THE MODERN LAW REVIEW

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1 ~ THE MODERN LAW REVIEW Volume 22 September 1959 No. 5 THE RATIO DECIDENDI OF A CASE DR. GOODEART objects to the main thread of my argument because there may be a divergence between the rule of law enunciated by a judge as governing his decision, and 8 rule which is constructed by ascertaining the facts which the judge considered to be material and the conclusion based upon them.l He gives an example of this taken from the speech of Lord Atkin in Donoghue v. Stevenson,' where that learned Lord of Appeal, besides enunciating a wide principle (the " neighbour principle "), also enunciated 8 narrower principle about the relationship between 8 manufacturer and a consumer of products. Clearly these two rules or principles are not the same ; the neighbour principle includes the manufacturer principle, but the contrary is not true. Dr. Goodhart claims that this example helps to confirm his opinion, and his argument takes the ingenious form of saying that Lord Atkin's broad statement- " You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour " -is the rule of law enunciated by the judge, upon which the classical theory concentrates, whilst the narrow statement- "... a manufacturer of products, which he sells in such 8 form as to show that he intends them to reach the ultimate consumer etc." -is the statement of the material facts and conclusion upon which his theory would concentrate. Clearly the two rationes decidendi are not the same. With this argument I should respectfully disagree. Both the broad and the narrow propositions which Lord Atkin made can be described as " statements of material facts plus conclusions " or 8s "rules of law enunciated by the judge," for the descriptions are purely alternative; the question is begged by characterising the wide one as " the rule enunciated... " and the narrow one as '' the ' A. L. Goodhart, " The Ratio Decidendi of a Cane " (1959) 22 M.L.R. 117, at 120 and 122. In this reply I have limited the diecussion to points of mbsbnce. a [l932] A.C Lord Atkin's speech begins at p. 678; Ire st.ter the broad principle at p. 680 and the narrow one at p VOL

2 454 TEE MODERN LAW REVIEW VOL. 22 statement of material facts... Clearly it is very important to decide which is the ratio, but this decision is in no way assisted by any supposed distinction between rules on the one hand and statements of material facts plus conclusions on the other, for the latter is only a description of the former. Thus if one cares to talk the language of rules the problem posed by Lord Atkin s speech is this -which rule did Lord Atkin conceive to be the rule applicable to the case? If one cares to talk in terms of statements of material facts and conclusions then the problem becomes this-are the material facts (accepting Lord Atkin s own determination of them) to be found in the narrow proposition or the wide one? However described the problem is the same. Dr. Goodhart further objectss that his theory alone makes it possible to discover the ratio of a case when there is no opinion given. Indeed one of his reasons for rejecting the classical theory lay in its apparent hopelessness in such a situation. He says:... every case must contain an ascertainable principle of law, even though there may be no opinion delivered by the judge. yy This is a dogmatic assumption, and I am not aware of any authority for such a dogma. It would be an odd assumption to make. To say that in any case where no opinion is given the judge must have acted as he did because of some rule of law is no doubt a comforting assumption, and I am not quite clear how it could be established by evidence, and what sort of evidence would be relevant. To go further and say that this rule must be ascertainable in all such cases is very questionable. No doubt it is possible to try to ascertain it, just as it is possible and sensible to do one s best to discover the age of a giant tortoise in the zoo, but without making any assumption that truth must emerge from such an inquiry. For when a judge delivers no opinion, and thus states no principle or rule of law, it may be problematic what rule or principle, if any, he had in mind. There is precisely the same difficulty involved in any attempt to discover which of the facts of the case he thought were material; the source of the difficulty is the same. The judge has not told us. In studying such cases the lawyer is in much the same position as he is when he is called upon to write an opinion. He shares with the bench a body of legal knowledge, and he tries to put himself in the position of a judge; in doing so he relies upon a mass of assumptions. TO borrow an analogy from a distinguished writer, he is in a position similar to that of a person watching a cricket match; the umpire gives Smith out by enigmatically raising his finger, but the spectator who knows the 3 (1959) 22 M.L.R (1959) 22 M.L.R See 3180 Essags in Jurisprudence and the Common Law,. p H. L. A. Hart, Definition and Theory in Jurisprudence (1954) 70 L.Q.R. 37 at p. 45.

