Concepts

Question 1

Stare Decisis

Answer 1

• to stand by things decided
• like cases ought to be decided alike
• (horizontal and vertical)

Question 2

Ratio Decidendi

Answer 2

• the reason for the decision
• the legal rule/ratio/principle that emerges from the case

Question 3

Obiter Dicta

Answer 3

• observations made in passing

Question 4

Why is the doctrine of precedent needed

Answer 4

• Consistency - fairness/justice
• Efficiency
• We should know what is expected of us
• Public confidence in the judiciary
• Development of the law

Question 5

What Justifies Departure from Precedent?

Answer 5

• Significant legal change
• Significant social change

Question 6

What other factors are considered when departing from precedent?

Answer 6

• How old is the precedent and how many times has it been applied
• Number of judges who decided it

Question 7

Overseas Precedent

Answer 7

• Never binding on our courts
• May be persuasive

Question 8

What questions are asked of overseas precedent?

Answer 8

• Is the law “like” the law of New Zealand
• How “like us” is their society
• What level of court is the judgement from
• How convincing is the reasoning

Question 9

Burden of Proof

Answer 9

• The party bringing the case must prove their case
• Other party gets the benefit of the doubt

Question 10

Causation

Answer 10

• Did the defendants actions cause the harm?
• Would the harm have happened anyway?

Question 11

Vicarious Liability

Answer 11

• Instead of seeking compensation from the person who caused the harm you seek compensation from their employer

Question 12

Eggshell Skull Rule

Answer 12

• “if a man is negligently run over… it is no answer to the sufferers claim for damages that he would have suffered less injury… if he had not an unusually thin skull or an unusually weak heart.” - Dulieu v White & Sons
• Must be some foreseeable harm, though, even if of a different / lesser kind - if no foreseeable harm then foreseeability problem

Question 13

Contributory Negligence Act

Answer 13

• When the plaintiff contributes to their own harm
• not a complete defence but can reduce damages
• gives the claimant a share in the responsibility

Question 14

Volenti non fit Injuria

Answer 14

“no harm is done to one who consents”
- line between justified intervention and unjustified meddling
- Sylvester v GB Chapman

Question 15

Novus Actus Interveniens

Answer 15

1. A NEW act or omission
2. By someone else
3. That occurs after the negligence
4. That breaks the chain of causation

• You will still be liable for the harm or loss
• even if someone else has done something in the meantime
• provided their actions were very likely

EXTREMELY RARE TO SATISFY THIS TEST - think opportunistic arsonist example