VCE Legal Studies – Unit 3, Area of Study 3 – the Role of the Courts
Although the primary role of courts is to settle disputes, judges are involved in law-making through:
· The development of common law principles where no statute law exists. An example of this type of law-making was the High Court’s Mabo (No. 2) judgment.
· Statutory interpretation: reading, interpretation and application of words contained in legislation. In statutory interpretation, judges rely on materials such as dictionaries, interpretation sections in Acts, and speeches made in Parliament contained in Hansard. There are also common law rules for interpretation that are used by judges.
The doctrine of precedent and the ability of judges to make law
Courts have the ability to create law after a situation occurs and a decision needs to be made on legal issues. This type of law-making is known as ex post facto; after the fact. Precedents can relate to:
· The development of common law principles; or
· The interpretation of words in legislation. In this case, lower courts must apply the judge’s interpretation of words or phrases when faced with that same law.
The operation of the doctrine of precedent
The key elements of the doctrine of precedent are outlined below:
· Legal principles handed down by courts are interpreted and applied in future cases according to the doctrine of precedent. This involves decisions of higher courts being binding on lower courts in the same hierarchy in similar cases. This is binding precedent. The doctrine of precedent is based on the principle of stare decisis; to stand by things that have been decided.
· The component of a judge’s ruling that is binding is the ratio decidendi; the actual legal principles that arise from the facts of that case. The part of the judgment that is binding is the legal principles, not the actual verdict or outcome. This is a common error made by students.
· The obiter dictum is comments made ‘by the way’ in the course of delivering a judgment, which are relevant to the outcome in that case. The obiter dictum can be used by judges to explain persuasive precedents or indicate to the parliament that reform of the law is necessary.
· A higher court can overrule or reverse an earlier decision of a lower court in that hierarchy in a similar case. Overruling involves two separate cases, with the first heard earlier in a lower court and the second case being heard in a different matter in a superior court in the same hierarchy. In contrast, reversing only involves the one case and relates to judgments on appeal to a higher court. Most binding precedents are delivered in the High Court and the Court of Appeal.
· When studying precedent, it is important to remember that persuasive precedent operates. This occurs where decisions of lower courts and same standing courts in the same hierarchy are persuasive in similar cases. Also, decisions of interstate and overseas courts are persuasive. This is an important element of the courts as a law-maker and is a significant strength of their roles.
· Judges avoid binding precedent through distinguishing. In such cases, a judge can distinguish an earlier decision if it can be established that the facts of the present case are different to the earlier case to such a degree that the judge in the later case can issue his/her own ruling.
· A judge may disapprove an earlier persuasive decision by not adopting it. This occurs where courts of same standing in the same hierarchy do not follow their own previous decisions in similar cases. This indicates that a change in law is necessary, because the earlier ruling is no longer appropriate. The difficulty is that in a later case in a lower court, a judge or magistrate may be faced with a range of ratio decidendis on the one issue that have been made by two or more superior judges. The confusion that results from disapproving is overcome by a definitive ratio decidendi from the Court of Appeal or the High Court or by Parliament codifying the law.
Common law – the neighbour principle
The “neighbour principle” laid down in the case Donoghue v Stephenson (1932). This provided the foundation for the development of the law of negligence in the twentieth century. The facts of the case concerned two friends who visited a café only for one of them to discover a decomposed snail in a bottle of ginger beer purchased by the other. The House of Lords imposed liability in negligence on the owner of the café, specifying where a duty of care could be found to lie between the owner and the victim (Mrs Donoghue). Lord Atkin outlined the duty of care in the following often-quoted terms:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question."
