In your view what are the principal criticisms that can be made of the present law concerning liability in tort for psychiatric damage? If there were to be a statutory reform of the law in this area, what would be your principal recommendations?

  According to Stapleton, English law of liability for psychiatric illness is the area of law of tort where the “silliest” rule now prevail. Todd thinks the law is in a “dreadful mess.” Jones regarded it as a long list of anomalies.

  The problem in this area of law is that it lacks coherency and consistency. There are many conflicting principles. Psychiatric illness is not as identifiable as physical injury, and the fact that an alarming amount of potential claimants can arise from a single incident explains why it would be ridiculous to apply egg-shell skull rule to cases concerning psychiatric illness. Indeed there ought to be a different rule governing this area of law in order to avoid floodgates of litigation, but isn’t the rule of primary victim and secondary victim as ridiculous s applying egg-shell skull rule in this context?

  There are three questions regarding primary victim and secondary victim that are difficult to answer: who is primary victim, who is secondary victim, and why do we need to create a distinction between primary victim and secondary victim?

  Lord Lloyds defined primary victim as a person to whom physical injury is foreseeable. However, the test of reasonable foreseeability is already a pre-condition to recovery, along with the pre-condition of recognizable psychiatric illness. Why does a claimant need to overcome the same hurdle twice? Furthermore, recent cases such as Ferrell v Avon and Ferrell v Merton clearly extended the category of primary victim to cases where the claimant is not exposed to risk of physical injury.

  According to Lord Oliver in Alcock, primary victim is involved immediately as a participant in the event. However, in W x Essex CC, it is impossible to say that the parents were involved in the sexual abuse by the 15-year-old boy they fostered. It was their kids that were involved, not them; and they clearly did not fear for their safety – they feared for their kids’ safety instead. Still, they were classified as primary victims. On what basis precisely were they classified as primary victims?

  In CJD Litigation: Group B Plaintiffs v Medical Research Council, the claimants developed psychiatric condition upon realizing that treatment given to them could expose them to risk of developing CJD. The claimants obviously feared for their lives but the courts refused to classify them as primary victims. On what basis precisely were they refused to be classified as primary victims?

  Lord Oliver defined secondary victim as a person who is a passive and unwilling witness of injury caused to others. Lord Wilberforce said there are additional requirements that a secondary victim must satisfy: a close tie of love and affection between the claimant and the immediate victim, physical and temporal proximity, means of perception must be sight or hearing of the event or its immediate aftermath and the manner in which psychiatric illness was caused must be induced by shock.

  The problem here is: how is proximity and immediate aftermath defined? When an event occurred over several days, as in North Glamorgan NHS Trust v Walters, how do we determine when an event ends? If a mother knew that her daughter was kidnapped at 1pm. She started looking for her daughter at 1.20pm, after packing some essentials. She located the right building at 2.05pm but couldn’t determine which room, or which floor (assuming that she could not get help from the police due to negligence on the police’s part). She continued searching within the building, and at 2.25, she received a call from the kidnapper, asking her to hurry with the money (which she did not have), and let her listen to the screamings of her daughter due to torture. The kidnapper continued calling her after that, approximately once every ten minutes, each time her daughter’s screaming getting worse. At 2pm the kidnapper called again, saying they were impatient, and they would burn the girl. The mother heard the final screamings, followed by silence, and the kidnapper hung the phone. The mother never managed to find the corpse until 5.30pm. She suffered psychiatric illness. Will her claim succeed?

  The mother will face many hurdles. When does the event end? Does it end at 3pm, when her daughter was killed; or at 5.30pm, when the corpse was found; or at 2.25pm, when she first heard her daughter being tortured; or at 1pm, when she first realized her daughter was kidnapped? Precedents would say the event ended at 3pm, which means she found the corpse 2 ½ hours later – is this immediate enough to be considered as immediate aftermath? It is out of the 2 hour rule. The fact that she constantly receive calls listening to her daughter screaming raise another question: is her psychiatric illness shock induced? There are no clear guidelines as to how the additional proximity requirements are to be satisfied. The rules are complicated.

