2
Issues in Civil
Law
8
CHAPTER
The courts and
civil law
People tend to think of ‘the law’ as law made by parliament. However, there
are two main sources of law in Australia: laws made by parliaments (known
as statute law) and laws made by judges (known as common law). You have
already considered how parliament makes law. In this chapter you will look at
how courts make law. We also examine the nature and necessity of civil law
within our society. After reading the chapter and undertaking the activities you
should be able to demonstrate the following key knowledge:
● the need for civil law
● key principles of civil law
● the distinction and relationship between civil law and criminal law
● an overview of law-making through the courts.
The courts and civil law
Courts
Differences between
criminal and civil law
• Purpose
• Definition
• Process
• Decision
• Outcomes
Law-making
Precedent
Binding
Statutory
interpretation
Persuasive
Chapter 8 The courts and civil law 227
Key terms
binding precedent
case law
defendant
law reports
persuasive precedent
plaintiff
precedent
ratio decidendi
remedy
stare decisis
A precedent that must be followed by all lower courts in the same
hierarchy considering a ‘like’ case
The area of law developed by the courts; judge-made law
The person against whom a civil action is brought in the courts
Published judgments of courts
A precedent that a court does not have to follow but can be very
influential when determining a case
A person who brings a civil action to court
A legal principle developed by the courts
The judge’s reason for their decision that forms the binding precedent for
future cases
The means by which the court restores a successful plaintiff to their
original position
The rule that states that courts will stand by decisions handed down by
higher courts, in the same hierarchy, in like cases
228 The Legal Maze
The need for civil law
Civil law is concerned
with protecting the
private rights of
individuals.
The aggrieved party is
known as the plaintiff.
Most of the law that affects our lives within the community is civil law, as it is concerned
with the protection of the private rights of the individual. There are many situations in
which people need protection, not only from injury to themselves or damage to their
property, but also in relation to their financial affairs and those of their families.
People who feel that others have infringed their rights may take action to protect
themselves. They may sue or take the offending party to court to remedy the situation.
The person who has suffered damage is called the aggrieved party. An aggrieved party
who takes a case to court is called a plaintiff. If the court agrees that an individual’s civil
rights have been infringed, it may award some form of remedy (mainly monetary) against
the wrongdoer.
The differences between criminal and
civil law
An incident may result
in a criminal prosecution
and a civil action.
Civil law serves a
different purpose from
criminal law and uses
different procedures.
While criminal and civil law serve two different purposes, they work together to ensure
that members of society are able to live their lives free from unwanted interference.
The purpose of criminal law is to regulate behaviour within the community, establishing
a set of guidelines and expectations of each member of society. Civil law, on the other
hand, is concerned with the enforcement of individual rights. For example, in the case of
a car crash, the accident may be the result of a driver breaking criminal law. The driver
might be found to have had a blood alcohol content over .05. As a result, the driver may
be prosecuted by the police and may be sanctioned by the court.
However, if a person was injured in the same crash, the injured person may be able to
initiate a claim for damages against the driver. This claim would be dealt with separately
from the driver’s prosecution for the criminal offence of drink driving. The injured person
would sue the driver for the damage suffered as well as for the damage to their vehicle.
In this civil case, the injured person would be called the plaintiff and the driver the
defendant.
Therefore, the same incident (the car crash) has implications for both criminal and
civil law.
● Criminal law provides a means to prosecute the drunken driver.
● Civil law offers the injured person the right to sue for compensation.
As criminal law is mainly concerned with regulating conduct in the community,
punishment is used in a variety of forms to deter and/or rehabilitate the offender. In the
case of civil matters, the law is more concerned with enforcing the rights of the individual
and the obligations that exist between people. The successful party can therefore expect
that the law will provide some form of remedy for their suffering.
Chapter 8 The courts and civil law 229
8.1 Differences between civil law and criminal law
Civil law
Criminal law
Purpose
To recognise that the rights of an
individual have been infringed and
to restore the injured party to their
original position
To regulate the behaviour of
individuals in the community
Definition
Laws regulating the behaviour of
private individuals
Laws concerned not only with the
rights of individuals directly involved
but also with the welfare of society as
a whole
Who takes action?
