MORE JUDICIAL PRECEDENT Flashcards
Binding precedent
A precedent which must be followed
Case that goes with binding
Donoghue v Stevenson and grant v Austrialan knitting mills
Donoghue v Stevenson
A women found a snail in her ginger beer and become very ill. She took the manufacturer to court and courts said the manufacturer is liable to the end consumer of that product. She won the case and created an original and binding precedent that the company owed a duty of care to the consumer
Grant v Australian knitting mills
Had to follow Donoghue.
He bought full body underwear and developed a severe skin disorder and was hospitalised for a year. Took them to court followed Donoghue as he was not given the duty of care he was initled too
Original precedent
A precedent which involves a point of law that’s yet to be decided
Case that goes with original
Re A
Re A
Mary and Jodie conjoined twins, doctors said they’ll only live until they are 9 if not separated. If they are separated Mary will die and Jodie will live longer. Parents didn’t want them separated it went to court and was decided they have to be separated . Original precedent was made that it was in the best interests for the child
Persuasive precedent
Precedent in which a judge can look at the legal principles and if persuaded by the legal reasoning they can follow
Case that goes with persuasive
R v Gotts followed r v Howe
R v Howe
Murder case, the obiter was ‘the defence of duress should not be available for those who attempt murder’
R v gotts
Persuaded by r v Howe’s obiter statement and followed it. 16 year old ordered by his dad to kill his mam otherwise he would shoot him. He pleaded guilty and appealed the judges rules, appeal was dismissed and conviction upheld
What can make a precedent persuasive
Obiter dicta statements
Decisions from privy council
Courts lower in hierarchy
Following
To apply the same legal principle from an earlier case to a present case because the material facts are similar and the legal principle in the earlier case is from a court higher up in the hierarchy, so they are bound. Or it was an earlier decision of the same court
Overruling
When a lager court determines that the law in a earlier and different case was wrongly decided. This may occur if a higher court decides that a decision made in an earlier and inferior court is wrong
Reversing
A court higher up in the hierarchy overturns the decision of a lower court in the same case
Distinguishing
Allows a judge to avoid an otherwise binding precedent. It works where the material facts are different enough from a previous case so as to allow a judge to draw a distinction of the facts. When this is done they don’t have to follow the binding prevent and they are said to have distinguished from the case and set a fresh precedent
Case to go with following
Donoghue v Stevenson and grant v Australian knitting mills
Case to go with reversing
Sweet v parsley
Cases to go with distinguishing
Merritt v Merritt distinguished Balfour v Balfour
Overulling case
R v r
Sweet v parsley
Upheld the decisions of the trial court and the divisional court that the appellant was guilty of being concerned in the management of premises used for the purpose of smoking cannabis contrary to the dangerous drugs act
R v r
The House of Lords overruled the commonly held rule that a man could be guilty of raping his wife. R v r decided they can be guilty
Balfour v Balfour and Merritt v Merritt
Merritt distinguished Balfour. The court of appeal distinguished the the case of Balfour on the grounds that the parties were separated
When was the practice statement made
1966
Practice statement cases
Pepper v hart overruling Davis v Johnson
Herrington v brb overruling Addie v dumbreck
R v shivpuri overruling Anderton v Ryan
