Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals The Law Regarding Pension Interest in South Africa has been settled! Or has it? With Reference to Ndaba v Ndaba (600/2015) [2016] ZASCA 162

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Motseotsile Clement Marumoagae
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
High Court ◽  
The Supreme Court ◽  
Golden Opportunity ◽  
The Law ◽  
Court Of Appeal

This article reflects on the law relating to pension interest in South Africa. In particular, it assesses whether the Supreme Court of Appeal in Ndaba v Ndaba had adequately clarified how this area of law should be understood. In light of the inconsistent approaches from various divisions of the High Court, it has not always been clear how the courts should interpret the law relating to pension interest in South Africa. In this paper, aspects of this area of law which have been clarified by the Supreme Court of Appeal are highlighted. This paper further demonstrates aspects of this area of law which the Supreme Court of Appeal did not settle and would potentially be subject to future litigation. This paper is based on the premise that while Ndaba v Ndaba is welcomed, the Supreme Court of Appeal nonetheless, missed a golden opportunity to authoritatively provide a basis upon which the law relating to pension interest in South Africa should be understood. 

The Origins of the Re Hastings-Bass Rule

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Practical Importance ◽  
Future Application ◽  
Precise Nature ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
The Many ◽  
Court Of Appeal

The present state of the law must now be treated as authoritatively set out by Lord Walker in Pitt v Holt, and to a lesser but still important extent by the earlier judgment of Lloyd LJ in the Court of Appeal in the same case. This chapter, however, is concerned with the earlier development of the Re Hastings-Bass doctrine. Its purpose is to establish the doctrinal legitimacy of the rule in Re Hastings-Bass as an aspect of the English law of trusts. Whilst this is primarily of academic and theoretical concern, in view of the Supreme Court’s reformulation of the law into its present shape, it is also of practical importance. In particular, the future application of the doctrine to novel situations will depend upon understanding the precise nature and scope of the rule propounded by the Supreme Court. That decision cannot simply be divorced from the many decided cases which preceded it, and from its place in the wider compass of the law of trusts.

12. Theft

2020 ◽  
pp. 356-406
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Civil Law ◽  
The Supreme Court ◽  
The Law ◽  
Definition Of ◽  
Court Of Appeal

This chapter examines the law governing theft. It considers the extent to which the criminal law of theft conflicts with civil law concepts of property; whether it is possible to steal property that belongs to oneself; the types of property that may be stolen; and the extent to which it is possible to provide a definition of ‘dishonesty’. The test for dishonesty has been fundamentally altered by the Supreme Court and the Court of Appeal, developments which are analysed in this chapter.

The Nature of the Re Hastings-Bass Duty

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Future Development ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
Matters Of Concern ◽  
Court Of Appeal ◽  
Relevant Consideration ◽  
Two Alternatives

Lord Walker’s analysis in Pitt v Holt in the Supreme Court accords in all essential respects with the reasons put forward in Chapter 3 to prefer a duty (‘weak’) rather than results-oriented (‘strong’) account of the Re Hastings-Bass rule, as does the approach adopted by Lloyd LJ in the Court of Appeal, which Lord Walker expressly endorses. Yet Lord Walker’s judgment does not yet provide a wholly comprehensive basis for the future development of the law. There remain a number of loose ends, arising predominantly from issues not specifically before the court in Pitt, but which have been matters of concern in earlier Re Hastings-Bass cases, including: how a ‘relevant consideration’ is defined; the significance of establishing that the trustees ‘would’ or ‘might’ have acted differently, in view of Lord Walker’s refusal to choose between these two alternatives; the specific problems arising from the use of professional advisers, and in cases concerning tax liability and pension trusts. These matters are addressed in detail in chapters 5 to 8. But in order to do this it is first necessary to clarify the juridical nature of the ‘duty of consideration’ upon which Lord Walker’s analysis depends.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Legal Aid by the State as a Constitutional Right of the Poor: Problems and Challenges in Indonesia