The person whose rights have been
infringed—known as the plaintiff
The Director of Public Prosecutions
(acting for the community)
Nature of the action
Sue
Prosecute
Standard of proof required
‘On the balance of probabilities’
‘Beyond reasonable doubt’
Procedures used to bring the case
to court
Exchange of pre-trial documents—an
out-of-court settlement is possible
Police investigation—if the case
concerns an indictable offence, a
committal hearing is also conducted
Court procedures
A trial before a judge sitting alone or
a judge and an optional jury of six
Where the accused pleads not guilty, a trial before a judge and jury
of 12 people
Decision
Liable or not liable
Verdict of guilty or not guilty
Outcomes
If the defendant is found liable, a
remedy is awarded to the plaintiff
If the accused is found guilty, a sanction is imposed
Law-making by judges and courts
Laws made by courts are
known as judge-made
law, common law or
case law.
Although the main function of the courts is to settle disputes, judges also play an important
part in law-making. While judges do not set out to create a new law or change an existing
law in the same way as a parliament does, new laws can result from decisions made by
judges in order to resolve a particular dispute. This area of law is referred to as case law,
judge-made law or common law. Many laws concerning the rights that exist between
individuals are set out in common law.
Precedent
A precedent is a legal
principle developed by
the courts.
Judge-made law develops through the operation of what is known as the doctrine of
precedent. A precedent is a legal principle developed by the courts. Precedents are found
in the recorded decisions of judges, which have been written down and collected over
time. Other judges hearing cases in which the facts are similar refer to these recorded
decisions. This reference to past decisions acts as a guide in determining how the law
should be applied.
The word ‘precedent’ means ‘an example serving for the future’. This means that when
something is done for the first time, it sets an example to be followed. It would be
reasonable to expect that should a similar situation occur in the future, a similar outcome
would result.
230 The Legal Maze
This practice goes back to the time
before parliaments were formed and
legislation existed. Although many
areas of law are now covered by
legislation, areas of private conduct
between individuals are still covered
by judge-made law.
Not all decisions made by judges
contribute to judge-made law. For a
judge’s decision to become part of
the law, it must contain either a new
statement of a legal principle or an
extension of an existing statement of
a legal principle.
How does precedent work?
To understand the operation of precedent, consider the following situation.
When your older brother turned 18 your parents threw him a big party and purchased
him a brand new car. You are about to turn 18. Based on the action your parents took
when your older brother turned 18, you would have certain expectations about your
birthday. Now that you are in the same situation as your brother, you would expect that
your parents would also allow you to have a party and that they would buy you a brand
new car. In fact, you would probably feel that this was only fair.
Courts will follow the
legal principles of past
cases.
The rule that similar cases should be decided in a similar way is at the centre of our
idea of justice. If people are to be treated equally before the law, legal principles or past
decisions must be followed and applied to later cases involving similar facts.
Doctrine of precedent
The decisions of courts
are recorded in law
reports.
Strict rules guide judges in making and applying precedents. How these rules work is
known as the doctrine of precedent.
The decisions of courts are recorded in law reports. This does not mean that a
permanent record is kept of all cases heard in courts throughout Australia. Only major cases
are recorded permanently. Of these cases, only those containing some new development
are published in a permanent form.
Law reports record the judgment in a case. The judgment is a formal statement by the
judge outlining:
● the facts of the case
● the decision
● the reasons given by the judge for the decision reached. (This will often include a
discussion of other sources of information or other cases that support the reason for
the decision.)
Ratio decidendi
The legal principle is
formed by the reason
given or ratio decidendi
for a decision.
The most important part of the judgment is the reason for the decision, known as the
ratio decidendi. The ratio decidendi is the legal reasoning used by the judge to reach the
decision in the case. Other judges will refer to these reasons as a guide in determining
what the law should be, if a similar case comes to court in the future.
Chapter 8 The courts and civil law 231
Stare decisis
Lower courts will apply
the principles of past
cases in like situations.
Stare decisis means to stand by what has been decided. The rule is that lower courts will
follow the decision (or ratio decidendi) of higher courts of the same court hierarchy in
similar or like cases.
The reason why lower courts stand by the decisions of higher courts is quite logical. If
lower courts were able to ignore the decisions made by higher courts, there would be little
consistency in the way the law is applied. Different courts would be able to reach different
decisions in cases that were essentially the same. This would mean that individuals would
not be treated equally and the system would not be seen as fair. It would also mean that
individuals would not know how they are expected to behave.
Binding precedent
The decisions of higher
courts in like cases are
binding on lower courts
in the same hierarchy.
A binding precedent is a precedent that must be followed by lower courts in similar
cases. Not all precedents are binding on future cases. A precedent will be considered to
be binding when:
● the facts in the previous case are similar to the case currently being considered by the
judge
● the precedent was set by a higher court in the same court system.
For example, the County Court of Victoria is
hearing a case. The case concerns a similar fact
situation to a case that has already been decided
in the Court of Appeal in Victoria. The judge in the
County Court is bound to apply the legal principles
from the Court of Appeal. The Court of Appeal is
a higher court than the County Court. The Court
of Appeal case would therefore form a binding
precedent that must be followed by the County
Court. However, the County Court of Victoria would
not have to consider the legal principles established
by a County Court in another Australian state.
On the other hand, if the High Court was hearing
the case, the decision of the Court of Appeal would
not be binding. The High Court is considered to
be a higher authority than the Court of Appeal in
Victoria.
Where judges are referred to a precedent that
was established by another judge in a court of
the same level and in the same state, they will
generally be bound to follow the precedent. There
is an exception to this rule: High Court judges are
not bound to follow previous decisions made by the
High Court.
Persuasive precedent
A persuasive precedent
does not have to be
followed. The decision
may be from a lower
court or a court in
another court hierarchy.
A novel case is a new
situation that has
not been previously
considered by the court.
Judges in the Victorian court system are only bound to follow the decisions made in higher
Victorian courts and in the High Court. Precedents made in courts from court systems
in other states or other countries are not binding on judges within the Victorian court
system. For example, if a decision is made by a judge in the Supreme Court of New South
Wales, it is not binding on judges in the County Court of Victoria. Similarly, decisions
made by judges in Canadian courts are not binding on judges in Australian courts.
Sometimes precedents from other court systems are cited as relevant to a particular
case. This situation may occur when a novel case comes before the court. In other words,
it is a new situation that has not been previously considered by our court system. In such
a case no binding precedent exists. The judge may then look to decisions made by other
courts—decisions they are not bound to follow—as a guide to determining what the law
should be in our court system. Such precedents are known as persuasive precedents.
232 The Legal Maze
Case
file
The snail in a bottle and an embarrassing itch
An example of a legal rule developing through precedent concerns the responsibilities of
manufacturers for any injuries from the use of their products. These responsibilities are
contained in the common law of negligence.
Over many years common law has developed the rule that the seller of products must
compensate the buyer for injuries suffered by the buyer as a result of using the product,
where the seller could reasonably be blamed for the fault in the product that caused
the injury. However, with modern manufacturing practices and large-scale production
techniques, manufactures are frequently not the people who sell the product. Consider
the following cases.
Donoghue v. Stevenson [1932] AC 56
One August day in 1928 Ms Donoghue set out to meet her friend at a local café.
Ms Donoghue ordered a ginger beer float and consumed half the bottle purchased for her
by her friend. Her friend poured the remaining half of the bottle into Ms Donoghue’s glass,
which included the remains of a decomposing snail. Ms Donoghue became violently ill,
suffering from gastroenteritis and severe shock. Ms Donoghue could not work and decided
to recover her losses, but she could not sue the café owner as she had no contract with
him, having not purchased the ginger beer. Ms Donoghue therefore brought an action
against the beverage manufacturer (Mr Stevenson).
The House of Lords established that Stevenson did owe Donoghue a duty of care
and that he had breached this duty by failing to properly inspect the product
before offering it for human consumption. The English courts had established the
‘neighbour principle’.
Grant v. Australian Knitting Mills Pty Ltd [1936] AC 85
In 1986, the right of
an appeal from an
Australian court to
the English courts was
abolished.
In the winter of 1931, Dr Grant purchased two sets of underclothes. After wearing the
underclothes on a number of occasions over a three-week period, he developed an
itch. The itch was diagnosed as dermatitis and the underclothes were blamed for the
condition. Dr Grant had the underclothes analysed and they were found to contain a
harmful chemical. The doctor then decided that he would sue the manufacturer, The
Australian Knitting Mills. He argued that the manufacturer had been careless and should
compensate him for the discomfort he had to endure as a result of that carelessness.
