Topic 2- Tort of Trespass Flashcards
Scott V Shephard (1773) All ER Rep 296
The act of contact must be a voluntary one for a person to be liable in trespass.
FINDING- De Gray CJ, “I do not consider [the intermediaries] as free agents in the present case, but acting under a compulsive necessity for their own safety and self preservation”
Sheridan v Kelly and another [2006] IESC 26
-P sued principal of primary and Christian Brothers order for assault, battery, false imprisonment and negligence
-D argued s.1(3)(b) Courts Act 1988 prevented plaintiff from having a right to a jury as his action included a negligence action
-Held- if it includes a trespass action one is entitled to a jury in that part (ONLY in trespass part)
D.F & anor v Garda Commissioner & Ors [2013] IEHC 5
-challenges legailty of the arrest and detention of austistic man
-action for negligence, battery and false imprisonment.
-HELD- case should be heard by a jury (keeping with the finding of sheridan case)
-the judge would hear the negligence claim and the remainder trespass actions would be heard by judge and jury
Dullaghan v Hillen [1957] Ir Jur Rep 10
-Customs officers in Louth to prevent cross-border smuggling.
-P, a passenger in a van, driving on an unapproved road, van had been seized in the past
-on stopping P utteres a “filthy and insulting remark” customers officer struck him and broke his nose
-P brought a case for battery. D claimed remarks constituted an assault and was just defending himself
-HELD (Fawsitt J) no matter how offensive/insulting words can not constitute assault
Wilson v Pringle [1987] QB 237 (CA)
Implied consent will not extend to acts which are ‘hostile’
-13yr old jumped on another during horseplay in a school corridor
-not sufficient to constitute a battery
-act wasn’t hostile
Gammell v Doyle (t/a Lee’s Public House) & Anor [2009] IEHC 416
-D punched plaintiff injruing jaw. P argued battery was unprovoked. D argued it was provoked by lewd and offensive comments.
- J Hanna accepted s 34(1) of Civil Liability Act 1961 and held that “intentionally provocative and insulting behavior” can cause contributory negligence.
-HOWEVER- it was questioned if s26 of Civil Liability and Courts act 2004 should apply, where the court should dismiss the action given that the plaintiff gave false evidence and that no injustice would be done as D was held criminally responsible
-Action was dismissed
Phillips v GN Ry Co Ltd (1903) 4 NIJR 154
Imprisonment may be physical or psychological-the question is whether the plaintiff ought to know they were confined.
-Railway workers suspected of not having paid ticket, told not to move, later allowed to leave
-HELD- P simply subject to delay, had no lost liberty, could have left just not by taxi.
Murray v Minister for Defence [1988] 1 WLR 692
-The victim need not be aware of his detention
-P claimed she was unlawfully detained until being told she was under arrest (false imprisonment)
-trial judge dismissed, Court of Appeal NI dismissed, House of Lords dismisses
Burns v Johnston [1919] 2 IR 444
-employer legally extended working hours by 30 mins
-gates closed during working hours, pass to leave could be secured
-employees sued for false imprisonment
-court held for the defendent
Wilkinson v Downtown [1897] 2QB 57
-Man told a woman that her husband was in a car accident as a result incurred physchological injury
- D was liable for ‘Intentional infliction of emotional suffering’
Powell v Boldaz [1998] Lloyd’s Rep Med 116 at 125
-court enunciated the principle that;
‘First, that the making of a statement known to be false with the intention that it should be believed and with the intention of causing injury, which in facts results, is actionable’
OPO and another v Rhodes [2015] UKSC 32
Rhodes was going to publish a book about his story
-Mother argues it would cause emotional distress to autistic son and hat effect would be intentional
-court brought up wilkinson v downtown and allowed to sue for tort of intentional…
-trial judge in favour of D stating that only applied to spoken words
-CA reversed it stating this tort comprised ‘a conduct element…., a mental element…, an outcome element…, (must satisfy all 3)
Hutchins v Maughan [1947] V.L.R. 131
-laying of bait in a filed which a dog consumed and poisoned the dog
not trespass to chattels as not direct
Keenan Bros Ltd v CIE (1963) 97 ILTR 54 (HC)
(POSSESSION OF ANOTHER)
-owners of goods which were delayed in wagons were not allowed to enter the wagons to remove the goods without the permission of CIE and in the absence of any contractual right to do so
-if they had entered they themselves would be liable for trespass
ESB v Hastings & Co Ltd [1965] Ir Jur Rep 51
(possession of another)
-court held that ESB who had laid cables under the land, retained sufficient possession of them to sue for trespass when they were damaged
Webb v Ireland [1988] 565
- two persons came onto property with the implied right of the owners
-used opportunity to dig and came upon the Derrynaflan Hoard, exceeding their authority to enter
-Finlay CJ stated ownership attaches to that which is in or attached to land
-true owner has superior rights- generally on items attached to, under or partially submerged in land
-if item found on land and not clear owner asserted claim finder may have superior right providing he was lawfully on the land
-IN THIS CASE- they became ‘trespassers ab initio’ when they started to dig, exceeding their rights to be there.