2021 ◽  
Vol 3 (2) ◽  
pp. 185-196
Author(s):  
Ari Wibowo ◽  
Michael Hagana Bangun
Keyword(s):  
Supreme Court ◽  
Legal Protection ◽  
The State ◽  
Legal Aid ◽  
The Poor ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

The provision of legal aid is one way to realize access to law and justice for the poor people provided by the state on the mandate of the constitution. Several regulations regarding legal aid have been issued by the state through the Act and its implementing regulations as well as from the Supreme Court or the Constitutional Court through the Supreme Court Regulations and the Constitutional Court's decisions. Legal aid is the constitutional right of every citizen to guarantee legal protection and guarantee equality before the law stipulated in Law Number 16 of 2011, the State is responsible for recognizing and protecting the human rights of every individual without differing backgrounds so that everyone has the right to be treated equally before the law is contained in Article 28D of the 1945 Constitution of the Republic of Indonesia. For the poor who experience legal problems in the form of injustice, they can request legal assistance from legal aid institutions that are regulated in legislation. The purpose of providing legal aid is to guarantee and fulfill the right for Legal Aid Recipients to gain access to justice, to realize the constitutional rights of all citizens in accordance with the principle of equality in law, to ensure the certainty that the implementation of Legal Aid is carried out equally across the territory of the Republic of Indonesia. , and to create an effective, efficient and accountable court.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

The Law of Life Insurance in France as affected by a Recent Decision of the Supreme Court of Judicature

1872 ◽  
Vol 17 (3) ◽  
pp. 189-191
Author(s):  
M. Leon de Montluc
Keyword(s):  
Supreme Court ◽  
Life Insurance ◽  
Insurance Policies ◽  
The Supreme Court ◽  
The Law ◽  
Written Law ◽  
The Right ◽  
To Receive ◽  
Made In

Never was a more complete change suddenly brought about in the laws of a nation by legislative enactment than that which has taken place this year in France in the law of life insurance, in consequence of one single decision of the Supreme Court of Judicature, Up to the present time the construction given to the contract of life insurance in this country has been quite different from what it is in England. As there is no provision of written law that relates to life insurance, it being not even so much as mentioned in the Civil or Commercial Codes, people thought themselves justified in governing it by laws and rules of their own. For instance, although it is a principle of law common to both English and French jurisprudence (we may add, to the law of all legislating nations from time immemorial) that choses in action shall necessarily devolve upon our legal representatives after our death, it has hitherto been decided almost universally by French tribunals that an exception was to be made in favour of life insurance policies. By the advocates of that doctrine, the right in the sum assured was thought never to have vested in the person effecting the policy, and the assurance monies were said to be transferred directly, i. e., omisso medio, from the assurer to the party entitled to receive the sum assured; and that sum, accordingly, would not be liable to succession duty.

Protection in Ascent, 1908–23

2017 ◽  
Author(s):  
Nancy Woloch
Keyword(s):  
Women Workers ◽  
Supreme Court ◽  
Minimum Wage ◽  
District Of Columbia ◽  
Court Of Appeals ◽  
Children's Hospital ◽  
The Supreme Court ◽  
Children’S Hospital ◽  
The Law ◽  
Made In

This chapter examines Muller's aftermath in legal history through the landmark case of Adkins v. Children's Hospital (1923). In Oregon, an employer (Children's Hospital) sought an injunction against the DC Minimum Wage Board to restrain it from imposing the minimum wage of $16.50 per week for women workers in hotels, hospitals, restaurants, clubs, and apartment houses. The District of Columbia Supreme Court upheld the law in June 1920, as did the DC Court of Appeals in June 1921. However, at the second hearing in November 1922, the DC Court of Appeals upset the law. In 1923, when Adkins v. Children's Hospital reached the Supreme Court, defenders of the minimum wage faced a less receptive roster of justices than they had in 1917; recent appointments made in wartime and soon after had produced a more conservative court. As such, the Supreme Court failed to sustain the District of Columbia minimum wage law by a 5–3 decision.

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