The Donoghue decision was from Britain and was persuasive precedent in Australia. It was accepted by Australian courts in Grant v AKM (1936). Dr Grant, the plaintiff, contracteddermatitisas a result of wearing woollen underpants, which had been manufactured by the defendants (Australian Knitting Mills Ltd). The underpants contained an excess ofsulphite. Upon purchase, he wore them for one entire week without washing them beforehand. The High Court held that the defendants were liable to the plaintiff. Dr G was deemed to be a ‘neighbour’. He was a person closely and directly affected by the act of the manufacturer and the manufacturer ought to have had him in mind as being affected when making the underwear. Dr G was successful in his claim for damages. The common law from Donoghue was adopted into Australian law and expanded upon.
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Legal eagles drink to a mouse, a snail and a can of worms - January 12, 2012
Ronald Ball reportedly purchased and partially consumed a can of Mountain Dew. He tasted something 'foul' and spat it out, to discover the remains of a mouse.Recent media reports about a mouse in a drink would have caused the eyes of many lawyers to mist over nostalgically as they recalled their halcyon days at university, and the case that founded the modern law of negligence, Britain's Donoghue v Stevenson. A man has taken legal action after he found a mouse in his can of Mountain Dew; the manufacturer says that isn't possible, because the mouse would have dissolved first. This US case is so similar to the original ''snail-in-the-ginger-beer-bottle'' case it could be timed to coincide with its 80th anniversary. Donoghue v Stevenson was resolved in the House of Lords in 1932 in one of the most frequently quoted judgments in common law.
The majority held that manufacturers were liable to consumers for contaminated products - and in this case poor May Donoghue was able to be compensated by the manufacturer for injury caused by the disintegrating snail in her ginger beer spider. Lord Atkin in the House of Lords stated the famous ''neighbour principle'' to articulate the boundaries of the ''duty of care'': ''The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.'' This ''duty of care'', a breach of that duty and consequent damage together form the modern action in negligence. The precedent was obtained through pro bono work for the pauper Donoghue, demonstrating the long-term benefits of goodwill.
What of our modern drowned mouse? It was allegedly discovered in 2009, after Illinois resident Ronald Ball reportedly purchased and partially consumed a can of Mountain Dew. He says he tasted something ''foul'' and spat it out, to discover the remains of a mouse. He is suing the maker of Mountain Dew, Pepsi. In a spectacular own goal, Pepsi has cited expert testimony that the mouse would have dissolved in the can before it reached the consumer. This claim gives rise to all sorts of speculation about the effects of the beverage on consumers themselves, and presumably the case will have its own segment onThe Gruen TransferandMythbusters; and maybe, in due course, it will seal its place in folklore through an episode ofThe Simpsons. Other parts of the testimony - that the mouse had, in fact, not been born at the time the can was sealed - have tended to be overlooked in the wave of public revulsion at the mental picture of a mouse transformed into a ''jelly-like substance''.
Strong mental imagery grounds the negligence jurisdiction. In manufacturer liability cases such as the snail-in-the-bottle and the mouse-in-the-can, the unfortunate plaintiff could just as easily be one of us. Traditionally, injuries caused by another's lack of care could be framed as negligence - the carelessly thrown metal spike entering the child's eye, the improperly fenced quarry site or railway yard attracting neighbourhood urchins.
These cases have a visceral attraction, which conceals the fact that whole realms of what traditionally would be part of the negligence jurisdiction are now covered by statutory protections. But in a strong rearguard action insurers have requested, and been granted, reform of the law of negligence on the grounds that it is ''out of control'', particularly in negligent professional advice and medical malpractice claims. High-profile cases have fuelled a perception that instead of requiring your ''neighbour'' to exercise reasonable care, the modern law of negligence requires your neighbour to act as your insurer, and that the standard of care is set too high.
This is unlikely to be an issue in the case of the dissolved mouse. If a mouse were to get into a soft-drink can Donoghue v Stevenson tells us that a duty is definitely owed, and that duty was definitely breached. Meanwhile, it may be some time before we know the outcome of our modern mouse tale. The Madison County Court judge presiding has given Ball leave to file an amended claim, and Pepsi has until later this month to answer it.
Dr Francine Rochford is a senior lecturer in law at La Trobe University's Bendigo campus
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