Thrifty-Tel Inc v Bezenek 46 Cal App 4th 1559
(Trespass to chattels and spam (unsolicited emails))
-D teenage son hacked plaintiff’s computer system accessing confidential info
-tort of conversion not available as it required a tangible chattel
-HELD it could be dealt with under the tort of trespass to chattels
CompuServe Inc. v Cyber Promotions Inc. 962…
-P was a commercial online computer service and sought injunctive relief against the defendants, sending unsolicited emails to P subscribers
-court agree it was trespass and as it caused damage to property of the D it was capable of being the subject of injunctive relief
Whelan v Madigan [1978] ILRM 136 (HC)
THE SLIGHTEST ENTRY WITHOUT LAWFUL JUSTIFICATION WILL AMOUNT TO A TRESPASS. ENTRY ARISES FROM THE TOUCHING OF THE BOUNDARY OF LAND.
-FOUND- striking a door amounted to ‘entry’
- it was done with the intention of breaking it so it amounted to trespass.
(owners exceeding lawful authority..)
Land lord held to have committed a trespass against occupiers by damaging door and letterbox
Guille v Swan (1823) 19 Johns 381
-(causes to be place on)
-falling balloonist gathered a crowd who trampled flowers and veg
- HELD he was liable and that he ‘caused’ the people to come onto the land
-harsh application…. negligence rather than trespass
Petrie v Owners of SS Rostrevor [1898] 2 IR 556
-Petrie had placed oysters on the foreshore
-D vessel damaged the, question of whether P had an action in Trespass
-HELD ‘by placing the oysters on the foreshore (he had) become possessed of it ‘de facto’ as against the world except it’s true owner.
-in the case of absence of a lawful owner P would have been able to recoup damages however lawful owner had given authority to vessel owners
Cronin v Connor [1913] 2 IR
(abuse of proprietary interest)
-owner gave Cronin right to extract turf from his property.
-Cronin then had an action in trespass against Connor when eh allowed the grazing of cattle of the land which damaged his interest in it.
The people (Attorney General) v O’Brien [1965] IR 169
‘…the dwelling of every citizen is inviolable save where entry is permitted by law… (in the absence of) … extraordinary excusing circumstances
-Gardaí had entered a property with a warrant and seized stolen goods (warrant had a mistake in the address)
-HELD “ this case is not one of deliberate and conscious violation, but purely accidental and unintentional infringement of the Cons. (evidence was not excluded)
DPP v McMahon [1987] ILRM 87
-gardai entered premise to investigate a breach of the Gaming and Lotteries Act 1956 requiring them to obtain a warrant prior which they did not have
-would implied right to enter to purchase food cover the entry??
-would the right to enter without a warrant to investigate a breach of drinking laws cover the entry??
-HELD- no. Gardai acted outside their express or implied right to enter, making them trespassers.
Gillick v West Norfold and Wisbech Area Health Authority [1986] AC 112
Mrs Gillick campaigned against a health department circular which advised medical professionals that they were entitled to administer the contra pill to those under the age of 16 without consulting parents, P had 5 kids and argued it could negativevly impact her rights as a parents
-HELD- Lord Scarman- Once a minor demonstrated ‘sufficient understanding and intelligence to fully understand what is proposed’ then consent is valid.
Holmes v Heatley [1937] IR Jur Rep 74
If minors are not deemed to have capacity to consent, then parental consent is required with exception of emergencies….
