4.

17 What is the difference between the ratio decidendi and obiter dicta?
4.18 How do you identify the ratio decidendi?
4.19 Why is legal writing often difficult to read?
4.20 What are the objectives of the plain language movement?
4.21 What is ‘statutory interpretation’?
4.22 What is the literal approach to statutory interpretation, and why was it traditionally preferred by
the courts?
4.23 What are (a) the literal rule and (b) the golden rule? How do they interact?
4.24 What is the contextual approach to statutory interpretation? What contexts should be considered
when interpreting a statutory provision?
4.25 What are (a) the context rule, (b) the class rule and (c) the mischief rule?
4.26 What is the purposive approach to statutory interpretation?
4.27 Is the purposive approach consistent with the doctrine of separation of powers?
4.28 How does the purposive approach interact with the literal approach and the contextual
approach?
4.29 What are extrinsic materials and when can they be used in statutory interpretation?
4.30 List the various presumptions made by the courts when interpreting legislation.
4.31 How do the various Interpretation Acts assist in statutory interpretation?

4.3 Thinking like a lawyer

LEARNING OBJECTIVE 4.3 How do you use the law? How do you think like a lawyer, and why is it
useful to be able to do so? How do you solve legal problems?
Legal reasoning is a way of thinking that is used by lawyers to solve legal problems, construct
legal arguments or prepare advice about the legal consequences of a factual situation. Specifically,
it is the process of identifying the legal rules of relevance to a particular legal issue that has arisen
in relation  to a set of circumstances, working out how those rules apply to the circumstances and
reaching a convincing conclusion. In order to engage in good legal reasoning you have to be able
to set aside your intuitive or emotional response to a situation and think clearly and logically about
the legal consequences of what is happening. ‘Thinking like a lawyer’ means keeping a cool and
clear head, and speaking and behaving rationally when others around you may be panicking or
overreacting.
In some ways, legal reasoning is the same as any other form of good reasoning. Claims about the
existence or otherwise of important facts must be supported by reliable evidence. The premises relied
upon in constructing an argument must be sound and reasonable, and the conclusion propounded by the
argument must follow logically and validly from the premises.
On the other hand, there are features of legal reasoning that are unique to the discipline and practice of
law. For example, the facts relied upon to support an argument may not be known for certain, and may
instead be established ‘on the balance of probabilities’ (the civil standard of proof) or ‘beyond reason-
able doubt’ (the criminal standard of proof). The premises in an argument may be contradictory, such
as when there are conflicting precedents regarding a particular point of law. And the conclusion is not
Copyright © 2014. Wiley. All rights reserved.

necessarily the only possible conclusion, or even the best possible conclusion, but instead the conclusion
desired or needed in order to win a case.

ACTIVIT Y 4.12 — REFLECT

How is ‘thinking like a lawyer’ different from ‘thinking like an accountant’ or ‘thinking like a layperson’?

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 Inductive and deductive reasoning
Legal reasoning makes use of both inductive and deductive reasoning.
The process of using a series of particular experiences to conclude the existence of a general rule or
principle is called inductive reasoning. Inductive reasoning usually takes the following form.
•• This ‘X’ is ‘Y’.
•• This ‘X’ is ‘Y’.
•• This ‘X’ is ‘Y’.
•• Therefore all ‘X’s are ‘Y’.
For example, if you reflect upon the fact that the last five times you drank a particular brand of cheap
coffee you did not enjoy the taste and you predict that you will not enjoy the cup of that brand of
cheap coffee now being offered to you, you are engaging in inductive reasoning.
Judges and legal scholars use inductive reasoning when they posit the existence of a legal rule or
legal principle from a series of particular case decisions. For example, in the famous negligence case of
Donoghue v Stevenson [1932] AC 562 the court reviewed a series of earlier case decisions, all of which
involved one person being obliged to compensate another for the consequences of their carelessness, and
induced the existence of a general legal principle that a person owes a duty of care to those they can
reasonably foresee as likely to be affected by their acts or omissions.
Deductive reasoning is the process of using one or more general rules or principles to conclude or
predict a particular experience. Provided the premises are true, a conclusion reached using deductive
reasoning is always true.
Deductive reasoning usually takes the following form.
•• Rule: all ‘X’s are ‘Y’.
•• This ‘Z’ is ‘X’.
•• Therefore this ‘Z’ is ‘Y’.
For example, consider the following facts.
•• All houses built in Adelaide between 1910 and 1956 contain asbestos.
•• Your Adelaide house was built in 1948.
From these facts it is a simple process for you to reach (or infer) the following logical conclusion.
•• Your house contains asbestos.
Judges and lawyers use deductive reasoning when they use general legal rules and principles to
resolve a particular legal problem. This is the type of reasoning we will demonstrate in the next
section.

ACTIVIT Y 4.13 — APPLY

Give a practical example of (a) inductive reasoning, and (b) deductive reasoning in a context other
than a legal context.

