TRESPASS Monday 1 August 2011

3 categories of Trespass  Trespass to the person  Trespass to land  Trespass to goods (things)

Trespass to the person  Protects an individual’s right to freedom and safety

3 main categories of Trespass to the Person  Assault  Battery  False imprisonment

Assault  Assault can result in both criminal and civil actions  The tort of assault carries a slightly different meaning to the crime of assault  The tort of assault is ‘placing a person in a position where the person reasonably believes that they are in immediate physical danger’

Examples of Assault  To threaten someone with a knife  To throw a punch that misses  Unwanted kissing or cuddling  Pointing a toy gun and threatening to use it if the victim thinks the gun is real

Elements  1. Defendant posed a direct threat to the plaintiff  2. Plaintiff had a reasonable fear of harm due to the threat  3. Plaintiff had knowledge of the threat made by the defendant

Battery  Battery is “the actual application of physical harm without consent”  It is often combined with assault  In criminal law, there is no separation of the threat of physical harm and the actual carrying out of the threat  In civil law, we separate the threat or fear of immediate physical danger (‘assault’) and the act of carrying out the threat (‘battery’)

Elements  1. Defendant made direct contact with the plaintiff’s body  2. Defendant intended to make contact  3. Defendant acted voluntarily

Defences to assault and battery  Incapacity  Self-defence  Necessity  Consent  Other (accident, etc)

False Imprisonment  False imprisonment is to illegally detain someone

Examples  Being locked up  Being marooned in a way that is difficult or dangerous to escape  Excludes lawful arrest or detention by police

Examples of Trespass to Land  1. Entering another person’s land without permission  2. Staying there longer than permitted  3. Putting something on or against the land of another person

NUISANCE

Definition  Nuisance is the “violation of the right of a person to reasonable convenience and comfort in life.”  2 types of nuisance:  1. Public nuisance  2. Private nuisance

Public Nuisance  Dealt with under criminal law as well  Includes situations that pose a danger to the public

Private Nuisance  The interference with our right to enjoy our land

Elements  1. Defendant’s action is a physical interference with the plaintiff’s enjoyment of land  2. Plaintiff suffers actual loss or harm  3. Defendant’s action is continuous and reasonably serious

Defences  Interference is not serious  Plaintiff is extremely sensitive

Round 1  Name the elements of assault

Round 2  Name the elements of battery

Round 3  Name the defences to assault and battery

Round 4  Name the elements of private nuisance

Round 5  Name the elements of negligence