Deck 6: The Doctrine of Judicial Precedent

Question 1

Case 1: A man is walking his dog in the park. The dog bites a toddler, who does nothing to provoke the dog. The man is held liable in negligence.
Case 2: A woman's cat bites a teenager who was pulling its tail.
Which of the following statements is correct?

A) The woman in case 2 has been negligent and will therefore be liable.
B) The woman in case 2 will not be liable because her pet is a cat not a dog.
C) The woman in case 2 will be liable because the cat is an animal.
D) The woman in case 2 will not be liable because a dog is a dangerous animal and a cat is not.
E) None of the above

Answer 1

E

Question 2

A man is walking his dog in the park. The dog bites a toddler, who does nothing to provoke the dog. The man is held liable in negligence. Only when the reasoning of the court is known can one establish exactly why the court found the man liable.

Answer 2

True

Question 3

In Grant v Australian Knitting Mills [1936] AC 85 (Privy Council - see page 199), why was Grant successful?

A) The facts were identical to Donoghue v Stevenson.
B) The court was sympathetic to Grant's case.
C) The reasoning of the House of Lords in Donoghue v Stevenson was applied.
D) Because Grant was decided by the Australian Court of Appeal, the court was bound to follow the House of Lords in Donoghue v Stevenson.

Answer 3

C

Question 4

Complete the following (select all that apply): the ratio decidendi of a case…

A) is formulated explicitly by the judge in the earlier case.
B) will be determined by the judge in a later case.
C) is not set in stone.
D) can be defined as the decision made in relation to the material facts of the case.
E) is a way of circumventing the doctrine of stare decisis.

Question 5

In the case of Jackson v Swift Travel Ltd, Jackson purchased a coach ticket to travel from Cardiff to Gatwick Airport. The ticket contained conditions stating that Swift Travel would be liable for the cost of the airfare if the client failed to reach the airport on time but excluded Swift Travel from such liability for 'factors out of their control'. In the leading judgment of the Court of Appeal, Morgan LJ stated: 'It was clear to the client upon purchasing the ticket that the company would not be liable for the cost of the airfare if the delay in arriving at the airport was due to factors that could not be reasonably foreseen and were out of the control of the coach company. In this case, a terrorist attack in central London could neither have been reasonably foreseen nor be within the control of the company. This is not to say that there may not be circumstances that are perfectly foreseeable and over which the company can be deemed to have control.'
Which of the following are reasonable perceptions of Morgan LJ's decision (select all that apply)?

A) Judge 1: 'Morgan LJ clearly established, in Jackson v Swift Travel Ltd, that only something so completely unlikely as a terrorist attack would exempt the company from liability.'
B) Judge 2: 'In Jackson v Swift Travel Ltd, Morgan LJ did not give the company licence to deny all liability; indeed, the words "reasonably foreseeable" demonstrate that the exemption from liability is clearly limited to circumstances outside the control of the company. I think the present case falls within circumstances which are, in Morgan LJ's words, "perfectly foreseeable".'
C) Judge 3: 'It is clear from the words used by Morgan LJ in Jackson v Swift Travel Ltd that the factors which could exempt from liability must not be reasonably foreseeable and must be out of control of the company.'
D) Judge 4: 'It is clear that Morgan LJ did not mean to exempt the company only in such extreme circumstances as a terrorist attack. Indeed, he made it clear that there will be circumstances that "the company can be deemed to have control over". The key to the matter is, therefore, determining what is meant by the phrase "out of control of the company".'

Question 6

Complete the following (select all that apply): in order to ascertain the ratio of a case it is essential to read the full judgment because…

A) the Headnote may be incorrect.
B) words do not have one single clear meaning.
C) the judge will specifically give the ratio of the case at the end.
D) only in this way can the full material facts be ascertained.

Question 7

'One man's obiter may be the next man's ratio.'

Question 8

Which of the following constitute obiter dicta (select all that apply)?

A) A dissenting judgment.
B) A judge posing a hypothetical question and answer.
C) The Headnote.
D) General commentary on the law in that area.

Question 9

Obiter dicta will only be binding on a later judge when the statement is directly related to the material facts.

Question 10

Which of the following constitutes ratio?

A) Jones, LJ, dissenting in A v B, makes a statement as to the law on breach of contract that is relevant to the material facts.
B) Lord Witt, delivering the leading opinion in C v D, demonstrating how a legal principle can be applied to various fact scenarios, were they to arise in the future.
C) Cuzner, LJ 's statement in E v F as to what he would have liked to decide, had he not been bound by the previous Supreme Court decision in G v H.
D) Lord Power's statement as to what he was obliged to decide on the material facts because he was bound by the previous Supreme Court decision in I v J.

