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Judicial - Judicial Precedent: - Coggle Diagram
Judicial - Judicial Precedent:
Judicial Precedent:
One way that judges make law is when they set a precedent.
A precedent is a rule that has to be followed in the future.
So judicial precedent is when judges set rules that future judges in future cases must also follow.
It is therefore like a new law because judges will enforce it.
Stare Decisis -
Latin for "Stand by the Decision".
This is the basis of Judicial Precedent - judges "stand by" the decision made by previous judges.
Judicial Precedent Cases:
Donoghue v Stevenson 1932:
Donoghue drank a closed can of pop purchased by her friend and discovered a snail was in there. the bottle was not clear so she didnt see the snail before she consumed the drink. she was later diagnosed with gastroteritis by a doctor. Donoghue subsequently took legal action against the manufacturer of the ginger beer, Stevenson.
She was not originally able to sue as her friend was the one who brought the drink not Donoghue.
The neighbour principle from Donoghue v Stevenson [1932] relies on the claimant proving that it was reasonably foreseeable that, if the defendant did something negligent, there was a risk that the claimant would suffer injury or harm.
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour".
Her claim was successful. This case established the modern law of negligence and established the neighbour test.
Daniels v White 1938:
A bottle of lemonade was brought and upon drinking it the consumer felt a burning sensation in his throat. The lemonade as found to contain a chemical. The consumer sued the drinks company for negligence as a result of this.
Common Law:
Judge-made law is referred to as common law.
This is because judges need to be consistent with their decisions so that people are treated fairly.
This is because judges need to be consistent with their decisions so that people are treated fairly. • Therefore they must make decisions which are common with other decisions- hence common law.
Judges only have to follow precedents set by courts which are higher up in the court hierarchy than they are, so the Supreme Court does not need to follow a precedent set by the High Court, for example Methods of Avoiding Following a Precedent.
There are four options for judges when dealing with a precedent: Follow, Overrule, Reverse, and Distinguish.
Distinguish: The judge decides he facts of the case are sufficiently different from the precedent, the a different decision is justified.
Reverse: Similar to overruling, but this happens in the same case. - so a decision is reversed on appeal.
Overrule: A court in a later case decides that a judge in the earlier case was wrong and overrules the precedent created. This can only be done by a higher court.
Follow: The majority of the time judges will simply follow the existing binding precedent.