Tort Law Case Studies: Trespassing Trees, Driveway Dispute, And Client Confrontation

Case 1: Irene's Trespassing Trees

Question 1

Irene has happily lived in the Blue Mountains for many years, with beautiful scenic views of the mountains and valleys from her the windows of her home.   However, she is now experiencing a couple of problems:

(a)McDuff, who owns the adjoining property on Irene’s northern side, has a flowering gum tree on his property that is now around 40 metres high. The tree is very beautiful but it blocks the light and winter sun, making Irene’s home very chilly and dark.

(b)Roots from a huge clump of native shrubs growing on land owned by the Blue Mountains City Council, on the eastern side of Irene’s property, have trespassed over onto her land causing her paved driveway to lift and crack.  She wants an order that the shrubs be dug out and removed.

Irene asks for advice as to whether she could sue in tort, and if so, the available remedies.

Question 2

Wally and Martinsson own adjoining residential acreages in wester Sydney.   During renovation work to his property early last year, Wally built a substantial concrete driveway stretching from the road to his house. The driveway is 5 metres wide x 20 metres in length.   

Martinsson has now discovered that 1m of the width of the driveway, for a length of approx 15m, is actually built on Martinsson’s land.   Martinsson is unhappy with this and demands that Wally remove that part of the driveway that trespasses on Martinsson’s land.  

Question 3

Henning is a partner in a Sydney conveyancing firm. On arriving at work one morning Henning witnesses a loud and heated argument between Doug, an employee conveyancer, and a client named Marie in the reception area.    Marie is shouting that Doug is careless in the way he is handling her purchase and is putting her at financial risk.  Marie is demanding that Doug hand over the purchase file so that Marie can engage another firm to act for her.  Doug is laughing at Marie and she is becoming increasingly angry and agitated.  She reaches out and grabs the file from Doug’s hands.

Henning quietly introduces himself to Marie and asks that she accompany him to the boardroom.  Marie initially refuses and continues to shout; Henning then gently puts his hand on Marie’s arm, asks her to calm down and slowly guides her to the boardroom. Marie co-operates and enters the boardroom with Henning. She sits down but refuses to return the purchase file to Henning.  Henning then quickly leaves the room, shuts and locks the door whilst he phones the police.

1.Marie is now suing Henning in assault, battery and false imprisonment.   What must Marie prove to succeed in her legal action?  Are there any available defences?

2.Might Marie herself, be liable in tort? Explain.

Case 1: Irene's Trespassing Trees

Facts of Case: 1

Irene has been living in the Blue Mountains for many years happily, with beautiful scenic views from the windows of her home. Now, she is facing two problems because of trees and shrubs in her neighbourhood.

1. a) McDuff owns the neighbouring property on the northern side of Irene’s house. He has a flowering gum tree on his property which is now around 40 m in height. Though, the tree is beautiful, it blocks the light and winter sun due to which, her home chills and darkens.

The tort is considered as a legal wrong committed by the tortfeasor against someone, for which, the usual remedy is the award of damages. The tort law protects fundamental freedoms which include personal liberty as well as fundamental rights which include rights of property. It also provides protection from interventions by others. 

In this case, it is the ‘established duty of care’ of McDuff that the flowering gum tree on his property should not block the light of neighbour’s house. The ‘duty of care’ in this context refers to take responsible care to avoid injury to the person whom it can be reasonably predicted, might get injured by the act or omission. However, there is no such problem for Irene to bring the case to the court because gum trees usually take extensive heights and the one on her neighbour’s property is already around 40 m in height. With mutual discussion, she can resolve the problem i.e. by cutting the lower branches of the tree, sufficient light and warmth of winter sun can be made available to her house. Additionally, the existence of such a huge tree can cause serious damages also as rubber trees keep on shredding their branches, so immediate action should be taken to avoid such accident in future.  

1. b) Second issue is that, roots from a huge bunch of native shrubs, growing on the property of Blue Mountains City Council, have trespassed on her land due to which, her cemented driveway has been lifted and cracked.

According to Tort Law, trespassing to the land provides protection against unauthorized interference with the intrusions in the property. The tort is considered as actionable with the occurrence of interference. There is no need for the plaintiff to establish any standard form of damage which includes personal injury, property damage or economic loss for the tort to apply in such matters. 

In this case, due to the roots of the shrub, the cemented driveway being used by Irene was lifted and cracked. It caused problem to her physically as the pathway has been cracked and she would have to get it repaired also. However, it would not be possible until the shrubs are dug out and removed from the place otherwise; the roots will grow more towards her house and would cause more loss to her.

There is a provision of substantial damages that can be awarded to compensate the plaintiff for the wrong done by the tortfeasor. Irene can claim for ‘compensatory damages’ because the damage occurred due to trespass and the trespasser is held liable for any kind of loss caused to the land in question.

Case 2: Wally and Martinsson's Driveway Dispute

So, Irene can claim for damages as well as can demand for an order by the court for the shrubs to be dug out and removed from the neighbour’s place otherwise the roots would keep on damaging the property. So, Irene can sue the property owner in this case.

Facts of Case: 2

Wally and Martinsson own adjacent residential land in Western Sydney. Wally constructed a substantial concrete driveway during renovation work in his property. According to Martinsson, some part of the driveway is constructed on his land because of which he is not happy and wants Wally to remove that part of the driveway that trespasses on the land of the Martinsson.

