Terminology - Phraseology - Judgments
Phraseology
Judicial Commentary
[A] Legal latin in legal reasoning, use of conclusionary metaphors, cautionary tale: "One danger which is present in this area of legal reasoning is that resort to metaphors or Latin phrases may result in a failure to identify the facts on which a conclusion is based. Metaphors may illuminate, but they are often unhelpful. Hart and Honoré famously explained how easy it is “to be misled by the natural metaphor of a causal ‘chain’”: H Hart and T Honoré, Causation in the Law (2nd ed, 1985, Clarendon Press) at 72. Latin phrases may also mislead, especially if their meaning is not clearly grasped. Argo’s liability does not depend upon whether or not a “chain of causation” has been broken. Nor does Argo’s liability depend on whether Sydney Trains’ reopening of the stairway was a novus actus interveniens. To the contrary, to state that the chain of causation was broken, or that Sydney Trains’ reopening of the stairway was a novus actus interveniens is merely to state the conclusion for which Argo contends, without explaining how or why that conclusion is reached. And the person to whom such a submission is made may be distracted by the metaphor or the Latin and thereby fail to appreciate that the submission is one which is devoid of reasoning. It is much clearer to use plain English. The law has long proceeded on the basis that more than one act may be a sufficient cause of an injury, in which case (subject to statute such as Pt 4 of the Civil Liability Act providing otherwise) both acts will be regarded as a cause of the entirety of the loss or damage. Thus in Agricultural Land Management Ltd v Jackson [No 2] (2014) 48 WAR 1; [2014] WASC 102 at [429], Edelman J observed that it has become well-accepted that the chain of causation is not necessarily broken by the act of a plaintiff which constitutes a more immediate cause of the loss or damage than the defendant’s negligence. The metaphor that there was a break in the chain of causation, or that something else is a novus actus interveniens, is merely a way of saying that notwithstanding a breach of duty by Infrastruction of its implied promise to provide tiles which were fit for purpose, and despite that breach being a cause of Ms Michael’s injury, Sydney Trains’ later conduct should be regarded for the purpose of determining liability as the sole cause of the injury, and Infrastruction’s earlier breach should not be regarded as having caused that injury. Once the legal test is expressed in ordinary words, rather than conclusionary metaphors or Latin phrases, it is tolerably plain that Argo must fail on this issue. Argo bore the onus. Argo made no attempt to establish what in fact happened at Penshurst railway station after around 26 April 2016 when Infrastruction’s Site Manager received the slip resistance test results. I would accept that, in principle, if Sydney Trains instructed Argo to proceed to tile the remainder of the stairway with the same tiles, notwithstanding the results, with full knowledge that the surface would be more slippery than its specification, then that would be a proper basis for the conclusion that Argo’s breach should not be regarded as causing Ms Michael’s injury. But Argo did not come close to making out a case of a deliberate decision to reopen a stairway known to be more slippery than Sydney Trains’ specification.": Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 [117]-[120] (Leeming JA).
[B] Noscitur a sociis
"An alternative way of narrowing the construction of these wide general words which I think was also present to the mind of the learned Judge was to apply the principle of noscitur a sociis and, because the cause of action in both negligence and nuisance involves the infliction of actual damage as an essential element, to construe "breach of duty" as limited to breaches of duty giving rise to causes of action in which the infliction of actual damage is an essential element. The maxim noscitur a sociis is always a treacherous one unless you know the societas to which the socii belong. But it is clear that "breach of duty" cannot be restricted to those giving rise to causes of action in which the infliction of actual damage is an essential element, for the words in parenthesis expressly extend to a duty which exists by virtue of a contract and the infliction of actual damage is not an essential element in an action for breach of contractual duty. Really, the only argument for cutting down the plain and wide meaning of the words "breach of duty" is that to do so renders the inclusion of the specific torts of negligence and nuisance unnecessary. But economy of language is not invariably the badge of parliamentary draftsmanship. Negligence and nuisance are the commonest causes of action which give rise to claims for damages in respect of personal injuries. To mention them specifically without adding the word "other" before "breach of duty" is not in itself sufficient to give rise to any inference that the wide general words were not intended to cover all causes of action which give rise to claims for damages in respect of personal injuries; particularly when the same combination of expressions in a similar context had already been given a very wide interpretation by the Court of Appeal.": Letang v Cooper [1965] 1 QB 232 (Lord Diplock) <https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1964/5.html>.