Question 11

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this.
The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
Which of the following has the academic commentator deemed to be a material fact (select all that apply)?

A) It was a woman who was bitten.
B) It was a dog that bit the woman.
C) The dog had bitten someone before and the owner was aware of this.
D) The dog was a Rottweiler.

Question 12

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this.
Which of the following would be the narrowest facts?

A) The case applies only to Rottweiler dogs being walked in a park.
B) The case applies only to dogs being walked in a park.
C) The case applies to all dangerous animals.
D) The case applies to all animals.

Question 13

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio of case 1 is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
Which of the facts deemed to be material by the academic commentator in case 1 have now been deemed to be immaterial by the Court of Appeal?

A) That the dog was a Rottweiler.
B) That the dog had bitten before and the owner knew it was dangerous.
C) That it was a child who was bitten.
D) That it was a dog who bit the woman.

Question 14

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio of case 1 is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
The ratio of case 1, as decided by the Court of Appeal in case 2, is wider than that given by the original academic commentator.

Question 15

In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio is that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
Which of the following facts of case 2 have now become immaterial?

A) That the dog was a German Shepherd.
B) That the dog was in the park.
C) That a postman was bitten.
D) That the dog had not bitten before.

Question 16

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
The ratio of case 3 is narrower than that of case 1.

Question 17

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
In case 4, a man was walking his Chihuahua dog in the woods. The dog bit a teenager. The dog had never bitten anyone before. The Court of Appeal decide that the man is not liable, stating that: 'We are not bound to follow cases 1, 2 and 3 because a Chihuahua dog cannot be classified as dangerous. Liability was imposed in cases 1, 2 and 3 because the dogs in question were objectively dangerous breeds which are capable of inflicting serious wounds.'
Which fact from cases 1, 2 and 3 has now become material?

A) That it was a man or a woman walking the dog.
B) That a teenager was bitten.
C) The breed of dog involved.
D) That the dog was being walked in the woods.

Question 18

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
In case 4, a man was walking his Chihuahua dog in the woods. The dog bit a teenager. The dog had never bitten anyone before. The Court of Appeal decide that the man is not liable, stating that: 'We are not bound to follow cases 1, 2 and 3 because a Chihuahua dog cannot be classified as dangerous. Liability was imposed in cases 1, 2 and 3 because the dogs in question were objectively dangerous breeds which are capable of inflicting serious wounds.'
The Court of Appeal in case 4 has ___________ cases 1, 2 and 3 on the facts.

Question 19

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.'
In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
In case 4, a man was walking his Chihuahua dog in the woods. The dog bit a teenager. The dog had never bitten anyone before. The Court of Appeal decide that the man is not liable, stating that: 'We are not bound to follow cases 1, 2 and 3 because a Chihuahua dog cannot be classified as dangerous. Liability was imposed in cases 1, 2 and 3 because the dogs in question were objectively dangerous breeds which are capable of inflicting serious wounds.'
In case A, a man is walking his Alsatian dog in the park. His dog bites another dog. The question before the Court of Appeal is whether the owner of the Alsatian is liable in negligence on the basis of the principles established by cases 1-4.
Which of the following arguments might the counsel for the defence put forward?

A) 'It is clear that liability is imposed for objectively dangerous breeds of dog. The dog in question meets this criterion. Thus the man is liable.'
B) 'The Court of Appeal has never explicitly confined the principle of liability to the biting of human beings - indeed, in case 2, the court held that "the owner of a dog is liable in negligence for any injury caused in a public place". This principle can be applied to this case.'
C) 'All of the previous cases can be distinguished on the facts: liability has only ever been imposed where an objectively dangerous breed of dog has bitten a human being. In this case, the dog in question has bitten another dog and the owner cannot be held liable.'
D) 'The court is at perfect liberty to find my client not liable in negligence because it is not bound by stare decisis to follow its own previous decisions in cases 1, 2, 3 and 4.'

