учебный год 2023 / Of a case-1

JULY 1957 NOTES OF CASES 413

held not to apply to a case where wood being worked in a machine was thrown out injuring the operator: Nicholls v. Austin.'

Lenthall v. Grimson (1956, unreported), Hoare v. Grazebrook2 and Lewis v. High Duty Alloys3 involved a rather different situation from that in Nicholls' case. In all three the workman

Finnemore J. in Lenthall and Lynskey J. in Hoare held that a " nip " of this kind is a danger in the machine itself and not just from the workpiece with which the machine is dealing at the time. In Lewis, on the other hand, Ashworth J. took the narrower view of section 14, equating the " nip " danger with a danger due to the ejection of material as in Nicholls. Given this equivocality in the scope of the statute and this conflict of interpretation in the High Court, one is naturally inclined to opt for the overall purpose of the particular legislation, that is to say, to favour the view that assists

the injured man. But it is impossible, at the present time, to predict with any confidence that the higher courts would do this.

The decision in Lewis did, however, illustrate the importance of the supplementary function of the common law in industrial injury cases. For, whether a " nip " is in or out of the Act, it does constitute a reasonably foreseeable risk that activates the common law duty of care, and, on this ground, Ashworth J. was able to award

damages.

C. GRUNRELD.

THE RATIO DECIDENDI OF A CASE

IN his recent article 1 Professor Montrose contrasts two views as to

One, which may conveniently be called the classical theory, may be summed up by the proposition that the ratio is " the principle of law which the judge considered necessary to the decision." 2 The other, which was advanced by Professor Goodhart some years ago,3 will be called the Goodhart theory, and is said by Professor Montrose to be accurately summed up by the proposition that " the ratio decidendi

414 THE MODERN LAW REVIEW VOL.20

of a case can be defined as the material facts of the case plus the decision thereon." 4 Both theories agree that the ratio decidendi,

once determined, is binding or authoritative, and that it may be determined in a single case taken by itself. Now it is hardly possible to contrast the two theories except in relation to a case where the judge does explicitly state a principle 5 of law, and in this note it will be assumed that the discussion is limited to such a case. In such

circumstances it is submitted that the Goodhart theory is indistin-

guishable from the classical theory.

It must be noted first of all that Goodhart insists that the judge's own statement of the material facts of the case must be accepted, if even if his statement is demonstrably wrong one ought not to go behind his findings upon this point. In the second

place it must be remembered that a rule of law will always be found to contain two parts; the first specifies a number of facts and the second specifies the legal result or conclusion which ought to follow whenever these facts are found to co-exist. This analysis of the form of legal rules is now too well known and established to require elaboration.

When, therefore, a judge states a rule of law, and treats it as applicable to the case before him, the applicability must depend upon his finding that the material facts of that case correspond precisely to the facts specified in that rule, and, this being so, that the conclusion or result specified in that rule ought to follow. The rule stated by the judge ought, therefore, upon the basis of Professor Goodhart's arguments, to be treated as the ratio decidendi, since it both contains the court's conclusion and the court's findings as to the material facts of the case. The classical theory and the Goodhart theory, if logically followed out, produce the same result.

It is not so obvious that the same is true if the judge states a rule of law, says that it governs his decision, and then proceeds to show that it does not apply to the facts of the case in question. Suppose that a judge says that an action for negligence can only succeed if the damage which the plaintiff alleges is physical damage to his person or property, and then proceeds to show that upon the facts of the case before him the plaintiff has alleged and proved damage of a different kind, so that he feels bound to give judgment for the defendant. Here the rule stated by the judge specifies facts which are not present in the facts of the case before him. In such

judge does however by implication treat the " nonphysical " nature of the damage (which is a fact present in the case) as material, and it is by stating the rule and holding it to be inapplicable that he makes his opinion upon this point known. He

that in an action for negligence where non-physical damage only is proved the plaintiff ought not to recover." Thus, even in this sort of case it is to the rule of law stated by the judge that we ought to turn to discover the ratio decidendi, for again the two theories lead to the same result.

It seems therefore that Professor Goodhart, having said that the proposition of law propounded by the judge may be ignored in deter- mining the ratio decidendi, and having advanced weighty arguments tending to show that such propositions make unsatisfactory rationes decidendi, fails to see that his own arguments make it obligatory that such a proposition should not be ignored. His own theory is just as much open to the same criticism as he and others have directed against the classical theory 6-criticism to which there has

been as yet no satisfactory reply.

A. W. B. SIMPSON.

MATRIMONIALCAUSESRULES, 1957

The most potentially important of the new rules now appearing in the Matrimonial Causes Rules, 1957,1 is rule 56, which provides that in any proceedings to which the Rules apply, if the court con- siders that any children ought to be separately represented, the court may assign a guardian ad litem to them and authorise him to intervene on their behalf.2 Unfortunately, however, it appears from the wording of the rule that such an order may only be made " on the application of the Official Solicitor or some other proper person." Surely, if this wording is strictly construed, the effect must be to defeat the very object of the proposed amendment, which is to protect the interests of children whose parents and relatives are too occupied with their grievances against each other to take account of the effect on children of the arrangements they seek in their own

interests. Would the new rule have effectively protected the financial interests of the children involved in such recent cases as

Sievwright v. Sievwright 3 and Sugden v. Sugden?4 The crucial question will be how far the courts are prepared to take the initiative and require separate representation of children involved in matrimonial proceedings, whenever their interests appear to need watching.

A new rule 55 provides that, immediately on the filing of the petition in a matrimonial cause, and even before the service, an

6 e.g., Goodhart, op. cit.; J. Stone, Province and Function of Law, pp. 186 et seq.; F. S. Cohen, Ethical Systems and Leqal Ideals, pp. 34 et seq.

S.I. No. 619 (L. 4), incorporating the Matrimonial Causes (Amendment) Rules, 1957, S.I. No. 176 (L. 2).