The act done by Wally comes under Tort as it can be considered as ‘Trespass to land’ which refers to any kind of direct or unauthorized intrusion, either intentionally or due to negligence, with the possession of land of another person. It is an actionable interference with the land and defendant is at fault in this case because Wally had trespassed on the property of Martinsson and constructed some part of the driveway on his part as well whether intentionally or negligently but, he interfered with his land or property without any authority or permission.   

As Wally has committed the tort of trespass of land whether intentionally or negligently, Martinsson can sue him in the court for this matter because Wally had no authority to construct driveway or to extend the driveway up to his property.

In this case, however, if the matter will go to the court, Martinsson will be awarded with the damages considering the nature of interest of the plaintiff i.e. himself. There is a provision of ‘Nominal damages’ to be awarded for the trespass to land wherein, the trespass with the property has proved but no actual damage has caused to the property because of the action of the defendant. However, the court might order the payment of a reasonable amount if it has been proved that there was some kind of benefit to be obtained by the defendant due to such interference with the land.  

So, initially Martinsson should discuss the matter with Wally to remove the part of driveway that trespasses on his land but if he does not agree, Martinsson has the right to sue him in the court for unauthorized trespass on his property.

Facts of Case: 3

Case 3: Henning's Confrontation with Marie

Henning is a partner in a Sydney conveyance firm. One day, he saw argument between Doug, an employee conveyance in the firm and Marie, a client in the reception area. Marie claimed Doug of carelessly handling her purchase and due to which she was at financial risk. She demanded her purchase file so that she could engage another firm for the purchase matter. Doug was laughing due to which she got angry and grabbed the file from his hands in agitation. Henning introduce himself to Marie and asked her to come with him to the boardroom. She denied initially but when he gently put his hand on Marie’s arms and asked her to calm down, she went with him to the boardroom. When she refused to return the file to Henning, he quickly went out of the room and locked the door and called police.

1. a) Marie wants to sue Henning under assault, battery and false imprisonment. In order to achieve success in her legal action, she must prove them as tortuous act done by Henning. Under Tort Law, civil law suit can be filed by the injured person to get compensated for the wrongful act done by the offending party. Assault, Battery and False Imprisonment exists under the category of intentional torts which requires intention of the wrongdoer to cause injury to the plaintiff. These three torts emerging from the concept of ‘trespass to a person’ are considered as actionable per se, which means, that there is no requirement to prove the damage but, if such an act result in injury, damages can be recovered for it as well.

Assault refers to any direct or intentional threat made by the wrongdoer due to which plaintiff reasonably apprehend certain kind of impending unwanted contact physically either by defendant or a person or thing under the control of the plaintiff. The elements of assault are;

• Direct threat by the defendant through words, conditional threats or intention
• Causes plaintiff to apprehend reasonableness, and should include means to carry out threat
• Imminent contact

Battery occurs when direct and intentional physical interference is done by defendant without lawful jurisdiction. It requires;

• Direct and intentional act
• Physical interference by touching or without touching
• Without lawful jurisdiction or without the consent of plaintiff

False Imprisonment deprives the plaintiff of their liberty by the direct action of the defendant without lawful justification.

Marie can sue Henning under battery and false imprisonment because it is evident that he touched her arms without her consent and took her to the board room. Additionally, he locked her up in the room and deprived her from her liberty to move out of the room. She can claim for general damages, for emotional distress and for serious invasions of her privacy. However, Henning can take the defence of ‘Consent’ against the allegation of Assault but, he will have to prove it, against which, Marie must have to show the absence of effective consent both actually as well as freely.  

Marie might be held liable in tort because she was in a contract with the Conveyancing firm and Dough was an employee conveyancer who was handling her purchase matter. However, he put her at financial risk, but it was the contractual breach done by him, for which she should have sued him or the firm. But she started shouting and grabbed the purchase file in agitation due to which she might be held liable for the tort. She should have approached the process legally so that she could have dealt the matter in a legal manner. In addition, she should have discussed the matter with seniors of the firm and even if she wanted to terminate the contract with firm, she should have proceeded legally.

Facts of Case: 4   

Dough left the firm and started looking for new job. He applied for the job at Sydney Legal and gave the name of Henning as referee. When a partner of the new firm called Henning to ask him about Dough, he shared his opinion that Dough lacked communication skills and he was relieved that Dough left the firm. Due to this reason, Sydney Legal did not hire Dough. Dough now wants to take legal action against Henning for defaming his image.

In Australia, defamation law protects all the citizens from false statements against them in public. The image of a person could be defamed if something false is stated about them to defame their reputation publicly. In order to prove defamation, there are some legal and factual requirements;

• Communicated or published to third party
• Information must be insulting
• Information must be regarding plaintiff
• No lawful reason for publishing the information.

Henning should have to take defence to defamation which include;

• The defendant should prove that the defamatory information was considerably true
• Contextual truth which is generally the truth defence but can only be applied to the accusations
• Some material is protected by law such as to provide evidence in court or tribunal or publishing to a limited group of people who have interest in the matter
• To prove that the defamation was insignificant

So, if Henning is charged with defamation case by Dough, he can take the defence of contextual truth and the disclosure of truth to the firm i.e. to limited group. He will have to prove in the court that he had not disclosed information about Dough to anybody else instead the new firm and it was his legal duty to inform the firm that considered him as referee for Dough. He should prove that what he said was all true in his opinion and he wanted to clarify it to the firm before they hire Dough so that in future, if Dough would have behaved badly with clients, he should not be held liable for the same. So, if defamation case is filed against him, he can raise all these aspects in the court to be truthful on his behalf before the law as well as for the new firm.