Reasonable Fear – If the plaintiffs is at the mercy of defendant and has no idea if the harm is to occur now or in 10 minutes, then it is a continuous fear and enough for assault. (Zanker v Vartzokas) Directness direct result where that interference can be characterised as being part of D’s act (Southport v Esso) Southport v Esso – Lord Denning held no Trespass as interference from oil only occurred due to the action of the tide washing it up on P’s property. Not Direct - Run off onto other prosperities is not direct as its consequential - (Huchins v Maughan) In Hutchins v Maughan - a case the plaintiff’s sheep dog ate poisonous bait and died - the Court ruled that in order for trespass of goods to be established, there must be direct intention and physical control. the dog consumed the bait independently of anyone else’s interference. Fault – Act may be done either intentionally or carelessly (League Against Cruel Sports v Scott) Notion of continuing trespass – after initial trespass committed, person/object remains on land, personal responsible is liable (Konskier v B Goodman Ltd) Interest – P must be entitled to exclusive possession of land when the trespass occurred & P must have been in actual/constructive possession Mere licence to be on the land is not sufficient (Vaughan v Shire of Benalla) 4 Defences against Trespass to Land? Consent Implied consent – to enter property by pathway/drive leading to the ordinary entrance of normal suburban dwelling if unobstructed – e.g. gate unlocked, legitimate reason for being there (Halliday v Nevill) Must be an authorised act (Lincoln Hunt v Willesee) Can remove implied consent at any time by express consent – ‘sign which says keep out’ Presume there is a licence but what do the facts say ? Revocation of consent –
Social utility/benefit – wont justify what otherwise would be a nuisance if it is affecting someones utility of the land (Munroe v Southern Dairies, Hunter v Canary Wharf) P’s abnormal sensitivity – of P or P’s property does not matter (Robinson v Kilvert). Cannot be relied on by P for cause of but can still be argued. ‘A man who carries on an exceptionally delicate trade cannot complain against someone who is doing some lawful on their property’ - (Robinson v Kilvert) Proprietary Rights Interests in Free Access to Property – P has right to have free access to their property Animal Liberation v Gasser – picketing protestors amounted to a nuisance as Circus could not run. NOT covered by Nuisance Freedom from VIEW A cannot bring an action against B if B has caused interference to the use and enjoyment of A’s land by way of merely looking at it (Victoria Park Racing v Taylor) Interference from PHYSICAL PRESENCE of a building nearby i.e. Such that P’s view spoiled, increased light through windows, view blocked, extra wind comes across property or television reception is affected. No Action – In nuisance against those responsible for the building (Hunter v Canary Wharf) but may have cause action if something other tahn the actual building causes interference (i.e. generator inside – Nor-Video Services v Ontario Hydro) 5 What defences are available? Going to the Nuisance? It is NOT a defense that P effectively exposed themselves to nuisance by moving nearby to where D was already doing an act (Miller v Jackson) Statutory Authorisation (SA) SA will be a valid defence when: Leglisation imposed on D the doing of a particular act (Lester-Travers v City of Frankston) i.e. council workers repairing road with SA and must specifically authorise
Failure to warn (MEDICAL) D must warn P of risks otherwise failure to warn adequately – s50 Wrongs Act, Rogers v Whittaker Medical - Doctor must warn patient of a material risk of injury – Rogers v Whittaker Material Risk – A reasonable person in the plaintiffs shoes would attach significance to it; OR Doctor is or should have reasonably aware that the patient would attach significant to it. (Rogers v Whittaker) If D Fails to meet the standard of care that a reasonable owed – D breaches duty (Blyth v Birmingham Waterworks Co). P owes duty of proof (Holloway v McFeeters) Did the Breach the Economic Loss? (other refer other tests below) Third Party Liability (refer next page for contractual) Negligent acts which cause economic loss can enforce an action