Flexibility in Applying Precedent:
Flexibility in Applying Precedent: these are methods in which
judges/courts can use to avoid following precedent provided that they have the
jurisdiction.
REVERSING (only applied on
appeal): Revising is a method used by courts when a case is heard on appeal.
Here, judges can choose to disagree with an earlier decision made at trial and
decide to reverse the outcome. This method can only be exercised by judges not
bound by previous precedents. The case that is being reversed is the same case
that was originally heard.
For example: A
student was injured while wrestling with another student during yard duty. The
parent of the injured student sued the school for negligence in their
supervision. The case was originally tried in the County court and the decision
was reached in favour of the parents and they were awarded damages. The school
disagreed with the decision and appealed to the Supreme Court (Court of
Appeals). Here the judges disagreed with the decision reached by the County
court and reversed the outcome. This method was conducted on appeal and as a
superior court (to that of the County court), the Court of Appeals did not have
to follow the decision of a lower court.
OVERRULING: Overruling is a method whereby in
a later and separate case, a higher court reaches a different outcome based on a
different set of principles. Here the superior court has the power to overrule a
previous decision made by a lower court or their own court and as such,
extinguish the earlier precedent and set a new binding precedent.
For example: The plaintiff was a pregnant
woman who lost her foetus as a result of being in a car accident. It was
determined that the other driver was negligent. The plaintiff wanted the other
driver charged with manslaughter and the matter was heard in the Supreme court.
At trial it was determined that although the driver was negligent, the foetus
was not considered 'a person' a the time of its death and therefore the accused
could not be found guilty of manslaughter.
Fifteen years later, a pregnant woman was
crossing the street using the correct 'zebra crossing' and was recklessly hit by
an intoxicated driver. As a result, she lost her 6 month old foetus and wanted
the driver charged with manslaughter. Due to changes in society's values,
foetuses were now considered 'human' and the current Supreme Court overruled the
previous decision made fifteen years ago. In doing so, they extinguished the
precedent that did not considered unborn foetuses not human and set a new
precedent binding on lower courts.
DISTINGUISHING: is another method judges may
employ to prevent following precedent. Distinguishing involves judges making a
distinction between tow cases based on different material facts. Their argument
here is that if they were to apply the same precedent, it would be unjust.
An example is: A kills B (her husband) in
order to benefit from his life insurance and was found guilty and sentenced to
25 years. However in a different case, A kills B (her husband) due to battered
spouse syndrome. As the material facts of the case are different, courts can
distinguish the two scenario and not apply the same outcome. To do so and
sentence A in the 2nd scenario to 25 years would be unjust.
DISAPPROVING: There are 2 scenario whereby precedent is
said to be disapproved:
Firstly, a lower court
can express their disapproval at having to follow a binding decision that they
disagree with. Despite not agreeing with the ratio decidendi, a court lower in
the hierarchy may be bound to follow precedent if they are unable to distinguish
the facts. In their statements, the judge can express disapproval however due to
their position in the hierarchy, they cannot destroy the precedent set earlier
by a higher court.
Secondly, courts on the same level can
disapprove each other's decision. If courts exists on the same level (e.g.
Supreme Court vs Supreme Court) they are not bound to follow each other's
decisions. Here, as precedent is not binding, a decision may be sought from a
higher court to provide clarification.
DIFFICULTY IN APPLYING
PRECEDENT:
One difficulty in applying precedent
is determining how similar material facts are between one case and another. No
two cases are exactly alike. Therefore, judges may face difficulty in determine
how similar material facts have to be before they can apply precedent to ensure
a consistent outcome. An example is Donoghue v Stevenson and Grant v Knitting
Mills. Are the facts of the two cases similar enough to warrant an application
of precedent.
Another difficulty faced when
attempting to apply precedent is identifying and locating the relevant 'ratio'
(decidendi). When arriving at their decision, judges may give complex arguments
or suggest more than one ratio. This may blur the lines between what can be
considered the reason for deciding (and therefore should be followed) as oppose
to statements made by the way.