"60. One maxim which seems to be of particular relevance in determining the meaning of the term “leaflet” in s 30(1)(c) of the Act is noscitur a sociis – the meaning of a word or phrase is to be derived from its context. A word of wide possible connotation may be limited by the context in which it appears – see generally F Bennion, Statutory Interpretation (3rd ed) 1997 at 949-954. ... 64. For an example of the use of this maxim in England as indicating not that a restriction is intended of the literal or usual meaning, but rather that a less usual meaning is to be adopted, see Abrahams v Cavey [1968] 1 QB 479 (the word “indecent” in the context of a statute which penalised “riotous, violent or indecent behaviour” in churches and churchyards did not have its usual sexual connotation but, because of the surrounding words, referred to the indecency of creating a disturbance in a sacred place). 65. In Letang v Cooper [1965] 1 QB 232 at 247 Lord Diplock uttered a note of caution: “The maxim noscitur a sociis is always a treacherous one unless you know the societas to which the socii belong.” 66. The Latin word “societas” means “society”. The nature of the intended society (if any) can only be gathered from the words used. There may not be any precise intention, but the “colour” of members of the society is nevertheless an approximate indication of meaning – see F Bennion (supra) at 950. ...": Australian Postal Corp v Pac-Rim Printing Pty Ltd [1999] FCA 640.
"30 The general principle of the law of interpretation that the meaning of a word can be gathered from its associated words – noscitur a sociis – has a number of specific sub-principles with respect to the immediate textual context. The most frequently cited such sub-principle is the ejusdem generis rule. The relevant sub-principle for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word “stands with” other words it “must mean something analogous to them”. (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987. See also W J Byrne (ed) Broomes Legal Maxim (9th ed) Sweet and Maxwell, London (1924) pp373-374.) 31 However, as Lord Diplock put it in Letang v Cooper [1965] 1 QB 232 at 247: “The maxim noscitur a sociis is always a treacherous one unless you know the sosietas to which the socii belong.”": Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207.
"The sole question here is whether the behaviour of these defendants acting jointly could be said to be “indecent behaviour” within the meaning of that statute. Were it not for the great industry of Mr. Brownlie in this case, I for my part should have thought this was completely unarguable. He refers to the fact that “indecent” has a number of meanings, both dictionary meanings and meanings that can be ascertained from the cases. But the true meaning in any particular statute must naturally depend upon the context. It is quite clear here that indecency is not referring to anything in the nature of tending to corrupt or deprave; it is quite clearly used not with any sexual connotation whatsoever, but it is used in the context of “riotous, violent or indecent behaviour,” to put it quite generally, within the genus of creating a disturbance, in a sacred place. ... The only argument adduced, and one which I can understand, comes from Mr. Walter himself, who says: “What difference does it make that it is a church? If I had shouted out these words in the street towards the members in question, no longer being a congregation of the church, I would not have committed an offence; what difference does it make that it is in a church?” The answer, of course, is that it makes all the difference because you are dealing with a sacred place and when a service is taking place. Even if this court felt that there was any doubt in the matter or wished to accede to Mr. Walter's argument, it is quite clear from the case that Mr. Worsley has referred to, Worth v. Terrington,[22] that it makes all the difference. Baron Parke there said[23]: “If what is afterwards alleged is construed with reference to its being done on a weekday, or without any reference to the celebration of divine service, the question is totally altered; for it is clear that an act done in a church during divine service might be highly indecent and improper, which would not be so at another time.”": Abrahams v Cavey [1968] 1 QB 479, 485, 487 (Lord Parker LJ).
"... must take colour from the context or the collocation of words in which it has been used; in other words, its meaning should be determined noscitur a sociis ...": Associated Hotels of India Ltd v RN Kapoor (1960) 1 SCR 368.