-FACTS- boy underwent operation and had to be administered general anesthetic during op, subsequently died
-FOUND- surgeon was bound to act as he did, given the emergency
Great Ormond Street Hospital for Children NHS Foundation Trust v Yates and others (No 2) [2017] 4 WLR 131
If minors are not deemed to have capacity to consent, then parental consent is required with exception of parents and medical advice not in agreement
-FACTS court had to decide whether hospital could withdraw treatment and administer palliative care against parents wishes for child to be brought to the US for experimental treatment
HELD- in his best interests to administer palliative care only
F v West Berkshire Health Authority [ 1990] 2 AC 1 (HL)
Decision making where person lacks capacity
-36 yr old women resident of care facility with mental age of a minor
mother sought court declaration to have sterilization procedure performed
-women did not have capacity to consent.
HELD in the best interests to perform the procedure.
R v Williams [1923] 1 KB 340
Consent vitiated by fraud
Papadimitropoulous v R (1957) 98 CLR 249
Consent vitiated by fraud
KD v Chief Constable of Hampshire [2005] EWHC 2550
FACTS- police officer cuddled a person he was interviewing in relation to the sexual abuse of her child, claimant uncomfortable, in one of the final interviews he kissed her neck
-HELD “submission is not consent” -J Tugendhat and that it constituted a battery
Norberg v Wynrib (1992) 92 DLR
Consent vitiated by undue influence
-can act as a defense provided that it results in avoiding a greater evil.
Lane V Holloway [1968] 1 QB 379
Cannot consent to something that is illegal
- 2 men engaged in a fist fight, D was 23 and struck the P who was 64 and subsequently needed 19 stiches.
HELD- “ a man who strikes a blow of such severity is liable in damages unless he can prove accident of self-defence.
Walsh v Family Planning Services Ltd [1992] 1 IR 496
Consent to medical procedures
-“a claim of assault should be confined to cases where there is no consent to the particular procedure and where it is feasible to look for a constant”.
Corcoran v W & R Jacob & Co [1945] IR 446
Facts- P worked for D and agreed that security personnel could search him.
One of the security guards lunged at him aggressively.
HELD- P did not consent to this.
Conduct must match the extent of the consent given or the consent will not cover the trespass.
Ross v Curtis High Court 3 Feb 1989
(reasonable force when not in a dwelling)
FACTS- a man accidentally hit intruder when he merely intended to frighten them with legally held firearm.
FOUND to have used reasonable force ,Barr J “ acquitted himself reasonably in all circumstances of the case and was not guilty of reckless disregard for the safety of the plaintiff…”
MacKnight v Xtravision Circuit Court 5 July 1991
(reasonable force when not in a dwelling)
FACTS- dispute between P and a driver over parking space, P asked by security to leave, refused, punched security.
-P alleged that he was assaulted, carried, pulled and dragged and detained in small room until guards arrived.
HELD- Judge Spain held ‘reasonableness was the criterion’
-held he had been assaulted, battered, falsely imprisoned and slandered.
Damages £15,000
-Defense is open to the protection of third parties.
Marshall v Curry [1933] 3 DLR 260
Example of necessity being pleaded as a defence.
FACTS- performed an emergency operation to save a patient’s life
Re A (Children)(Conjoined Twins: Surgical Seperation) [2001] Fam 147
-courts ased to consider implications of separating Jodie and Mary against parents wishes. Mary would almost certainly die, but Jodie would have a chance of survival. If left they would both almost certainly die.
-HELD it was in the their ‘best interests’ to be separated
-defence of ‘necessity’ was cited by Brokke LJ
Austin v Commissioner of the Police of the Metropolis [2007] EWCA Civ 989
Defence of nessesity.
FACTS- P (anti-capitalist demonstrator) took an action for false imprisonment (detained in a cordon from 2pm to 9.30pm, process known as ‘kettling’
-P argued she had been refused to leave
-Police kettled the demonstrators after threat of violence
- dismissed at trial court and CA upheld that decision
-iii)where (and only where) there is a reasonable belief that there are no other means…
-iv) this is a test of necessity..
-v) the action taken must be both….
R (moos and McClure) v Commissioner of Police of the Metropolis [2011] EWHC 957
HELD- curtailment of the Climate Camp group was not reasonable stating
It is only when the police reasonably believe that there is no other means whatsoever to prevent an imminent breach of the peace that they can as a matter of necessity curtail the lawful exercise of their rights by third parties. The test of necessity is met only in truly extreme and exceptional circumstances. The action has to be both reasonably necessary and proportionate and taken in good faith. The case of Austin ,where the containment was held to be lawful was a very exceptional case.
