1. Trespass to Persons and Land
CLU 3MR
Lesson 40
Trespass to Persons and Land

2. Trespass to Persons and Land
Learning Goal:
Explain other torts and their defences.
Review the defences for negligence
Review Host Liability and Childs v Desormeaux
Note and discussion

3. Trespass to Persons and Land
These are intentional torts

4. 1. Assault and Battery
‘assault’ in tort law is different from criminal law
In tort law: when the victim has reason to believe that bodily harm may occur
Any threat of immediate danger or violence
Uttering threatening words
Pointing a weapon

5. ‘battery’ is intentional physical contact that is harmful
Kissing, spitting, touching without consent are forms of battery
Pulling a chair out from under someone
Assault and battery usually go together

6. Elements of Assault and Battery
No contact necessary
Does not require physical harm done
There must be intention to cause offensive contact or fear that the intent is there
Harmful or offensive contact
Contact must be direct, not indirect
Assumes fault on defendant’s part unless the defendant can prove he or she did not intend the harm

7. 2. False Imprisonment Confining someone without their consent
Not necessarily in jail
Often used with false arrest

8. 3. Negligent Investigation (A New Tort)
Someone wrongfully accused and convicted of a crime can sue police
If harm was caused by sloppy police work
Police, like doctors or lawyers, must maintain a reasonable standard of conduct
Took a precedent-setting case to reach the Supreme Court for this to be stated
(Pages : Hill vs Hamilton-Wentworth Regional Police, 2007)

9. 4. Trespass to Land
Entering or crossing another person’s land without permission
No specific damage needs to occur
Leaving an object on someone’s property is also trespass (you cut down a tree on your property, part lands on your neighbour’s property and you don’t clean it up)
Also includes areas above and below the surface (mining or wiring)

10. 5. Nuisance
One person’s unreasonable use of land that interferes with another’s enjoyment and use of adjoining land
Protects the quality of use
Ranging from pollution issues to noisy dogs

11. Private nuisance
Enjoyment of your own land
Living next to a golf course… one ball lands in your yard is annoying; all the time, a nuisance

12. b) Public nuisance
A protest blocking a highway or blocking public waterways
Pollution spills, etc.
Actions are usually brought by governments
The US gov’t is suing BP for the damages caused by the Gulf oil spill

13. Defences for Trespass Consent Most common defence
You can’t sue the opposing player after you break your arm playing football; you chose to play and no anger was displayed

14. Self-defence
As long as force used was not excessive
Force was reasonable and necessary
Provocation is not a possible defence but can reduce the damages

15. Defence of others
When a 3rd party aids someone who is in immediate danger
Occurs most often when assisting a child or close relative
Same as self-defence

16. Defence of Property
May use reasonable force to eject someone from your property (if they ignore a request)
If entry was gained by force, no request to leave is needed

17. Legal Authority
Police have legal authority to hold people for arrest
With a warrant, can’t be sued for trespass
Some industries can release legal amounts of pollutants

18. Necessity
Seeking safety on someone’s property due to weather or emergency

19. Defamation of Character & Defences
occurs when an unjustified or untrue attack is made on a person’s character by written, oral or public comments
intentional or unintentional
can sue for compensation
may conflict with freedom of thought, belief, opinion, and expression
attempt to achieve balance

20. 1. Slander
Oral defamation
Malicious or vicious accusations or criticism

21. 2. Libel
Permanent visual or audible defamation (newspapers, cartoons, film, etc)
A major responsibility of news media
Sometimes a retraction is acceptable but usually monetary compensation is required
More serious than slander because more people are involved
Libel is also a criminal offence punishable with prison term

22. Defences 1. Truth Best defence against defamation
Protection is from false statements only
Repeating information thought to be true is not good enough

23. 2. Absolute Privilege
Given to MPs, MPPs, judicial hearings, inquests, etc.
Statements may be given openly without fear of liability
3. Fair Comment
Right to criticize, in the form of review, plays, sports events, concerts, etc.
May not be malicious or unfair
Burden of proof rests with the defendant

24. 4. Qualified Privilege
Extended to people who’s work requires them to express their opinions
In a teacher’s letter of recommendation for a student
Made to a restricted audience
Municipal politicians only have this level of privilege

25. Tasks:
Page 420
You be the Judge. Answer the question in a short paragraph. (5 marks)
Page 425
Case. Answer all 4 questions. (1-1 mark, 2-1 mark, 3-1 mark, 4-2 marks)