| From: | Nicole Moreham <Nicole.Moreham@vuw.ac.nz> |
| To: | Summers,AD <A.D.Summers@lse.ac.uk> |
| Robert Stevens <robert.stevens@law.ox.ac.uk> | |
| Peter Radan <peter.radan@mq.edu.au> | |
| obligations@uwo.ca | |
| Date: | 07/11/2017 21:05:43 UTC |
| Subject: | Re: Misconstrued Cases |
Hi Peter,
Could it be the early intentional infliction of emotional distress case, Janvier v Sweeney? The headnote from that case was cited by the CA in Khorasandjian v Bush in support of the idea that the action requires subjective recklessness ie actual knowledge of the harm that the words or action was likely to cause. But the case does not actually say that - it uses the word 'calculated' which previous cases (including those cited with approval in Janvier) said included situations where the defendant's action was 'sufficiently likely to lead' to the results in question (ie regardless of the defendant's knowledge).
Best wishes,
Nicole
How about Victoria Laundry - Asquith LJ’s comments on the headnote in Hadley v Baxendale?
Niranjan Venkatesan has written about this in his chapter on remoteness in our Defences in Contract collection, and Victor Goldberg (I think a member of this list?) has also recently written something on it.
Best wishes,
Andy
From: Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
Sent: 07 November 2017 12:28
To: Peter Radan <peter.radan@mq.edu.au>; obligations@uwo.ca
Subject: RE: Misconstrued Cases
I wonder if you might be referring to Stilk v Myrick, and the different reports of what Lord Ellenborough said? Discussed here
http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1999.tb00638.x/epdf
From:
Peter Radan [peter.radan@mq.edu.au]
Sent: 07 November 2017 00:56
To: obligations@uwo.ca
Subject: Misconstrued Cases
Colleagues,
When in law school - decades ago - I call a professor referring to a case which had come to stand for authority for a legal principle, even though the decision itself did not expound such a principle. Apparently, later cases referred to an incorrect headnote in the report of the case as the principle that emerged from it.
I cannot recall the case (or the principle), but would be obliged if anyone can refer me to it - and thereby confirm that I still have a functioning memory. I would also be interested in knowing of any other instances where a case has become authority for a rule or principle which it did not state or declare.
Many thanks,
Peter Radan
Peter Radan FAAL
Professor of Law
Macquarie Law School | Level 5, W3A Building (Room 527) Macquarie University, NSW 2109, Australia
T: +61 2 9850 7091 | F: +61 2 9850 9686