Tuesday, June 18, 2019

Doctrine of Precedent Essay Example | Topics and Well Written Essays - 1750 words

Doctrine of Precedent - Essay ExampleTherefore, there is a dire need for a coherent case law. This is because it helps in strengthening the predictability of decisions and improves their ascendence. The philosophy of precedent also known as stare decisis provides that the decision of a higher court within the same jurisdiction acts as binding authority on a lower court within the same jurisdiction (Brassil & Brassil 2000). However, the decisions of higher courts act only as persuasive authority to lower courts in different jurisdiction. Therefore, the concept of judicial precedent requires cases to be decided in a similar way when the material facts are the same. The doctrine is only concerned with the legally material facts in order to arrive at similar decisions (Siltala 2000). On the other hand, Ratio decidendi translates to reason of deciding and so-and-so be defined as the material facts of a given case in addition to the decision thereon. Under common law, the doctrine of pr ecedent is utilise to offer direction, certainty, consistency, and impersonality (Harlow 2005). Even as the doctrine of precedent is one of the most significant features of the common law, this doctrine is not without challenges. It is very important for any estimate to identify a clear ratio decidendi in any precedent (Duxbury 2008). One of the main challenges in making decisions guided by precedents is the possibility of deuce conflicting methodologies employed by Lords to reach a decision. This paper will focus on the impact of the two conflicting approaches used by Lords Wilberforce and bridge deck in McLoughlin v OBrian 1983 and show how the choice between these two conflicting approaches would result to completely different results for the claimants in Alcock v Chief police constable of South Yorkshire Police 1992. McLoughlin v OBrian 1983 AC 410 In this case, the plaintiffs husband and their three children were involved in a road hap that was allegedly caused by negligenc e of the suspects. The calamity caused the death of one of the plaintiffs children while the husband and the other two children sustained serious injuries. When the accident happened, the plaintiff was at home two miles away from the scene. A motorist who witnessed it at the scene passed the information on the accident to the plaintiff. After the information, the plaintiff was interpreted to the hospital where her family members were admitted. When she looked at the extent of their injuries and the news of the death of her daughter, the plaintiff suffered severe and continuous nervous shock. The plaintiff sued the defendants claiming damages against them for the nervous shock, distress, and injury to her health in the end caused by the defendants negligence. However, the suit was not successful because the judge felt that the plaintiffs injury was not reasonably foreseeable. The plaintiff believed that the defendants negligence led to her suffering. This case involved the civil w rong of negligence that has been a topic of discussion on the evidence of negligence (Stephenson 1996). In tort law, negligence is defined as the failure to execute reasonably, that is, as a normal man would perform. Therefore, according to Harlow (2005) negligence is the omission to do something which a conjectural man, guided upon those considerations which normally regulate the demeanor of human affairs, would do, or do something which is prudent and reasonable man would not do. Having defined negligence as a tort, it is of importance to note that it has remained the most vital tort in modern law (p. 8). This is because it utterly concentrates on the infringement of a legal duty to view as care, which may result to damage of property or injury to the claimant. Negligence is known to cause individuals

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