The Australian Knitting Mills argued, among other things, that there was no Australian
law that said that they should be held liable in such cases. In Australia, it was the
responsibility of a purchaser of goods to inspect the goods for any defects prior to
purchasing them.
The manufacturer was correct—there was no clear Australian law. But Dr Grant was
determined and he eventually appealed against the decision to the highest court in
Australia (which was at that time an English court called the Privy Council). The Privy
Council referred to Donoghue v. Stevenson, in which the English courts had decided:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. A manufacturer of
products, which are sold in such circumstances so as to prevent the distributor
or ultimate consumer from discovering by inspection any defect, is under a legal
duty to the ultimate purchaser or consumer to take reasonable care that the
article is free from defect likely to cause injury to health.
Chapter 8 The courts and civil law 233
The court defined a neighbour as any person who is likely to be closely and directly
affected by your actions. The woman who drank the ginger beer was therefore entitled to
claim for the injuries she suffered.
Based on this legal reasoning, the Privy Council decided that Dr Grant was closely
and directly affected by the actions of the manufacturer of the underclothes. As the
manufacturer had not exercised reasonable care in the production of the underclothes,
and Dr Grant had suffered an injury as a result, Dr Grant was entitled to compensation.
This was the first time that this legal principle—known as negligence—had been applied
in Australia. The ratio decidendi of this case became a binding precedent to be followed
by all lower courts in the Australian court system.
Case studies
Apply your understanding
Applying precedent
Using the precedent established in Grant v. Australian Knitting Mills, what decision would
you reach in each of the following cases? In answering this question you need to consider
two questions.
a Is the fact situation similar?
b If the fact situation is similar, how does the precedent apply to the facts presented?
Give reasons for your decisions.
Case A
Pete and Bill went to the football. At the football, Pete bought a meat pie for
himself and also one for Bill. When Bill bit into his meat pie he found a gristly
piece of meat. After removing the gristly piece of meat from between his
teeth, he found a thumbnail. Bill is suing the maker of the meat pies.
Case B
Mary made her friend Jane a dress for her wedding. She gave the dress to
Jane as a present. In her hurry to complete the dress, Mary forgot to tie all the
threads. When Jane wore the dress the seams split. This caused Jane severe
embarrassment. Jane is suing Mary.
Case C
George bought a bottle of hair dye from the local chemist. Printed on the label
of the bottle was a warning to read the instructions carefully. However, the
price tag had been placed over part of this warning. When George purchased
the dye the chemist warned him that the dye was very strong. George used
all the dye at one time and left it on for 20 minutes instead of the 15 minutes
recommended in the instructions. The next day George found that his hair
had fallen out. Embarrassed by his condition, he refused to go to work until
it grew back. It took three months for George’s hair to grow back. George is
suing the manufacturers of the hair dye.
234 The Legal Maze
Can precedent change?
Precedent may change
through the processes
of distinguishing,
disapproving, overruling
and reversing.
Previously, we saw that judges are usually bound by precedent set in a higher court.
However, judges must also not be unreasonably restricted in their ability to apply the law
to each case before them. Therefore, judges are able to change precedent, but the extent
to which a judge may change an existing precedent depends on:
● the authority of the court in which the precedent was decided
● the authority of the court in which the subsequent case applying the precedent is heard.
There are four processes that judges can use to change precedent.
Distinguishing
A judge may decide that a precedent does not apply to the case being heard. This could
occur when the judge thinks that the facts in the present case are not the same as the
facts in the previous case. This is known as distinguishing. If the fact situation is not
the same, the judge is not bound to follow the previous decision. By distinguishing the
facts, the judge may come up with a different decision, but the legal reasoning will not
have been altered. The precedent is therefore either added to or not applied.
Disapproving
A judge who is dissatisfied with the outcome of the application of a precedent established
by a higher court in the same court hierarchy can do little about it. If the precedent is from
a higher court, it is binding. However, it is still possible for the judge to make comments
indicating that they do not believe that a particular law is appropriate. This is known as
disapproving. Although the judge must still apply the precedent, a clear message is being
given to the higher court that the judge believes the precedent should be changed.
Overruling
A judge in a higher court may overrule an earlier precedent and replace it with a different
one. If a precedent is overruled, the original precedent is no longer binding.
