AMIRAH BT SALMAN BEQ090003

LAW OF TORTS

OUTLINE - TRESPASS

INTRODUCTIONTRESSPASS TO LAND

Elements of trespass Mental state of defendant: Basely V. Clarkson Interference: Gregory V. Piper

POSSESSIONTRESPASS TO RELATIONINTERFERENCE

OUTLINE - TRESPASS

TRESPASS TO HIGHWAY DPP V. Jones

TRESPASS TO SUBSOILTRESPASS TO AIRSPACE

Pickering V. Rudd

CONTINUING TRESPASS Konskier V. Goodman

TRESPASS AB INITIO Cinnamond V. British Airport Authority

OUTLINE – NEGLIGENCE (Duty of Care)

INTRODUCTION Negligence Duty of Care

NEIGHBOURHOOD TEST NEIGHBOURHOOD PRINCIPLE

Donoghue V. Stevenson Home Office V. Dorsett Yacht Peabody Donation V. Lindsay Parkinson Sathu V. Hawthornden Rubber Estate Co. Ltd Sivakumaran V. Yu Pan

REVISED TEST Anns V. Merton London BC

CURRENT TEST Caparo Ind. V. Dickman

OUTLINE – NEGLIGENCE (Breach of Duty)

Reasonable Man Test Glasgow V. Muir

Level of IntelligenceProfessional Defendant

Phillips V. Whitely Bolam V. Friern Hospital Management

INTRODUCTION

• Tort comes from Latin word tortus, which means wrung.

• So TORT means WRONG.• It is a wrongful act not authorized by law.

TRESPASS TO LAND

• Definition: An unjustifiable/unreasonable interference with another’s possession of land.

• An intentional tort & committed against someone who owns the land.

• Actionable per se (without proving the damage)– Irregardless if landlord can prove damage /not– He will still be entitled to damages even if he

doesn’t suffer any actual loss.

ELEMENTS OF TRESPASS

• Mental state of defendant– Even if defendant didn’t intent to do the alleged

act/without intention, there must be a voluntary act in entering the plaintiff’s land.

CASE: BASELY V. CLARKSONFACTS: Defendant accidentally mowed plaintiff’s land

while mowing his own grass. HELD: The act of mowing his grass is a voluntary act, so

he is liable. It is done with intention.

ELEMENTS OF TRESPASS

• Interference– Must be direct.

CASE: GREGORY V. PIPERFACTS: Rubbish placed near plaintiff’s land rolled onto

plaintiff’s land upon drying.HELD: Defendant liable because the trespass is a

foreseeable result from the defendant’s act.

POSSESSION

• Varies according to nature of property.• No consistent theory of possession.• Example: A person staying in a hotel room

does not own the room.• Example: A person who has been granted to

grow crops in someone else’s land has enough possession to sue for trespass.– CASE: MONSANTO V. TILLY

TRESPASS BY RELATION – IMMEDIATE RIGHT TO POSSESSION

• Signifies the lawful right to retain possession when someone has it.

• Signifies the lawful right to acquire possession when one has not.

• When someone is entitled an immediate right to possession, when he enters land and acquire possession, he is in possession.

• He can sue for trespass when he’s out of possession.

• Claim for damages: Mesne profit

INTERFERENCE• Interference to land is sufficient to amount to trespass.• Ways of interference

– Unauthorized walking on someone’s land– Throwing something on someone’s land– Discharging water into the flowing watercourse– Letting your cattle stray from your land

• Trespasser– A person extend permission to enter another’s land– A person remains in your land after it expires

• Trespass to person– Injury must be direct & immediate– Not a trespass if damage is indirect– But there’s a remedy for nuisance

• Example: A plant tree on B’s land – Trespass» Branch from A’s tree projects onto B’s land - Nuisance

TRESPASS TO HIGHWAY

• Not a trespass if someone use highway to travel from one place to another.

• Rights of a highway user is confined to use of passage.

CASE: DPP V. JONESFACTS: There was an assembly on highway.HELD: By majority of HOL that it is not a trespass to

hold a peaceful assembly on highway, so long as it is reasonable and doesn’t cause any obstruction.

TRESPASS TO SUBSOIL

• Trespass to subsoil is just as much a trespass as trespass to surface of land.

• Surface and soil may be owned by different people.

• Example: – A possess surface and B possess land.– If I walk on land – Trespass to A– If I dig vertical hole from surface – Trespass to A & B– If I dig tunnel from my area to B – Trespass to B

TRESPASS TO AIRSPACE

• Classic viewCASE: PICKERING V. RUDDHELD: Invasion of airspace above someone’s

land is not a trespass unless there’s actual contact with the land.

• Modern view– Classic view is incorrect.– If a signboard erected on defendant’s land

projects onto plaintiff’s land, it is a trespass.

CONTINUING TRESPASS

• Definition: Failure to remove object unlawfully placed on plaintiff’s land.

CASE: KONSKIER V. GOODMANFACT: Contractor fail to remove rubbish after completion of

work. He dump it on plaintiff’s property and left it there after his license expires.

HELD: There was a continuing trespass through negligence.• But it’s not a trespass if defendant merely omit to restore

the same condition.– Example: Defendant fail to fill pit. He’s liable for trespass for

digging, but not liable for continuing trespass in allowing it to be there. But he’s liable for negligence if someone falls into the hole.

TRESPASS AB INITIO

• You become a trespasser ab initio if you abuse your authority as justified by law.

• Your act is unlawful from the very beginning.• Doctrine only applies if the authority is of the law and

if the act is positive, not a mere omission.CASE: CINNAMOND V. BRITISH AIRPORT AUTHORITYFACT: 6 taxi drivers were prosecuted by the airport

authority for touting passengers and loitering at airport.

HELD: Taxi drivers had abused their authority given by law and they were trespassers from the beginning.

NEGLIGENCE (Duty of Care)

• INTRODUCTION– Negligence: When someone who owes you a duty

of care failed to act according to a reasonable standard of care & this has caused you injury.

– Duty of care: If your actions are reasonably likely to affect someone else, then you owe them a DOC. You have to act according to a reasonable standard of care to ensure that those people are not harmed or injured as a result of the things you do. If not then you have been negligent.• Example: A doctor owes you DOC to make sure you get

proper medical attention.

NEIGHBOURHOOD TEST• A test to discover the existence of DOC & to know if defendant is liable for

negligence/not.• An objective test.• Court will ask hypothetical question.

– “Would a reasonable man in the same circumstance as defendant foresee that his act will affect the plaintiff?”

– If NO- Plaintiff not a neighbour of defendant, no DOC– If YES- Plaintiff neighbour of defendant, yes DOC

• Example: A run over B, and C (wife of B) suffer shock at hospital. Eventho C is not at all close at the accident, but she is deemed to be ‘close’ because C is a person who a reasonable man foresee that might be affected from A’s conduct.

• Don’t need to apply the test in all cases to determine DOC cuz court have recognised the existence of DOC.

• Example: A teacher owes DOC to a student.• No DOC

– Example: A have no DOC to B to remove the banana skin from the floor. If B slip, A is not liable for it.

CASE: DONOGHUE V. STEVENSONFACTS: May McAllister bought a ginger beer drink bottle and

entertained her friend, Ms. Donoghue. When she refilled the glass, out came decomposed remains of a snail. Plaintiff suffered shock and was severely ill. So she sued the manufacturer claiming that he had a duty in his business to prevent the snails from entering the bottle and to carefully inspect the bottle before filling it with ginger beer.

ISSUE: Whether defendant owe a DOC to plaintiff?HELD: Plaintiff is a neighbour to defendant. Lord Atkin ruled

that you are to love your neighbour, you must not injure your neighbour and you have to avoid a reasonable foresee act that might injure your neighbour. The qs is who is your neighbour?- Someone who is closely/directly affected by your act. So the defendant is liable and owe a DOC to plaintiff.

CASE: HOME OFFICE V. DORSETT YACHTFACTS: 7 borstal trainers escape from an island

due to negligence from borstal officers. The boys caused damage to some yachts and the owner of the yachts sue the Home Office

ISSUE: Whether the H/O owe a DOC to owner of yacht?

HELD: H/O was liable because they owe a DOC to plaintiff.

CASE: PEABODY DONATION V. LINDSAY PARKINSONFACTS: Drainage system of a building was defective.

LA in charge of overseeing the construction was found to be aware of the fact that the approved plans didn’t adhere to the completed drainage system. So plaintiff sue the LA claiming that they had breached their duty by not ensuring that approved plans were adhered to.

ISSUE: Whether the LA owe a DOC to plaintiff?HELD: The LA does not owe DOC to plaintiff.

CASE: SATHU V. HAWTHORNDEN RUBBER ESTATEFACTS: Plaintiff’s cattle died while grazing on

defendant’s estate which was sprayed with sodium arsenide earlier on. Plaintiff claim defendant breached his duty under the D V. S principle.

ISSUE: Whether defendant owe plaintiff DOC?HELD: Defendant does not owe DOC to plaintiff and

thus, is not liable. In order for defendant to be liable under the D V. S principle, it must be shown that he is aware that plaintiff’s cattle is likely to stray on his estate. Since it is not reasonably foreseeable by the defendant, he’s not liable for the loss.

CASE: SIVAKUMARAN a/l SELVARAJ V. YU PANFACTS: Plaintiff’s husband was seriously injured

after a collision with the defendant’s lorry. 9 months after, he committed suicide. She sue the defendant claiming it was their fault.

ISSUE: Whether the defendant owe DOC to plaintiff?

HELD: Defendant doesn’t owe DOC to plaintiff. The suicide was not foreseeable and it wasn’t a normal reaction to the accident. The claim is dismissed with costs.

REVISED TESTANNS TESTCASE: ANNS V MERTON LONDON BC• FACTS: Plaintiff bought a house from a developer in

1962. In 1970 cracks appeared in the walls of the house and the floor became uneven due to the foundation of the house. The plaintiff sue the builders and the local authority for negligence & failure to properly inspect the foundation of the house.

• ISSUE: Whether there is sufficient neighbourhood relationship between the alleged and the person who suffered loss.

• HELD: Defendant is liable. Too expansive and the Anns case was itself overruled.

CURRENT TEST

CAPARO TESTCASE: CAPARO IND. V. DICKMAN• Claimant has to show 3 things for a DOC to exist. 1. Foresight

– Is it reasonably foreseeable that plaintiff would be injured (foreseeability of damage)

2. Proximity– Is there sufficient proximity between parties?

3. Fairness– Is it fair, just & reasonable to impose DOC?

NEGLIGENCE (Breach of DOC)

Breach: When defendant does something below his minimum standard of care.

Negligence: The omission to do something which a reasonable would do OR doing something which a reasonable man wouldn’t do.

REASONABLE MAN TEST

• Test to show that the defendant owed a DOC & that he breached it.

• “Would a reasonable man in the same circumstance as defendant have acted as the defendant has done?”

LEVEL OF INTELLIGENCE

• A reasonable man:1. Is not expected to be perfect.2. Is a person of normal intelligence.3. Deemed to possess a particular knowledge about

a situation.4. Does not take into account defendant’s personal

characteristics.5. Up to judge to determine course of action that

would be taken by a reasonable man & what should have been foreseen by defendant.

3 Issues: Duty, breach & damageCASE: GLASGOW V. MUIRFACTS: Defendant spilled some hot tea on children.ISSUE: Whether the defendant should have

foreseen the injury would occur when he brought the container through the shop’s corridors?

HELD: A reasonable man wouldn’t have foreseen such accident in the circumstance.

PROFESSIONAL DEFENDANT

• Bankers, doctors, accountants, lawyers architects, engineers are considered as professionals.

• They are bound to exercise the care and skill of ordinary competent practitioners in that professions.

• The standard of care required of them is that of a reasonable professional.

• Their standard of care is higher than that ordinary man on the street.

CASE: PHILIPS V. WHITELEYFACTS: A jeweller employed a man to pierce Mrs. Philips. 2

weeks later she developed an infection that caused a swelling on her neck which requires surgery.

ISSUE: Whether the defendant who pierced her ear have to show the care of a reasonable surgeon/ reasonable jeweller?

HELD: A jeweller is not bound to take same precautions as a surgeon. Defendant had taken all reasonable precaution. Plaintiff was unable to prove that the jeweller has been negligent, so defendant was not liable.

CASE: BOLAM V. FRIERN HOSPITAL MANAGEMENT

FACTS: Doctor treating plaintiff had given ECT (electro-convulsive-therapy). Plaintiff claimed damages alleging that defendant were negligent.

ISSUE: Whether the doctor were negligent?HELD: Doctor not guilty of negligence as he has

acted according to practice.