How to solve a legal problem

The four key steps in using deductive reasoning to solve a particular legal problem are set out in figure 4.7.
Copyright © 2014. Wiley. All rights reserved.

2. Identify the 3. Apply the

1. Identify the 4. Reach a
relevant legal rules to the
legal issue conclusion
rules facts

FIGURE 4.7 Legal reasoning

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 Step 1: Identify the legal issue
The first step to solving a legal problem is to clearly and comprehensively state the legal question that
needs to be answered.
An essential aspect of this step is the establishment of the material facts. In a legal dispute, if the par-
ties can agree upon the material facts, the resolution of the dispute is made that much simpler. However,
in practice, agreement upon the material facts is rare. In many hearings the court is concerned primarily
with the establishment of the facts in issue, and the application of the relevant law will be relatively
straightforward. Each party may present their own version of the facts and it is then the role of the
court to decide which facts are proven. In deciding which facts to accept, the court will apply the (often
extremely complex) rules of evidence, described briefly in an earlier chapter.
When you are called upon to solve a legal problem, the process of identifying the issue is somewhat
simpler. You will usually be given a set of uncontested facts, and then asked to identify which facts are
relevant, and state the legal issue clearly and concisely.
For example, here is a legal problem that you might be asked to solve:
Gaia is a university student. While riding the ferry home from University one stormy evening, the ferry stops
suddenly when it collides with one of the wooden pillars at the ferry terminal. A very large and slightly drunk
man with red hair standing near Gaia’s seat falls on top of her, cracking one of her ribs and damaging her
mobile phone. Gaia is in considerable pain and is very annoyed about the damage to her phone, and she
swears at the man. Later, her anger shifts from the red-haired man to the ferry crew. She believes that the acci-
dent would not have occurred if the ferry crew had enforced the requirement that passengers remain seated
until the ferry stops moving. However, when she later complains to the ferry company about the ferry crew’s
conduct, they inform Gaia that it is common practice for ferry crews to allow passengers to stand and even
move about the cabin while the ferry is moving. Does Gaia have a right of action against the ferry company?

The facts are uncontested. The material facts are as follows.

•• Gaia was a passenger on the ferry.
•• The weather was stormy.
•• The ferry collided with the ferry terminal.
•• The ferry crew permitted passengers to remain standing while the ferry was moving.
•• A large, slightly drunk man fell on Gaia.
•• Gaia was physically injured and her mobile phone was damaged.
•• Ferry crews as a common practice allow passengers to stand while the ferry is moving.
The following facts are not relevant:
•• Gaia was on her way home from university.
•• The man who fell on Gaia had red hair.
•• Gaia was annoyed after the accident and swore at the man.
The main legal issue is whether, by allowing passengers to continue standing while the weather was
stormy, the ferry crew is legally liable for the accident that occurred. Subsidiary issues include whether
or not the ferry company is liable for the actions of the ferry crew, and whether or not it is relevant that
it is common practice for the ferry crew to allow passengers to stand while the ferry is moving.

ACTIVIT Y 4.14 — APPLY

Copyright © 2014. Wiley. All rights reserved.

Here is a simple legal problem:

While shopping for groceries in her local supermarket on a Saturday morning, Catherine sees
that the avocados are on sale for $1.00 each. She selects an avocado from the display,
squeezes it gently and, satisfied as to its ripeness, puts it in her basket. A couple of minutes later
she remembers that she already has three avocados at home in the fridge and she returns the
avocado to the display. As she does so, Ross, the store manager, stops her and tells her that she
cannot return the avocado because, by law, she is already contractually obliged to purchase it.

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 Answer the following questions to help to identify the legal issue in this case.
1. Which facts are relevant?
2. Which facts are not relevant?
3. What is the legal issue?

Step 2: Identify the relevant legal rules

The second step is the identification of the appropriate legal rules needed to resolve the legal issue iden-
tified in the first step.
If the legal problem is being solved by a court of law, the relevant legal rules will be presented to the
court in the form of legal arguments by each party’s lawyers relying upon statutory provisions and case
law precedents. If the facts of the case are similar in all relevant respects to the facts of a binding pre-
cedent, or clearly fall within the ambit of the legislation, the judge is obliged to follow that precedent
or statutory provision, even if they disagree with the legal rule. But if there is no binding case law pre-
cedent (because the facts of the present case are unique) or relevant statutory provision, the judge has
greater discretion and in exercising that discretion will look to any persuasive authorities (see the pre-
vious chapter).
If you are solving a legal problem, you will conduct legal research to locate the relevant legal rules.
You will use secondary sources such as a textbook or a journal article to locate the most appropriate pri-
mary sources: case law and/or legislation. You will first seek to identify which of the broad categories of
law will be relevant, such as contract law, tort law or consumer protection law. For example, in solving
the ferry problem above, your basic legal knowledge might lead you to suspect that the correct form of
legal action will be an action in the tort of negligence. You then narrow down your description of the
relevant law by identifying the relevant legal rules. For example, you might conduct some legal research,
and using your business law textbook as well as some additional online legal research, you prepare the
following summary of the relevant law.