  Furthermore, the fact that rescuers, employees and bystanders are classified as secondary victims conflict with the additional proximity requirements: how can a close tie of love and affection between the claimant and the immediate victim be established in such cases? Wouldn’t it render the additional proximity requirements redundant?

  Dealing with psychiatric illness is like fighting a dragon which, each time its head is severed, grows a head that is more vicious than before. The fact that medical science is still struggling with this area indicates that new situations will always arise. The law must therefore be flexible in its approach and capable of adapting to new situations.

  The Law Commission Report proposed that for a claim to succeed, the plaintiff must be owed a duty of care by the defendant, and such duty would arise when either psychiatric or physical injury is reasonably foreseeable. There is no need for psychiatric injury to be adduced by shock. No definition will be given for psychiatric injury. No practical significance shall be attached to categorization of primary and secondary victim. There is no need to establish proximity in time and space. There should be a fixed list of relationship where a close tie of love and affection exist.

  I personally agree with most of Law Commission Report’s recommendations except for a few. I think psychiatric injury should be defined as psychiatric illnesses that are within the International Statistical Classification of Disease and Related Health Problems. Requirement for proximity in time and space should be an alternative requirement when a close tie of love and affection could not be established. This is to deal with rescuers, involuntary participants, employees, bystanders and other such claimants.

  The problem is, medical sciences is still at a developing stage in this area. So is the law. Is there really a need to freeze the law so soon? The law is still in its embryonic stages: why not wait and see what will happen as time goes by? The law might appear to be immature but so is the medical sciences. Until the scientists and researchers had come up with real explanations as to what causes psychiatric illnesses and how to measure the degree of illnesses, meanwhile, why not leave the matter to the good sense of judges to do justice?

In Re Vinogradoff, a war loan stock was transferred into the joint names of the transferor and her granddaughter, who was then 4 years old. Following her death, it was claimed that the child held the stock on resulting trust, reason being there was no evidence to establish an intention to make a gift.

  Surely this can’t be right. The fact that the granddaughter was only four at the time of the transfer would mean that no reasonable person would have intended to make such a young child a trustee. On top of that, by virtue of Law of Property Act 1925 made it clear that a person under the age of majority cannot be a trustee. Furthermore, since most gratuitous transfers are intended to be gifts, the presumption should give way to the slightest contrary evidence, and this include evidence of the surrounding circumstances and common sense inferences to be drawn thereform.

  I don’t understand how this decision can be justified.

  Esther is obviously very different from me. In the case of Esther Chan Pui Chan v Gilbert Leung Kam Ho, she became the subject of ridicule among her family and friends when her lover was convicted of bribery and sentenced to 3 years imprisonment.

  She even gave up her career. Imagine that.

  I personally don’t think love will make a person sacrifice so much, and apparently, that’s the view the court took. It was held that love alone would not have caused her to do all the things she did. She did it, partly because of love, partly because the man promised to marry her, and partly because he agreed to give her a share in his assets.

  Finding true love is important for us ladies, but if we have to choose between true love and financial security, the fact that we are living in a materialistic world where “money talks”, I am of the view that most girls will choose to give up true love and go for financial security.

  Of course, the best thing would be to have both!

Of course, for trivial things like, “I promise to take out the trash”, it is still okay to “accidentally forget” that we had promised so. Our parents get angry and scold us for a bit and get over it.

But what if you made a huge promise?

In Thompson v Foy, the daughter, upon her mother’s encouragement, built an extension to the family home and subsequently had the house transferred by the mother to the daughter. The daughter later mortgaged it to the bank. The mother’s initial plan was that part of the monies released will be given to her so she could start a new life in Spain. Of course, the daughter had failed to giver her mother the amount of money she was expecting.

One of the argument that arised here was that there was undue influence. As the mother had acted for family motives, had fully understood what she was doing and had the effect of transactions explained to her by the conveyancing solicitor, there was no undue influence.

I feel bad for the mother. It was a huge promise, the law should compel the daughter to honor the promise. Teensy weensy promises like “take out the trash” does not really attract criticism when they are not honoured, but the same could not be said for huge promises like this.

On the other hand, the purpose of land law is to make lands more marketable. It is not really about what is just and what is not. Which is why the law had preferred to protect the interest of purchasers, mortgagees, secured creditors, and so on…

Law can’t protect everyone. The best that law can do is to strike a balance between two competing interests.

