Role of the Courts (2)
Binding Precedents

A binding precedent is a legal principle that must be
followed.

The doctrine of precedent depends on lower courts
following the decisions of higher courts.

The general rule is that a decision of a higher court in the
same hierarchy is binding or must be followed by lower
courts in the same hierarchy when deciding similar or ‘like’
cases.

For instance, in Victoria a judge of the County Court must
follow the decisions of judges in the Supreme Court.
Persuasive Precedent

1)
2)
3)
4)
Persuasive precedents are not binding on courts. However, because
they are seen to be noteworthy and highly regarded cases, they may
be considered by some courts as influential on their decisions.
Precedents considered to be persuasive but not binding are:
From courts in another hierarchy, such as other states or
countries.
From courts on the same level of hierarchy (which are not binding)
From inferior courts
Obiter dicta contained in a judgement of a court in the same
hierarchy or in another hierarchy.
Case example: Donoghue v. Stevenson (1932) which was persuasive
upon the Australian case: Grant v. Australian Knitting Mills (1936)
Donoghue V. Stevenson (1932)
Read the case as a class from page 196197 of your text book.
 Summarise the case in detail into your
notes.

 http://www.youtube.com/watch?v=zWia3GCzyLQ
Grant v. Australian Knitting Mills
(1936)

In the Australian Case Grant v. Australian
Knitting Mills, Grant was affected by
dermatitis from wearing a pair of undies he
has purchased. The manufacturer of the
underpants has negligently left a chemical in
the material.

Grant has a contract with the seller, but did
not have a contract with the manufacturer.
He had sued the manufacturer for
negligence.

The court referred to the case Donoghue v.
Stevenson. Although this was a persuasive
precedent as it was in another hierarchy, the
court chose to follow the decision in that
case and decided that the manufacturer
owed a duty of care to the consumer.

The injured party was successful, and the law
of negligence was clearly established in
Australia.
Are the facts the same?
Donoghue v. Stevenson
Grant v. Australian Knitting Mills
A consumer purchased goods
A consumer purchased goods
Mrs Donoghue did not have a
contract with the manufacturer
Dr Grant did not have a contract with
the manufacturer
There was a snail in the bottle
Underwear contained chemical
residues
The bottle of ginger beer had been
carelessly prepared
The underwear had been carelessly
prepared
The ginger beer manufacturer could
have reasonably foreseen that damage
would result from the carelessness
The underwear manufacturer could
have reasonably foreseen that damage
would result from the carelessness
Mrs Donoghue was closely and
directly affected by the actions of the
manufacturer
Dr Grant was closely and directly
affected by the actions of the
manufacturer
Mrs Donoghue suffered
gastroenteritis and shock
Dr Grant suffered dermatitis
Obiter Dictum
Literal translation is ‘things said by way’.
 This is not part of the ratio decidendi. The
judge sometimes makes a statement that
is not part of the ratio decidendi.
 It is not binding. This statement may be
influential on decisions in the future- it
will act as persuasive precedent.

Question Time 

Complete questions 1-12 on page 199.