuasive precedent)
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.
how does the method ‘lower courts’ work?
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
how does the method ‘decisions from the privy council’ work?
many members of the privy council are judges at the Supreme Court. Binding decisions, but they can look to it for guidance.
what case example can be used for ‘decisions from the privy council’?
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.
how does the method ‘dissenting judgements’ work?
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.
what case example can be used for ‘dissenting judgements’?
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.
