CLASSIFICATION OF LAW AND
INTRODUCTION TO LEGAL
PROBLEM-SOLVING
TOPIC 5
Classification of law
Private/public
Private: torts, contracts
Public: constitutional, criminal,
administrative
Classification of law
Commercial law
National/International law
The Common law
and civil law
and statute
and equity
Common law legal systems
http://www.worldlawdirect.com/forum/attachments/lawwiki/113d1261617114-common-law-countries-world-map-800pxcommon_law_world.png
Criminal law
Different to civil law
State always a party
◦R v
◦ DPP v
◦ The Commonwealth v
◦ ACCC v
Punishment – imprisonment or fine – rather than
remedy
Standard of proof
Conference with Mavis Stewart and Kylie
Berg: new client.
Mavis Stewart attended our office today with her daughter Kylie Berg
and a coffee cake, baked that morning. Ms Stewart is a keen cook and
has a number of legal problems arising from a recent kitchen
renovation, in respect of which she seeks our advice.
The kitchen renovation included new flooring. Mavis was particularly
interested in flooring as she had difficulties keeping her slate tiles clean.
She searched for low maintenance flooring and after extensive shopping
decided on single sheet vinyl flooring. She saw just the thing at Discount
Lino Barn, close to Kylie’s home. Kylie indicated that she didn’t share her
mother’s preference for vinyl flooring as it was cold underfoot and had
suggested kitchen carpet. Kylie and Mavis spoke to Mike at Discount
Lino Barn who suggested under-floor heating could address Kylie’s
temperature issues.
Kylie provided details of the under floor heating options
while her mother left the conference room to offer
slices of her coffee cake to the other staff. She also
advised that her mother was having problems with
Whitegoods World from which she had bought her
fridge. Kylie advised that her mother required a “French
door” fridge with freezer drawers underneath to
accommodate the large baking trays she used for her
cakes. She had ordered the fridge she needed from
Whitegoods World but had experienced delivery
problems.
Mavis returned to the conference room. She advised that
she had had to make a large coffee cake that morning,
even though her preference would have been to make
cup-cakes. In fact, one of her legal problems was her cupcake oven. Cake Cookers is a specialist retailer which sells
products designed for those who like to cook cakes. It
retails a number of specialist pans and other baking
utensils – many imported from America and not readily
available in Australia, as well as a special range of cake
ovens. They are located in Broome – and Mavis lives in
NSW, but Cake Cookers sells throughout Australia by
catalogue. Mavis wanted a special cake oven in her new
kitchen. She saw an oven that looked perfect for her in
their catalogue – the picture showed 8 slide out patty pan
trays instead of oven trays – exactly what she wanted. She
rang the store and spoke to Cathy.
She told Cathy all about her cupcakes, her
favourite recipes, and her interest in the
patty pan oven in their catalogue. Cathy told
her that the patty pan oven had eight slide
out patty pan holders – instead of oven racks
– and that each patty pan holder would take
one dozen patty pans. Even better, they
came with self cleaning silicone inserts.
Mavis was delighted about the self cleaning
but concerned that each tray would only
take one dozen patty pans. Although after
discussion with Cathy, she was convinced
that the overall capacity of the oven was
appropriate, and so she placed an order.
Her oven purchase was much more successful than her fridge
which, on the very day it was due to be delivered – not only did
not arrive, but the shop called her to advise that delivery was
delayed for one month. Mavis said to the shop keeper: “Well
that’s no good to me. I ordered that fridge for today. I need that
fridge today. I told you when I needed the fridge. The only reason
I ordered from you was that you told me I could have it today. If
you can’t give it to me today, you can just keep your fridge!! I
don’t want it anymore.” Mavis then rang Quick Fridge and
ordered and received another fridge that afternoon– suitable for
her requirements. However, one month later, Whitegoods World
delivered the fridge originally ordered and demanded payment.
Mavis told them she no longer wanted the fridge and had
cancelled the order. Whitegoods World denied the order was
cancelled – as their policy is no cancellations after an order has
been placed. They are threatening to sue Mavis for the price of
the fridge - $5,500.
