Thursday, 12 February 2009

Precedent in Action!

We will shortly be studying Judicial Precedent as a Source of Law.

Some areas of our law originate entirely from judicial precedent (law made by judges). One example of this is the law of negligence, much of which can be traced back to the landmark decision in Donoghue v Stevenson made by the House of Lords in 1932. In this case, Mrs Donoghue found a snail in her bottle of ginger beer. It made her ill, so she sued the manufacturer, claiming they owed her a duty of care - previously a concept limited to only a few areas such as road accidents.

The ratio decidendi in a case refers to the reason for the decision; that part of the judgment that creates a binding precendent that all other judges from equal or lower courts must follow.

In Donoghue, the ratio can be found in Lord Atkin's judgment, and in particular in the following passage:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Who, then, in law is my neighbour?

The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

This principle has been followed in hundreds of subsequent cases. The concept of a duty of care now extends to lawyers and their clients, doctors and their patients, and so on.

For example, this week the accountancy firm Moore Stephens is being sued for damages of £117 million for negligence, as it is alleged they did not audit a company properly which then went bankrupt.
Also. the NHS is expected to pay out £700 million in negligence payments to claimants in 2009 -all because of a snail in a bottle of ginger beer in 1928!

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