290:
Development of the Law of
Negligence in Australia, following Scottish specifically in the UK supreme court (House of Lords) which distinguished all cases on privity of contract, which apparently applied to most earlier observers before the new law in 1932 was fully
102:
or a case turns on too narrow a set of variations in facts ("turns on its own facts") compared to the routinely applicable precedent(s), such decisions are at high risk of being successfully overruled (by higher courts) on the bases respectively that:
82:) a case with similar facts, in which a decision can then be distinguished based upon this, or it may be cited with approval but found to be inapplicable on bases reconcilable with the earlier decision's reasoning.
245:
54:
different facts between the two cases. Two formal constraints constrain the later court: the expressed relevant factors (also known as considerations, tests, questions or determinants) in the
146:, deciding that the facts were materially different in that: (i) the husband and wife were separated and no longer "in amity"; and (ii) the agreement was made
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held the claim could not be sustained without evidence of intention to create legal regulations, so there was no legally binding contract. By contrast, in
169:(1868) because in the present case, even though the defendant factory kept "dangerous things on the land for a non-natural user", there was "no escape".
60:(legal reasoning) of the earlier case must be recited or their equivalent recited or the earlier case makes an exception for their application in the
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278:
183:(a non-binding statement based on hypothetical facts) is subsequent followed and adopted, then the later case is said to "approve" that
130:(1970) were cases involving the enforceability of maintenance agreements. In each case a wife sued her husband, alleging
64:, and the ruling in the later case must not expressly doubt (criticise) the result reached in the precedent case.
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covering the subject-matter and areas of law cited in or plainly relevant to the dispute (they must be
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The ruling made by the judge or panel of judges must be based on the evidence at hand and the standard
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163:(1947), (where a munitions worker was injured in a factory explosion), the court distinguished
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Where a wide new class of distinguished cases is made, such as distinguishing all cases on
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This means that a precedent will be dealt to (in
English and Scottish law known instead as
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258:"Precedent and Analogy in Legal Reasoning: 2.1 Precedents as laying down rules:
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The lower court has failed to follow a binding precedent
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279:"Example of the Development of Court Made Law"
260:2.1.2 The practice of distinguishing".
94:in the establishment of the court-made
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322:
262:Stanford Encyclopedia of Philosophy.
237:Malleson, Kate and Moules, Richard.
107:The lower court has invented the law
62:circumstances otherwise it envisages
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288:. University of Western Australia.
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50:case that will not apply due to
86:Wide and narrow distinguishment
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301:Read v J Lyons & Co Ltd
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142:, the judge distinguished
42:means a court decides the
150:they had separated, and
46:or legal reasoning of a
311: (18 October 1946)
242:Oxford University Press
92:privity of contract law
309:[1947] AC 156
305:[1946] UKHL 2
212:Persuasive authority
265:Stanford University
69:binding authorities
166:Rylands v Fletcher
132:breach of contract
239:The Legal System.
217:Binding authority
144:Balfour v Balfour
140:Merritt v Merritt
127:Merritt v Merritt
121:Balfour v Balfour
16:(Redirected from
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124:(1919) and
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286:Law School
225:References
152:in writing
100:negligence
80:applied to
52:materially
207:Precedent
177:Where an
48:precedent
324:Category
244:. 2010.
197:Case law
191:See also
115:Examples
73:followed
202:Opinion
136:Balfour
44:holding
185:obiter
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282:(PDF)
276:See:
148:after
57:ratio
34:, to
246:p.69
96:tort
75:).
40:case
157:In
98:of
32:law
30:In
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38:a
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