As well, Mavis is being threatened with legal action
by Chrissie Saranrap. Chrissie was married a month
ago and was expecting Mavis to provide her
specialty – the “nouveau doveau” - a tiered tower
of cupcakes, iced in white and arranged to
resemble the wings of doves – as the centrepiece
cake for her wedding reception. Mavis loves doing
cakes for weddings – in fact she now makes more
money from doing wedding cakes than she does
from her regular cooking classes, although she
does find a number of her brides returning for
cooking classes.
Chrissie read information about Mavis’ cake services in an article
in the local paper, and called round to see Mavis, and look at the
different cakes she could make. They discussed possibilities and
pricing and Chrissie left with a price list. Apparently, Chrissie
called and left Mavis a message on the answering machine
ordering the “nouveau doveau” for her wedding, to be delivered
on 2nd May at the wedding reception, for $2,000 COD. In her
message, Chrissie had said: “If I don’t hear to the contrary, I’ll
assume everything is OK. Call me if there is a problem –
otherwise I will see you on the 2nd. Looking forward to your
lovely creation.” Unfortunately, because of all the work being
done to the kitchen and problems with electrical work and
electrical supply, Mavis had experienced a number of black outs
which had interrupted her answering machine. Mavis – never
received the message from Chrissie, and so of course, had not
provided the cake.
Chrissie is very angry and claims her wedding was
ruined without the cake. She has threatened to sue
Mavis.
Mavis advised that even if she had known about the
cake order she would have had difficulty fulfilling it
because of problems with her newly installed cake
oven. When the oven arrived she saw that instead of
Australian sized delicate patty pan holders, the cake
trays were American size muffin holders – and two
trays were even jumbo sized Texas muffin size holders.
This is not what Mavis wanted at all. Mavis rang Cathy
and told her the oven was not what she had wanted at
all, and not suitable for the cakes in which she
specialised. Cathy said she was sorry that Mavis was
disappointed, but there is nothing that they can do
about it. Mavis wants to know if she still has to pay the
$8,000 for the special cake oven.
She is also angry about the flooring she has had installed. Despite
Kylie’s protests she went with the single sheet vinyl, and did not
have under floor heating installed. The vinyl, while easier to clean
than the slate, is marking and scuffing badly however. She has only
had it down 6 months, and already there are a number of wear
marks. Her cupcake classes – which she runs 5 times a week and
more often in school holidays – are now so popular that she has at
least 20 students per class. Because of her renovations she has room
for them all around her lovely new island bench, but the vinyl
around the island bench almost looks like a race track. It is as if her
students have worn a path around the bench – and in only 6
months. The vinyl was quite expensive – as she had heavy grade
domestic installed – so Mavis is very unhappy. She hasn’t yet paid
the bill for the vinyl as she has been arguing with the company.
They are, according to Mavis, now getting nasty, and want their
$45,000 immediately. Advise Mavis
Problem solving methodology
Issue
Law (Rule)
Application
Conclusion
“advise”
Example
Mary goes to the green grocers. She wants to buy 10
oranges.
Mary is team captain of the U-12 netball team and the
oranges are for the grand final.
Mary asks her mother to buy the oranges, up to a budget
of $1.50.
Oranges are 20 cents each.
Mary’s mother buys 10 oranges.
Advise Mary.
Answering maths and science
questions
STATE GOVERNMENT
INSURANCE COMMISSION v
TRIGWELL
(1979) 142 CLR 617
[629]
MASON J. This is an appeal from a decision of the Supreme Court of South Australia
(King J.) in which judgment was entered for the first respondents ("the Trigwells")
against the appellant Insurance Commission.
The Trigwells had brought an action for damages for personal injuries which they had
sustained when the vehicle in which they were travelling was involved in an accident
with a vehicle driven by one Christine Avis Rooke. By their statement of claim, the
Trigwells alleged negligence on the part of Miss Rooke. Miss Rooke had been killed in
the accident and the appellant was sued as her compulsory third party insurer.
