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Legal Case Analysis Introduction The process of legal reasoning, leading to a judgement, is influenced by both principle and policy considerations. Adherence to
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Submitted by mary79 on October 27, 2007
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Introduction
The process of legal reasoning, leading to a judgement, is influenced by both principle and policy considerations. Adherence to principles of law, in concurrence with formalist thinking, is requisite to ensuring consistency, objectivity, and hence judicial fairness. However without judicial application of policy formalism failures to ensure that judgements will be reflective of societal values. Hence a balance is needed. It is using this criterion of a right principle-policy balance that my evaluation of the judgements in Marrickville Municipal Council v Moustafa [2001] NSWCA 372 is based.
Contributory Negligence
At first instance it was held that the plaintiff's contributory negligence was forty percent, to which I disagree. In comparing the degree of culpability of the plaintiff and defendant in relation to relative fault and causal contribution, Hosking DCJ appears to have implicitly applied a lower standard of care to contributory negligence than to negligence. For even after the plaintiff divulged that he had waited until it [the detonator] exploded,' Hosking DCJ was reluctant to rule definitively on the plaintiff's intention. Hosking DCJ also accepted the plaintiff's statement of facts and held causation existed presumably on the basis of scientific but for' reasoning. Such a principle based approach resulted in a judgement that effectively allows the plaintiff to take less care of his own safety than the law requires others to take for his safety. This should not be so. Whether a person suffers or inflicts harm is not a reflection on their relative ability to take precautions to avoid the dire outcome.
Possible Implications
Regardless of the apportionment of damages, Hosking DCJs judgement had potential wide-ranging implications. Economically, occupiers would need to allocate more time and resources to meeting the required standard of care. Socially, a greater focus on principle...
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