Study the collocations below and write five sentences to illustrate their meaning.

to give rise to an action in tort / a tort action

to seek compensation (from smb) by means of an action in tort

to commit a tort

the law of tort(s)

to be capable of protection in the tort of nuisance

to have no right under this tort

a tort involving dangerous animals

under rules of tort liability / liability in tort

to start a legal action in tort

6. Text 1 NotesNote-taking

Make one-page Notes or a Mind Map of Text 1. When you have finished, go over the following checklist:

1. Did I reduce the original text to single words and short phrases?

2. Did I leave out articles, most verbs, etc.?

3. Did I structure the information?

4. Did I use signs, symbols, and abbreviations?

5. Did I use colour to highlight the key information?

6. Did I fit everything onto one page?

Be ready to talk in front of the class using your notes.

Text 2: Torts of Trespass, Nuisance and Strict Liability

Pre-reading tasks

1. On many private estates one can see a notice ‘Trespassers will be prosecuted’. Why is it legally incorrect?

2. Look at the following statements and mark what you think the answers are. Then scan the text and check your initial hypotheses.

a. A boxer who severely injures his opponent has no defence. True / False

b. A private citizen can arrest another private individual. True / False

c. If a new building blocks a pleasant view from your house, True / False

you have a right to legal protection.

3. Now read the text and do the exercise that follows.

Trespass

The tort of trespass .is defined as a wrongful direct interference with another person or his property, such as: striking a person, taking away his goods without his consent or entering his land. Indirect or consequential injury, such as leaving an unlit hole into which someone falls, is not trespass (but one can seek another action, for example, in the tort of negligence). The act of trespass is a tort per se, i.e. a tort itself, and it is not necessary to prove that it has caused actual damage.

Trespass to the person covers only intentional acts and can take one of three forms: assault, battery, and false imprisonment. You will remember that assault is threatening someone in such a way that they genuinely believe that they are going to be physically hurt (for example, pointing a gun at someone), while battery is the actual application of force to someone (or mere touching) without his consent. False imprisonment is unlawful restriction of a person's freedom of movement, not necessarily in prison. It includes unlawful arrest and unlawfully preventing a person leaving a room or a shop. It is enough to show that you have been detained against your will, even if it was for a short time, no force or threats were used, and you were not harmed or inconvenienced. However, since damages are related to the harm suffered, it is hardly likely that anyone will sue in such a case unless his aim is to obtain an injunction.

Defences. In trespass to the person the consent of an adult is effective. However, consent to an act which causes actual bodily harm or a greater level of harm does not provide a defence unless it falls within certain categories accepted by the law, such as organised sports, surgery carried out by a medically qualified person, stunt shows, etc. There have been cases where rugby players or footballers were sued in the civil courts for 'trespass to person', but they have been largely unsuccessful. The claimant might succeed only if he could prove that his opponent acted completely outside the rules. A doctor sued for trespass to the person can plead necessity if it can be proved that the treatment was in the best interests of the patient and he acted in accordance with a responsible and competent body of medical opinion. Other defences include self-defence; preventing a greater evil, that is, assisting someone else who was being attacked; parent authority - the right to punish one's own child, but the law protects children against excessive and unreasonable punishment. Besides this, there are instances where it is legal for a private citizen to arrest someone - this is known as a citizen's arrest. Provided the defendant had reasonable grounds for suspicion and provided an offence has been committed, it is unlikely he would have to pay damages, even though the person in question subsequently proves his innocence.

Trespass to goods includes touching, moving or carrying them away. It consists in any wrongful interference with them, for example, damaging goods in some way, removing a car from a garage, killing an animal or, as has been held recently, wheel-clamping a motor car. Closely related to it is the tort of conversion. Conversion means denying the owner his right of possession to the goods. It could arise, for example, where a company refuses to return the hired equipment or pay for a further week's hire. It could also arise where a person buying goods on hire-purchase tried to sell them without permission of the owner. Banks could be sued for conversion if they payout on a cheque to a person who has no title to it (International Factors v. Rodriguez, 1979). Destroying goods or altering them to another species are also acts of conversion. The main difference between trespass and conversion is that in trespass the taking of goods is temporary and is not done to exercise rights over the goods.