Reversing
When a new legal principle has been stated in a case heard in a lower court, one of the
parties may appeal to a higher court. The higher court would consider the reasons given
for the decision by the judge in the lower court. If the higher court does not agree with the
legal principles stated by the lower court judge, the higher court may reverse the decision.
The effect of this is that the precedent set by the lower court can no longer be applied.
Case
file
Finders keepers?
The law about who owns things that have been ‘found’ has been developed by judges
over many years. This area of judge-made law is known as ‘possession’. Who has lawful
‘possession’ of items that are ‘found’? If you find a gold ring in the park can you claim that
you own it? Consider the following cases, then answer the questions that follow.
Case A
A was a young boy who worked for a chimney sweep. He found a piece of jewellery and
took it to a goldsmith’s shop to find out what sort of stone was set in the piece and how
much it was worth. At the shop he handed the jewellery to an apprentice. The apprentice
pretended to weigh it. Instead of weighing the jewellery the apprentice removed the
stone from the setting. The apprentice told the goldsmith that the jewellery was worth
one-and-a-half pence. The goldsmith offered to buy the jewellery from A. A refused to sell
it. When the apprentice returned the jewellery to A, A noticed that the stone was missing.
A sued for the return of the stone. (Armory v. Delamirie, (1722) 1 Strange 505)
Chapter 8 The courts and civil law 235
The judge decided that:
the finder can keep what he finds unless it is claimed by the rightful owner
● the goldsmith is responsible for the actions of the apprentice
● compensation should be decided on the presumption that the jewellery was of the
best quality.
The legal principle (or precedent) about the possession of found goods in this case was
that the finder has a right to keep the goods unless they are claimed by the real owner.
●
Case B
H found a parcel of banknotes under the floor of a shop. The area of the shop in which
the notes were found was a public area. The shopkeeper did not know that the banknotes
were under the floor. H claimed ownership of the banknotes. The shopkeeper contested
the claim, stating that as the owner of the shop he owned the banknotes. (Bridges v.
Hawkesworth, (1851) 21 LJQB 75)
In this case the judge decided that:
● to have ownership of ‘found’ goods you must know that the goods exist, and you
must have an intention of keeping them or of excluding others from them
● the goods were found in a public area of the shop and therefore the shopkeeper did
not have control over them
● the shopkeeper had not shown any intention of possessing the goods—they were
just lying under the floor.
Case C
S was employed by a water company to clean out a pool of water. The pool of water
was on land privately owned by the water company and not open to the public. When
digging in the mud at the bottom of the pool, S found two rings. S claimed that he had
a right to keep the rings. The company disagreed. The company argued that possession
of land carries with it, in general, possession of everything attached to it or under the
land. The water company claimed that they did not need to know that the rings were
there. The judge agreed—stating that the company had de facto possession because they
had the power to exclude others from the area and had shown an intention to do that.
(South Staffordshire Water Co. v. Sharman, [1896] 2 QB 44)
Case D
P was the freehold owner of a house. He didn’t live in the house. During the war it was
requisitioned on two occasions by the army. H was a soldier who was billeted in the house
during one of the times it was taken over by the army. While staying in the house, H found
a brooch and handed it to the police as lost property. The owner of the brooch was never
found. Two years later the police returned the brooch to P. P sold the brooch. Before the
police returned the brooch to P, he had no knowledge that the brooch existed. He did not
know that H had found the brooch and he did not know that it had been handed to the
police. Some time later the soldier (H) contacted the police to find out whether anyone
had claimed the brooch. H claimed that since he was the one who had found the brooch,
he had the right to claim ownership. (Hannah v. Peel, [1945] 1 KB 509)
Case E
This is an Australian case. A police officer was assigned to special duty on privately owned
land. The land was the exit from a drive-in theatre. The police officer found a gold ingot
on the land and handed it in. The owner of the ingot was not found. Three parties
claimed that they were owners of the ingot. The owner of the land claimed that he owned
the ingot because the land belonged to him. The police officer claimed to be the owner
236 The Legal Maze
because he found the ingot. The state claimed possession of the ingot because the police
officer worked for the state. (Byrne v. Hoare, [1965] Qld R 135)
The court decided that because the police officer was on ‘special’ duties he was not
employed doing ‘normal activities’. He was therefore the same as any other member of
the public who finds goods on land to which the public has regular access. The police
officer kept the gold ingot.