Moral of the story? You yourself are in the best position to protect your rights. Law is not almighty.

Anyway, allow me to share my answer on a question on law of evidence today.

Is it justifiable to exclude entirely reliable evidence under section 78 of the Police and Criminal Evidence Act 1984?

The wording of section 78(1) of the Police and Criminal Evidence Act 1984 (PACE) suggested that it is justifiable to exclude entirely reliable evidence under the section. The section allows courts to refuse to allow evidence that “would have such an adverse effect on the fairness of the proceedings”, and it is entirely possible for reliable evidence obtained by improper means to have adverse effect on the fairness of the proceedings. Lord Scott in R v Looseley acknowledged that the fairness of a trial may be compromised if the prosecution is allowed to rely on evidence obtained by unfair means.

However, more often than not, what is practiced is not what was preached. The common law position as derived from House of Lords’ decision in Sang was that improperly obtained evidence could be excluded only in the exercise of the court’s discretion to ensure a “fair trial” and in the exercise of this discretion such evidence could be excluded only if the impropriety affected the reliability of the evidence or constituted an infringement of the accused’s right against self-discrimination. Reliability is a factor taken into account in deciding whether discretion to exclude ought to be exercised. After all, section 78 is not a tool used to discipline the police.

On the other hand, significant and substantial breaches of Code by police tend to lead to exclusion of evidence, irrespective of the issue of reliability. In Mason, where the police hoodwinked both the solicitor and client, the deceit practiced was said to be “a most reprehensible thing to do.” PACE is an important Act, especially to protect the rights of the accused. As the court reasoned in Canale, if police continue to demonstrate lamentable attitude towards PACE by practicing serious breaches that are flagrant, deliberate and cynical, it is time for the police to appreciate the importance of PACE. It does seem that section 78 had turned out to be a means to ensure the police comply with the Codes under PACE by excluding entirely reliable evidence.

Furthermore, the case of Smurthwaite provided a non-exhaustive list of factors in deciding whether to exercise its exclusionary discretion: was the police enticing the defendant to commit an offence he would not otherwise have committed; does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of offence; is there an unassailable record of what occurred or is it strongly corroborated; and whether he has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the codes.

There is a public interest in not conveying the impression that the court will adopt the approach that the end justified any means. Even if there is no danger of the conviction of an innocent person, a court has the duty to act if failure to do so would compromise the legitimacy of the adjudicative process. As House of Lords put it simply in Latif, there is a need to take into account “broader considerations of the integrity of the criminal justice system.” Considerations of extrinsic policy are as much a concern as considerations of intrinsic policy.

Recent decisions of the Court of Appeal appear to have shifted their focus from nature of the breach to nature of the evidence. Reliability of evidence is once again an issue. It was held in Cooke that even if the DNA profile obtained from hair from accused’s head was illegal, it is not wrong to admit the evidence since it constituted very strong evidence that Cooke had sexual intercourse with the complainant. The illegality had not affected the reliability of the evidence – it would be absurd to say that DNA could change just because the hair was plucked illegally.

Perhaps we can argue that the gravity of illegality in Cooke was not serious enough. The police did not inflict grievous bodily harm on Cooke to obtain the evidence. What about Chalkley, then? In order to obtain evidence, the police had arrested Chalkley in connection with crimes about which no action had previously been taken to place listening device in his home. The court held that even if the arrest of Chalkley was unlawful, the judge’s decision not to exclude the evidence should stand. Court also suggested that the discretion to exclude evidence on the ground that it had been obtained improperly was only applicable in relation to evidence of a confession obtained from the accused, other evidence obtained from the accused after the commission of  the offence, evidence excludible under the Smurthwaite principle and evidence which quality might be affected by the way it was obtained. The decision of House of Lords in Khan (Sultan) also made it clear that even taking into account the effect of European Convention of Human Rights and Human Rights Act 1998, it would be a strange reflection on English law if a man who has admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded. The cases seem to be suggesting that reliable evidence would not be excluded. As said in Mullen, certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice.

