READING CASES
| Published date | 01 July 1987 |
| Author | Martin Davies |
| Date | 01 July 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01719.x |
THE
MODERN LAW REVIEW
Volume
50
July
1987
No.
4
READING
CASES
I.
INTRODUCTION-READING
ANYONE who can read can read a report
of
an appellate decision.
It is clear, though, that such reports are read very differently by
those with legal training than by those without. My aim in this
paper is to describe what “legal readers”’ do when they read case
reports and how such readers differ from their lay fellows. My
purpose is not solely descriptive, though. Observation
of
the
processes
of
“legal reading” has much to tell us about the law
itself, and about legal education; it is, thus, my further aim to draw
out some
of
the implications
of
the observed method
of
“legal
reading.” An observation
of
a familiar process need not necessarily
produce familiar results, and it has been my aim in writing this
paper
to
try to produce new crops from old soil.
To
begin, then, with the process
of
reading itself. In order to
understand what one has read, one must be able to recognise what
is significant in the text, and what trivial. This process
of
recognition
involves reference by the reader to facts other than the text itself.
The significance
of
the text varies with the factors to which it is
connected, which will vary with the type
of
reader. Consider the
following passage:
“The underwear, consisting
of
two pairs
of
underpants and
two singlets, was bought by the appellant at the shop
of
the
respondents, John Martin and
Co.
Ltd. who dealt in such
goods, and who will be hereafter referred to as ‘the retailers’,
on June
3,
1931.
The retailers had in ordinary course at some
previous date purchased them with other stock from the
respondents, the Australian Knitting Mills Ltd., who will be
referred to as the manufacturers; the garments were
of
that
class
of
the manufacturers’ make known as Golden Fleece.
The appellant put on one suit on the morning
of
Sunday, June
28,
1931;
by the evening
of
that day he felt itching on the
I
I
shall use this expression throughout this paper
to
refer
to
all those who read case
reports who have the requisite amount
of
legal training
to
understand the legal
significance
of
such
re
orts. This expression is preferable
to
that of “lawyers” in an
inaccurate usage intenaed to cover practising lawyers, judges, academics, students, etc.
“Le
al reader” also emphasises the function which
is
the focus
of
this paper, namely
rea8ng.
409
410
THE
MODERN
LAW
REVIEW
[Vol.
50
ankles but no objective symptoms appeared until the next day,
when a redness appeared on each ankle in front over an area
of
about
28
inches by
18
inches. The appellant treated himself
with calomine lotion, but the irritation was such that he
scratched the places until he bled. On Sunday, July
5,
he
changed his underwear and put on the other set which he had
purchased from the retailers
. .
.”*
The significance
of
this passage varies with the type
of
reader.
Different readers will connect different elements
of
the text to
different “external” pieces
of
information. The dermatologist
reading this passage will connect the elements therein with what he
or she knows
of
the aetiology
of
dermatitis.
To
such a reader, the
size
of
the rash, the period between first donning the garment and
the first manifestations
of
irritation, the treatment attempted by the
appellant himself and
so
on will be significant.
To
the non-specialist
reader, it may well be that the most significant element in the
above passage is the somewhat distressing fact that the appellant
only changed his underwear once a week. Even this is only
significant by reason
of
connections made to ideas other than those
contained in the text itself, namely “modern” notions
of
personal
cleanliness and hygiene. To the legal reader, the significant elements
in the passage are, amongst others, the non-contractual relationship
between manufacturer and consumer, the fact that the consumer
has suffered personal injury from use of the manufacturer’s product,
and the dates mentioned. These elements are
of
significance
because the legal reader will connect them with the existence
of
Donoghue v. Stevenson3 as an a~thority.~ The relationship is, at
the very least, bipolar. Not only does the above account cause
Donoghue to “spring to mind,” but also it is the prior knowledge
of
the significance
of
Donoghue which causes the legal reader to
identify as significant those elements
of
the passage that raise the
possibility
of
success in a Donoghue-type claim.
The specifically legal significance
of
the above passage (or, if one
likes, its “legal meaning”) is related to the way in which legal
readers understand it, which is in turn a function
of
the connections
legal readers make between the text itself and specifically legal
external factors.
Grant
v.
Alcstralian
Knitting
Mills
Ltd.
I19361 A.C.
85,
90
@er
Lord Wright).
[1932] A.C. 562. In fact, the dates mentioned in the quotation precede the date
of
the judgment in
Donoghue.
The dates that confirm the relevance
of
Donoghue
as an
authority in
Grant
are those
of
the Privy Council hearing in
Grant,
to
be found at [1936)
A.C.
85,
which establish that
Donoghue
preceded
Grant.
Similarly, the contextual
knowledge that litigation concerning an accident in New South Wales, Australia in 1931
would not reach the Privy Council in London
for
many years would confirm that the
judgment in
Grant
post-dated that in
Donoghue.
The reader thus makes connections
to
connections.
‘
Such a connection will only be made by legal readers in jurisdictions where
Donoghue
is an authority,
of
course. The dependence
of
signification on place, time and society will
be
explored in greater detail in section
Ill.
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