Client Interview and Advice - Part 1 PDF

Preview

Summary

CLIENT INTERVIEW AND ADVICE Part 1 PART A – 1500 WORDS PART B – 104 WORDS PART A Based on the facts of Sophie Marsh’s statement, three potential actions may arise. The possible actions are Trespass to Land by Marsh against Stark; Trespass to Person, Battery by Stark against Marsh; Private Nuisance b...

Description

Based on the facts of Sophie Marsh’s statement, three potential actions may arise. The possible actions are Trespass to Land by Marsh against Stark; Trespass to Person, Battery by Stark against Marsh; Private Nuisance by Marsh against Stark. The potential actions, and the additional information needed to establish them, are discussed below.

CLIENT INTERVIEW AND ADVICE Part 1

PART A – 1500 WORDS PART B – 104 WORDS

TRESPASS TO LAND Marsh v Stark

Elements – Title to sue The plaintiff must have ownership or a legally recognised interest in land1 and be in actual possession of the land at the time of the interference2. It is unclear whether Marsh legally owns the land, however, Marsh lives alone in the house and gardens indicating that she is in actual possession of the land3. If Marsh is a licensee she would not have the requisite title to sue4. More information regarding whether Marsh is a licensee is needed to determine whether she has title to sue.

Actionable Interference The trespass must be a direct5, unauthorized6 interference with land7. Entering land does not amount to trespass if there is consent in the form of statutory authority or an express or implied licence.8 An implied licence may be revoked by the occupier9. It is unclear whether the land criterion is satisfied because it is unknown whether the garden path Stark walked upon was on Marsh’s land. The interference was direct because Stark, “walked up the garden path”. Stark works for an electrical company meaning he holds an implied licence or statutory authority to enter Marsh’s property for the legitimate purpose of meter reading10. If the interference exceeds the scope of the consent it is trespassory11. 1 Hunter v Canary Wharf [1997] 2 All ER 426. 2 Newington v Windeyer (1985) 3 NSWLR 555 3 Newington v Windeyer (1985) 3 NSWLR 555 4 Western Australia v Ward (202) 56 M6 MVR 20; Shannon v New south Wales [2015] NSWDC 69 5 Miller v Jackson [1977] QB966; City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87 (Conn. 2007) 6 Lord v McMahon [2015] NSWSC 1619 7 Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479 8 Halliday v Nevill (1984) 155 CLR 1; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 9 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 10 Electricity act 1994 (Qld) s 137. 11 Barker v R (1983) 153 CLR 338. Page2

More information regarding what Stark did whilst upon Marsh’s land is needed to determine whether the interference was within the scope of the consent12. To revoke an implied licence13 Marsh must have clearly given Stark notice of the withdrawal of his licence14 and allowed reasonable time for him to depart15. More information is needed to determine that the interference was unauthorised.

Fault of the defendant The defendant’s actions must be voluntary and intentional16 or negligent17. The defendant must have the ability to perceive the outcomes of the action18. Based on the facts, Stark voluntarily and intentionally, “walked up the garden path”, so he is at fault.

Defenses Consent Refer to ‘A direct actionable interference with land’. If Stark’s authority or implied licence was not adequately negated by Marsh, Stark would have a defence in consent. 19 Remedies Damages Compensatory damages compensate for damages, injury, and incurred loss while nominal damages are awarded when there is not20. More information regarding whether there was

12 Barker v R (1983) 153 CLR 338. 13 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353. 14 Maynes v Casey [2011] NSWCA 156.; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.; Plenty v Dillon (1991) 171 CLR 635.; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. 15 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353. 16 Morris v Marsden [1952] 1 ALL ER 925; Weaver v Ward (1617) 80 ER 284. 17 McNamara v Duncan (1971) 26 ALR 584. 18 McHale v Watson (1964) 111 CLR 384. 19 Chatterton v Gerson [1981] 1 All ER 257. 20 Entick v Carrington (1765) 19 St Tr 1029;95 ER 807. Page3

damage is needed21. If Stark did not cause damage, nominal damages would be awarded however, if he did, compensatory damages would be awarded22.

Time Limitations More information regarding whether Marsh suffered loss is needed to determine the exact time limitation. The limitation period will be 3 years if the plaintiff suffered injury or loss23 and 6 years if they did not24.