Case F
Two friends fossicking together stumbled on more than $200 000 in buried cash. The men
found the cash as they rummaged through rubbish near the Balaclava railway station. The
area near the station where the money was found had been used for storing disused
railway goods. People had also been dumping rubbish in the area. Both men took their
find to the local police station. Under the law, if goods or cash handed in have not been
claimed after three months or are not linked to a specific crime, it’s ‘finders keepers’.
Case G
A bricklayer working on renovations found $5645 in a vacuum flask buried in the garden
of a Fairfield house. The money had been buried more than 30 years earlier by the then
property owner, Harry Nugent, who could not be bothered putting his winnings from
greyhound races into the bank. Subsequently, Mr Nugent had a car accident, lost his
memory and forgot about the money.
Mr Nugent, bricklayer Nigel Gregory and the owner of the property appeared in
Preston Magistrates’ Court to try to determine the ownership of the money. Magistrate
John Doherty urged the claimants to settle. They did, with Mr Nugent and the property
owner each taking $2000 and Mr Gregory $1645.
Case studies
Apply your understanding
Finders keepers?
Complete the following tasks related to the preceding case file.
1 Read Cases A and B. How has the decision in Case B added to the legal principle
established in Case A?
2 Read Case C.
a Is the fact situation in Case C similar to the fact situation in Case A? Explain.
b Should the court follow the legal principle in Case A? Explain.
c The judge in this case decided that the legal principle in Case B did not apply.
What are the differences between Case B and Case C? Explain.
d Does a judge have to apply the legal principles from a previous case when the fact
situation is different?
e Based on the decisions in these three cases (A, B and C), how would you
summarise the law of possession of found goods?
3 Read Case D. Explain how the legal principles in Case B would apply to the facts in
Case D.
4 Read Case E.
a Using the legal principles in Cases A, B, C and E, what would you expect to be the
outcome of Case D?
b In Case E, did the court follow the decision in Case B? Under what circumstances
can a court decide not to follow the decision in a previous case?
5 Read Case F.
a In Case F, police received several claims to ownership of the cash. Explain the law
that would apply in determining the owner.
Chapter 8 The courts and civil law 237
b To protect the public and to stop the dumping of rubbish, the railways had fenced
off the area in which the money was found in Case F. Can the railways claim
ownership of the money?
6 Read Case G. Do you consider the decision in Case G to be fair? Suggest reasons to
support your view.
Interpretation of legislation and precedent
When judges interpret
the meaning of words in
Acts, the reasons given
for those interpretations
may become a
precedent.
An Act of Parliament sets out in broad terms certain rights and responsibilities of
individuals. When hearing specific cases, a judge must apply these broad definitions to
specific circumstances. To do this they may need to interpret the meaning of the words
or terms used in the Act. When a judge interprets the meaning of an Act they will give
reasons for the decision they have made. These reasons form a precedent. In future cases,
where the meaning or application of the Act is questioned, the courts will refer back to
these reasons to decide what the words or terms in the Act mean. (See chapter 2 for more
information on precedent.)
Check your understanding
What is the purpose of civil law?
Write a short paragraph explaining the difference between civil law and criminal law.
What is the doctrine of precedent?
What part of a judge’s decision may be binding on other courts?
Under what circumstances will a judge be bound to follow a decision made by a judge
in a previous case?
6 What is a persuasive precedent?
7 Can precedent change? Explain.
8 How can the interpretation of an Act become a precedent?
1
2
3
4
5
Apply your understanding
Folio and report
Civil cases
1 Collect five newspaper articles that discuss civil cases. You may need to refer to
table 8.1 to help you decide whether a case is criminal or civil. Select examples of
different types of disputes.
2 For each case:
a Identify the source, date and author of the article.
b Name the plaintiff and defendant in the case.
c Outline the facts of the case.
d Identify and define key legal terms used in the article.
3 Using the articles that you have collected as examples, discuss the following
statement: ‘A civil action concerns disputes between private parties. In so doing,
it also reflects the values of our community.’
Annotated visual display
Precedent
Design a poster to explain the operation of the doctrine of precedent.
238 The Legal Maze
Case studies
Using precedent
The following case studies illustrate the development of a precedent. Trace the
development of this precedent by answering the questions at the end of each case study.