The second respondents ("the Kerins") were also joined as defendants in the action. By
their statement of claim, the Trigwells alleged that Miss Rooke had collided with two
sheep on the highway immediately before the accident and that, as a result [630] of, or
in an attempt to avoid, the collision with the sheep, she had collided with the Trigwells.
It was alleged that the presence of the sheep on the highway was the result of
negligence on the part of the Kerins and further, or in the alternative, that the presence
of the sheep constituted a nuisance which the Kerins had failed to prevent. The Kerins
were sued as the occupiers of land adjoining the highway on which the accident had
occurred.
The Trigwells claimed that either the deceased driver or the Kerins or both had been
responsible for the accident.
By its defence, the appellant denied that there had been negligence on the part of
the deceased driver and alleged that, even if there were such negligence, the
respondent Eric Gerald Trigwell, who had been driving the Trigwells' vehicle at the
time of the accident, was guilty of contributory negligence. The appellants also
issued a third party notice for contribution against the Kerins.
The Kerins denied the allegations of negligence and nuisance. They maintained
that, by virtue of the rule in Searle v. Wallbank , they were not liable in negligence
for the loss and damage suffered by the Trigwells in the accident. They also denied
that they were under any duty to prevent any nuisance which might be found to
have existed.
The Kerins alleged that there had been contributory negligence on the part of Eric
Gerald Trigwell, an allegation which he denied, and issued a third party notice for
contribution against the appellant.
King J. held that the deceased driver had been guilty of negligence, thereby
causing the accident in which the Trigwells had been injured, and that the Trigwells
were therefore entitled to succeed against the appellant Insurance Commission.
He held that there had been no negligence on the part of the respondent Eric
Gerald Trigwell.
His Honour concluded that the Kerins were under no liability in
either nuisance or negligence. His Honour held that the presence of
the two sheep on the highway was incapable of constituting a
public nuisance for which the Kerins were responsible. Moreover,
he held that, applying the rule in Searle v. Wallbank, in the
circumstances of the case, the Kerins were under no duty of care to
prevent the sheep from straying on to the highway and hence that
no negligence on the part of the Kerins could be established. His
Honour followed the decision of the Full Court of the Supreme
Court of South Australia in Bagshaw [631] v. Taylor which held that
the rule in Searle v. Wallbank was applicable in South Australia.
In the result, then, judgment was entered for the Trigwells against
the appellant Insurance Commission. In this Court, the appellant
challenged the finding that there had been negligence on the part
of the deceased driver. The appellant also contested the conclusion
of the Supreme Court that the Kerins were under no liability in
negligence. It was submitted that the rule in Searle v. Wallbank did
not form part of the law of South Australia and that, accordingly,
upon the evidence, there should have been a finding of negligence
made against the Kerins.
In the alternative, it was argued that, if the rule in Searle v.
Wallbank did form part of the law of South Australia, there were, in
this case, "special circumstances" within the meaning of the rule
which justified a finding of negligence against the Kerins. Finally,
the appellant contended that the Supreme Court had erred in
concluding that the Kerins were not guilty of nuisance. The
Trigwells, who cross-appealed, supported the appellant's case
against the Kerins.
It will be convenient to consider first the liability of the Kerins in
negligence. This depends very largely on what was decided in
Searle v. Wallbank. Bray C.J. in Bagshaw v. Taylor has examined the
effect of the decision and the operation in Australia of the principle
which it enunciates. However, as this case is in effect an appeal
against Bagshaw v. Taylor and as this Court has greater freedom to
depart from a decision of the House of Lords than the Supreme
Court of a State, it is necessary that I say something of Searle v.
Wallbank.
There the House of Lords decided that the owner or
occupier of a property adjoining the highway is under no
legal obligation to users of it so to keep and maintain his
hedges, fences and gates as to prevent animals from straying
on to it, and that he is not under any duty as between
himself and users of it to take reasonable care to prevent any
of his animals, not known to be dangerous, from straying on
to it The decision has been much discussed, indeed
criticized, but its effect is to settle what has been the
common law of England from early times.
