AS Law ( PYQ Oct2017 Q1).docx - Teacher Mr Siva AS Law 9084...

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Teacher: Mr Siva Student: Polly Ha AS Law 9084 Intake: January 2020 Judicial Precedent Submitted On: 1 st June 2020 Based on the question given,we are asked to explain how judicial precedent works and critically consider whether it is an ‘indispensable foundation’. The operation of Judicial Precedent is based on stare decisis which means stand by what has been decided.The doctrine of judicial precedent refers to the source of law where past decision of judges create law for future judges to follow. In each case, judges are to provide judgments upon their decisions. This judgment can be divided into two types of states which are the ratio dicidendi and the obiter dicta . The ratio dicidendi refers to the legal reasoning for the decision in a case and is binding on future case. Sir Rupert Cross defined ratio decidendi as ’any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion. As an example of the ratio, in the case Donoghue v Stevenson (1932) , a client became ill after drinking spoiled ginger beer which was a dead snail in and sued the manufacturer, the ratio decidendi is to be the part that read ‘a person owes a duty of care to those who he can reasonably foresee will be affected by his actions. The ratio of Donoghue v Stevenson (1932) subsequently brought major development to the law of negligence. On the other hand, the obiter dicta refers to all parts of the judgement which do not form prt of the ratio decidendi. Obiter dicta also refers to things said ’by the way‘ which are not binding hut may be persuasive on future case. In the case of Carlill v Carbolic Smoke Ball Co Ltd (1892) , the obiter dicta would be ‘If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look ‘for’ the dog, and as soon as they find the dog they have performed the condition.’ The judge added this part to assist his view on the decision.

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