Case 1: Flooded mines
Rylands v. Fletcher (1868) LR 3 HL 330
The facts
The plaintiff was Fletcher. (The convention for case names is that the plaintiff’s
name appears first. However, Fletcher’s name is not mentioned first here
because the case is being heard on appeal.) Fletcher owned and worked
some coalmines. He had obtained the consent of two neighbours to work
his mines under their land. The neighbours’ land shared a boundary with
Rylands’ land.
Rylands operated a water-powered mill. To operate this mill he constructed
a new dam on his land some distance away from the boundary he shared with
his neighbours. Fletcher worked his mine under the land of the neighbours.
During this work he came upon shafts and passages from other mines.
No-one knew that these mines existed and they were blocked with rubbish.
Neither Fletcher nor Rylands was aware that these old mines ran under the
area on which Rylands intended to construct a dam.
When the dam was completed and partially filled with water, one of the
old mine shafts gave way. As a result, Fletcher’s mines were flooded and all
work stopped.
Rylands’ argument
●
He did not know that the old mine shafts were connected to Fletcher’s mine.
●
He couldn’t have known that the dam would leak into the mine.
●
As he didn’t know that the dam could leak into the mine, he could not
have prevented it.
●
Every man has the right to use his land for a lawful purpose, and if he does
so without the knowledge that he will cause injury to another he cannot
be held responsible if an injury does occur.
Fletcher’s argument
●
He worked the mines in the ordinary (usual) way.
●
He has a right to be protected against the flow of water that destroyed his
mines.
●
The flow of water was caused by Rylands’ actions.
●
If the water had come into his mine from natural causes alone he could
not complain, however, it came through the acts of the defendant in
building the dam. Rylands introduced the water, which would not have
come there in a natural way and Rylands was therefore responsible for his
actions. He brought ‘the mischief on to the land’ and he was responsible
for the consequences.
Chapter 8 The courts and civil law 239
The decision
The House of Lords found in favour of Fletcher and upheld the decision of the
Exchequer Chamber. In the Chamber, Blackburn J stated: ‘the person who
for his own purpose brings on his lands … anything likely to do mischief if
it escapes, must keep it at his peril and is prima facie answerable for all the
damage, which is the natural consequence of its escape’. In the House of
Lords, Lord Carins, although agreeing with Blackburn J, added that the rule
stated above would only apply where the land was used in a ‘non-natural’
manner and not where a substance accumulated as a natural consequence on
the land. Rylands was ordered to pay for all the property damage to the mine.
What do you consider to be the rights and responsibilities of both Rylands and Fletcher?
Explain the argument presented by Rylands. To what extent do you agree with it?
Explain the argument presented by Fletcher. To what extent do you agree with it?
The ratio decidendi in this case suggests that four key elements need to exist in order
to establish that a duty or responsibility exists in relation to ‘mischiefs’. Identify these.
5 What do you think the term ‘natural consequence’ means?
1
2
3
4
Case 2: Ornamental pools
Nichols v. Marsland (1875) LR 10 Ex. 255
The defendant owned land with three large ornamental pools. Each pool
was two to three acres in size. A diverted stream fed the pools and each was
separated by a weir over which the water flowed from the highest to the
lowest. Water from the lowest pool rejoined the diverted stream.
On 18 June 1872, a terrible storm occurred. The rainfall was greater and
more violent than anyone could remember. On 19 June it was found that the
flood water had carried away the artificial embankments of the pools, and
the accumulated water in the pools had damaged the bridge downstream.
The judges found there was no negligence in the pools’ construction and the
rain was excessive. In their opinion, the accident was a result of an act of God.
1 To what extent are the facts in Nichols v. Marsland similar to Rylands v. Fletcher?
2 Do the four elements of the ratio decidendi in the case of Rylands v. Fletcher apply to
the facts in this case? Explain, with specific references.
3 How would you define an act of God?
Case 3: Thistles
Giles v. Walker (1890) 24 QBD 656
The defendant, a farmer, occupied former forest land. The land prior to
cultivation did not contain thistles. However, when it was cleared thistles
sprang up. It was alleged the defendant neglected to mow the thistles to
prevent them from seeding and by 1887–88, there were thousands of thistles
on his land in full seed. The seeds were then blown onto the adjoining land of
the plaintiff, where they took root and damaged his land.
1 Do the legal principles established in Rylands v. Fletcher and Nichols v. Marsland
apply to this case? Explain.
