LLB102 Torts

TUTORIAL WEEK 3
Question 1
Asher Kiddy is a star of a television series and is often in the news. She recently
made the headlines by making some embarrassing and politically incorrect statements
about refugees in Australia.
Television crews descended upon Asher’s residence, a large house in Ascot that she
was renting. Carrie Buckwheat, a reporter with a local current affairs television
program, was first to arrive and went to the front door of the residence through the
unlocked front gate. When Asher answered the door, she told Carrie that she had
nothing to say and that she was to leave. Carrie ignored her and continued to press
her for a comment, only leaving as Asher’s bull mastiff, Tiny, appeared.
Advise Asher Kiddy as to any possible trespass to land action(s) that she may have
against Carrie Buckwheat on the facts.
The issue here is whether Carrie Buckwheat has committed an actionable trespass to land tort against
Asher Kiddy.

Asher Kiddy must prove the following elements;

(a) The plaintiff must have to requisite title to sue;
(b) There must be an actionable interference with land; and
(c) The defendant must be at fault

Entick v Carrington (1765) 19 t Tr 1029; 95 ER 807; Halliday v Nevill (1984) 155 CLR 1 at 10; 57
ALR 331 at 33

The facts demonstrate that the residence and land’s title is owned by Asher Kiddy, and there are no
relevant facts suggesting otherwise, therefore, Asher Kiddy has title to sue.

A direct interference is suffered by Asher as Carrie continues to pursue answers by Asher after a
negative of consent.

Whilst Carrie has an implied consent to enter the land of Asher as through her access to her front door
via an unlocked gate as to pursue lawful communication, (Halliday v Nevill (1984) 155 CLR 1; 57
ALR 331; Robson v Hallett [1967] 2 QB 939 at 951.)

Asher’s request for Carrie to leave the property and no further comment is an expressed negative to the
implied consent Carrie had to Asher land making Carrie an unauthorized interference, (Lord v
McMahon [2015] NSWSC 1619 at [148])

Whilst Carrie has a reasonable amount of time to leave the property (Cowell v Rosehill Racecourse Co
Ltd (1937) 56 CLR 605) by pursuing answers after Asher’s negative to consent she is not leaving
within a reasonable amount of time.
Carrie is at fault as she intentionally continues to ask Asher for answers after a negative to consent,
instead of leaving within a reasonable amount of time, and in case of her not believing that she still had
consent she is still at fault. (Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1292.) (Negligence to
this fact of no consent also sufficient)

It is clear that all elements to an actionable trespass to element are satisfied and an action brought by
Asher against Carrie would likely succeed.
Interference forms the basis for an action in trespass to land involves property limitation period is 6
years
Question 2
Pearson Herdman (‘the firm’) is an international accounting firm that owns premises
at Hamilton, Brisbane. Behind its office building is a large field. Although the field is
not part of the firm’s premises, it has been using it. The firm has set up tables on it for
employees to eat lunch outside, it has work picnics on the field and it uses the field for
sporting activities. Around 15 years ago, the firm built a new fence around its
premises and included the field within this fenced boundary. The firm even hired a
gardener to maintain the field’s grass and bushes. On several occasions, uninvited
visitors have been asked to leave the field as it is private property. No-one has ever
challenged the firm’s actions because there is no registered owner of the field.
Last Friday, it was the firm’s annual work party. The firm set up music and a
barbeque for the employees on the field. When the employees went into the field, they
noticed that the neighbour, Wally Williams, was flying a drone over the field from the
patio of his house. Once over the middle of the field, the drone dropped some
pamphlets, before flying back to Wally. The pamphlets outlined Wally’s beliefs (which
were very prejudicial and offensive to many ethnic groups).
Wally flies drones over the field from his patio quite often, and the firm’s managing
partner, Jess Pearson, has repeatedly asked him to stop. The pamphlets last Friday did
not fall upon or cause damage to any person, but some of them still remain on the
field.
As was tradition, a friendly game of soccer was organised between the employees.
Rachel Zane and Mike Ross are both looking to be promoted within the firm, but there
is only one position available. They also have a history of hostility and
competitiveness. Rachel and Mike deliberately chose to be on opposing teams and
when Mike missed a goal, Rachel called him ‘Mike the Moron’; a name she knows
Mike was bullied with at school. Mike was enraged and when, a few minutes later,
Rachel got the ball, Mike hit Rachel in a very heavy reckless sliding tackle - causing
Rachel to fall and break her left wrist. Sliding tackles are allowed but are outside the
game’s rules if recklessly done. Rachel went to the hospital and incurred $300 in
medical bills.

