LAWS101 @ Carrington
TUTORIAL 12
CASE ANALYSIS
ADVICE FOR THE TEST:
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The test will require you to analyse liability of one or more plaintiffs under
BOTH Rylands and Fletcher and Donoghue v Stevenson.
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This means:
o
You need to have a good idea of the framework for each of these lines
of cases:
o
A simplified flow chart or diagram is useful. For EXAMPLE:
Liability under Rylands v Fletcher
1. Anything likely to do
mischief?
 A-G v Corke;
 Matheson v Northcoate
College.
2. Bring onto land?
 Giles v Walker.
3. For own purpose?
 Irvine v DCC.
4. Escape?
 Read v Lyons;
 Hale v Jenning Bros.
5. Non-natural use?
 Rickards v Lothian;
Non-natural = special, increased
danger to community;
 NZ Forest Products;
 Mason v Levy Auto Parts;
Natural = general benefit to
community;

Bt Celanese Ltd v A.H.
Hunt.
6. Foreseeability of Damage?
 Cambridge Water Co.
7. Defences?
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Liability under Donoghue v Stevenson:
[come up with your own similar list]
LAWS101 @ Carrington
1. Plaintiff’s default;
2. Vis Major;
3. Act of God;
 Nolan v Miller;
4. Act of a Stranger;
Rickards v Lothian.
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LAWS101 @ Carrington
LEGISLATION
Each week until the end of the semester I will be including one of Donna
Buckingham’s lecture topics for revision purposes.
You will be required to write short essay answers about aspects of these lecture
topics as part of the LAWS101A exam.
The goal here is to come up with some novel responses, as a group, to the issues
arising from these topics.
‘Child of hers’
R v P [1991] 2 NZLR 116 (HC Wellington)
Facts:
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P killed child (not her own by birth or adoption). P was the child’s legal guardian,
child had lived with P for 2.5 years.
Defence: at the time she caused the death of the child, her mind was disturbed
by the recent childbirth of her own youngest child, so that she could not be held
fully criminally responsible for the child’s death.
Key issue was the interpretation of ‘infanticide’ for the purposes of s178 Crimes
Act 1969.
Held
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As she was a legal guardian, the child was deemed to be ‘child of hers’
Influential factors in reasoning:
1)
2)
3)
4)
5)
6)
History of infanticide
Absence of diminished responsibility in our criminal Law
Findings of Royal Commission (extrinsic aid)
Legislative future – proposed Crimes Bill
Analogous statutes non-criminal statutes in other jurisdictions
Societal values and attitudes
1) Legislative history of infanticide:
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First appeared in our Crimes Act in 1961
Our provision was modelled on the English Infanticide Act 1938 (enacted as
murder carried a punishment of death, whereas killing of a child by natural
mother was considered ‘not as bad’)
2) Absence of diminished responsibility in our criminal law
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Infanticide now a major exception to the law of homicide in NZ (s178 grants a 3
year maximum for conduct which would otherwise amount to murder or
manslaughter). Form of diminished responsibility, where it is a lesser offence
LAWS101 @ Carrington
than murder to meet the (limited) circumstances that may confront a woman
during recent childbirth:
“an abnormality of the mind that substantially impairs the mental responsibility of an
accused for acts or omissions that caused the death of a person”
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Like the English Infanticide Act, Crimes Act 1969 passed when no defence of
diminished responsibility was available.
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Heron J decided that it would be strange not to apply the same law to a child who
for all intents and purposes was ‘hers’ to a situation which would partially excuse
if it were her own child.
3) Findings of Royal Commission Report (extrinsic aid)
- Found that questions of the status of natural vs adopted children were becoming
blurred and less important in the overall structure of family life. Link in material on
extrinsic interpretive aids here)
4) Legislative future: proposed Crimes Bill
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3-year penalty for ‘culpable homicide with mitigating circumstances’ – unchanged
from old infanticide provision
5) Analogous (non-criminal) statutes and other jurisdictions
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UK statute – Matrimonial Causes Act 1973 s52 – ‘child of the family’ = one
treated by both parties as a child of the family
Section 11 Guardianship Act 1968 – allows awarding of custody/guardianship to
strangers
6) Societal values and attitudes
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Had society really changed since 1969 in such a way that guardianship should be
enough to allow the diminished responsibility defence?
7) NOW: Interpretation Act 1999
5. Ascertaining meaning of legislation—(1) The meaning of an enactment must be ascertained from its text and in
the light of its purpose.
Cf 1924, No 11, s 5(j)
6. Enactments apply to circumstances as they arise— An enactment applies to circumstances as they arise.
Cf 1924, No 11, s 5(d)
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How would this case be decided under the Interpretation Act?
Crown might argue:
o s5: “text in light of its purpose”
 purpose of Crimes Act defence of infanticide should be limited
to natural children.
 “context” excluded as an interpretive factor, so this would
exclude reference to extended concepts of family in legislation.
o s6: Ambulatory approach ‘applies to circumstances as they arise’ is
not designed to give free reign to such wide approaches.
LAWS101 @ Carrington
o
Diminished responsibility should be narrowed in its application given
the nature of the conduct involved.
Unsolicited Goods and Services Act 1975
1) The interpretive difference between 'means' and 'includes' in s2:
‘means’ = exhaustive and complete definition
Definitive, "unsolicited" means only what is stated in the Act – ‘sent without
prior request....
‘includes’
- inclusive and incomplete definition.
- May be either…
o extensive – retain normal meaning AND embrace less common
connotations
 e.g Unsolicited Goods and Services Act 1975: ‘send’ includes
‘deliver’, ‘acquire’ includes ‘hire’
o OR expository - provides a list of examples not meant to be
exhaustive,
 Unsolicited Goods and Services Act 1975: "send" includes
deliver - but doesn't just mean this.
NB: Where ‘means’ and ‘includes’ used together:
‘means’ will make it clear that a whole class of things is covered, while includes
extends that class to things not normally a part of it.
2) Differences between 'may' and 'shall' in s3:
‘may’ = directory drafting device, gives a discretion. Can choose whether to satisfy
the requirement.
e.g
the recipient can choose to either 'use, deal with, or dispose of goods.
‘shall’ = mandatory drafting device - indicates obligation. Requirement must be
undertaken.
e.g
The right of the sender of the good must 'be extinguished'
3) Interpretation of ‘receives’ and ‘recipient’
- When is a good ‘received’?
o must be subjective awareness to ‘receive’?
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LAWS101 @ Carrington
o ordinary meaning "to accept knowingly"
 Purpose of the legislation is to protect people who are
'recipients' of goods that they haven't asked for. To know that
they haven't asked for them must mean that they know they
have been given them.
 e.g Not receiving something would be if I got sent some CDs,
having ordered them, but they were delivered to my home
address not my hall address during the semester while my
parents were on holiday - therefore I didn't know I had them
so didn't "knowingly accept"/ receive them. However if I went
home and found them in the mailbox and opened the
package, then I became aware of their presence and
"knowingly" received them.
Practice question:
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LAWS101 @ Carrington
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