CHAPTER 4: CRITICAL THINKING
Critical Thinking to Identify the Writer’s Position (page 141).
Activity: Skim the abstracts below and then read them critically. Can you identify the writer’s position in any of them? Suggested answer below.
‘Everybody knows that this was an Act to enable people to walk along without being molested or solicited by common prostitutes … it can matter little whether the prostitute is standing in the doorway or on a balcony …
Lord Parker, Smith v Hughes [1960] 1 WLR 830
‘It is to be noted that the couple never bound themselves to pay the instalments to the building society, and I see no reason why any such obligation should be implied. It is clear law that the court is not to imply a term unless it is necessary, and I do not see that it is necessary here.’
Denning LJ, Errington v Errington [1952] 1 KB 290
‘Why is this apparently basic and underlying condition of seaworthiness not treated as a condition? It is for the simple reason that the seaworthiness clause is breached by the slightest failure to be fitted ‘in every way’ for service. Thus … if a nail is missing from one of the timbers of a wooden vessel … at the time of sailing, the owners are in breach of the seaworthiness stipulation.’
Upjohn LJ, Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2
QB 26
‘The reasonable man is a person having the power of self-control to be expected of an ordinary person of the same sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but whether he would react to the provocation as the accused did.’
Lord Diplock, DPP v Camplin [1978] AC 705