© QUT School of Law 1 LLB102 Torts

Fully advise on the likely success of any trespass action(s) by: (a)
Pearson Herdman (the firm) against Wally Williams; and
(b) Rachel Zane against Mike Ross.
Question 3
Tony Gleeson is walking down the road when he trips over his own shoelace. Alex
Talbot, who was passing by at the time, thought that Tony was about to fall onto the
paper stand which was on the footpath. If he did, this would cause the paper stand to
crash into a Lotus Elise sports car parked at the side of the road.
Alex pushes the paper stand away from the car before Tony can fall onto it, but this
causes the paper stand to hit Katherine Arthur instead who is walking past. Katherine
is seriously injured.
It has been established that an action by Katherine Arthur against Alex Talbot in
battery may be proven. Advise Alex on any relevant defence(s) that may be raised by
him on these facts.

Katherine Arthur (Plaintiff) v Alex Talbot (Defendant)

The issue is whether Alex Talbot had committed the tortious act of Battery against Katherine Arthur.

DEFENSE OF NECESSITY:

Alex may be able to justify his actions as his actions were a merely necessary response to imminent
threat of danger from any source (Proudman v Allen [1954] SASR 336 at 341)

For Alex Tablet to present a successful defence to battery through necessity he must prove the
following elements

(a) An imminent threat of grave harm to the plaintiff, property or goods;

(b) a reasonable apparent necessity for taking such action; and
(c) no fault on the part of the defendant for creating the imminent harm.
(a) An imminent threat of grave harm to the plaintiff, property or goods; \
As per Alex’s belief his interference was done as a result of him taking reasonable steps to protect
property of the public, By moving the paper stand he is eliminating the danger of
The reasonable belief that Tony via tripping on his own shoelace was going to fall into the cart is
of imminent nature and about to, (Cresswell v Swirl [1947] 2 All ER 730 at 732.)

(b) sssssssssssssss
(c) The need to act out of necessity was not brought about by Alex’s own actions, and thus it is
possible that a defence of necessity may success. (Simon v Condran [2013] NSWDC 32).
However, by moving the cart he has caused an imminent threat to Katherine Arthur, and whilst he
was acting out of necessity he may be liable for negligence in his actions when moving the cart as
it was his own actions which caused the threat. – could argue not lack of care as he was acting in
necessity and to do so requires a interest of care, whilst also not acting intentionally.

It is possible that a defense os neciessity may be possible however, it could be unsuccessful due to
liability for his actions causing the injury even if these actions are from acting in necessity.

DEFENCE OF PROPERTY:

Alex may be able to justify his actions as his actions were a Reasonable force to defend the property of
another. (Norton v Hoare (No 1) 1913) 17 CLR 310 at 322). Whilst, the defence of property may not be
for his own property, Norton v Hoare and other common law presents no reason to not extend a
defence of property, to other people’s property.

DEFENCE OF MISTAKE:

 not a defence in direct interfere to persons or property

o Motive of defendant is irrelevant in determine whether
defendant has committed intentional act / acted without
due care.
  Mistake arises where actual conduct intended under the
erroneous notion that the conduct would not violate another’s
right

Defence of mistake via moving the stand out of necessity he was under
erroneous notion that moving it would not violate another’s rights, i.e. trespass
to person via battery.

For Examples;

o Auctioneer selling goods mistake belief that person who

delivered goods to auction has title, is liable in
conversion — Consolidated Co v Curtis & Son [1982] 1
QB 495

CONTRIBUTORY NEGLIGENCE: