Lecture 5 - Legal Reasoning and Case Analysis

Legal reasoning is the process used by judges to justify a conclusion to a legal question.
Lawyers analyse the reasoning in order to advise clients and predict legal outcomes.

Law and Logic

Common law reasoning often involves inductive reasoning, deductive reasoning and
reasoning by analogy. Deductive logic is used in the context of previous decisions of the
court.
Predicate Logic it involves a major premise and a minor premise leading to a conclusion.
Propositional Logic a form of deductive reasoning, where the conclusion reached depends
on the validity of the propositions used.

Inductive vs. Deductive Reasoning

Inductive Reasoning
It involves making broad generalisations from specific observations. For example, Rex is a
dog. Rex is black. Therefore, all dogs are black.
While the premise may be true, the generalisation may be false. Inductive reasoning allows
for the conclusion to be false.
Deductive Reasoning
It involves starting out with a general statement, then examining the possibilities to reach a
specific, logical conclusion. It includes statements like All metals are malleable. Aluminium
is a metal. Therefore, aluminium is malleable.
However, it is possible to come to a logical conclusion even if the generalisation is not true.
If the generalisation is wrong, the conclusion will be logical, but untrue.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

MacCormicks Theory of Legal Reasoning

Constraint of Formal Justice
This is the idea of treating like case, alike. Thus, principles and rules of law and analogies
matter.
Doctrine of Precedent
When referring to the doctrine of precedent, we are talking about following or referring to
previous decisions of higher courts. Think of the doctrine of precedent as a practice, not a
doctrine.
A Theory of Precedent
MacCormick shows that what is needed is coherence and consistency in legally justifiable
judicial decisions concerning legal claims. It is important to have coherence of legal
development. Consistency is treating like cases alike.
Decisions must be legally justifiable in respect of legal claims by parties (plaintiff and
defendant) put before the court.
MacCormicks Explanation of Ratio Decidendi
A ratio decidendi is a ruling expressly or impliedly given by a judge which is sufficient to
settle a point of law put in issue by the parties arguments in a case, being a point on which a
ruling was necessary to the judges justification for the decision.
MacCormick does not use the word rule/principle intentionally: conceptually, the ratio of a
decision is different from a principle of law or a rule of law. A ruling might be the same as
the ratio, but it could be different.
The expression, which is sufficient to settle, is critical because the ratio to settle a disputed
point of law put before the court should be no wider than is necessary to settle it. There may
be one or more points of law, so there is a ratio for each point of law.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

Obiter Dicta Technically everything in a judgment that is not ratio is obiter. Expressions
like I want to make some observations or I want to give an example, if this had occurred
indicate obiter dicta.
Justification
To have confidence in the legal system, judges decisions should be legally justifiable.

Principles, Analogies and Coherence

Legal rules are more specific manifestations of the general principle. MacCormick says: a
legal principle is a normative expression of the underlying reason for specific rules. They are
general legal principles, with more specific principles underneath.
Analogies reasoning by analogies is important. Judge may look at previous decisions that
are not completely on point, and still say that it could be relevant to a present matter, or
perhaps the rule may have to be developed.
The development of rules should be within the relevant general principles. A judge can say
that there is no direct rule, but in certain circumstances, we can justify the development of
the legal rule because its development is still within the general principle.

A Model of Judicial Method

Coherence-based Incrementalism
Incrementalism is the idea that the common law should develop bit by bit.
Brennan J: It is preferable, in my view, that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather than by a
massive extension of a prima facie duty of care restrained only by indefinable
considerations which ought to negative, or to reduce or limits the scope of the duty of the
class of person to whom it is owed.
A fundamental part is the identification of the ratio of previous decisions.
University of Queensland

LAWS1111 Legal Method

www.law-student.org

Policy-Based Incrementalism
Justice Kirby tends to look at policy after looking at ratio, using this approach. If Kirby finds
that a previous ratio is not quite on point, he would apply policy.
Policy-based Judicial Method
In Arthur JS Hall v Simons (2000), the House of Lords indicated that the Court of Appeal had
settled the specific matter, but still heard it. There was an argument is that they went way
beyond judicial power, but House of Lords seemed to move straight to competing policy
considerations. The House of Lords treated rules of law as issues of policy and decided that
the immunity should be abolished.
Prospective Overruling is the idea of the court making a decision that does not apply to
any litigants before it, but only applies to future litigants. There is a strong argument that
this goes far beyond legitimate judicial power.
The High Court of Australia rejected prospective overruling in 1997.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

Donoghue v Stevenson (1932)

Facts
Donoghue was at lunch with a friend when they ordered drinks: a pear and ice for the
friend, and a ginger beer ice cream float for Donoghue. The ginger beer was in an opaque
bottle and was poured into the glass with the ice cream. Donoghue drank some of the
float. When the rest of the ginger beer was poured out of the bottle, a decomposed snail
was with it.
Donoghue felt ill at the sight and complained of stomach pain. She was later admitted to
hospital and diagnosed with severe gastroenteritis and shock.
The ginger beer was manufactured by Stevenson. Donoghue brought at action for
damages. Injuries resulting from defective products were normally claimed on the basis
of a contract of sale, but since Donoghues friend had bought the ginger beer, not her, an
action for contractual breach was not available.
Legal Issues
Was Stevenson liable for the negligent harm caused to Donoghue?
Ruling
The House of Lords found that there was a duty of care for negligence and the neighbour
principle was outlined.
Donoghue had no contract with Stevenson, nor was her case covered by one of the
scenarios in which a duty of care had previously been found. However, where goods
could not be examined or interfered with, the manufacturer had of his own accord,
brought himself into direct relationship with the consumer, with the result that the
consumer [was] entitled to rely upon the exercise of diligence by the manufacturer to
secure that the article shall not be harmful to the consumer, an exception to the general
nonexistence of a duty of care that applied to Donoghue.
Lord Atkin: [I do] not think a more important problem has occupied your Lordships in
your judicial capacity, important both because of its bearing on public health and because
of the practical test which it applies to the system under which it arises.
If your Lordships accept the view that this pleading discloses a relevant cause of action,
you will be affirming the proposition that by Scots and English law alike a manufacturer of
products, which he sells in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him, with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care
in the preparation or putting up of the products will result in an injury to the consumer's
life or property, owes a duty to the consumer to take that reasonable care.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

