How to Write a Case Brief

Natasha Hartanto and Samuel Lee

(Academic Development Directors)

Study Skills Series

Cases: What are they

good for?

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The most important aspect of reading a case

is the purpose

• Where does this case fit into the course?

– Foundational case?

– Exception to the rule?

– Latest case?

– Extended discussion in obiter

• What you need to know:

• What is the legal issue being considered?

• What are the material facts?

• What rule/ratio/principle does this case stand for (ie how is it used in later cases)

• What is the legal reasoning? (ie steps taken by the court/judge to come to their answer)

This is necessary for the contested cases, but less important for more straightforward decisions.

How to Read a Judgment

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There are different ways of reading

judgments

Start by…

• Reading the headnote, or

• Reading a case summary online, or

• Reading an article about the case, or

• Reading the result, or

• Reading quickly the entire case focussing on key words, or

• Reading the entire case in detail, or

• Pre reading for class, and then do a more intensive reading after class (is post-

paration is more important then pre-paration), or

• Talking with classmates/friends, or

• Using previous notes as a guide to your reading and then making your own notes

Process each time you

read

1. Read the headnote for an

overall summary

2. Read the end of the case for

the decision

3. Read for the material facts

4. Read for the prior proceedings

5. Read for the legal issues

6. Read for the legal reasoning

used in the judgment

7. Read for the ratio

8. Read the whole case

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Ratio

Ratio is the most important and least understood aspect of reading a case

• No court will state : the ratio is… – this is the job for those that use the case

subsequently

• Narrow ratio – which applies directly to the case and includes specific details

• Broad ratio – a statement which is generalised, and so can be used in many different fact situations

• Eg Mabo case: it could easily be applied in a narrow sense to just the building of stone walls as markers of property to people who live on Mer Island. However, it is used as applying generally to many different ways of marking connection to land by all Indigenous people in Australia

• To work out the ratio, look at the chain of legal reasoning, and then try and condense this to 1 or 2 sentences.

• Each issue then is answered by its own ratio. For most cases studied in law, there is already an accepted ratio because they are foundational cases. So, you can work backwards. Research What the ratio is agreed to be, and then see how you map this on to the legal reasoning

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Obiter

• The comments which are not necessarily part of the legal reasoning

• It’s only important because it provides source for argument in later cases.– Also important because often the

class discussions revolve these obiter comments

• Sometimes, judges mark out when it is obiter; sometimes it is phrased as info for parliament to consider changing law

• Read speeches by judges (eg HCA website) – this will give you valuable resources for the general approach/positions of judges

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Example 1

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Example 2

Donoghue v Stevenson

Citation: [1932] AC 562.

Coram: House of Lords.

Facts: Donoghue was purchased a ginger beer by her friend at a café. After consuming the drink, she found a decomposing snail inside the bottle. The bottle was opaque, preventing her from perceiving this beforehand. She became ill with gastroenteritis and nervous shock. Stevenson produced the ginger beer.

Prior Proceedings: Court of Session (Scotland) – Verdict for the defendant.

Issue: Did Donoghue have a claim against Stevenson despite the fact that she was not privy to the contract of sale of the ginger beer?

Outcome: Appeal allowed.

Ratio: Donoghue did not have a claim in contract as she had no contractual relationship with Stevenson (5-0). However, Stevenson did owe a duty of care in negligence to Donoghue, which was breached, causing the harm suffered (3-2).

Lord Atkin found that a duty of care is owed where ‘persons… are so closely and directlyaffected by my act that I ought reasonably to have them in contemplation’ (neighbour principle).

Lord Atkin thus perceived two elements to the duty of care;

Reasonable Foreseeability: That it was reasonably foreseeable by the average person that harm could occur to the plaintiff, or a class of persons including the plaintiff, as a result of the defendant’s actions.

Proximity: that the relationship between the defendant and the plaintiff was one of sufficient proximity (either physical or personal).

The decision of the House of Lords, and thus the tort of negligence, would soon after be adopted into Australian law (Grant v Australian Knitting Mills [1936]).

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Example 3

Donoghue v Stevenson [1932]

Coram – House of Lords

Material Facts:

The plaintiff (Donoghue) received a ginger beer bottle bought for her by a friend in a café.

She drank some of it and found the remains of a decomposed snail in it, suffering mental harm and severe gastroenteritis as a result.

The drink was manufactured by the defendant (Stevenson).

Issues:

Whether third parties can be owed a duty of care

Legal Reasoning:

Lord Atkin (Majority)

The prevailing principle had been that the doctrine of privity excluded a third party from making a claim against the defendant, due to the lack of a contract.

However, in Le Lievre v Gould, it was established that ‘under certain circumstances, one man may owe a duty of care to another, even though there is no contract between

them.’

‘In English law there must be, and is, some general conception of relations giving rise to a duty of care.’

Negligence is based upon someone doing wrong to another, but this obviously needs to be limited by rules of law.

‘The liability for negligence… is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any

moral code would censure cannot in a practical world be treated as to give a right to every person injured by them to demand relief. In this way rules of law arise which

limits the range of complainants and the extent of their remedy.’

This is the basis for the ‘duty of care’ - negligence claims can only be brought against people who owe you a duty of care:

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’

Duty of care is owed toward:

‘Persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to

the acts or omissions which are called in question.’

This is reinforced in Heaven v Pender, which was founded on the principle “that a duty to take care did arise when the person or property of one was in such proximity to the

person or property of another that, if due care was not taken, damage might be done by the one to the other.”

In the supply of goods, it is limited to situation where it is both obvious that the goods will be “used immediately” or “used at once before a reasonable opportunity of inspection”

and also, where the nature of the goods means that they will probably cause harm if they are in bad condition.

Put forward the scenario of a manufacturer negligently putting poison into the bottle of beer. Surely the poisoned customer deserved a remedy.

Thus, a manufacturer has a duty of care to the ultimate consumer if neither the consumer nor the distributors he received the product from, had a reasonable chance to inspect it.

Lord Buckmaster (Dissenting)

Argued that the precedent of Winterbottom v Wright should apply and no duty of care existed between parties which did not have a contract.

Was concerned that extending the duty of care to third parties would open the floodgates.

Ratio – There is an obligation to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, irrespective of the existence of

a contractual relationship.

Personal Reflection

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Personal reflection is good

• You understand the legal reasoning when you think about why it is important

• Make a connection to your everyday life

• Write down how/why it fits into the course

• How would you explain to another law student or to a non-lawyer

• How can you remember the case: the set of facts, a memorable phrase, the case

name, an example that was used in class, the broader concepts that help explain

the reasoning

7 Ways To Make Your

Voice Heard

1. Thesis: this essay argues that; the main purpose of this article is to…

2. Ideas chosen: research + notetaking = thinking critically/creatively

3. Order of points: narrow to broad? chronological? start with most convincing?

4. Evidence chosen: which parts of somebody else’s work do you draw on e.g. sources of law

5. Use of evidence: Quote/Paraphrase/Summarise + reporting verbs

6. Connections: transition signals, familiar + unfamiliar,

7. Dialogue: modes of writing, to what extent + synthesis

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Case Note Example

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NB: Court Report

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