We were invited to hold that the case was wrongly decided
and to say that the earlier cases supported the view that the
landowner or occupier of land was not immune from liability
to negligence arising from his failure to fence securely his
land so as to prevent stock from straying and causing injury
to users of the highway. It is not an invitation to which I
would accede…..
[632] Salmond on Torts, 17th ed. (1977), p. 344, refers to
the rule as "long-standing" and as one which "was
founded upon our ancient social conditions and was in
no way related to, or liable to be qualified by, such
matters as the relative levels of fields and highway, the
nature of the highway, or the amount of traffic upon it".
The author cites Brock v. Richards as authority for this
statement.
It has been suggested that the rule is of modern or
recent origin, notably by Lord Wright in Brackenborough
v. Spalding Urban District Council, in a speech to which
Lord Greene M.R. called attention in Hughes v. Williams.
However, an examination of the authorities shows that
its antecedents are ancient.
The attack on Searle v. Wallbank was chiefly founded on the claim
that the rule which it enunciated is illogical and that the conditions
on which it was based historically have altered in a fundamental
way. According to the appellant, it is illogical that the occupier of
land should be liable for damage done to a neighbour's property by
reason of his animals straying and that he should be immune from
liability for personal injury done by his animals (not known to be
dangerous) straying on to the [633] highway through his failure to
maintain his fences. The explanation for this apparent illogicality is,
of course, to be found in the historical facts. As Neville J. said in
Heath’s Garage Ltd. v. Hodges : “In my opinion the experience of
centuries has shown that the presence of domestic animals upon
the highway is not inconsistent with the reasonable safety of the
public using the road.”
It is then said that as there was a radical change in the relevant
conditions, a change brought about by the development of roads and
highways, the growth of fast-moving motor traffic on a large scale and a
substantial increase in the fencing of properties, the House of Lords
should have held that the rule was no longer appropriate to modern
circumstances and that the ordinary principles of negligence should
apply to the occupier of land whose straying animals caused accidents on
the highway. In short, it is argued that the House of Lords should have
reviewed the existing law in conformity with the suggestions made by
the Court of Appeal in Hughes v. Williams
I do not doubt that there are some cases in which an ultimate court of
appeal can and should vary or modify that which has been thought to be
a settled rule or principle of the common law on the ground that it is illadapted to modern circumstances. If it should emerge that a specific
common law rule was based on the existence of particular conditions or
circumstances, whether social or economic, and that they have
undergone a radical change, then in a simple or clear case the court may
be justified in moulding the rule to meet the new conditions and
circumstances. But there are very powerful reasons why the court should
be reluctant to engage in such an exercise.
The court is neither a legislature nor a law reform agency. Its
responsibility is to decide cases by applying the law to the facts as
found. The courts facility, techniques and procedures are adapted to
that responsibility; they are not adapted to legislative functions or to
law reform activities. The court does not, and cannot, carry out
investigations or enquiries with a view to ascertaining whether
particular common law rules are working well, whether they are
adjusted to the needs of the community and whether they command
popular assent. Nor can the court call for and examine, submissions
from groups and individuals who may be vitally interested in the
making of changes to the law. In short the court cannot, and does not,
engage in the wide-ranging inquiries and assessments which are made
by governments and law reform agencies as a desirable, if not
essential, preliminary to the enactment of legislation by an elected
legislature. [634]
These considerations must deter a court from departing too readily
from a settled rule of the common law and from replacing it with a
new rule. Certainly, in this case they lead to the conclusion that the
desirability of departing from the rule in Searle v. Wallbank is a matter
which should be left to Parliament.
It is beyond question that the conditions which brought the rule into
existence have changed markedly. But it seems to me that in the division
between the legislative and the judicial functions it is appropriately the
responsibility of Parliament to decide whether the rule should be
replaced and, if so, by what it should be replaced. The determination of
that issue requires an assessment and an adjustment of the competing
interests of motorists and landowners; it might even result in one rule for
urban areas and another for rural areas. It is a complicated task, not one
which the court is equipped to undertake.
