Colleagues,

Many thanks to those of you who came up with 'misconstrued cases' - it was very helpful for a point that I am addressing in a paper that I am writing.

I might add that  I have located that could be added to the list, namely, Dearle v Hall (1828). The authors of Meagher, Gummow and Lehane's Equity state that the rule named after that case 'owes surprisingly little of its substance to that case'.

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
 

E: peter.radan@mq.edu.au

---

From: Nicole Moreham <Nicole.Moreham@vuw.ac.nz>
Sent: Wednesday, 8 November 2017 8:05:43 AM
To: Summers,AD; Robert Stevens; Peter Radan; obligations@uwo.ca
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

Dr Nicole Moreham
Associate Professor

Faculty of Law, Victoria University of Wellington
PO Box 600, Wellington, NEW ZEALAND

---

From: Summers,AD <A.D.Summers@lse.ac.uk>
Sent: Wednesday, 8 November 2017 1:41 a.m.
To: Robert Stevens; Peter Radan; obligations@uwo.ca
Subject: RE: Misconstrued Cases

 

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
 

E: peter.radan@mq.edu.au