Flexibility in Applying Precedent: these are methods in which
judges/courts can use to avoid following precedent provided that they have the
jurisdiction.
REVERSING (only applied on
appeal): Revising is a method used by courts when a case is heard on appeal.
Here, judges can choose to disagree with an earlier decision made at trial and
decide to reverse the outcome. This method can only be exercised by judges not
bound by previous precedents. The case that is being reversed is the same case
that was originally heard.
For example: A
student was injured while wrestling with another student during yard duty. The
parent of the injured student sued the school for negligence in their
supervision. The case was originally tried in the County court and the decision
was reached in favour of the parents and they were awarded damages. The school
disagreed with the decision and appealed to the Supreme Court (Court of
Appeals). Here the judges disagreed with the decision reached by the County
court and reversed the outcome. This method was conducted on appeal and as a
superior court (to that of the County court), the Court of Appeals did not have
to follow the decision of a lower court.
OVERRULING: Overruling is a method whereby in
a later and separate case, a higher court reaches a different outcome based on a
different set of principles. Here the superior court has the power to overrule a
previous decision made by a lower court or their own court and as such,
extinguish the earlier precedent and set a new binding precedent.
For example: The plaintiff was a pregnant
woman who lost her foetus as a result of being in a car accident. It was
determined that the other driver was negligent. The plaintiff wanted the other
driver charged with manslaughter and the matter was heard in the Supreme court.
At trial it was determined that although the driver was negligent, the foetus
was not considered 'a person' a the time of its death and therefore the accused
could not be found guilty of manslaughter.
Fifteen years later, a pregnant woman was
crossing the street using the correct 'zebra crossing' and was recklessly hit by
an intoxicated driver. As a result, she lost her 6 month old foetus and wanted
the driver charged with manslaughter. Due to changes in society's values,
foetuses were now considered 'human' and the current Supreme Court overruled the
previous decision made fifteen years ago. In doing so, they extinguished the
precedent that did not considered unborn foetuses not human and set a new
precedent binding on lower courts.
DISTINGUISHING: is another method judges may
employ to prevent following precedent. Distinguishing involves judges making a
distinction between tow cases based on different material facts. Their argument
here is that if they were to apply the same precedent, it would be unjust.
An example is: A kills B (her husband) in
order to benefit from his life insurance and was found guilty and sentenced to
25 years. However in a different case, A kills B (her husband) due to battered
spouse syndrome. As the material facts of the case are different, courts can
distinguish the two scenario and not apply the same outcome. To do so and
sentence A in the 2nd scenario to 25 years would be unjust.
DISAPPROVING: There are 2 scenario whereby precedent is
said to be disapproved:
Firstly, a lower court
can express their disapproval at having to follow a binding decision that they
disagree with. Despite not agreeing with the ratio decidendi, a court lower in
the hierarchy may be bound to follow precedent if they are unable to distinguish
the facts. In their statements, the judge can express disapproval however due to
their position in the hierarchy, they cannot destroy the precedent set earlier
by a higher court.
Secondly, courts on the same level can
disapprove each other's decision. If courts exists on the same level (e.g.
Supreme Court vs Supreme Court) they are not bound to follow each other's
decisions. Here, as precedent is not binding, a decision may be sought from a
higher court to provide clarification.
DIFFICULTY IN APPLYING
PRECEDENT:
One difficulty in applying precedent
is determining how similar material facts are between one case and another. No
two cases are exactly alike. Therefore, judges may face difficulty in determine
how similar material facts have to be before they can apply precedent to ensure
a consistent outcome. An example is Donoghue v Stevenson and Grant v Knitting
Mills. Are the facts of the two cases similar enough to warrant an application
of precedent.
Another difficulty faced when
attempting to apply precedent is identifying and locating the relevant 'ratio'
(decidendi). When arriving at their decision, judges may give complex arguments
or suggest more than one ratio. This may blur the lines between what can be
considered the reason for deciding (and therefore should be followed) as oppose
to statements made by the way.