However we must taken into account what was said in Quinn: that function of the judge is to protect the fairness of proceedings. Normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if one side is allowed to adduce relevant evidence which the other side cannot properly challenge or meet, or where there has been an abuse of process. Section 78 aims to ensure fairness of proceedings. This would mean that it is justifiable to exclude reliable evidence which is improperly obtained.

This is followed by Radak, where the court’s central concern was the failure to respect the accused’s procedural rights instead of the quality of the impugned evidence. This was also the position of Saunders v United Kingdom, where the court was prepared to accept that the use of evidence obtained in breach of internationally recognized procedural safeguards could violate basic principles of fair procedure inherent in Article 6 of the European Convention on Human Rights. The case of Teixeria de Castro v Portugal also made it clear that despite the fact that the fight against organized crime may require “appropriate measures to be taken”, the right to a fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience.

Perhaps the justification of entirely reliable evidence could be best explained by Dennis, who said that fairness of the proceedings as a whole may be adversely affected if admission of the prosecution evidence in question means that the prosecution have an advantage which is inconsistent with the fundamental moral and political values of the criminal justice system. Section 78 enables the judge to calculate whether the extent of the unfair advantage is such as to require the exclusion of the evidence.

In this case, the defendant was charged with an offence involving the importation of cannabis concealed in a television. One of the evidence concerned were two letters written by the defendant’s wife.

The letters were found in their room and they were not posted. One of the letter said this:

“We have been hasless for a couple of weeks (all the houses) and the strain was showing. There was a sharp increase in the consumption of alcohol and general erratic behaviour. But, Ali’s contact came thru for us last Friday and had us all smiling.”

The Court of Appeal said that before a defendant can be cross-examined on a third part’s account of events, he must have accepted that account as true. Furthermore, the letters should be inadmissible as hearsay, and to admit the letters is an attempt to get round the general rule under which one spouse was not a compellable witness against the other.

At first I thought the letters should be admissible, as the jury could infer from the letters that the defendant was indeed expecting the arrival of a consignment of drugs; but then again, it would seem quite unfair to draw an adverse inference against the defendant based on the letters which contents he was not aware of. He clearly shouldn’t be responsible for what he didn’t know – there could be a possibility of fabrication by his wife.

On the other hand, if the offence commited is murder, and it could be inferred from the letters that the defendant and murdered someone, then in my humblest opinion, I would think it is both in the interest of justice and public interest to convict the defendant. I personally think that the nature of the offence commited will influence the outcome of the decision.

I think it will also be fair to look into the surrounding circumstances (if, hypothetically, it becomes an issue) ie the defendant’s relationship with his wife. Did they have a quarrel recently? Is there any possibility of the wife revenging on the defendant? Did the wife (or the defendant) have another affair? I think all that could be taken into account in deciding whether the letter is reliable.

Then again, maybe I think too much when I read… But then again, you can have all sorts of opinion on law since it is concerned of balancing between two extremes instead of what’s right and what’s wrong, isn’t it?

I thought to myself: that can’t be right. The greatest cause should be something like, police fabricating or concocting stories, or other form of abuse of power.

A little voice in my head then reminded me of the times when I was a school prefect, where we were quite sure of someone who break the school rules and how we tried to bend the rules (unauthorised, obviously) to catch the culprit. Most of the time, they were the real culprits. I suppose MOST (not ALL) police have the same mentality: that they know who the criminal is, but they just don’t have enough evidence to convict him, hence they have to fabricate stories.

Which explained why police fabrication cannot be the greatest cause of miscarriage of justice.

I then remember how often I pat someone on their shoulders, thinking they are someone I know, but it turn out to be that I had identified the wrong person. It’s so easy to identify the wrong person, because most people resemble each other in one way or another – the same hairstyle, hair colour, voice, height, skin colour, clothings…

Which is why we need the Turnbull direction (derived from the case R v Turnbull) when dealing with identification evidence.

Turnbull direction requires the judge to warn the jury of the special need for caution before convicting the accused based on identification evidence, to tell the jury why such a warning is needed, and direct the jury to examine the circumstances when the identification was made.

The court in R v Turnbull also suggested factors that can help determine whether an identification is mistaken, such as whether the identifying witness was drunk, the distance between the identifying witness and the accused, was the observation impeded, etc.

