Dear Colleagues:

 

I am looking for instances in which courts have rebuffed contentions by counsel that a broadly worded or ambiguous decision by an earlier (usually appellate) court has changed the law or removed a well-accepted common law principle.  The cases that I already have in mind are:

 

1.     Combe v Combe where Denning LJ states that the doctrine of consideration  is “too firmly fixed to have be overthrown by a side-wind,” ie, his decisions in High Trees and Robertson.

2.     Smith v Leech Brain where Lord Parker CJ contends that it was “quite impossible” that the Wagon Mound #1 was meant to displace the thin skull rule.

 

3.     Healey v Lakeridge Health Corporation where Sharpe JA maintained that the SCC in Mustapha had not removed the Recognizable Psychiatric Illness requirement in the tort of negligence: “I find it impossible to imagine that McLachlin C.J.C. could have intended her brief description of the type of psychological injuries that qualify as being compensable to change a well-established, though at times contested, rule.”

 

Are there any other (in)famous examples that I am missing? Please feel free to email me off list if you prefer.

 

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)