Question 20

In case 1, a man was walking his Rottweiler dog in the park. The dog bit a woman in an unprovoked attack. The dog had bitten someone before and the owner was aware of this. The Court of Appeal decided that that the man was liable. According to an academic commentator, the ratio of the case is: 'The owner of a dog that had bitten someone before, where the owner was aware of this, is liable in negligence for any injury caused in a public place.' In case 2, a woman was walking her German Shepherd dog in the park. The dog bit a child in an unprovoked attack. The dog had never bitten anyone before. The Court of Appeal decides that the woman is liable and that the ratio is, in fact, that 'the owner of a dog is liable in negligence for any injury caused in a public place regardless of whether the dog had bitten before or whether the owner was aware of this'.
In case 3, an Alsatian dog bit a postman while in its owner's front garden. The dog had never bitten anyone before. The Court of Appeal decides that the owner is liable on the grounds that 'the principle of liability established in case 2 is applicable, even where the dog is on private property and not in a public place, whether or not the dog has bitten someone before and the owner is aware of this.'
In case 4, a man was walking his Chihuahua dog in the woods. The dog bit a teenager. The dog had never bitten anyone before. The Court of Appeal decide that the man is not liable, stating that: 'We are not bound to follow cases 1, 2 and 3 because a Chihuahua dog cannot be classified as dangerous. Liability was imposed in cases 1, 2 and 3 because the dogs in question were objectively dangerous breeds which are capable of inflicting serious wounds.'
In case A, a man is walking his Alsatian dog in the park. His dog bites another dog. The question before the Court of Appeal is whether the owner of the Alsatian is liable in negligence on the basis of the principles established by cases 1-4. The Court of Appeal decide by a 2:1 majority that the man is not liable because: 'Liability has only ever been imposed where an objectively dangerous breed of dog has bitten a human being. In this case, the dog in question has bitten another dog and thus the previous cases can be distinguished on the facts.'
The dissenting judge, Dawson LJ, states that 'the man should be liable because the Court of Appeal has specifically imposed liability "for any injury caused" in cases 1, 2, and 3'.
The Supreme Court decide unanimously. They state that the legal position is now as follows: 'An owner of an objectively dangerous breed of dog will be liable in negligence for any injury caused, whether to a human being or animal, on public or private property.'
In coming to this conclusion, the Supreme Court has done which of the following (select all that apply)?

A) Approved case A (as decided by the Court of Appeal).
B) Approved the dissenting opinion of Dawson LJ.
C) Overturned case A (as decided by the Court of Appeal).
D) Distinguished cases 1, 2 and 3 on the facts.

Question 21

In case A, a man is walking his Alsatian dog in the park. His dog bites another dog. The question before the Court of Appeal is whether the owner of the Alsatian is liable in negligence on the basis of the principles established by cases 1-4. The Court of Appeal decide by a 2:1 majority that the man is not liable because: 'Liability has only ever been imposed where an objectively dangerous breed of dog has bitten a human being. In this case, the dog in question has bitten another dog and thus the previous cases can be distinguished on the facts.' The dissenting judge, Dawson LJ, states that 'the man should be liable because the Court of Appeal has specifically imposed liability "for any injury caused" in cases 1, 2, and 3'.
The Supreme Court decide unanimously. They state that the legal position is now as follows: 'An owner of an objectively dangerous breed of dog will be liable in negligence for any injury caused, whether to a human being or animal, on public or private property.'
In case B, a woman is walking a Boxer dog in the park. The dog jumps up at an elderly lady causing her to fall and break her hip. The Court of Appeal have to decide whether the owner of the dog is liable in negligence under the principles set out in case A. If the court wished to find the owner not liable in negligence, which of the following would be the correct reasoning?

A) 'Case A must be distinguished on the facts. In case A, and indeed all the previous cases, the dog in question had bitten a person or another animal. Consequently, the House had not considered the possibility of a dog causing any other type of injury. It cannot have been the intention of the House to impose liability for any injury other than that caused by biting.'
B) 'We are bound by the Supreme Court' decision in case A
C) 'Case A must be overturned; indeed, it is an incorrect statement of the law.'
D) 'The House, in case A, had clearly considered all repercussions of imposing liability for any injury caused and, consequently, the decision must be followed. If this were not the case, then the owner could escape liability for serious attacks but where the victim had not actually been bitten.

Question 22

Which of the following statements are correct (select all that apply)?

A) 'Overruling' means the previous case has been disapproved but is still valid precedent.
B) 'Overruling' means the previous case has been disapproved and it now has no authority.
C) If a superior court were to follow the reasoning of an inferior court, then the earlier case could be said to have been 'approved'.
D) A case is 'distinguished' when a superior court does not agree with the reasoning of an inferior court.

Question 23

Which of the following statements are incorrect (select all that apply)?

A) Judges always make it clear which facts are material to their decision.
B) A later court cannot class as material facts that were not so classed by the previous court.
C) All cases have a clearly defined ratio.
D) The ratio is the legal principle that can be determined in relation to the material facts.