3 SepT THE RATIO DECIDENDI OF A CASE 455 rules can make a sensible guess as to the reason. He may be wrongthe umpire may in fact have given his decision for some improper reason (a bribe), or for a different reason from that which occurs to the spectator, but the spectator is usually right. Law is just more complicated than cricket. I cannot myself see that Dr. Goodhart s suggested rules for dealing with the opinionless case would assist great1y.o Suppose a case where the defendant was an ambassador-would facts of person be irrelevant? Suppose a case where an occupier was being sued-would it not be relevant that the accident happened before the Occupiers Liability Act came into force? Would time and place be irrelevant? Suppose a case where a seller delivered goods which the buyer said did not correspond to a sample. Would facts of kind be irrelevant? Suppose a case where a person had been prosecuted for breach of the rules governing the storage of petrol-would facts of amount be irrelevant? Surely in such situations as these (and they could be multiplied easily enough) the lawyer who is reading a case which has no opinion would be wise to use his common sense and legal knowledge in making his informed guess as to the ratio of the case. Furthermore the lawyer has, perforce, to adopt much the same attitude to many cases where there are opinions. The English judgment is an argumentative and sometimes rambling affair; it is not always as clear as it might be. In no small degree the vitality of the common law is the consequence of the tradition that judges argue from the bench. Dr. Goodhart is led to reject the classical view in part because the statement of law [made by the judge] may be too wide or too narrow. r Why quite the judge s decision as to what facts should be treated as material should be faithfully accepted whilst his decision as to what principle of law should govern the decision should not it is a little ditacult to see; such a distinction would seem to rest on a misconception of precisely the same kind as that involved in Dr. Goodhart s analysis of Lord Atkin s famous speech. Dr. Goodhart bases his argument here on the practice of the courta,o and this is perhaps the time to raise a heretical doubt. It is no doubt true that superior courts exercise a power of correcting statements of law made by judges in lower courts; they hold that a proposition 6 They are set out at pp of Essays in Jusisprudencc and the Common Law. The basis for Dr. Goodhart s rules is that, in eneral, facts of peraon etc. are irrelevant in the common law, and BO no do& they are. But then there are a large number of facts which are generally irrelevant-motive for example. Even however if his list of facts to be discarded was very much more complete than it is, it would still be inadequate, for the exclusion of theme facts would do no more than give effect to a number of eneralieations about the common law, and just 8s an opinion by counsel whicf WM bawd only on generalisations about the law would be likely to be wrong, 80 would e gums as to the ratio of a case be likely to be wrong if baaed only on generalisations. The best possible guess cannot be made without knowing all the rules. (1959) 22 M.L.R See Essays in Jusisprudence and the Common Law, p. 6-8, where a number of examples are given of corrections, none of them fy courts bound by the decision in which the too wide or too narrow statement of law is nude.

4 456 THE MODERN LAW REVIEW VOL.!a of law was not quite accurately stated, being too wide or too narrow. But superior courts are not bound by decisions of lower courts. I am not persuaded that courts exercise any power of correcting statements of law drawn from binding decisions. Certainly Dr. Goodhart cites no examples of this happening. Indeed the textbook writers seem to preserve a curious conspiracy of silence-they accept Dr. Goodhart s point, but again do not produce authority for it.* The one exception is to be found in Salmond on Jurisprude)2ce,10 where it is said: Yet instances are not unknown of puisne judges of the High Court cutting down the decisions of the House of Lords. The instance cited is Att.-Gen. v. ValleJones.ll The case in question hardly supports the proposition for which it is cited. An action was brought on behalf of the Crown to recover damages for the Crown s loss of the services of two members of the Air Force, who had been injured by the negligent driving of the defendant s servant. The damages claimed consisted in the wages paid to the injured men, and their hospital expenses. It was objected that the Crown was not legally bound to pay the wages or the hospital expenses of the two men, and that these payments were voluntary and so irrecoverable. In support of this contention passages from the speeches of Lord Parker and Lord Sumner in Admiralty Commissioners v. Owners of Steamship Amen ka l2 were cited. Lord Parker had said: No person aggrieved by an injury is, by common law, entitled to increase his claim for damage by any voluntary act. Mackinnon J. comments : That proposition is of course perfectly sound. l4 and goes on to interpret these words in a somewhat odd way. Nowhere does he say that Lord Parker had been inaccurate. In relation to the passages cited from Lord Sumner s speech, he says : Some sentences from the opinion of Lord Sumner have been cited on behalf of the defendant, and if regard be had merely to their terms they might be relied upon in support of his contention in this case. I think, however, that it is sufficient for the purpose of showing that these sentences ought not to be applied to such a case as the present, to bear in mind that in 9 See Paton, Jurisprudence, 2nd ed., 160; Keeton, The Elementary Principles of Jurisprudence. 2nd ed., p. 106; Dias and Hughes, Jurisprudence, pp. 73, lt.h ed.. p In the context in which this occurs the prq:eas of correctin5 earlier statements of law is treated as the same thing as distinguishing earlier cases. Sed Quaere. 11 [I K.B [19171 A.C [1917] A.C. at p [1935] 2 K.B. at p. 219.

5 SEPT THE RATIO DECIDENDI OF A CASE 457 the opening of his speech Lord Sumner said, It is clear that the action was not brought for the loss to a master of the services of his employee. The learned judge then goes on to point out that the case before him does involve such a claim, and is distinguishable. He does not correct Lord Sumner, but he does insist that Lord Sumner s remarks be read in their context, as they were delivered. The frequent insistence by judges that passages cited to them from reported cases should be taken in their context is no more than an insistence that sensible steps should be taken to discover what the members of the higher court meant; it does not involve a claim to any power to correct the statements of law made in the higher court. A lower court s refusal to follow a binding decision may be justified on a number of grounds, and sometimes the grounds adopted, though they may have convinced the court, convince nobody else. What precisely these grounds are is a difllcult question, and on some of them there would not be a great body of settled practice. I should suggest that it is fairly clear that refusal to follow a binding authority cannot, on the current practice, be justifled by any argument which involves saying that a higher court stated the law inaccurately. * Finally may I guard myself against the suggestion that, in criticising Dr. Goodhart s theory I have committed myself to the view that the classical theory gives a complete explanation of the difficulties surrounding the conception of the ratio decidendi of a case. I am merely concerned to defend the simple thesis I put forward in my note, which was that there was a flaw in Dr. Goodhart s argument on this subject. A. W. B. Snr~eo~.. 15 [1917] A.C. at p Except under the doctrine governin decision8 given per incutiorn. Fellow of Lincoln College, Oxforf.