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Flashcards

Tort (8) - Trespass

Will Dillon Tort Law English 72 cards

Cards in this deck (72)

  1. 1Trespass- Trespass torts are a species of torts that respond to direct and intentional wrongful conduct.
  2. 2Three forms of trespass: - Trespass to the person - Trespass to land - Trespass to goodsALL 3 FORMS HAVE THE SAME CHARACTERISTICS:
    - They must be committed INTENTIONALLY
    - Cause direct and immediate harm
    - And are actionable per se (i.e. without proof of damage)
  3. 3The aim of trespass is to vindicate the claimant’s right to be free from interference either to his person, property or goods. On this basis, the torts are ‘actionable per se’. Damage is not the trigger for compensation here, rather, it is the wrongful actions of the defendant in interfering with a recognised legal interest possessed by the claimant which triggers compensation.Of course, when awarding damages, the courts will examine whether any loss or damage has been suffered. They will generally only award nominal damages in trespass to land or goods if no damage exists.
  4. 4Trespass to the person: - Protects claimant against interference with his or her person. - This may be attempted by assault, battery or false imprisonment. - These torts must be committed intentionally, by direct and immediate actions and are actionable without proof of damage.These torts are often better recognised as criminal offences; indeed, the defendant will normally face criminal rather than civil proceedings. There are a number of reasons for this:
    - Police will usually be called in, making criminal proceedings more likely.
    - Claimant may not want to go through further civil proceedings brought at their own instigation, particularly where the defendant may not have the money to pay for the damages (and claimant’s legal fees)
  5. 5- Criminal courts now possess at least some means of awarding compensation to victims of crimes, and victims may also recover under the ‘criminal injuries compensation scheme’ which is a national fund, granting compensation for personal injuries caused by violent crime. Such compensation is unlikely to be as high as that awarded in a successful tort action, but it is undoubtedly easier for the victim.- A tort action will generally be motivated by more than a desire for compensation. It may be pursued to highlight a refusal of the director of public prosecutions to bring a criminal prosecution, or it may be brought in the face of an unsuccessful prosecution.
  6. 6- The burden of proof is lower in the civil courts compared to criminal courts, therefore the claimant may succeed in proving their case on the balance of probabilities where the prosecutor failed to prove the allegations in a criminal court beyond reasonable doubt. In the US case concerning O.J Simpson for example, the defendant was found not guilty of the murder of his ex-wife and her lover, but was nevertheless subsequently found liable to pay damages by a civil court.There are limitations in the offences against the person act 1861 ss.44 and ss.45. These sections relate to assault and battery charges heard in the magistrate’s court. Section 45 provides hat where a summary hearing brought by the party aggrieved has been held and ended with either a certificate of dismissal or with the accused being convicted and fined/imprisoned, civil proceedings for the same cause will be barred.
  7. 7Trespass to the person - Battery: - ‘the actual infliction of unlawful force on another person’ (as per Collins v Wilcock) - Force must be applied intentionally by immediate and direct means to another individual. This can vary from the most minor contact with the claimant, such as an unwanted peck on the cheek to a violent blow to the chest. - Because the tort is actionable without proof of damage, both types of battery render the defendant liable to pay damages.Requirements for battery:
    (1) It must be voluntary and intentional:
    - Act must be voluntary and intentional. Intention relates only to the action of the defendant, it is not necessary that the defendant intends the consequences of their actions. On this basis, the defendant will be liable for all the consequences flowing from the tort, whether or not they are foreseeable. Equally, if I intend to hit A but accidentally hit B, I commit a battery against B, this rule is known as ‘transferred intent’.
  8. 8Requirements for battery: (1) It must be intentional: - The tort may be committed even if the original action was unintentional, if the defendant at some point intends to apply force. In Fagan v Metropolitan Police Commissioner, the defendant unintentionally stopped his car on a policeman’s foot. At this stage no tort had been committed. However, by deliberately failing to move until the police officer had shouted ‘get off my foot’ several times, he committed a battery. Recklessness is therefore sufficient to establish intent in battery.Requirements for battery:
    (2) It must be direct:
    - This requirement has been interpreted flexibly. In the eighteenth-century case of Scott v Shephard for example, the defendant was found liable for battery when he had thrown a lighted squib (firework) into a market place. This was despite the fact that the squib was thrown on by two stallholders to protect themselves and their goods (they threw the squib further away). The squib finally exploded in the face of Scott. The majority of the court found the battery to be sufficiently direct.
  9. 9Requirements for battery: (2) It must be direct: - Equally, in DPP V K, the force was considered sufficiently immediate and direct where a schoolboy had poured some concentrated sulfuric acid, stolen from a chemistry lesson, into a hand-dryer which was later used by another pupil with horrific results. The court held that the boy had known full well that he had created a dangerous situation and was liable for battery. It was no excuse that he had panicked and intended to remove the acid as soon as he was able.Requirements for battery:
    (3) Immediate force:
    - Tort of battery applies to any form of bodily contact. This causes a potential problem, if applied literally it would cover all forms of contact. For example, A would commit a battery by tapping B on the shoulder to get his attention. It would clearly be a nonsense if an actionable battery was committed in such circumstances. Whilst this is common sense, the courts have struggled to find a theoretical basis to draw a line between actionable batteries and ordinary social contact.
  10. 10Requirements for battery: (3) Immediate force: Lord Holt CJ’s comments in Cole v Turner have been cited, where his lordship held that ‘the least touching of another in anger is battery’.Requirements for battery:
    (3) Immediate force:
    Wilson v Pringle:
    - held that battery must be committed with ‘hostile’ intent. On the facts of the case, a boy had suffered serious injury due to the antics of a fellow pupil. The defence alleged that the defendant had merely pulled the schoolbag off the schoolboy’s shoulder, which led to him falling and injuring himself. The court held that liability depended on whether the pupil’s actions had been ‘hostile’ and not simply a schoolboy prank.
  11. 11Requirements for battery: (3) Immediate force: - However, what is hostile to one person may seem quite the opposite to another. If an objective approach is taken, it seems to mean that the reasonable person would view the action as contrary to the ordinary rules of social conduct. If this is so, then the view of Robert Goff LJ in Collins v Wilcock is preferable. His lordship took the entirely sensible view that instead of adopting complicated legal rules based on implied consent to the battery, or hostile intent, the law should just exclude liability for conduct generally acceptable in the ordinary conduct of daily life.Battery - Agents of battery:
    Dodwell v Burford:
    - Horse may be used as an agent for battery
  12. 12Trespass covers intentional or reckless action. ‘Reckless’: a person acts recklessly if he or she foresees the risk of harm resulting from an action, yet nevertheless decides to take that action.ASSAULT:
    - “An act which causes [the Claimant] to apprehend the infliction of immediate, unlawful force on his person” Collins v Wilcock [1984
    - This tort protects the claimant in fear of battery. Where the defendant’s actions cause the claimant reasonably to apprehend the direct and immediate infliction of force on him or her, the tort is committed. The meaning of assault in tort is different to the popular meaning of assault.
  13. 13ASSAULT: - If I point a gun at you, I have only committed an assault. It is irrelevant that the gun is unloaded, you do not know that, and have every reason to apprehend a battery. - Only when I actually shoot the gun and hit you have I committed a battery. - If my aim is poor and I miss, only an assault has been committed.The requirements of assault:
    (1) Reasonable apprehension of harm:
    - If I creep up and strike you from behind without your knowledge, I have only committed a battery. It is only assault if you are aware of my approach.
    - Equally, if you are saved from physical harm by the intervention of a third party, or if I change my mind, I have only committed an assault.
  14. 14The requirements of assault: (1) Reasonable apprehension of harm: In Stephen v Myers the plaintiff was threatened with violence whilst attempting to expel the defendant from a parish meeting. The defendant had approached the plaintiff threatening violence, but, due to the intervention of the church warden, was liable only for assault.The requirements of assault:
    (1) Reasonable apprehension of harm:
    - Passive obstruction however, such as that seen in Innes v Wylie, where a policeman stopped the plaintiff from entering a room, will not amount to assault.
    - If the human obstruction is passive, like a door or a wall preventing entry, the claimant has no reason to anticipate the direct and immediate infliction of force, so the defendant cannot be liable.
  15. 15The requirements of assault: (1) Reasonable apprehension of harm: - The test of reasonable apprehension is an objective one. It is irrelevant whether the particular claimant was actually in fear or could have defended himself or herself successfully. - Dawish v Egyptair: “I do not think that he did anticipate (or apprehend) an attack at the time, nor do I think that he had reason to. I have reached the conclusion that his assertion that he did is a product of his over-wrought state”The requirements of assault:
    (2) It must be intentional:
    - Defendant must intend the claimant to apprehend reasonable force would be used or was reckless as to the consequences of his or her actions.
  16. 16The requirements of assault: (3) It must be immediate and direct: - This is really part of the test for reasonable apprehension. If the claimant can see that the defendant is not in a position to inflict immediate damage and direct harm on them, then they have nothing to fear and so the defendant is not liable for assault.The requirements of assault:
    (3) It must be immediate and direct:
    - In Thomas v National Union of Mineworkers (south wales area) striking miners, who hurled insults at working miners who had been transported into work in vehicles, were not held liable for assault, because the vehicles had been protected by a police cordon.
  17. 17Can words amount to assault? - House of Lords case of R v Ireland (1998) where three women had been harassed by a man called Mr Ireland. He was alleged to have made repeated telephone calls to them, generally at night, during which he remained silent. The women suffered psychiatric illness as a result.Can words amount to assault - R v Ireland:
    - The house of lords rejected the proposition that an assault could never be committed by words as unrealistic and indefensible. Liability would in fact depend on whether the claimant, in the circumstances before the court, reasonably believed that the oral threat could be carried out in the sufficiently near future to qualify as an immediate threat of personal violence. On the facts, the court was willing to accept that silence would be capable of giving rise to such fears.
  18. 18The court in R v Ireland recognised that despite the fact the women did not know the stalker’s location, he may indeed know there’s, causing fear.- It has long been accepted that words may negative an assault. In the classic case of Tuberville v Savage, the defendant placed his hand on his sword and stated that ‘if it were not assize time, I would not take such language from you’. It was assize time and so in reality the defendant was stating that he did not intend to hurt the plaintiff.
    - This must be distinguished from a CONDITIONAL THREAT. For example, it was no excuse by the highwaymen to claim that the victims had a viable alternative option when stating ‘stand and deliver, your money or your life’.
  19. 19Read v Coker: defendant was liable for assault when he and his servants threatened to break the plaintiff’s neck unless he left the defendant’s workshop.FALSE IMPRISONMENT:
    False Imprisonment – ‘the unlawful imposition of constraint upon another's freedom of movement from a particular place’
  20. 20FALSE IMPRISONMENT: - This tort is concerned with the claimants right to freedom of movement. A complete restriction of this freedom, unless expressly or impliedly authorised by the law, will render the defendant liable.FALSE IMPRISONMENT:
    - Conduct which is expressly or impliedly authorised by the law (e.g custodial powers of the state and police force) will not give rise to liability in tort provided these bodies act within the powers given to them by law.
  21. 21- It is NO excuse that the defendant had wrongfully assumed that they did have a legal right to detain the claimant. - It need not be shown that force was used.Where A has given orders to B to detain C, is A or B liable for false imprisonment? Generally, the actor (B) will be liable, unless B exercises no discretion in the matter and is forced to obey the instructions by A.
  22. 22Austin v Dowling: - police inspector had refused to take the responsibility for arresting the plaintiff on a charge made by the defendant’s wife, but finally did arrest the plaintiff when the defendant signed the charge sheet. It was held that the defendant was liable for false imprisonment. - In modern times however the police, as professionals, are expected to exercise their own judgement and not simply follow the instructions of others.Davidson v Chief Constable of North wales:
    - store detective had given evidence to the police which led to the arrest of Davidson for shoplifting. Davidson and his friend were detained by police for two hours before it became clear that the store detective’s suspicions were unfounded.
    - Davidson sued the store detective for false imprisonment. The court of appeal held that no action lay against the store detective where she had merely given information to the police, who could act as they saw fit. Only if the detective had been the instigator, promoter and active inciter of the action would the detective be liable.
  23. 23The requirements of false imprisonment: (1) A complete restriction of the claimant’s freedom of movement: - In Walker v Commissioner of police of the metropolis the court of appeal made it clear that confining an individual in a doorway for however short a time (here a few seconds) without lawful authority would amount to false imprisonment. As Tomlinson LJ commented ‘The detention was indeed trivial, but that can, and shout be reflected in the measure of the damages and does not render lawful that which was unlawful’.The requirements of false imprisonment:
    (1) A complete restriction of the claimant’s freedom of movement:
    - The requirement is not satisfied if the claimant is able to move in one direction. For example, in Bird v Jones the plaintiff had insisted on passing along the public footway on Hammersmith Bridge in London, which the defendants had partially enclosed without due permission. The plaintiff had climbed over a fence erected by the defendants to close off the footway on one side of the bridge but was prevented from moving along the footway by the defendants. He was told that he might go back and use the public footway on the other side of the bridge, but the plaintiff would not do so. The court held that the defendants were not liable for false imprisonment.
  24. 24The requirements of false imprisonment: (1) A complete restriction of the claimant’s freedom of movement: - Such a restriction will generally involve a positive act. Trespass is concerned with intentional, immediate and direct actions, NOT omissions. On this basis, an omission or refusal to release the claimant from confinement will NOT amount to false imprisonment, unless the claimant has a legal right to be released and the defendant is under a positive obligation to release the claimant.The requirements of false imprisonment:
    (1) A complete restriction of the claimant’s freedom of movement:
    Iqbal v prison officers association:
    - held that the claimant, who was confined to his cell as a result of a prison officers’ strike, could not sue for false imprisonment. Their omission to act (refusing to let him out) did NOT entail liability. The claimant was legally detained, and the officers were under no duty to the prisoner to release him (their duty was to their employer).
  25. 25The requirements of false imprisonment: (1) A complete restriction of the claimant’s freedom of movement: - The means of escape from the confinement must be reasonable or else false imprisonment may have taken place (e.g. a rope from a high up building will not suffice).The requirements of false imprisonment:
    (1) A complete restriction of the claimant’s freedom of movement:
    R v Bournewood community and mental health NHS Trust:
    - majority found that a mentally disordered patient who had been placed voluntarily in an unlocked ward and showed no desire to leave had not been detained, despite the fact that the hospital gave evidence that he had been sedated and would have been detained compulsorily had he sought to leave.
    - The European court of human rights in 2005 found unanimously that the applicant had indeed been deprived of his liberty, contrary to article 5.1 of the convention (however the house of lords only considered false imprisonment NOT human rights, therefore this doesn’t necessarily overrule the decision made.
  26. 26It is a matter of contention whether a reasonable means of escape exists when the defendant imposes conditions on the manner in which visitors leave his or her premises. There is authority that, provided the conditions are reasonable, the defendant is not liable if he or she refuses to allow the claimant to leave until these conditions have been satisfied.Robinson v Balmain Ferry Co:
    - the claimant had contracted to enter the defendant’s wharf to catch a ferry boat to cross the river. For reasons of efficiency, the fee of one penny was paid on one side of the river on entering and exiting the wharf. Having a 20-minute wait for the next boat, the plaintiff changed his mind and tried to exit the wharf. He refused to pay the penny as required by notice above the turnstile. The defendants refused to let him leave until the charge was paid.
    - The privy council held that the penny charge was a reasonable condition for leaving by a route different from the one stipulated in the contract.
  27. 27Herd v Weardale Steel: - a miner had refused to do certain work, on the basis that it was dangerous, and had demanded to be taken to the surface before the end of his shift. His employer refused. Their lordships held that the employer was NOT liable for false imprisonment. The miner had voluntarily entered the mine under a contract of employment and was deemed to have impliedly consented that he would not be brought to the surface until the end of the shift.By choosing to get on a train, you cannot change your mind and demand to stop immediately. You should wait until the next reasonable time to alight (the next stop). On this basis, the miner in Herd was limited to use the lift at times it was available. It is when the defendant refused to allow the claimant to leave even though the lift was available that a claim for false imprisonment should lie.
  28. 28Robinson may be defended on the basis that plaintiff’s restraint was not complete, as he could have crossed the river (subject to a query as to whether this was reasonable). Herd is more difficult to defend. It is scarcely legitimate to suggest imprisonment as a reasonable response to the employee’s breach of contract. A better explanation of Herd is to view it as an omission case (see Iqbal)It is unnecessary to show the claimant knew of the imprisonment:
    - Proof of damage is not required; therefore, it is not necessary to show that the claimant has suffered from the knowledge of his or her false imprisonment.
  29. 29Grainger v Hill: - the tort exists even if the claimant is too ill to moveMeering Case:
    - held that the tort can be committed even where the claimant does not know that he or she is being detained.
    - plaintiff had been suspected of stealing from his employer, the defendants, and so he had been asked to accompany two of his employer’s private police force to the company’s office. He had agreed and waited as instructed in the waiting room. Unknown to the plaintiff, the two police men remained nearby and had been instructed not to let him leave the waiting room until the metropolitan police had arrived. He later sued for false imprisonment. The court held that the tort had been committed as soon as the defendant was under the control of the defendant’s police.
  30. 30This means that false imprisonment may occur when asleep, drunk beyond control, unconscious etc. McFadzean v CFEMU: so long as a victim remains confined without a reasonable means of escape, he or she will be falsely imprisoned”The requirements of false imprisonment:
    (2) Without legal authorisation:
    - The burden of proof lies on the defendant to justify the lawfulness of the arrest and the claimant is only required to show that he or she had been denied freedom of movement.
    - On this basis, this requirement should be treated as a defence to be established by the defendant.
  31. 31False Imprisonment - McFadzean: factors to be considered in determining whether a means of egress is reasonable: - threat or danger to the self; threat or danger to property (including property of others); distance and time; and legality” - ii. Physical capabilities of the Claimant - iii. Fears of Claimant (e.g. claustrophobia) - iv. Unreasonable courage is not requiredHicks v Young:
    "The defendant must… pay damages for the direct consequences [the false imprisonment]. Those consequences include reasonable steps taken by the claimant to bring the detention to an end…”
  32. 32The rule in Wilkinson v Downton (1897): - Case on intentional harm which has been INDIRECTLY caused. - defendant falsely told the plaintiff that her husband had been involved in an accident in which he had been seriously injured. The defendant later claimed it had been a practical joke, but the shock suffered by the plaintiff led her to suffer weeks of illness. - She sued the defendant for damages. - His actions had been intentional, but the harm had been indirect.The rule in Wilkinson v Downton (1897):
    - Wright J held that where the defendant had wilfully undertaken an act calculated to cause physical harm to the plaintiff, there was a good cause of action. It is clear, however, that unlike trespass, harm must be proved.
  33. 33Janvier v Sweeney: - a private detective had pretended to be a police officer, and, in order to obtain access to her employer’s correspondence, had threatened the plaintiff that she was in danger of arrest for association with a German spy (her fiancé was German). - The plaintiff suffered psychiatric illness as a result and was allowed to recover damages under the rule in Wilkinson v Downton.OPO V Rhodes:
    In this case the court clarified to the nature of the rule in Wilkinson v Downton and confirmed that it was still alive and well. To succeed, a claimant must establish three elements:
    1) The conduct element (words or conduct directed towards the claimant for which there is no justification or reasonable excuse)
    2) The mental element (wilful)
    3) The consequence element (physical harm or recognised psychiatric illness)
  34. 34C v WH: former vice principal of a special educational needs school was found liable under the rule in Wilkinson v Downton for the grooming and sexual abuse of a 16-year-old female student including the exchange of explicit texts. While the mental element of the action required that the claimant establish that the defendant intended to cause severe mental or emotional distress to the girl, the obvious consequences of the actions of the defendant in grooming a vulnerable pupil in a special school some 39 years younger than himself signified that the perpetrator could not realistically say that those consequences were unintended. It was obvious that the relationship would, in the end, cause C harm, which it in fact did.Trespass to the person - Defences:
    - (1) Consent:
    - If I expressly consent to contact or implicitly lead the defendant to believe that I am consenting, I cannot later sue the defendant. This allows hospitals to ensure they commit no torts against patients whilst operating by asking them to sign consent forms. Equally, a patient who presents their arm for an injection is clearly consenting to the infliction of immediate and direct force on their person.
  35. 35Trespass to the person - Defences: - (1) Consent: R v Barnes: - Team sports similarly rely on this (but not of course to a violent blow contrary to the rules of the game). This protects self-determination of the individual. - “The fact that the play is within the rules and practice of the game and does not go beyond it, will be a firm indication that what has happened is not [battery]. In making a judgment as to whether conduct is [a battery] or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the momentTrespass to the person - Defences:
    - (1) Consent:
    - The consent MUST be real and not induced by fraud, misrepresentation or duress. So, in R v Williams (1923), the defendant, a singing tutor, was liable in battery for sexually assaulting a naive plaintiff who had been falsely informed that this would improve her voice.
  36. 36Trespass to the person - Defences: - (1) Consent: - The traditional rule is that fraud must got to the very nature and quality of the act or to the identity of the assailant, and that fraud as to the effect and consequences of the act is deemed not to be sufficient to nullify consent. This may lead to harsh results in practice.Trespass to the person - Defences:
    - (1) Consent:
    R v Dica:
    - held that this distinction would not apply to the offence of unlawful infliction of grievous boldily harm under the offences against the person act 1861 s.20. Here, Dica had unprotected sex with the complainants without informing them that he knew himself to be HIV positive. The complainant was later found to be infected with the HIV virus. The court of appeal held that although there was consent to the act of sexual intercourse, his conduct amounted to an offence under s.20. It remains unclear whether what is essentially a claim for fraud as to the risk of infection would give rise to civil liability.
  37. 37Trespass to the person - Defences: - (1) Consent: In trespass to the person the burden is on the claimant to prove absence of consent. Contrastingly, in the trespass to land the burden is on the defendant to prove consent was given. Consent can still be treated as a defence in practice in trespass to the person however, as the issue of consent will usually be raised by the defendant and is therefore generally treated as a defence.Refusal of consent:
    - It is clearly desirable to have a right to refuse consent to violent actions.
    - It is perhaps less desirable to have a right to refuse consent to life-saving medical treatment.
  38. 38Refusal of consent: - The idea of self-determination implies that the doctor should not be allowed to overrule our express wishes. Therefore, if you refuse to consent to a life-saving blood transfusion, the doctor will commit a battery if they administer blood against your will.Refusal of consent:
    - It has been held that adults of sound mind and full understanding should be able to decide to refuse treatment (even if a refusal may lead to the patient’s death, or, controversially, their unborn child’s death).
    - The capacity of sound mind and full understanding is assumed unless shown otherwise. Only where there is doubt to the patient’s free will and capacity will no trespass take place.
  39. 39Refusal of consent: Re JT (Adult: refusal of medical treatment): - the patient had a learning disability which in the past had been associated with extremely severe behavioural disturbance. She was being detained under the Mental health act 1983. Wall J held that nevertheless, she was capable of comprehending and retaining information given, believing it, and making a choice in the light of it. She was therefore competent to refuse the medicine needed to keep her alive.Children and consent:
    - In relation to consent, the family law act 1969 s.8(1) permits children of 16 and over to consent to surgical, medical or dental treatment without the consent of a parent or guardian. In relation to children below 16, the house of lords in Gillick v West Norfolk AHA held by a majority that a child below 16 is capable of giving valid consent, provided that the child is of sufficient intelligence and understanding to appreciate what is proposed. This is regardless of the feelings of the parents.
  40. 40Children and consent: - HOWEVER, this is not the same as giving the child a right to REFUSE CONSENT. In Re W (1993), W was a girl of 16 who was suffering from anorexia. She opposed the local authority’s decision to move her to a unit specialising in treatment of eating disorders. The court of appeal held that even if the child Is 16 or over, or ‘Gillick competent’, a parent may nevertheless consent on the child’s behalf.Children and consent:
    - The court warned doctors to listen to the child’s objections, whose views would increase in importance according to the age and maturity of the minor but held that such objections would not be an absolute bar to treatment.
  41. 41Children and consent: - In the case of younger children, parental consent will suffice for general medical treatment. Even where the parent’s refuse to consent, the court’s inherent power may be invoked to ensure the child receives appropriate treatment. In the case of Re C (2000) Wilson J overruled parental objections to HIV testing on their baby. The mother was HIV positive and the child had a 20-25% chance of infection. Whilst the court was prepared to accord great importance to the parents’ wishes, the arguments in favour of testing the baby were overwhelming.Limits to Consent:
    Chatterton v Gerson:
    consent does not provide a defence if you consent to one thing but the defendant does another.
  42. 42Defences - Necessity: - Allows defendant to intervene to prevent greater harm to the public, a third party, the defendant themselves, or the claimant. - Defendant must act reasonably within all the circumstances!F v West Berkshire Health:
    - Held: Doctors may intervene in the best interests of the patient where: (a) it is necessary to act in circumstances where it is not practicable to communicate with the patient AND (b) the action taken is such as a reasonable person would in all the circumstances take.
    - So, where a patient is unconscious and not known to object to the treatment, treatment is legally justified. Where the patient is temporarily incapacitated the doctor should do no more than is reasonably required in the best interests of the patient before they recover.
  43. 43What if the patients incapacity is permanent, e.g. a coma? In F v West Birkshire Health, an application was made to the court for a sterilization operation to be done on a 36 year old woman with permanent mental illness causing her to have a mental age of 5. She was clearly incapable of consenting to this. - Held: treatment justified if its in the patients best interests and if it would be endorsed by a reasonable body of medical opinion. Where multiple treatments are available doctor must pick the one that suits the patient's interests best, considering the ethical, social, moral and welfare of the patient.Airedale v NHS:
    - Doctors, with support of the patient's parents applied to the courts to have a patients life-sustaining treatment turned off (he'd been in coma for 4 years and was never going to wake up)
    - Held: this was allowed, treatment could be withdrawn if patient had no hope of recovery and a reasonable medical practitioner would hold that it wasn't in the patients best interests to have their life prolonged. This has been held to be valid in consideration of the human rights act too!
    - Remember, euthanasia is prohibited! Removing treatment is not so long as courts approval is given!
  44. 44Defences - Self-Defence: - Burden of proof lies on defendant here! - Defendants force must be reasonable and not out of proportion to the force exerted against him or her. Must be based on honest and reasonable belief that the claimant will be attacked by the defendant. - in judging what is reasonable, court will consider all circumstances of the case, including the fact that action may have had to be taken in the heat of the moment.Self Defence:
    Ashley v Chief Constable of Sussex:
    “…for civil law purposes an excuse of self-defence based on non-existent facts that are honestly but unreasonably believed to exist must fail.”
  45. 45Lane v Holloway: - Elderly claimant struck young defendant on shoulder during argument, defendant responded with severe punch to claimant's eye. Defendant held liable as their response was not proportionate or reasonable given the circumstances.defences - Provocation:
    - Generally, provocation is not a valid defence. It may reduce claimants exemplary damages but will not reduce their ordinary compensatory damages.
  46. 46Barnes v Nayer: - Held that prolonged abuse and threats from a neighbouring family was NOT sufficient provocation to justify attacking the mother with a machete.Defences - Contributory negligence:
    Co-Op v Pritchard:
    - Contributory negligence is NOT a defence to trespass.
    - “I… accept that, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence or fault is not available as a partial defence to an intentional tort such as battery.” [78] per Smith LJ
  47. 47Defences - Lawful Authority: - Generally applies to false imprisonment cases. - e.g. lawful arrest can't amount to false imprisonment! - Use PACE in public law!Defences - Lawful Authority:
    Criminal law act 1967 section 3 - allows a person to use such force as is reasonable in the circumstances to prevent crime or in effecting or assisting in the lawful arrest of offenders, suspected offenders or personals unlawfully at large.
  48. 48Can Trespass to the person be committed negligently? Letang v Cooper: - claimant injured when her legs were ran over whilst sunbathing in the car park on some grass. She couldn't sue in negligence as she had waited over 3 years, instead she brought her claim as 'unintentional trespass to the person'. Trespass to the person has a 6 year period to claim in. - Held: claim rejected - "when the injury is not inflicted intentionally but negligently, I would say the only cause of action is negligence not trespass"Harassment:
    Statutory tort initially aimed at stalking, which has a wide use in situations where one of the trespass torts (particularly assault) may not have provided a remedy in respect of the conduct complained of.
  49. 49Protection from harassment Act 1997: - this act created the tort of harassmentWhat is "harassment"?
    Section 1(1) A person must not pursue a course of conduct
    (a) which amounts to harassment of another, and
    (b) which he knows or ought to know amounts to harassment of the other.
  50. 50Section 1(2) - For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. This is an objective test and doesn't take into consideration the defendants characteristics!Section 7 - Harassment is conduct which includes "alarming the person or causing the person distress".
    Course of conduct involves conduct on at least two occasions towards one person, or if there is more than one person then conduct on at least one occasion to each of those people.
  51. 51Majrowski v Guy's: "A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter of life and genuinely offensive and unacceptable behaviour"ferguson v British gas:
    - persistent sending of unjustified bills and threatening letters to former customer = harassment.
  52. 52(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.Harassment:
    - The Claimant must be a natural person (Daiichi Pharmaceuticals UK Ltd v Stop Huntington Animal Cruelty).
    - The defendant may be an unknown person (GYH v Persons Unknown [2017]), unincorporated association (Daiichi), a partnership (Iqbal v Dean Manson) or a company (Ferguson v British Gas).
  53. 53What amounts to harassment? Majrowski v Guy's: “Courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable”Is it possible to be harassed by an inanimate object? – Ferguson v British Gas
    “One excuse which has formed part of British Gas's legal argument for striking out the claim, and which has been advanced as incontestable and decisive, is that a large corporation such as British Gas cannot be legally responsible for mistakes made either by its computerised debt recovery system or by the personnel responsible for programming and operating it. The short answer is that it can be…”
  54. 54R v Curtis: The difficulties of showing course of conduct where the Claimant and Defendant are cohabiting (“We cannot conclude that, in this volatile relationship, the six incidents over a nine-month period amounted to a course of conduct amounting to harassment within the meaning of the statute. The spontaneous outbursts of ill-temper and bad behaviour, with aggression on both sides, which are the hallmarks of the present case, interspersed as those outbursts were with considerable periods of affectionate life, cannot be described as such a course of conduct”Majrowski v Guy’s:
    It is possible for an employer to be vicariously liable for harassment by their employees
  55. 55Harassment - Damages: “Damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.”Harassment - Damages:
    Remoteness – Jones v Ruth
    “if the defendant knows, or ought to know, that his or her conduct will amount to harassment all damages which flow from the loss, regardless of foreseeability, are recoverable”
  56. 56Harassment - Injunctions: Injunctions (note that failure to comply with an injunction obtained under the act is a criminal offence, as well as being contempt of court)Section 1(1A) now also provides that the following is harassment:
    conduct harassing two or more persons by which the defendant intends to persuade any person (i) not to do something that he is entitled or required to do or (ii) to do something that he is not under any obligation to do. Although this allows for the grant of an injunction it does not give rise to any liability in damages.
    THIS IS AIMED AT EXTREME ANIMAL RIGHTS GROUPS LARGELY!
  57. 57Trespass to Land: - Designed to protect claimant against direct and unjustifiable interference with his or her land. - Must be direct and immediate, and doesn't require proof of damage. This contrasts to private nuisance which is indirect and requires proof of damage.If i throw a brick and destroy your flowers i have committed trespass
    If i start a fire in my garden and the fumes blow over and destroy your flowers i have committed a nuisance
  58. 58Claimant likely to receive only nominal damages without proof of loss from trespass to land.Trespass to land is an intentional tort, but it is the act of entry into the land which must be intentional not the act of trespassing. Therefore if you are acting voluntarily you are trespassing whether you know you are trespassing or not!
  59. 59Smith v Stone: - No liability in trespass to land where you are forcibly thrown into land against your willLeague against cruel sports v Scott:
    - owner will be responsible if their animal strays onto land and causes damage if the owner intended them to enter the claimants land or if the owner knew there was a risk they would enter and failed to take reasonable steps to prevent them entering.
  60. 60Trespass to land is established where claimant can show a direct and unjustifiable interference with their possession of landDirect and unjustifiable interference:
    - obvious examples e.g. walking onto my lawn or entering my house without permission
    - Throwing gas canister on my land as per Rigby v Chief constable
    - allowing sheep to stray onto my land
    - includes airspace if its within the height necessary for the ordinary use and enjoyment of the land and structures on it.
  61. 61Bernstein v Skyviews: - defendants not liable for taking aerial photos of landowners home many hundreds of metres above the groundCivil aviation act - aircraft flying at a reasonable height do not commit a trespass. Reasonable height determined by the court with regard to the wind, weather and all the circumstances of the case.
    - Landowner can recover for damage caused by something falling from the plane, no need for claimant to prove negligence or intention provided they didn't contribute through negligence themselves.
  62. 62Possession of Land: - Only those with possession of the land can sue for trespass. Mere licensees cannot sue! - An interest in land without possession will not suffice. - e.g. when a landlord has leased his property, the tenant is the party in possession. Landlord can only sue if the trespasser injures the interest he has in possession, namely, the landlords right to possession at the end of the term of the lease. Normally the tenant will sue for trespass.• If a right to be on the land expires, it is trespass to fail to leave.
  63. 63Trespass to land - Defences (1) Licence: - Express or implied permission to interfere with land from the party in possession is an effective defence. - This can be restricted by express/implied terms, if they are exceeded then defendant has committed a trespassTrespass to land - Defences (1) Licence:
    Scrutton LJ:
    "when you invite a person into your house to use the stairs, you do not invite them to slide down the bannisters"
  64. 64Trespass to land - Defences (1) Licence: Permission to be on the premises can be withdrawn, the person is given a reasonable time to vacate the premises before they become a trespasser. A licence to be on a premises given without any consideration from the licensee can be revoked at any time. A licence to be on a premises given in return for consideration (e.g. football match with paid tickets) can be revoked (but breach of contract may occur).Trespass to land defence (2) - Necessity:
    - Must be an actual or perceived danger in relation to which reasonable steps are taken.
    - e.g. there is a fire and defendant enters another's land, or destroys another's property to stop fire spreading - THIS IS PUBLIC NECESSITY IN THE PUBLIC INTEREST
    - If defendant does these acts to save themself or their own property this will be PRIVATE NECESSITY.
  65. 65Southwark v Williams: - group of homeless people entered empty houses belonging to local authority. The defence of necessity was rejected by the court. - Lord Denning held that the defence should only apply to urgent situations of immediate perilTrespass to land defences - Justification by law:
    - valid defence that defendant was legally authorised to enter claimants land.
    - E.g. PACE Act
  66. 66The access to neighbouring land act: - Allows courts to make order allowing access to land for the purpose of carrying out works which are reasonably necessary for the preservation of adjoining or adjacent land and which cannot be carried out, or would be substantially more difficult to carry out, without entry onto the land. - Court can't make an order for this if it would cause unreasonable interference with the neighbour's enjoyment of the land.Abuse of legal authority to enter land:
    - Trespass is deemed to have happened from the moment of entry even if the abuse happened two hours after legally entering.
    - This only applies to positive acts not omissions.
  67. 67Trespass to land - Remedies: - Obviously damages and injunctionsTrespass to land - Remedies:
    Self-help:
    - Party in possession may use reasonable force to resist wrongful entry by trespasser. Any force in excess will render the person liable for trespass to the person.
  68. 68Trespass to land - Remedies: Mesne profits: - Allows claimant to be given consequential damages for the time they have been kept out of possession of their land. essentially the defendant must pay a reasonable rent. Inverugie v Hackett: - claimant could recover a reasonable rent for every room in their hotel for the period of time the defendant didn't allow people in. This was in spite of the fact that the hotel was rarely full, they were still entitled to a reasonable rent for ALL the rooms!Trespass to goods:
    - Intentional and direct interference with possession of goods.
  69. 69Trespass to goods requirements - Intention: - act of interference with goods must be intentional. Wilson v Lombank: - car sent to garage for repair. Defendant, wrongly believing the car was his, removed it from the garage. Defendant held liable for trespass as he intentionally removed the vehicle, it was irrelevant that he didn't intend to remove someone else's vehicle!Where claimant cannot reasonably know of the existence of the goods, but nevertheless harms them, they will not be liable for trespass.
    National coal board v JE Evans:
    - defendants dug a trench, damaged underground cable. Court found defendants were not negligent as there was no way they could have known the cable existed, they were therefore not liable in trespass!
  70. 70Trespass to goods requirements: It must be direct (as previously discussed)Trespass to goods requirements - Actionable per se?
    - generally this tort is actionable without proof of damage.
  71. 71Trespass to goods requirements - Possession: - key to this tort is interference with possession, not the ownership. Wilson v Lombank: - claimant wasn't technically the true owner of the car, he purchased the vehicle from someone who had no right to sell it. He was still in possession of the car at the time of the trespass however, and was therefore successful in bringing a plea of trespass to goods.Defences to trespass to goods:
    - consent
    - necessity of preservation and protection of the foods and reasonable steps were taken, then defendant has a good defence.
    - PACE
  72. 72END.

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Tort Law Flashcards on Tort (8) - Trespass, created by Will Dillon on 05/05/2019.
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