Che v Nicola & Mark
Trespass to land
Direct Interference
The judgement of Blackstone J in Scott v Shepherd which was adopted into Australia tort law through Hutchins v Maughan held that “ where injury is immediate on the act done, there trespass lies; but where it is not immediate… but consequential ” then trespass has not occurred. In Hutchins v Maughan the plaintiff was warned by the defendants about the poisonous baits which he placed on unfenced land. However, the plaintiff ignored his warnings and his dogs died as a result of entering the land. Following the ruling of Blackstone J the court held that there was no trespass as the act was a mere consequence and not immediate. By applying the aforementioned rule to the factual matrix, it is uncontentious that the flooding of the farmlands was a direct result of Mark’s decision to shut down the channel.
The defence may argue that the flooding was caused as a result of natural occurrences and was not direct. However, counsel for the plaintiff will argue that, if in the instance the channel was not closed and the flooding occurred and Mark closed it after the flooding then it would not be direct. The plaintiff must also establish that if in the instance the channel closed and the flooding had not occurred immediately but rather days after and because of a burst pipe then it Mark would not be liable in trespass.
However, the court will most likely conclude that the damage sustained was immediate and direct. Thus Mark is liable under the tort of trespass.
Use and enjoyment of land
Did Mark’s decision to shut down the channel interfere with the use and enjoyment of the plaintiff’s land?
Lord DPP in Bocardo SA v Star Energy UK Onshore Limited established that the owner of the proper...
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...abloids. This requirement has been satisfied.
Honest opinion defence
Section 138B of the Civil Wrongs Act 2002 states that;
(1) “It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material. ”
In this instance, opinions were not expressed for the purpose of public interest. Nor were these opinions based on proper material. Rather Zeke’s main purpose was to assassinate Henrick’s character which was clearly not helping his plea for a republic Australia.
This defence will be rejected by the courts.
Conclusion
If Henrick is to bring a claim in the tort of privacy and defamation he is most likely to succeed.
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
On February 26th 1972, Dam 3 of the Buffalo Mining Company a subsidiary of the Pittston Coal Company, failed resulting in a flooding of the Buffalo Creek Hallow. The disaster caused property damage, wrongful death, and psychic impairment. West Virginia prohibited any dam built any dam built over “fifteen feet in height across any stream or watercourse without a prior determination by the state that it is safe” (15). The state’s failure to properly enforce this law gave Pittston the ability to claim the disaster was an act of God; this was supported by President Nixon who referred to this as a natural disaster (187). In his testimony Mr. Spotte, head of the Pittston Coal Group, stated the accident was a natural occurrence beyond the company’s control. However he admitted that this particular dam (3) was not built in the custom of the company other dams lacking a spillway system. This failure to ensure a standard constituted a negligent breach of duty (134-137).
Lord Wilberforce, the judges who presided over the Anns v. Merton case used a two-step test in determining the scope of proximity between the homeowner and the municipality. The first part of the test determined whether the relationship between the two parties was sufficient enough so that failure to exercise a duty of care by one of the parties would result in damages sustained by the other. The second step, pursuant upon the first step looks at any aspects that would limit the obligations placed on the party to exercise a duty of care. This test and the Anns v. Merton case set a strong precedent that was used in the Kamloops v. Nielson case, the first of its kind in Canada.
