Concepts Flashcards
1
Q
Stare Decisis
A
- to stand by things decided
- like cases ought to be decided alike
- (horizontal and vertical)
2
Q
Ratio Decidendi
A
- the reason for the decision
- the legal rule/ratio/principle that emerges from the case
3
Q
Obiter Dicta
A
- observations made in passing
4
Q
Why is the doctrine of precedent needed
A
- Consistency - fairness/justice
- Efficiency
- We should know what is expected of us
- Public confidence in the judiciary
- Development of the law
5
Q
What Justifies Departure from Precedent?
A
- Significant legal change
- Significant social change
6
Q
What other factors are considered when departing from precedent?
A
- How old is the precedent and how many times has it been applied
- Number of judges who decided it
7
Q
Overseas Precedent
A
- Never binding on our courts
- May be persuasive
8
Q
What questions are asked of overseas precedent?
A
- Is the law “like” the law of New Zealand
- How “like us” is their society
- What level of court is the judgement from
- How convincing is the reasoning
9
Q
Burden of Proof
A
- The party bringing the case must prove their case
- Other party gets the benefit of the doubt
10
Q
Causation
A
- Did the defendants actions cause the harm?
- Would the harm have happened anyway?
11
Q
Vicarious Liability
A
- Instead of seeking compensation from the person who caused the harm you seek compensation from their employer
12
Q
Eggshell Skull Rule
A
- “if a man is negligently run over… it is no answer to the sufferers claim for damages that he would have suffered less injury… if he had not an unusually thin skull or an unusually weak heart.” - Dulieu v White & Sons
- Must be some foreseeable harm, though, even if of a different / lesser kind - if no foreseeable harm then foreseeability problem
13
Q
Contributory Negligence Act
A
- When the plaintiff contributes to their own harm
- not a complete defence but can reduce damages
- gives the claimant a share in the responsibility
14
Q
Volenti non fit Injuria
A
“no harm is done to one who consents”
- line between justified intervention and unjustified meddling
- Sylvester v GB Chapman
15
Q
Novus Actus Interveniens
A
- A NEW act or omission
- By someone else
- That occurs after the negligence
- That breaks the chain of causation
- You will still be liable for the harm or loss
- even if someone else has done something in the meantime
- provided their actions were very likely
EXTREMELY RARE TO SATISFY THIS TEST - think opportunistic arsonist example