My conclusion is, then, that we should accept that what was and has
been the common law for England was correctly decided by Searle v.
Wallbank. The next question is whether the law as declared by the
House of Lords in that case represents the law of South Australia. The
proper approach to a determination of such a question was adopted by
the Supreme Court of Victoria in Brisbane v. Cross, and by the Supreme
Court of South Australia in Bagshaw v. Taylor. Accordingly, the inquiry
must be whether the law in Searle v. Wallbank was applicable in the
colony of South Australia upon its settlement and further, whether the
law, if so applicable, has been varied or abolished by subsequent local
legislation.
It is a well-established principle that, in settled colonies, so much
of the common law of England is introduced as is applicable to
the situation of the colonists and the condition of the colony (see
Halsburys Laws of England, 4th ed., vol. 6, p. 589; Cooper v.
Stuart). The applicability of the law in question depends not upon
whether the court considers the law suitable or beneficial for the
colony, but upon whether the law is capable of application in the
colony (Delohery v. Permanent Trustee Co. of N.S.W.). The date
upon which the applicability of the English common law to the
settled colony of South Australia falls to be considered has been
fixed by local enactment. Section 3 of Act No. 9 of 1872 (S.A.)
provides that "In all questions as to the applicability of any laws
or statutes of England to the Province of South Australia, the said
province [635] shall be deemed to have been established on the
28th day of December 1836".
The issue, then, is whether the common law of England, as settled by
the decision of the House of Lords in Searle v. Wallbank, was
applicable, in the relevant sense, to the colony of South Australia on
28th December 1836. There is no reason for holding that the rule in
Searle v. Wallbank was inapplicable in South Australia on that date. The
physical conditions obtaining in the colony—those relating to the state
of the roads and fencing of land, and to the presence of straying stock
upon the highways—were not so markedly different from those
existing in England that the law could be said to be inapplicable to the
colony. There was nothing in the legislation in force in the colony as at
28th December 1836 that had the effect of making the relevant
common law inapplicable to the colony.
Subsequent statutory provisions such as s. 14 (2) of the Impounding
Act, 1920 (S.A.), permitting the impounding of cattle wandering or
straying upon the road and, in effect, the imposition of a penalty upon
the owner of the cattle, have not displaced the common law because
they confer no private right of action upon a person injured by the
straying cattle (see Searle v. Wallbank).
There has been no counterpart in South Australia to the legislation in
Western Australia which required and encouraged the fencing of
properties, legislation which was relied upon by the Supreme Court of
Western Australia to justify the conclusion that the rule in Searle v
Wallbank is not part of the law of that State (see Thomson v. Nix).
The view might be taken that conditions prevailing in Australia, or some
parts of Australia, are more suited to the [636] retention of the rule in
Searle v Wallbank than the conditions which prevail in the United
Kingdom. Not only is Australia predominantly rural in character but its
rural interests centre very substantially around the raising and keeping
of livestock. I mention these considerations, not with a view to saying
that the rule ought to be retained, but so as to emphasize the point
that the issue of retention or abolition calls for an assessment and a
adjustment of conflicting interests, the principal interests being those
of the rural landowner and occupier and those of the motorist.
The fact that the United Kingdom Parliament has abolished the
rule has no relevance for us, except to confirm my opinion that
the question should be left to Parliament. As conditions here
differ from those which prevail in the United Kingdom we cannot
automatically assume that all Australian legislatures, or that the
South Australian Parliament in particular, would take the same
view as that which has been taken in England. With great respect
to Samuels J.A. who thought otherwise in Kelly v. Sweeney I do
not consider that the abolition of the rule by the United Kingdom
Parliament on the recommendation of the English Law
Commission is a relevant consideration for this Court.
We must proceed, therefore, on the footing that Searle v.
Wallbank forms part of the law of South Australia.