The driving locomotive as always is the novel case an

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