The driving locomotive, as always, is the novel case.An episode in the growth ofthe common law may be noted, very briefly. Up until 1932, thecivil courts held the person who negligently injured another's interests, liable in damages,but only in narrowly defined situations. For example, it was recognised that the law imposedliability on a person who negligently put a dangerous thing, such as a gun, which throughfaulty construction was likely to explode in the face ofthe person firing it, into circulation inthe community. There was no consensus, however, that the law imposed liability generallyupon the person who negligently injured another in his person, property, economic interestsor whatever. In 1932, the House of Lords decided in Donoghue v Stevenson  AC 562that the manufacturer ofa product owed a duty of care to the ultimate consumer as to thesafety of the product, which duty, if negligently breached, rendered the manufacturer liable indamages. The reasoning of their Lordships, however, was in such broad terms that thecourts in Britain and Australia have ever since accepted the existence of a broad tort ofnegligence, one imposing liability upon the person owing a duty of care to another for abreach of this duty, resulting in damage. The tort has been applied in a considerable varietyof fact situations since, confirming its broad scope. But disagreement continues as towhether it applies in certain more marginal situations. For example, it is only in recent yearsthat the Australian High Court has decided in what types of case the maker of a negligentmisstatement causing a loss to the recipient must make good this loss. Even here, there isstill uncertainty as to the application of these principles in certain situations and thus thescope for further litigation and refinement of the law is apparent. [NOTE: The torts ofnegligence and negligent misstatement are dealt with in greater detail in Module 8, later inthis subject.]2.1.2 The doctrine of precedentThe doctrine of precedent is, as mentioned, the principle that binds the common lawtogether. The doctrine in its modem form was settled in the nineteenth century. Before that,precedents were considered to be of persuasive effect only - courts should follow thedecisions of their predecessors but they were not bound to. (This is still the case in thecodified jurisdictions of the civil law system - judgments interpreting legislative provisions areof persuasive effect only.) From the nineteenth century onwards, however, the courtsaccepted that in certain circumstances a given court was bound to follow the decisions of itspredecessors. The doctrine of precedent, in this sense, is sometimes referred to by the Latinterm, stare decisis(let the decision stand).In what circumstances is a court bound by a prior determination of the law? The key to thisquestion is the notion of hierarchy. In any given jurisdiction (such as an Australian State), thecourts are grouped together in a hierarchy with litigants being able to appeal againstjudgments up through the hierarchy. The ultimate court of
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