Tort

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Author:
kayka148
ID:
151014
Filename:
Tort
Updated:
2012-04-29 20:40:44
Tags:
trespass land airspace civil aviation act property law
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Description:
Trespass to Land - Part 1
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  1. Entick v Carrington

    "If it is the law, it will be found in our books. If it is not to be found there, it is not law" meaning
    the power claimed by the officers is not supported by a single citation from any law book.
  2. Assume Entick v Carrington is the only authority on point, does the tort of trespass to land require a showing of damage?
    • No, trespass to land does not require a showing of damage. Trespass is actionable per se (in itself) whether or not the plaintiff has suffered any damage.
    • "No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing"
  3. Entick v Carrington

    Why is "Every invasion of private property be it ever so minute.. a trepass"? Would it make more sense for the law to require the defendant's trespass to have caused some kind of damage?
    • The value of protection of property is very important in common law.
    • Protection of property is the reason why we entered into a society.
    • If we cannot use the law to protect ourselves from invasion, then we would have to get into fights to keep people off our land.
    • There is a traditional link between the tort of trespass and preventing breaches of the peace.
  4. Entick v Carrington
    What does Lord Camden CJ mean by "The great end, for which the men entered into society, was to secure their property". What kind of security for property would exist if people had not "entered into society"?
    The reason why we have society is to protect our property. Otherwise the only way to protect our property would be to fight it out. Thus the reason why we entered into society is to use the law to protect property instead of fighitng it out.
  5. Entick v Carrington
    Why is the right to property "preserved sacred...in all instances" (where it has not been taken away or abridged by some public law for the good of the whole)?
    Tort law is a legal vehicle that facililates market activity. If we cannot use the law to protect our property than people would not bother buying anything, they would just try to go on to someone else's land and take whatever they need.
  6. Entick v Carrington
    I-Pad question
    Camden CJ noted "[one's] papers are...[one's] dearest property and are so far from enduring a seizure, that they will hardly bare inspection". But are Mike actions tortious?
    No because Camden CJ says "the eye cannot by the laws of England be guilty of a trespass".
  7. Entick v Carrington
    Is the 'sacred principle' confined to land?
    No discussion of chattels (papers) shows that the sacred principle of property extends to chattels.
  8. Standing to Sue- Trespass to Land
    • Trespass to land (and goods) is concerned principally with interference with the rights to possession of property.
    • Owners usually have the immediate right to possession (but not if the property is leased).
    • Tenants can sue for trespass to land to prevent interference with their possessory rights.
    • Owners out of possession can sue for trespass on a showing of damage to land.
  9. Why is tort law concerned to protect possessory rights againts interference?
    • Due to the traditional link between tort and preventing breaches of the peace.
    • Tort law provides an alternative to retaliation (revenge)
    • The person in possession is most likely to retaliate.
  10. What is a Strike Out Decision?
    The Court has been invited by the defendant to determine that even if the plaintiffs claims are true, the plaintiff would not be able to succeed at law.
  11. What is a Summary Judgement?
    Plaintiffs make summary judgement applications when they believe that the defendant has no possible defence to a claim.
  12. What are damages?
    An award of money given in response to the "damage" which the plaintiff has suffered
  13. Two types of damages
    • Pecuniary: easily expressed in dollar (e.g. medical expenses)
    • Non-pecuniary: not easily expressed in dollar (e.g. pain and suffering)
  14. Two types of injunction
    • Final injunction: permanent injunction issued on completion of a trial
    • Interim injunction: temporary injunction made by a court during a trial until the case is decided
  15. Bernstein v Skyviews
    Facts
    • Skyviews took aerial photos of homes and tried to sell them to the owners.
    • The owner of the house sued them for trespassing in the airspace over his land.
  16. Bernstein v Skyviews
    Griffiths J refered to cases such as Kelsen v Imperial Tobacco Co which recognized that......

    This meant that.....
    a trespass could occur when a sign overhangs the plaintiff's land.

    • There can be a trespass even though the object does not touch the surface of the land.
    • Trespass can occur in airspace.
  17. Berstein v Skyviews limits the....
    Cujus est solum principle
  18. Bernstein v Skyviews
    Trespass zone
    • The trespass zone did not extend to infinity but rather to that area necessary for the ordinary use and enjoyment of the land.
    • "above that height he has no greater rights in the airspace than any other member of the public"
  19. Bernstein v Skyviews
    Is Griffiths J's holding consistent with Camden CJ's analysis in Entick v Carrington?
    • The two can be distinguished because Camden CJ is simply sayig that our land will be strictly protected by the tort of trespass.
    • Griffiths J is saying that airspace over land can be trespassed but the trespass zone does not extend to infinity but rather to that area necessary for the ordinary use and enjoyment of the land.
  20. The impact of s 97(2) Civil Aviation Act 1990 on Berstein v Skyviews
    • This provision limits Griffith's "ordinary use and enjoyment" analysis because it says that merely flying across is not a trespass.
    • Immunizes airlines
    • This section would be unnecessary if rights in airspace did not extend to at least a reasonable flying height.
    • The phrase 'by reason only' indicates that the statutory immunity does not apply to cases where the defendant has done more than simply fly at a reasonable height.
    • This section conditions immunity on compliance with the Civil Aviation Act 1990 and rules made under it.
  21. Davies v Bennison
    Facts
    • The defendant shot and killed the plaintiff's cat, which was located on a roof of a shed in plaintiff's backyard.
    • Because the bullet remained embedded in the deceased cat, it never touched the ground.
  22. Davies v Bennison
    Analysis
    • The defendant argued that there is no trespass because the bullet never touched the ground.
    • One can engage in trespass through things such as rubbish.
    • We have seen in Bernstein v Skyviews that contact with the surface of the plaintiff's land is not a requirement of the tort of trespass to land because trespass can occur in airspace (provided that it is within the area necessary for the ordinary use and enjoyment of the land).
  23. Property Developer Ltd (PDL) wants to build a building next door to you. The boom of the PDL's crane anchored to PDL's land, frequently need to swing above your land.
    Property developer's argument
    • Bernstein replaced the "cujus est solum" principle with "ordinary use and enjoyment" principle.
    • The crane boom is beyond the area that is necessary for the ordinary use and enjoyment.
  24. PDL continued
    The landowner's argument:
    • Cujus est solum principle applies where the object is fixed (not transient)
    • Bernstein does not speak to the situation of fixed objects.
    • Even if it does the crane boom is too law and it is within the area that is necessary for the ordinary use and enjoyment.
  25. s 320 of the Property Law Act
    • you can apply to get permission to trespass.
    • it is an expensive process
    • if the parties want to settle, this would reduce the price of settlement down to less than the court fees that would be paid to secure one of these orders.

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