Conclusion On the facts, it is unclear whether Marsh will be able to sue Stark for Trespass to land. Further information regarding whether Marsh is a licensee, whether Stark had an implied licence to enter the land and whether Marsh made it clear to Stark that he was not allowed on her land is needed to establish an action in trespass against Stark.

BATTERY Stark v Marsh

Elements Direct application of force The interference must be the immediate, direct or indirect25 result of the defendant’s actions. There must be offensive physical, contact with the plaintiff’s person26. A lunge is 21 Finesky Holdings Pty Ltd v Mininster for Transport for Western Australia (2002) 26 WAR 368. 22 Hansen & Hansen v Gloucester Developments Pty Ltd [1989] QSC. 23 Limitation of Actions Act 1974 (Qld) s 11. 24 Limitation of Actions Act 1974 (Qld) s 10. 25 S 245 Criminal Code 1899 (Qld). 26 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98.; Slaveski V Victoria [2010] VSC [241]– Page4

not an incident of everyday life27 and Stark “ended up crying” indicating that the act was offensive. Further information regarding whether Marsh’s lunge resulted in contact with Stark is needed to satisfy this element.

Consent There must be a lack of express or implied28 consent to the application of force by the plaintiff29. Neither express or implied consent was given30, so Stark did not consent to the application of force.

Fault Refer to Fault of the defendant on page 3. On the facts, Marsh’s action was intentional and voluntary because she considered the girl and believed she had to act quickly31. Contact with Stark was the substantially certain result of Marsh’s lunge. Therefore, she is at fault.

Defences Defence of another The interference is justified by the need to avert a threat of harm of another32. The force the defendant used must be reasonable and proportionate to the threat to the third party33. On the facts, Marsh intended to prevent harm to a girl. Further information regarding what the threat was, is necessary to establish that her lunge was a reasonable and proportionate force. [242]. 27 Boughey v R (1986) 161 CLR 10; McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at [99]. 28 Hunter v New England Area Health Service v A by his Tutor T (2009) 74 NSWLR 88. 29Christopherson v Bare (1848) 116 ER 554; Carter v Walker (2010) Aust Torts Reports ¶82076 at [215]. 30 Horan v Ferguson [1995] 2 Qd R 490.; Hunter and New England Area Health Service v A by his Tutor. T (2009) 74 NSWLR 88 at [40].; Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958. 31 Cole v Turner (1704) 6 Mod Rep 149. 32 R v Portelli (2004) 148 A Crim r 282.; Watkins v Victoria (2010) 27 VR 543. 33 Goss v Nicholas [1960] Tas SR 133; Criminal Code s 273. Page5

Necessity There must be an imminent threat of grave harm34, a reasonable apparent necessity for committing the act and that there was no fault on the defendant in creating the imminent harm35. There is no fault on Marsh. Further information regarding what the threat was is needed to establish that there was a threat of imminent harm.

Remedies Compensatory Damages Refer to “Damages” on Page 4 It is necessary to determine whether Marsh made direct or indirect bodily contact with Stark. Nominal damages would be awarded if no damage or loss was suffered36 and compensatory damages would be awarded if there was.

Aggravated Damages Aggravated damages may be awarded to compensate for injury to the plaintiffs feelings37. On the facts, Stark ended up crying indicating that the interference caused a significant injury to his feelings, therefore aggravated damages would be awarded.

Time limitations Refer to ‘Time Limitations’ on Page 4 Further information regarding whether Stark suffered loss or personal injury damage is needed to determine the time limitation. . 34 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. 35 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985.; Proudman v Allen [1954] SASR 336. 36 Law v Wright [1935] SASR 20. 37 Watts v Leach [1973] Tas SR 16. Page6

Conclusion An action in battery would be sustainable if Marsh’s lunge resulted in direct or indirect contact with Stark. To establish a defence by Marsh, more information regarding what the threat Stark posed to the girl was must be established to ascertain whether the interference was proportionate and whether there was an imminent threat of harm.

PRIVATE NUISANCE Marsh v Stark

Elements Title to sue Refer to Title to Sue under Trespass to Land on Page 2

Interference There must be an interference with a legally recognised right attached to land38. An occupier is entitled to the enjoyment of their land without unreasonable fumes, vibrations or noise39. On the facts, Stark regularly made loud noises by revving the engine of his motorcycle inside the garage of his house. Marsh’s legally recognised right to the use and enjoyment of land40 without unreasonable vibrations and noises has been infringed upon41.

Damage The Plaintiff must have suffered material damage as recognised by the law42. More information is needed to establish whether Marsh suffered material damage. The absence of material damages is permissible if the interference is substantial43 and unreasonable44.

38 Robin v Leischke (2008) 72 NSWLR 98. 39 Hunter v Canary Wharf [1997] 2 All ER 426.; Munro v Southern Dairies [1955] VLR 332. 40 Sedleigh-Denfield v. O' Callaghan [1940] A.C. 880. 41 Hunter v Canary Wharf [1997] 2 All ER 426; Munro v Southern Dairies [1955] VLR 332. 42 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642. 43 Munro v Southern Dairies [1955] VLR 332. 44 Bamford v Turnley (1862) 3 B & S 66; 112 ER 27. Page7

In the case of Andreae v Selfridge & Co the court held that one night’s loss of sleep was a substantial nuisance45. The interference is substantial as it affected Marsh’s sleep46. The premise of ‘give and take’ is used to determine whether the interference was unreasonable47. Marsh is a ‘heavy sleeper’ yet her sleep was disturbed indicating that she does not have an abnormal sensitivity to noise and that the nuisance would be unreasonable to a normal person48. The interference is not essential to society49. To establish that the interference was unreasonable, more information regarding locality50, Stark’s motives51, alternative means 52and the time and duration53 is needed.

Defences There are no possible defences on the facts.

Remedies Compensatory Damages Compensatory Damages are awarded if the trespass caused the plaintiff to suffer loss or harm. If the plaintiff succeeds in the action, compensatory damages will be awarded.

Injunction If the interference was a not an isolated, act Marsh could be granted an injunction to prevent Stark from committing the offense54. The duration of the nuisance is unknown and must be established in order to determine whether an injunction would be awarded55.

45 Andreae v Selfridge & Co Ltd [1938] Ch 1. 46 Andreae v Selfridge & Co Ltd [1938] Ch 1. 47 Bamford v Turnley (1862) 3 B & S 66; 112 ER 27. 48 Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825. 49 Munro v Southern Dairies [1955] VLR 332. 50 Andreae v Selfridge & Co Ltd [1938] Ch 1. 51 Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825. 52 Wherry v K B Hutcherson Pty Ltd (1987) Aus Torts Reports ¶ 80 -107. 53 McKenzie v Powley [1916] SALR. 54 Graham v K D Morris and Sons [1974] Qd R 1. 55 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149. Page8

Time limitations The limitation period will be 3 years if Marsh suffered personal injury56, and 6 years if there was material damage or an interference with Marsh’s use and enjoyment of land57. If the interference is continuing, the action may be brought at any time during the continuance58.

Conclusion Although the interference was with a legally recognised right attached to land, further information is needed to establish an action in Nuisance. To establish an action in Private Nuisance, further information regarding Marsh’s relationship with the land is needed. Additionally, further information regarding the time and duration, locality and availability of alternative means of the interference is needed to prove that the interference was unreasonable.

Summary In conclusion, the three actions of Trespass to Land, Battery and Private Nuisance, all require further information to establish whether actions would be likely to succeed.

56 Limitation of Actions Act 1974 (Qld) s 11 57 Limitation of Actions Act 1974 (Qld) s 10(1)(a) 58 Earl of Harrington v Derby Corporation [1905] 1 Ch 205.; Konskier v B Goodman Ltd [1928] 1 KB 421. Page9

PART B

Questions for Sophie Marsh: 1. Are you a licensee of the land on which you currently live? (Closed) 2. What did Stark do when he was on your land? (Open) 3. When and how did you make it clear to Stark that you did not like people coming onto her property? (Narrow) 4. When you lunged at Stark, did you make direct contact with him or in any way harm him? (Narrow) 5. What would have happened to the girl if Stark drove off on his motorcycle? (Open) 6. Could you tell me more about the conditions in which Stark revved his motorcycle? (Open)

Page 10...