Defences. In trespass to goods, inevitable accident is a defence. For example, a driver who rammed your car to avoid running over a child knew that he would damage your car, but he may try to explain to the court that no ordinary care and skill could have prevented the accident. Contributory negligence is not a defence to conversion or intentional trespass to goods; nor is it a defence that the defendant acted innocently, subject to some exceptions. The claimant in conversion must prove that he had ownership, possession or the right to immediate possession of the goods at the time of the defendant's wrongful act.

Trespass to land usually takes the form of entering it without permission. For example, if an outsider uses a factory's yard as a shortcut, he is an unlawful visitor and therefore a trespasser. With the exception of certain categories of visitors, such as the police, Health and Safety inspectors, anyone who enters land without the express or implied permission of the owners is an unlawful visitor. If a lawful visitor abuses his authority, he too becomes a trespasser. Other instances include dumping rubbish on someone else's property or crashing in a car onto it (the owner of the property has the right to retain the vehicle until the trespasser agrees to fix any damage caused by the crash).

Trespass to land is not normally a crime, therefore the notice ‘Trespassers will be prosecuted’ is usually misleading and is called ‘a wooden lie’. Only occasionally is trespass a crime: when a trespasser threatens violence or damages 'property; when a trespasser has a weapon of offence or a firearm for which he has no reasonable excuse; when trespass takes place on protected territory, such as diplomatic premises, military or railway territory; when squatters occupy someone else's premises displacing the legal occupier and refusing to leave.

Defences. In addition to the legal remedies, that is, injunction and damages, the owner of the premises has the right to eject a trespasser using minimum force, provided he has asked the trespasser to leave. If he can prove these two things to the court, this would be a defence against a claim of rough treatment. But for the trespasser it is no defence to show that the trespass was innocent, for example, that he honestly believed that the land belonged to him. Trespass onto someone else’s property is legal if it is to prevent a greater evil, for example, to rescue a cat that was trapped in a tree.

Nuisance

Nuisance is an activity or state of affairs that interferes with the owner’s enjoyment of his property (private nuisance) or with the health, safety, or comfort of the public at large (public nuisance). Only private nuisance is a tort, while public nuisance is a crime and includes such activities as obstruction of the highway, selling food unfit for human consumption, pollution of the environment, etc.

Private nuisance, unlike trespass to land, is indirect interference with someone's enjoyment of their property. It can take many forms, such as noise, smoke, smells, vibration, fumes or the blocking of a right of way. For example, loud banging and distasteful smells from a nearby factory can be actionable nuisance and the owner can sue for damages, but more likely the court will grant an injunction ordering the company to refrain from this process. In coming to a decision the court will take into account such factors as frequency and duration of the alleged nuisance; the locality (you may have to put up with more in an industrial area than in a residential area), etc. In general, the courts try to balance conveniences and inconveniences of the opposing parties.

However, not all aspects of the use or enjoyment of land are capable of protection in the tort of nuisance. Under English law, there is no right to a pleasant view or, indeed, to light: if a neighbour’s proposed wall would blot out the light, the best the owner can do is try to oppose planning permission. In a case in 1752, Lord Harwicke noted that if there was such a right there would be no great towns. No action lies for interference with merely recreational aspects of the use or enjoyment of land, such as television viewing (as in the case of Hunter v. Canary Wharf Ltd (1997) where the construction of a tall building interfered with domestic television viewing).

Defences. The general principle in nuisance cases is: an owner of land can do what he wishes provided this does not interfere unduly with others. Two points are of importance in nuisance. First, it is no defence for a defendant to say that the claimant 'came to the nuisance'. For example, if you move to a new place and find the smell and noise from a restaurant nearby excessive, it is no defence for the restaurant owner to say it has always been the same and that your predecessors had never complained. However, if this is a recreational area of the town, with dozens of cafes and restaurants, you may have to put up with more personal discomfort in this respect. Secondly, a defendant may not plead necessity. A person who disturbs his neighbours, like doctors making night emergency calls, may find that his plea of necessity will not be accepted by the court. But the law allows some other defences, such as contributory negligence, consent or remoteness. If the defendant is empowered by statute to carry out a certain activity, he has a defence of statutory authority. If a person has enjoyed a right in an uninterrupted way for 20 years (for example, a right to discharge water from his eaves onto his neighbour's land), he can plead prescription, i.e. use his prescriptive right as a defence.

Date: 2016-01-14; view: 909