Client Interview AND Advice – PART 1 PDF

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Client Interview and Advice – PART 1 LLB102 Torts

From the statement made by Dustin Dunne, four possible key actions are raised: two trespass to land actions, one private nuisance, and one false imprisonment. Potentially, Dustin can have two actions against his neighbour Amber Martin for trespass to land in two separate cases. On the other hand, Amber has possible actions against Dustin for private nuisance and false imprisonment.

PART A Dunne v Martin – Trespass to Land 1 •

Title to Sue In order for Dustin to develop a trespass to land action against Amber, he must have exclusive possession of the land. For the plaintiff to sue, they do not have to be the lawful and registered owner but must have actual exclusive possession of the land.1 According to Dustin, he owns the land and lived on it for the past 15 years which denotes that he has exclusive possession of the land and has title to sue.

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Actionable Interference As established from Dustin’s statement, Amber was in Dustin’s front garden near the front door of the house. This interference is directly caused by Amber, and the intrusion to Dustin’s land was the immediate consequence of Amber’s actions as she chose to walk over to the property and be there of her own accord, therefore making it a direct interference.2 Additionally, Amber was on the surface of Dustin’s land. She did not intrude on the airspace or subsoil that was unreasonable but rather intruded on the surface which essentially compromised Dustin’s right to the enjoyment of the land. Amber was also

__________________________________________ 1. Newington 2.

v Windeyer (1985) 3 NSWLR 555. Mann v Saulnier (1959) 19 DLR (2d) 130.

unauthorised, with no express licence or consent to be on Dustin ’s land, and the tort of trespass is committed when the defendant had no lawful authority or licence or consent to cause interference on the plaintiff’s land.3 A possible defence that Amber might use is that she was given implied licence as a member of the public to enter Dustin’s property for a legitimate purpose.4 This would be a valid defence assuming Amber entered for the purpose of lawful communication and that Dustin’s gate was unlocked and his property had no indication that visitors were forbidden.5 However, based on Dustin ’s claim that he was surprised to see Amber on his property, it is probable that his gate was locked at the time of Amber’s interference, demonstrating Amber did not have implied licence or consent. Dustin must confirm whether his gate was unlocked which would establish whether Amber had implied consent. If Amber had implied consent, this was revokable if the revocation of licence and consent was communicated and understood, which was the case when Dustin asked her to leave immediately.6 The issue then would be whether Amber left after a reasonable amount of time, another matter Dustin must confirm.7 If she did not leave after a reasonable amount of time, then Amber was committing the interference without lawful authority, express consent, or even implied consent.

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Fault

If the unauthorised interference was committed voluntarily, regardless whether the act was intentional or unintentional, the defendant is at fault.8 Amber was on Dustin’s land voluntarily and intentionally, therefore she was at fault.

__________________________________________ 3. TCN

Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 339. Halliday v Nevill (1984) 155 CLR 1, 7-8. 5. Ibid. 6. Wilson v NSW (2010) 278 ALR 74, [51]. 7. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. 8. Public Transport Commission of NSW v Perry (1977) 137 CLR 107. 4.

Dunne v Martin – Trespass to Land 2 •

Title to Sue As previously established, an individual must have exclusive possession of the land in order to be able to sue.9 Dustin has possession of the land and therefore has title to sue.

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Actionable Interference According to Dustin, Amber left an empty cardboard box on his lawn when she committed her first interference. This box stayed on his lawn for three day before Dustin noticed it and removed it, without ever being collected by Amber. For an interference to be actionable, the defendant’s act must directly cause the interference.10 Amber left the box on Dustin ’s land, therefore the box’s intrusion onto the land is an immediate result of her action. The box was also left on the surface of the land and nowhere in the airspace or subsoil that would be outside the reasonable space needed for Dustin’s use and enjoyment of the land. Moreover, if Amber did not have lawful authority, express consent, or implied consent to be on Dustin’s land, then the box she left would also be unauthorised.11 The law also states that a person who places any material object onto the plaintiff’s land commits a trespass, therefore it can also be argued that even if Amber had implied consent as a member of the public intending to partake in lawful communication, she would have only had a limited license to conduct lawful communication and was bound to remove any object of hers that were left on Dustin’s property.12 Furthermore, because the box was left on his property for three days before its removal by Dustin, the action is a continuing trespass as Amber, the defendant, left something upon Dustin’s land, hence a separate trespass action commenced each day the box remained.13

__________________________________________ 9. Newington

v Windeyer. v Saulnier. 11. TCN Channel Nine Pty Ltd v Anning. 12. Konskier v B Goodman Ltd [1928] 1 KB 421. 13. Ibid. 10. Mann

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Fault

Regardless of intent, Amber voluntarily went to Dustin ’s property and left the box, consequently putting her at fault.14

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Damages

The law affirms that the plaintiff is entitled to compensatory damages if there is damage resulting from the trespass.15 Assuming the death of the grass was caused by the box, and by extension, Amber as the liable trespasser, Dustin is to be awarded for his loss.16

__________________________________________ 14. Public

Transport Commission of NSW v Perry. Farm Pty Ltd v Grassi (2011) 254 FLR 87 at [145]. 16. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280. 15. Windridge

Martin v Dunne – Private Nuisance •

Title to Sue In a private nuisance action, the plaintiff must have a legally recognised interest in the land and be in possession at the time of the interference.17 As Amber was in possession of the house next to Dustin, she has title to sue.

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Interference with a Legally Recognised Right An interference on a person ’s rights attached to land as recognised by the law constitutes a nuisance.18 This includes the legally recognised right of an occupier to be able to enjoy their land free of unreasonable smells and fumes.19 Since the smell of paint and the noise coming from Dustin’s business next door disturbs her sleep, her right to enjoy her land free of smell is being impeded by Dustin, thus, the interference with a legally recognised right element of a private nuisance action is satisfied.

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Damage The interference on an occupier’s comfort and convenience must be substantial enough to cause damage to the person.20 Because the smell and noise would be a constant interference and could be avoided if Dustin attempted to find alternative places outside the presently residential area to conduct his business, Amber presumably regularly lost sleep since she started living in the townhouse and would therefore be a substantial inconvenience by the defendant’s unreasonable activities. The nuisance caused this inconvenience and the inconvenience was not reasonably foreseeable as the area already had multiple townhouses which indicate that the area was more residential than industrial and expected to not have smell and noise that could regularly disrupt a resident’s sleep.

__________________________________________ 17. Hunter

v Canary Wharf [1997] 2 All ER 426. v Southern Dairies Ltd [1955] VLR 332. 19. Aldred v Benton (1610) 9 Co Rep 57; 77 ER 816. 20. Munro v Southern Dairies Ltd 18. Munro

Martin v Dunne – False Imprisonment

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