Next time when I notice someone that I think I know on the street, I’m going to tell myself: hey girl, you can be mistaken. Look carefully before you say hello.

The appellant was 42 year-old. The victim, W was 30 year-old. Her marriage broke down. She came to England and started attending the Hindu Temple, where the appellant was the “Aya” – the main priest. After several conversations, the appelant went to her flat to conduct a poojah (blessing). While he was there, he raped her.

I thought W would have lodged a police report as soon as she could but funnily enough, she didn’t. She continue to attend the Hindhu Temple, and the appellant continue to contact her. The appellant visited her again to give her a gift he obtained on a religious trip to Himalayas, and he raped her again. W became pregnant and had an abortion. In the following year, W finally made a police report.

At first I thought this was a case where the priest had somehow hoodwinked the victim that rape is part of the process of blessing, blah blah blah, but I was wrong. After the first rape, W had told her friend that her priest had come to her house, didn’t want to leave, and had bolted the door. He had pinned her to the floor and she struggled. She couldn’t fight him off. He said they should be together. She said no several times, but afterwards she felt weak and dirty. She said he forced her.

Sometimes we think we are smart for not falling for the tricks of the so-called religious people, but just because we are smart it does not mean that we can fight with someone stronger than us. It is still important to be a little paranoid sometimes by not letting anyone into your house when you are alone and vulnerable to attacks. To quote Professor Moody in Harry Potter: “Constant vigilance.” Over-sensitivity is not necessarily a bad thing, so don’t trust people for the reputation of their profession. Vicars and priests can be bad; it was portrayed nicely in Hunchback of Notre Dame.

Oh, and please don’t let your guard down when you are depressed. Bad things happen in life. It’s okay to feel sad, but sadness is no reason to do something irrational. Always, always, always think before you leap.

‘Although equity will not aid a volunteer, it will not strive officiously to defeat a gift.’ (per Lord Browne-Wilkinson in Choithram International SA v Pagarani). Discuss.

Before a discussion on the maxim in the question is made, it is important to understand the situation in Choithram v Pagarani in order to understand why Lord Browne-Wilkinson made such a statement. In this case, Mr. PAgarani intended to leave his welath to charity by setting up a foundation to serve as an umbrella organisation to the charities which he had already established and which would receive most of his assets when he died. He had executed the foundation trust deed and immediately after signing the trust deed, Mr Pagarani said words to the effect that he gave all his welath to the trust. On his death, a grant of letters of administration to his estate was obtained by one of the trustees of the foundation trust. The question here was whether one of a larger body of trustees could vest trust property in himself by way of declaration in such a manner as to give effect to the trust, even though there had been no trasference of the trust property into the names of all trustees. In deciding, Lord Browne-Wilkinson had stated that the foundation had no legal existence apart from the trust declared by the foundation trust deed, therefore Mr Pagarani’s words “I give to the foundation” could only be understood to mean that he intended to give to the trustees of foundation trust deed to hold it on trust of the foundation trust deed. Lord Browne-Wilkinson also said that in principle, there is no difference between a case where the donor declared himself to be sole trustee for a donee of a purpose. The only relevant issue considered here is whether the conscience is affected. If it is, it is unconscionable, and the courts of equity will not allow such a donor to resile from his gift. Therefore, Lord Browne-Wilkinson concluded that although equity will not aid a volunteer, it will not strive officiously to defeat a gift.

However, could Lord Browne-Wilkinson’s decision be seen as “although equity will not aid a volunteer, it will not strive officiously to defeat a gift; and in order to do so, equity might to some extent aid a volunteer”?

Lord Browne-Wilkinson held that in this case, there was no breach of the principle in Milroy v Lord, which is settlor must have done everything which according to the nature of the property complied in the settlement which was necessary to be done to transfer the property in order to transfer the property, and this can be done by actually transferring the property to the person for whom he intends to provide, or transfer the property to a trustee, or declares himself a trustee. Mr Pagarani had declared himself as a trustee, therefore the principle in Milroy v Lord had not been breached. Therefore, it seems that in this case, equity did not strive officiously to defeat a gift, nor did equity aid a volunteer. But is this true for decisions of all cases in this area of law?