240 The Legal Maze
Case 4: Property damage
Rickards v. Lothian [1913] AC 263
The defendant leased a property on the second floor of a building in Little
Collins Street. The property was damaged by a continuous flow of water from
a bathroom basin on the top floor. A water tap had been turned on fully and
the waste pipe had been plugged. The jury found that this was a malicious
act of an unknown person.
Part of the Privy Council decision reads:
At the time
this case was
heard, an
appeal against
a decision made
in an Australian
court could be
heard by the
English Privy
Council.
… What has the defendant done wrong? What right of the plaintiff has he
infringed? He has done nothing wrong. He has infringed no right. It is not
the defendant who let loose the water and sent it to destroy bridges. He
did indeed store it, and store it in such quantities that if it were let loose,
it would do, as it did, mischief. But suppose a stranger let it loose; would
the defendant be liable? If so, then if a mischievous boy bored a hole in
any cistern in any London house, and water did mischief to a neighbour
the occupier of the house would be liable; that cannot be. Then why is the
defendant liable if some agent over which he has no control lets the water
out? … here the act is of an agent they cannot control.
The judges decided that the ratio decidendi of Rylands v Fletcher did not
apply to this case, as the land was used in the ordinary way.
1 In this case the judges concluded that they did not need to follow the decision in
Rylands v. Fletcher. Do judges always have to follow previous decisions? Explain.
2 In Burnie Port Authority v. General Jones Pty Ltd [1994] HCA 13, the High Court
declared that the rule in Rylands v. Fletcher was no longer part of the common law of
Australia. Explain the role of the High Court in the operation of precedent.
Case study
School rules
This activity is about statutory interpretation and precedent.
Extract
1 Purpose
The purpose of the school rules is to encourage a positive learning environment,
to develop personal responsibility in all areas of behaviour and to ensure
consistency in attitude and approach to behavioural expectations …
3 Personal appearance
All students are expected to maintain a reasonable standard of personal
appearance …
3.5Jewellery must not be worn with the school uniform except for a watch,
school badges and a single sleeper or stud in the lobe of the ear.
Chapter 8 The courts and civil law 241
1 Carefully read the extract of school rules above. Consider the following situations. For
each situation, outline how you would interpret the school rules. Give a full explanation
of your reasons for reaching the decision. (Remember that the reason you give must
be consistent; in other words, the decision in each situation may be a precedent in the
following situations.)
a Dianne has pierced ears. She wears fluorescent pink sleepers in the lobes of her
ears to school.
b Sharon wears a set of frog-shaped earrings to school. The frogs are no larger than
a normal stud earring.
c The recent fashion is to pierce not only the lobe of the ear but also the upper ear.
Mary has her ear pierced in this fashion. She comes to school with a sleeper in the
lobe of her ear and a stud in the upper ear.
d Jorg also has his ear pierced. He comes to school with a sleeper in the upper
section of one ear.
e Hanna comes from a religious family. She wears a gold religious insignia on a chain
around her neck. This cannot be seen under her usual school uniform, although it
can be seen when she is wearing her sports uniform.
f Laura has recently had her navel pierced. She wears a sleeper in her navel. This
cannot be seen under her normal school uniform but comes to the teacher’s
attention when she is in a PE class.
g Lauren wears sleepers in the lobes of her pierced ears. A small gold cross hangs
on each sleeper.
h Sam wears sleepers in the lobes of his pierced ears. A small swastika hangs from
each sleeper.
2 Based on your interpretation of each of these situations, write a summary of your
interpretation of the school rule on wearing jewellery.
3 Explain how an interpretation of an Act may become a precedent.
Thinking critically and creatively
The following activities have been designed to develop a broad range of analytical,
critical and creative thinking skills and abilities.
Low-order thinking to higher order thinking
Chapter 8
about the chapter
Remembering
Use a picture to identify the court hierarchy.
Understanding
What do a snail in a bottle and a pair of underpants have in common in the
law of negligence?
Using a Venn diagram, identify five similarities and five differences between civil and criminal law. Applying
Civil
Criminal
Analysing
Produce five questions where the answer is ‘precedent is flexible’.
Evaluating
Use the following to evaluate law-making by judges: court hierarchy, case law
and an unfair outcome.
Creating
Develop a mnemonic to illustrate the doctrine of precedent.