DOrta-Ekenaike v Victoria Legal Aid (2005)

Facts
DOrta-Ekenaike, was charged with rape. Victoria Legal Aid acted as his solicitor and
retained Mr McIvor as DOrta-Ekenaikes barrister for the committal proceedings. DOrtaEkenaike pleaded guilty at the committal proceedings and was convicted.
Subsequently, the conviction was quashed and DOrta-Ekenaike was acquitted at a retrial.
He commenced an action for negligence against the Victoria Legal Aid and the barrister.
He contended that the respondents negligently advised him that he did not have any
defence to the charge and placed undue pressure and influence on him to plead guilty
at the committal.
Legal Issues
Did the advocates common law immunity apply?
Ruling
The court held that solicitors are entitled to common law immunity from suit in respect of
acts or omissions which, if done by an advocate, would be within the scope of the
advocates common law immunity.
Gleeson CJ, Gummow, Hayne and Heydon JJ: The central justification for the advocates
immunity is the principle that controversies, once resolved, are not to be reopened
except in a few narrowly defined circumstances. This is a fundamental and pervading
tenet of the judicial system, reflecting the role played by the judicial process in the
government of society. If an exception to that tenet were to be created by abolishing that
immunity, a peculiar type of relitigation would arise. There would be relitigation of a
controversy (already determined) as a result of what had happened during, or in
preparation for, the hearing that had been designed to quell that controversy.
Moreover, it would be relitigation of a skewed and limited kind. No argument was
advanced to this Court urging the abolition of judicial or witness immunity. If those
immunities remain, it follows that the relitigation could not and would not examine the
contribution of judge or witness to the events complained of, only the contribution of the
advocate. An exception to the rule against the reopening of controversies would exist,
but one of an inefficient and anomalous kind.
A justification based on finality has as much force today as it did when Giannarelli was
decided Underpinning the [judicial] system is the need for certainty and finality of
decision. The immunity of advocates is a necessary consequence of that need
Because the immunity now in question is rooted in the considerations described earlier,
where a legal practitioner (whether acting as advocate, or as solicitor instructing an
advocate) gives advice which leads to a decision which affects the conduct of a case in
court, the practitioner cannot be sued for negligence on that account.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

Arthur JS Hall v Simons (2000)

Facts
Some clients brought claims in negligence against law firms who had represented them in
family law matters. The solicitors relied on the immunity of advocates from suits in
negligence. Barristers had an immunity from actions in negligence for over two hundred
years.
Legal Issues
Should the immunity of advocates in respect of legal proceeding be maintained in
England?
What should be the proper scope in England of the general principle barring a collateral
attack in a civil action on the decision of a criminal court?
Ruling
The House of Lords indicated that the Court of Appeal had settled the matter, but they
still heard the case. There was an argument that they went beyond judicial power, but
the House of Lords seemed to move straight to the competing policy considerations.
The Lords treated rules of law as issues of policy and decided that the immunity should be
abolished. It was decided that the immunity from suit for negligence enjoyed by
advocates acting in both criminal and civil proceedings was no longer appropriate or in
the public interest. There had been recent changes in civil procedure which were
designed to reduce vexatious litigation. Furthermore, the evidence from foreign common
law jurisdictions did not indicate a need for the immunity. The courts can be trusted to
differentiate between errors of judgment and true negligence.
Lord Hobhouse: The standard of care to be applied in negligence actions against an
advocate is the same as that applicable to any other skilled professional who has to work
in an environment where decisions and exercises of judgment have to be made in often
difficult and time constrained circumstances. It requires a plaintiff to show that the error
was one which no reasonably competent member of the relevant profession would have
made.
Lord Hope: The advocate's duty to the court is not just that he must not mislead the
court, that he must ensure that the facts are presented fairly and that he must draw the
attention of the court to the relevant authorities even if they are against him. It extends
to the whole way in which the client's case is presented, so that time is not wasted and
the court is able to focus on the issues as efficiently and economically as possible. He
must refuse to put questions demanded by his client which he considers unnecessary or
irrelevant, and he must refuse to take false points however much his client may insist that
he should do so. For him to do these things contrary to his own independent judgement
would be likely to impede and delay the administration of justice.

University of Queensland

LAWS1111 Legal Method

www.law-student.org

Scott Lang from UQ wrote an excellent piece about the DOrta-Ekenaike v Victoria Legal Aid
(2005) case for the Queensland Law Student Review, which is available at:
http://www.law.uq.edu.au/documents/qlsr/recent-issues/vol4/issue1/Lang-2011-v4-1-QLSR.pdf

University of Queensland

LAWS1111 Legal Method

www.law-student.org