In cases like Jones v Lock and Richards v Delbridge, one can concluded that equity indeed does not aid a volunteer by perfecting imperfect gifts. However, there had been exceptions to the rule that equity will not perfect an imperfect gift.

In Re Rose, a principle was laid down: where a settlor had done all in his power to transfer the property, but something is yet to be done by a third party, the transfer will be immediately valid in equity, and the transferor will in the meantime hold the subject matter of the transfer on trust. The court held that once the transferor had done everything in his power to vest the legal interest of property to the transferee, such a gift is valid. However, this decision in Re Rose raises a few questions. First of all, it seems to breach the principle in Milroy v Lord which states that if the settlement is intended to be effectuated by one of the three modes, the courts will not give effect to it by applying another mode. In Re Rose, the settlor intends to make an outright gift. Hoewver, courts gave effect to this imperfect gift by another mode: declaration of oneself as a trustee. Aren’t the courts by not striving officiously to defeat a gift in Re Rose actually aiding the volunteer? In fact, it could even be said that courts here actually had strive officiously to assist a volunteer, because although the settlor had done everything that he can, the third party (directors of private company) can actually refuse to transfer. This will put Re Rose in a similar position of Re Fry, and in Re Fry, Romer J held that the trust is not completely constituted.

Another exception to the rule that equity will not assist a volunteer is the rule in Strong v Bird, where it is stated that if the testator had manifested an intention to forgive the debt in his lifetime and maintained this intent until his death, the appointment of the debtor as executor of an estate cancels the debt in law. The problem with the rule in Strong v Bird is that it had been extended to various situations. In Re Stewart, the rule was extended to mean that any imperfect gifts made intervivos to a person who later became the donor’s executor would be perfected if the testator manifested an intent to give the gift in his lifetime and this intent continued until his death. While the rule in Strong v Bird did not perfect an imperfect gift; in Re Stewart, equity had obviously assisted a volunteer by perfecting an imperfect gift. The rule in Strong v Bird was later extended to admistrators of the estate (Re James) and personal representatives (Re Ralli’s Wills Trust), once again demonstrating that equity by looking at substance and not form, will actually assist a volunteer by perfecting imperfect gifts.

Donatio mortis causa could also be argued to be a situation where equity assists a volunteer. These are death-bed gifts, which, as explained in Cain v Moon, are gifts made in contemplation of death, conditional on the death of the donor with some form of delivery of the subject matter of gift. Although it is arguable that equity did not assist a volunteer since the volunteer had obtained means or parts of the means by which the subject matter can be obtained, the fact remains that it is an incompletely constituted gift, as the legal title of the property is not transferred. Therefore, donatio mortis causa could actually be seen as a situation that best illustrates Lord Browne-Wilkinson’s maxim: here in this situation, equity neither aid a volunteer nor strive officiously to defeat a gift. Equity would give effect to a gift without being in conflict with both maxims.

In cases like Pascoe v Turner and Dilwyn v Llewellyn however, we do see equity perfecting imperfect gifts. Where there is assurance, reliance and detriment, a claim of proprietary estoppel will be successful. Although courts enjoy a very considerable flexibility in dealing with such cases, when it appears “right” to perfect an imperfect gift, courts will do so by aiding the colunteer.

Pennington v Waine is another case where equity had aided the volunteer in order to not strive officiously to defeat a gift. In this case, it was held that it will be unconscionable for the settlor to have recalled what was clearly intended as a gift, as a settlor will not be permitted to change his mind if it is unconscionable to do so. It seems that in order to not officiously defeat a gift, courts will assist a volunteer, even though this would mean that equity is neither looking at substance nor form, since equity is not giving effect to the settlor’s now-changed intention. It seems that equity’s main concern is to not defeat a gift when defeating a gift will lead to unconscionability.

Lord Browne-Wilkinson’s maxim is itself a paradox. A better maxim will perhaps be: equity will not strive officiously to defeat a gift and in order to do so, equity will aid a volunteer; however the general rule remains that in normal circumstances, court will not assist a volunteer.” This modified maxim clearly seems to reflect the decisions of cases in this area of law more accurately.