Analysis / Ruling of the Court. The district court granted the employer’s motion for summary judgement on the sexual harassment claim due to the fact that Sherry Lynch treated both men and women equally in this case; that is, she behaved in the same vulgar and inappropriate way towards both genders. For this reason, Smith’s gender was not a contributing factor to the harassment, which is one of the conditions that would have to be met for the sexual harassment claim. The appellate court agreed and affirmed the district court’s judgement. The district court ended up excluding evidence pertaining to the sexual harassment claim because the sexual harassment claim had been dismissed on summary judgement, and because the court decided that the details of the harassment bore little relevance to the retaliation case whereas this evidence would be unfairly prejudicial to Hy-Vee. The appellate court affirmed the district court’s judgement. Smith did not offer any specifics on what evidence she would have wanted to present, which made it hard for the court to determine whether this evidence was material to the retaliation case or not. In her opposition to the motion in limine, she said she only wanted to discuss the harassment case in general, including mentioning that Lynch had harassed/touched her inappropriately. Hy-Vee had no objection to this, and Smith got to present this much evidence in the trial. Therefore, the appellate court found that she waived any objection to the
This is a complex case, involving multiple parties and several variables that need to be examined thoroughly. The parties mentioned include Knarles operator of the facility maintenance company, his son Barkley, their employee, a licensed plumber, and Mr. Chetum. Although in the end Chetum is suing the facilities maintenance firm for a breach of contract, all factors must be examined to determine proper fault.
...t moment for the Australian history and governments history. It was a good thing that happened too because if they said no to Marbo and gave the land to the miners the land would be dug up and destroyed and it would not have been nice for the indigenous peoples land to be dug up and it would not be fair to them either. The Mabo decision was influential in engendering a new national narrative focused on inclusivity, the correction of past injustices and the will make and improve the lives of all Australians regardless of the cultural and historical differences. What my opinion on Eddie Marbo and what he did for the Australian Ingenuous people is that I recon he did very well getting the ingenuous rights through the government and I also recon he is a legend for Australia and standing up to government and he changed history for Australia and he should be remembered.
1. Was Terminiello's right to free speech, which is protected under the Federal Constitution, violated, as applied in this case?
3. The court stated: "We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
Opinion by Carnes, Circuit Judge. We conclude that the district court’s judgment was an appealable “final decision”. We also hold that the arbitration agreement in this case defeats the remedial purposes of the TILA and is unenforceable.
Massachusetts General Law Chapter 231 Section 85Q says that a landowner may be liable for physical harm suffered by child trespassers on their land, only if all five criteria are met. Condition ‘A’ states, “The place where the condition exists is one upon which the landowner knows or has reason to know that children are likely to trespass.” Mass. Gen. Laws ch. 231 § 85Q. Condition ‘B’ discusses whether or not the landowner knows or has reason to know that an unreasonable risk of death or serious bodily harm will result. Id. Condition ‘C’ focuses on whether or not the child due to their age is not aware of the risk that is present. Id. Condition ‘D’ says compares the burden of eliminating the condition to the level of risk posed to the children. Id. Finally, Condition ‘E’ states that the landowner fails to use reasonable care to eliminate or protect the children. Id. Richard’s case fails on condition ‘A’ as C.D. Management had no reason to foresee that children would trespass in their basement laundry room, as there were only laundry machines in the basement and C.D. Management had no reason to believe that a child would trespass there. C.D. Management could reasonably foresee that someone wanting to do their laundry would trespass in their basement, but Richard Melville was not in their basement to do his laundry. The Soule case created common law about this issue, “There is a
2. Anything you say can and will be used against you in a court of law.
B. No individual should sacrifice their moral principles in return for unjust circumstances implemented amongst federal government.
"That in all capital or criminal Prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for Evidence and be admitted counsel in his Favor, and to a fair and speedy Trial by an impartial Jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the Government of the land and naval Forces in Time of actual war, Invasion or Rebellion) nor can he be compelled to give Evidence against himself. "
...protect those who printed claims, even though they may be untrue, by disagreeing that they had the right to do so. Further, the defenses of ‘justification’ and ‘fair comment’ have been replaced with ‘truth’ and ‘honest opinion’. Another major change in the law of defamation deals with tortfeasors who do not reside in the UK, an EU member state or a state which is part of the Lugano Convention. The change means that the UK court does not have to perceive any case if it can be proved the UK would be the most suitable place to deal with the action against the tortfeasor. A particular publication law has also been recognized, which accommodates the occurrence of online news stories. In this law, a one year restriction starts when a story is issued. Every time the story is repeated or watched, a single action cannot be brought about by the claimant against the publisher.
The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn.