Harassment, Trespass to land, Public nuisance and private nuisance Flashcards
revision
Harassment (H)
Alarming or causing distress (s7(2)) and must involve conduct in at least 2 occasions (s7(3)) but behaviour must be inappropriate and unacceptable.
D need not intend to harass.
Defence if harassment is ‘reasonable’ in the circumstances (s1(3)(c)).
H Protection from harassment act 1997
S1 prohibits ‘harassment’ of another where d knows- or should know- conduct is harassment.
Breach of s1: CRIME ss2 and 4; TORT s3.
Broad reaching.
H conduct element
Freedom to report the truth is a basic right.
The right to report the truth is justification in itself.
Speech must be deceptive, threatening or possibly abusive.
Justification based on the legitimate interest of the D telling his story… and the corresponding interest of the public in hearing his story.
H mental element
‘[We decide] not to include recklessness’.
‘The necessary mental element is intention to cause physical harm or severe mental or emotional distress strikes a just balance’.
H consequence element
Combination of:
A) Unjustifiable or inexcusable words or conduct directed at the C.
B) Intention to cause at least severe mental or emotional distress.
C) Physical harm or recognised psychiatric illness.
H overlapping human rights
Art2- right to life.
Art3- right to no inhuman and degrading treatment.
Art5- right to liberty.
Art8- right to private and family life.
E.g. Austin v UK [2012]: false imprisonment v art5.
H causation of damage
Factual causation ‘but for’ test: as with negligence, Barnett but for.
Legal causation using direct consequences test: Wagonmound is the harm a ‘foreseeable consequence of the…breach’.
Novus Actus Interveniens: intervening act, Hicks v Young [2015].
H defences
Consent
Necessity
Self-defence
Lawful justification
H defences: Consent
Expressed or implied.
Medical treatment: informed consent is a defence. Informed in broad terms of nature of treatment (Chatterson v Gerson [1981]). Consider risks of significance to patient (Montgomery v Lanarkshire [2015]).
Treatment of competent patient without consent is battery (Re T [1993]). Mental Capacity Act 2005. Gillick competency. Children Act 1989.
H defences: Necessity
Emergency situation: state of affairs/genuine need (F v West Berkshire HA [1990]).
Best interests: Mental Capacity Act s4.
Reasonable belief: Mental Capacity Act 2005 s5 (Z v Commissioner for Police).
H defences: Self-defence
Defendant acts out of an honest and reasonable belief that they were under immediate threat as long as the force used in self-defence was proportionate to the threat. ( Ashley v CC of West Sussex Police [2018]).
Honest and reasonable belief.
H defences: Lawful justification
Statutory authority- acts, rules, statute.
Parental authority (needs balance).
H sport
Implied consent to the contact which is generally acceptable in the ordinary conduct of daily life. (Collins v Wilcock [1984]).
A fair tackle or fair punch are not batteries (R v Lincoln [1990]).
No false imprisonment or assault if you consent to being tied up and threatened.
‘High spirited and good-natured horse-play indicate consent (Blake v Galloway [2004]).
H Wilkinson v Downton (1897).
Requires direct interference.
Development of a ‘new’ tort for cases lacking direct interference. Wilkinson.
Not actionable per se confirmed by Wong v Parkside Health NHS Trust [2001]. Still likely to require physical harm or recognised psychiatric illness.
H Wainwright v Home Office [2003].
Defendant must have acted in a way he knew was unjustifiable and intended to cause harm or careless to causing harm.
This case D didn’t intend distress or realise they were acting unjustifiable.
H Rhodes v OPO [2015].
Tort contained by:
- The conduct element: need words/conduct.
- The mental element: intention to cause at least severe mental or emotional distress.
- The consequence element: physical harm or recognised psychiatric illness.
Trespass (T)
Intentional and direct (unlawful) interference with a person’s possession of land.
Actionable per se BUT need to establish causation if tangible loss is claimed.
C must have possession of land.
T intentional
Intentional, direct action.
Must be voluntary.
Can be interpreted flexibly: League Against Cruel Sports v Scott [1986].
Intention: action rather than consequences (actionable per se).
Trespass to land
If permission or a licence is granted to enter land, you are not trespassing. However, you cannot go beyond what licence/permission extends to. Permission/licence can be revoked.
Necessity to ‘trespass’ to protect private or public interest.
Legal justification: e.g. law enforcement activity.
Reasonableness is NOT a defence (cannot argue entering another’s property is reasonable.)
T direct and physical
Must be both direct and physical interference to the land.
Overlaps with Occupier’s Liability Acts.
Examples: crossing boundaries, remaining on land without permission, exceeding permission, putting or placing objects on someone’s else’s land.
T above, below and around
Beyond Boundaries - Kelson v Imperial Tobacco Co [1957].
Airspace - Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987]. Civil Aviation Act 1982 s76(1).
Below ground - Star Energy Weald Basin Ltd v Bocardo SA [2010].
T remedies
Trespass: actionable per se.
Injunction (all cases).
Nominal damages (if no tangible harm).
Compensation.
Proof of causation if tangible harm claimed.
Public nuisance
Arises from an act which endangers life, health, property, morals or comfort of the public.
Must affect the public.
Interference must be unlawful can also be a crime.
Public nuisance: Rylands v Fletcher
D brings thing onto land, mischief if it escapes.
The thing is for extraordinary or unusual use.
The thing escapes.
The thing causes foreseeable damage.
The C must have proprietary rights over the land.
