Trespass And Nusiance Flashcards
3 types of trespass
Trespass to the person
To land
To goods
Trespass to the person
Covers the right that a person has to their own personal safety and freedom from personal inconvenience. Often referred to as assault which can have both civil and criminal consequences as there can be a criminal hearing and a right to sue for compensation.
Assault, 3 key principles
When the defendants actions places the plaintiff in a position where they reasonably believe they are in immediate physical danger.
- The defendant posed a direct threat to the plaintiff
- The plaintiff held a reasonable fear of harm due to the threat.
- The plaintiff had knowledge of the threat made by the defendant.
Battery and 3 key principles
Often co,burned with assault, occurs when the defendant actually carries out the action feared.
- The defendant made direct contact with the body of the plaintiff.
- The defendant intended to make contact.
- The defendant acted voluntarily.
False imprisonment and 3 key principles
Occurs when one person lawfully detains another person. Includes being locked up or simply marooned in some way that makes it extremely difficult or dangerous to escape.
- There was total restraint in the plaintiff, no reasonable means of escape.
- The act of restraining the plaintiff was direct action of the defendant.
- The defendant acted intentionally.
4 defences to assault and battery
Self defence
Necessity
Consent
Incapacity
Self-defence
Relates to the force used to protect oneself from the harmful acts of an aggressor. To be successfully applied, it must be shown that the use of force was not unreasonable. Even when a person such as an intruder or burglar enters your property and threatens you, you may only use reasonable force against them.
Necessity
Used where the action was taken to save the life of another. For example to save the life of another such as force feeding a sufferer of anorexia nervosa in hospital.
Incapacity
Covers people who were insane at the time the tort was committed. It must be shown that insanity caused them not to have control over their actions.
Consent
The defence of consent is used in cases where someone is injured by the actions of another in the course of events such as sporting matches. Only applies if the game is played according to the normal and acceptable rules. For example being hurt on a tackle in the course of play is not assault but an attack behind the play may be.
Other defences
Accident
Parents are allowed to use reasonable discipline on children
Police may use reasonable force to carry out their duties.
Trespass to land and 3 key principles
The rightful occupiers of land may take action to remove a trespasser, seek out assistance to remove a trespass, stop a repetition of trespass, or claim compensation for losses resulting from trespass.
- Entering someone’s land without permission
- Staying their for longer than permitted
- Put something on or against someone’s land without permission.
Nuisance and two types
A violation of the right of a person to reasonable convenience and comfort in life. There is public and private nuisance.
Public nuisance
For example a plumber, while connecting water to a house, digs a trench across the road and leaves it uncovered and unmarked all night. Because of the danger to public, plumber could be charged with public nuisance.
Private nuisance
The interference with ones right to enjoy their land. The person making the claim must prove actual loss of harm occurred. Usually for the court to decide that actions constitute a nuisance, the action must be continuous and reasonably serious.