When a person fails to take reasonable steps to prevent harm being suffered by another they may be
liable in the tort of negligence.
To successfully sue a defendant in the tort of negligence, a plaintiff must establish:
1. Duty of care: A defendant owes a duty of care to the plaintiff if the relationship between the parties
falls within the established categories of duty of care. An occupier owes a duty of care to persons who
come onto their premises (Australian Safeway Stores v Zaluzna).
2. Breach of duty: A defendant breaches their duty of care when they fail to do what a reasonable
person would have done in the circumstances (Civil liability legislation).
3. Harm caused by breach: The defendant is only responsible for the harm if (1) the breach of duty
was a necessary condition of the occurrence of the harm and (2) it is appropriate for the scope of the
liability of the person in breach to extend to the harm so caused (Civil liability legislation).
Employers are vicariously liable for torts committed by their employees while carrying out their duties
(Hollis v Vabu Pty Ltd).
Compliance with custom, standard practice or the relevant code of practice does not necessarily mean
the defendant has not been negligent, and non-compliance does not necessarily mean the defendant has
been negligent (Mercer v Commissioner for Road Transport and Tramways (NSW)).
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Note that each statement of law must be supported by reference to a primary source of law: either
a case or a statutory provision. You should ensure that each reference is to a source that is relevant:
for example, if the problem is set in Western Australia you must refer to either Western Australian or
Federal legislation and not to legislation from another jurisdiction. You should also ensure that each
reference is to a current source; that is, to case law that has not been subsequently overruled or rejected,
or to legislation that has not been subsequently amended or repealed.
Note also that no reference is made to the problem itself at this stage; you are simply summarising the
relevant legal rules.

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 ACTIVIT Y 4.15 — APPLY

Refer to activity 4.14 and to figure 4.3 (Pharmaceutical Society of Great Britain v Boots Cash Chemists
(Southern) Ltd), and state the relevant legal rule.

Step 3: Apply the legal rules to the facts

The third step is the application of the relevant legal rules to the facts of the problem.
In a trial, the court will decide how the law applies to the facts of the case.
Similarly, in solving a legal problem, you will consider how each of the legal rules identified in the
previous step applies to the facts of the problem before you. For example, you might write the following.

1. Duty of care: The ferry company is the ‘occupier’ of the ferry. The ferry company therefore owes a
duty of care to the ferry passengers, including Gaia.
2. Breach of duty: Given the fact that the weather was stormy, a reasonable ferry crew would have
insisted that passengers remain seated while the ferry is still moving. The ferry company has therefore
breached its duty of care to Gaia.
3. Harm caused by breach: Gaia’s injuries and the damage to her phone were caused by the drunk man falling
on her, which in turn was caused by the ferry crew’s careless failure to insist that the drunk man remain seated.
Gaia’s injuries and the damage to the phone are reasonably foreseeable consequences of the ferry crew’s care-
lessness: it is appropriate for the scope of the ferry company’s liability to extend to such consequences.

As all three elements have been satisfied it would appear that the ferry company has committed the
tort of negligence. The ferry company is vicariously liable for the actions of its employees, the ferry
crew. The fact that it is common practice to allow passengers to stand while the ferry is moving is not
relevant to the question of liability.

ACTIVIT Y 4.16 — APPLY

Apply your answer from activity 4.14 (the legal relevant rule) to the facts of activity 4.14 (the avocado
problem).

Step 4: Reach a conclusion

The final step is reaching a conclusion. In a trial this will be the decision of the court as to the guilt or
innocence of the defendant (in a criminal trial) or whether the plaintiff or the defendant has won the case
(in a civil trial). The decision of the court will also include a decision about the sentencing of the defen-
dant (in a criminal trial) or any remedy to which the plaintiff will be entitled (in a civil trial).
When solving a legal problem, you conclude by stating clearly and concisely your answer to the legal
question expressed when you identified the legal issue. You then briefly outline the consequences of that
answer. In answering the ferry problem, you might conclude that:
The ferry company is vicariously liable for the actions of the ferry crew. Because the ferry crew allowed
passengers to continue standing while the weather was stormy, the ferry company has committed the tort
of negligence and is legally liable for the accident that occurred. Gaia is entitled to recover from the ferry
company compensation for her injuries and for the damage to her mobile phone.
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Finally, note that for many legal problems that you are asked to solve at university, there is no ‘cor-
rect’ answer. The person assessing your answer is more likely to be looking to evaluate the quality of
your legal reasoning skills rather than whether you have reached a particular conclusion.

ACTIVIT Y 4.17 — APPLY

What is your conclusion to the problem set out in activity 4.14?

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