6.2.1 Common Law
Up until about 1850, judges decided cases as they came to court and gave reasons for their decisions. These reasons (or judgments) were used in other cases and so set a precedent that could be used in further cases. The collection of judgements made in previous cases (or precedents) came to be known as common law .
Since then common law has been used to administer many aspects of our society where there are no specific rules or laws that govern behaviour. It has also been used to interpret many other laws and rulings that, at times, may have seemed ambiguous. Some of the rules about the concept of precedent are:
- Although courts must follow the decisions of higher courts, they do not have to follow their own earlier decisions.
- Although decisions of courts outside Australia are not binding on Australian courts, they can be used to assist or guide Australian courts
- A court must give reasons for its decisions. It must explain why it has chosen to follow or not follow the decision made in a previous similar case.
The determination of a court is often based on whether or not the person took "reasonable care" to fulfil their duty of care to others. The concept of reasonable care is not clear, but there are four factors that are used to describe it:
Causation
The cause of the accident or illness needs to be determined, and person or people responsible for that cause need to be identified.
Foreseeability
Having determined what the cause is, and who bears responsibility, it then has to be determined whether or not that person could have been expected to reasonably foresee that the cause may have created the problem.
Preventability
It also needs to be determined as to whether or not the incident in question was actually preventable, and especially by the person assigned responsibility.
Reasonableness
Finally, it has to be considered whether or not it was reasonable that the person should have considered any of the previous aspects.
All of these areas are hard to determine and it is easy to see why there is much discussion, and dispute, in trying to prove guilt using this system.
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