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Trespass - Coggle Diagram
Trespass
TYPES OF TRESPASS
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(i) Assault
- Any act that causes the plaintiff reasonable apprehension of immediate injury to themselves i.e. threat of battery
- Generally, the defendant must have the means to carry out the threat before it will be considered an assault. If it was an empty threat or one that is impossible to carry out, it would not be an assault.
- However, while the action of a defendant may indicate an assault, his words can have the effect of neutralizing or negating it.
(ii) Battery
- The direct, intentional application of physical force by a defendant to a plaintiff without the latter’s consent.
- requires the plaintiff to show intention to touch or apply force by the defendant (NOTE: this is not to be confused with the intention to cause harm. As previously explained, ‘intention to cause harm’ is not relevant to the law of tort.).
- excludes daily casual contact from the realm of ‘battery’.
(iii) False Imprisonment
- The defendant’s wrongful restraint of a plaintiff’s freedom of movement.
- The plaintiff must show that the restraint was total (i.e. there was no reasonable means of escape from the confinement)
- Another factor the courts will consider in false imprisonment cases, is whether the restraint was lawful. If the restraint was lawful, then false imprisonment will not be established (defence of lawful authority).
- The plaintiff need not show that he knew of the restraint at the time of the “imprisonment”. However, it is now accepted that where the plaintiff is unaware of the restraint, the amount of damages recoverable will be lower
Defences
- Consent (assault & battery)
- usually arises in cases of contact sports such as football, hockey and rugby. sportsmen cannot sue for assault or battery for these injuries, as by participating in the sport, they have consented to a certain amount of physical contact and injury.
- Self-Defence
- where the plaintiff is shown to have initiated the attack. The law allows a person the right to use reasonable force to defend himself and his property. However, this defence can only succeed if the defendant uses force that is proportionate to the threat he perceives from the plaintiff.
- Defence of Necessity
- used by the defending doctors and medical authorities where the plaintiff claims battery against the doctors. - It would apply where a defendant acts in the best interests of the plaintiff, where the plaintiff cannot decide for himself.
- Defence of Lawful Authority
- used in cases of false imprisonment by a defendant who is authorized with powers to hold the plaintiff in custody.
ABOUT
- Generally protects the integrity of the
person/body, of land and even of goods/one’s personal property
- Basis for this law is that no one has the right to interfere or without permission or consent, touch or mishandle in any way, another person’s body, his land or his possessions
Difference between trespass & negligence:
- Trespass is an intentional tort. ‘Intention’ here refers to the consciousness of the mind. The reason for the action is not relevant. Negligence is done unintentionally. It is a case of doing something without the necessary care demanded by the law. Why the tortfeasor acted without care, whether there was an intention to cause harm, are all irrelevant.
- An action for trespass is actionable per se (i.e. the plaintiff need not prove that damage was caused to him by the defendant’s action). The fact that the trespass took place is enough for the plaintiff to sue. In the case of negligence, damage/injury is a necessary element that the plaintiff has to establish before he can succeed against the defendant.
TYPES OF TRESPASS
(b) Trespass to goods
- The unlawful, direct touching or the application of force to the goods in the possession of another person. The word ‘goods’ here refers to personal property of any kind. Another word commonly used would be ‘chattel’.
- Does not require the plaintiff to be the owner, but rather merely to have been in possession of goods that he is entitled to hold.
- Real/immoveable property e.g. houses, farms, factories (anything above & below ground)
- Moveable property e.g. phone, jewellery, cars etc.
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Defences
- if the defendant can show that he has a better right to possess the goods than the plaintiff.
- consent by the plaintiff to the defendant’s actions on
the goods.
TYPES OF TRESPASS
(c) Trespass to Land
- The unlawful, direct interference with land in the possession of another
- Like trespass to goods, the tort of trespass to land is committed against possession and not ownership of the land.
- e.g. wrongful entry, or unlawfully remaining on someone else’s land or even placing objects or dumping rubbish onto someone else’s land
- Interference must be direct and not consequential.
Defences
- If the defendant can show that he has a better right to possess the land than the plaintiff.
- The defendant having legal or statutory authority to enter the premises e.g. the fire department entering your property to put out a fire
- The situation giving rise to one of necessity e.g. if there is a drowning child in my neighbour’s swimming pool, I would be justified running into their property to rescue the child.
REMEDIES FOR TRESPASSES
- Damages - need to prove that they have suffered some damage to their person, goods or land for which they are claiming compensation for.
- Injunction - asking for a court order to stop the defendant from committing or from continuing or from repeating an act of trespass. An injunction would be useful to the plaintiff as it helps prevent the damage before it begins. But it must be remembered that as it is an equitable remedy, the award of injunctions are discretionary to the courts.