Academic Studies:
> Stefan Gries, Brian G Slocum, Kevin Tobia, 'Corpus-linguistic approaches to lexical statutory meaning: Extensionalist vs. intensionalist approaches' (2024) 4(1) Applied Corpus Linguistics 100079 <https://www.sciencedirect.com/science/article/pii/S2666799123000394>; <https://stgries.info/research/2024_STG-BGS-KT_IntensionalistLCL_ACorpLing.pdf>: " ... Corpora, or the data they provide, are usually studied with one or more of the following main corpus-linguistic methods: • frequencies: how often does something occur? • dispersion: how widespread are the occurrences of something?4 • collocation: what are words occurring around an expression, which is often quantified using frequencies (how often does a word occur in the vicinity of another word?), conditional probabilities (how much of a word in % occurs around another word?), or with association measures (how much is a word attracted to another word?); • concordance: what are the exact contexts of an expression?".
> Lawrence M Solan and Tammy Gales, 'Corpus Linguistics as a Tool in Legal Interpretation' (2017) 6 BYU Law Review 1311 <https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=3128&context=lawreview>.
> Stefan Gries, 'Corpora and legal interpretation corpus approaches to ordinary meaning in legal interpretation' in Routledge Handbook of Foreign Linguistics (Routledge, 2nd ed, 2021) ch 38, 628 <https://stgries.info/research/2020_STG_CorpAppr2OrdMeangLegalInterpret_RoutlHdbkForensLing.pdf>.
> <https://www.supremecourt.gov/opinions/URLs_Cited/OT2019/17-1618/17-1618-3.pdf>.
> TR Lee and JC Phillips, 'Data-Driven Originalism' (2019) 167(2) University of Pennsylvania Law Review 261 <https://law.stanford.edu/wp-content/uploads/2019/05/167-U-Pa-L-Rev-261.pdf>: "This paper will showcase how typical tools of a corpus—concordance lines, collocation, clusters (or n-grams), and frequency data—can aid in the search for original communicative content. We will also show how corpus data can help determine whether a word or phrase in question is best thought of as an ordinary one or a legal term of art. To showcase corpus linguistic methodology, this paper will analyze important clauses in the Constitution that have generated litigation and controversy over the years (commerce, public use, and natural born citizen) and another whose original meaning has been presumed to be clear (domestic violence). We propose best practices, and also discuss the limitations of corpus linguistic methodology for originalism. ...".
> M Kranzlein, N Schneider and K Tobia, 'CuRIAM: Corpus re Interpretation and Metalanguage in U.S. Supreme Court Opinions' (Paper) <https://arxiv.org/pdf/2305.14719>.
[C] Importance of Terminology:
"33. During the course of the appeal, it became apparent that the Order made in relation to parental responsibility made by the Magistrate was an order which did not accord with the provisions of Part VII of the Act. The Act talks about equal shared parental responsibility, and the orders sought in relation to parental responsibility on behalf of the mother was an order for equal shared parental responsibility. The father did not seek an order at all in relation to parental responsibility. 34. The importance of using the right terminology is not merely one of form. The Act provides that certain consequences are to follow, and indeed presumptions can follow, from a particular order. As a result, care must always be taken to ensure that the order made does comply with the legislation. This has been pointed out by the Full Court in Robertson & Sento [2009] FamCAFC 49 and also in Newlands & Newlands (2007) 37 Fam LR 103. Sensibly, the parties have both agreed that the Order her Honour made for “joint parental responsibility” should by way of consent be varied to now read as “equal shared parental responsibility”.": Moszkowski & Moszkowski [2010] FamCAFC 249 <https://jade.io/article/618008>.
[D] Judgment Writing - Organisation
"... 34. I do note, however, for the guidance of Magistrates in hearings of this kind, that the delivery of ex tempore reasons such as these could be better organised than in this case. The reasons were, as in CF v KT, somewhat discursive. A better approach would be to organise such remarks under headings, such as, for example: the nature of the application; the legislative framework; a summary of the evidence; a summary of the submissions; relevant factual findings and the reasons therefor; and the conclusion. Approaching the matter in this way would have the benefits of imposing the discipline of fleshing out the reasoning process in the mind of the judicial officer, and at the same time exposing the reasons, and necessarily making it easier for the losing party to understand. It may also make the judgment both easier for an appellate court to understand, and possibly more difficult to attack on appeal. I offer this not as a counsel of perfection but hopefully as a practical guide.": HEG v Queensland Police Service & UHB [2024] QDC 134, [34] (Kent KC DCJ).