1. Was Monica’s water feature a trespass to Rachel’s land?
The legal issue that needs to be determined is (i) whether Monica has committed trespass to land. The elements that this depends upon are (ii) whether there was a direct interference and whether it interfered with the proper use and enjoyment of Rachel’s land.
Griffiths J remarks in Skyviews that ‘adjoining owners… know… they have no right to erect structures overhanging or passing over their neighbours’ land’1. Furthermore, in KD Morris an injunction was granted on the grounds that the overhanging crane was ‘both an unsightly feature of land and a cause of nervousness and apprehension… the proper use and enjoyment of that land.’2
However, in this case, the water feature being simply ‘very unsightly’ does not constitute interference with Rachel’s land or airspace, as it is neither ‘overhanging’ nor ‘passing over’ her land. However, physical contact is made when rainwater flows off onto Rachel’s land. Monica may seek to relate her case to Reynolds3, whereby an action in trespass failed on the basis that the water flowing upon the plaintiff’s land was consequential.
If the court accepts that the overflowing rainwater was consequential contact, it is likely that an ACT court would be persuaded by Reynolds and recognise that being ‘unsightly’ and inducing consequential contact was not intereference, and thus determine that no trespass was made.
2. When Rachel stepped over the wall to speak to Monica, did she have an implied license?
The issue here is (i) whether or not Rachel was lawfully on Monica’s property. The element that needs to be satisfied here is (ii) whether Rachel had an implied license at the time.
By the binding authority in Halliday, ‘in the absence of any indication to the contrary’, any member of the public has ‘the implied or tacit license… to go upon an open driveway… for legitimate purposes’ 4. By the judgement in Brunner, anyone with a ‘genuine reason’ has the implied licence to ‘approach the front or nearest door’5.
In this particular case, Rachel does not go upon an open driveway, but instead steps over the wall dividing their adjoining houses. Rachel can rely on Brunner’s ratio that she was approaching the ‘nearest door’ for a genuine reason – that is, to speak to the defendant – and because there was no expressed indication of a revocation to the contrary, Rachel did have an implied licence at the time.
Given that there is relevant binding High Court authority in Halliday, it is likely that an ACT court will follow the majority judgement, and decide that no trespass was made in this case.
3. Was Monica’s threat to Rachel an assault?
The issue here is (i) whether Rachel was assaulted by Monica. The elements that need to be determined are (ii) whether the defendant had an intention to create an apprehension of imminent harmful contact, and whether there was subsequent reasonable apprehension in the plaintiff.
As stated in Rixon, an assault must lie in creating an apprehension of impending contact6, and the contact must not be acceptable when ‘considered in the context of the incident’7 in order to be considered assault.
Because Monica’s threat is dependant on Rachel going upon her land and ‘making such a suggestion again’, the defendant can argue that the threat of contact was not ‘impending’, and the plaintiff had both time and means of determining that those variables weren’t met. If the court accepts this reasoning, Monica would not be liable. However, it is unlikely that the court would accept this, as persuaded by the determination of Armstrong, ‘an assault can occur where a defendant threatens physical harm to a plaintiff unless he does what the defendant requires him to do.’8
However, if the court overlooks the issue of imminence, the issue of ‘reasonable apprehension’ in Rachel remains contentious. Based on the following events, it is evident that Monica did possess the ability to cause Rachel the threatened harm, and Rachel would thus have reason to apprehend the battery. However, Monica’s threat of ‘not being able to step over that fence ever again’ could be a threat to build a higher fence, eliminating bodily harm altogether.
It is therefore conceivable that, if it is decided that there is a misinterpretation of the threat itself or a lack of imminence, the court would decide that no assault was made.
4. Was Rachel’s refusal to leave Monica’s property lawful?
The legal issue that needs to be determined is (i) whether Rachel was lawfully on Monica’s land. The elements that this determination depends upon are (ii) whether an implied licence was revoked.
By the majority judgement in Halliday, ‘in the absence of any indication to the contrary’9 a person has an implied licence to enter upon premises. And, as the majority also stated, ‘an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it’10. Furthermore, by ratio in Entick, ‘every invasion of private property, be it ever so minute, is a trespass.’11
In this case, although Rachel may have had an initial implied licence to go upon Monica’s land, that licence was immediately, and lawfully, revoked in the instance that Monica demanded Rachel to leave her property. Once revoked, Rachel’s refusal to leave thereafter is considered a trespass, with no exceptions. Although the plaintiff could argue that she was attempting to defend her own land, the defendant would rely on Entick’s ratio. Monica thus had no legal obligation to extend Rachel’s implied licence upon her property, and her expressed revocation lawfully required Rachel to leave the premises.
It is likely that the court will therefore follow the majority binding High Court judgement in Halliday, and sustain that Rachel trespassed upon Monica’s property after her implied licence was revoked.
5. Did Monica commit battery against Rachel?
The legal issue that needs to be determined is (i) whether Monica’s tripping-over Rachel is considered a battery, determined by (ii) whether the contact was ‘generally acceptable in the ordinary conduct of daily life’12, as Rixon states, in the ‘context of the incident in dispute’13, and whether the touching was hostile, because, as remarked in Cole, ‘the least touching of another in anger is a battery’14.
Ordinarily, Monica’s foot coming too close to Rachel’s way in her attempt to guide Rachel off her property would be considered acceptable, as close contact is inevitable during an intimate conversation, hostile or otherwise; and misjudgement of distance and speed is generally expected in every day life. However, the fact that Rachel is, as a result, knocked unconscious and has her arm broken in several places, could easily point to the entire discourse as being carried out with excessive force at a speed unnecessarily fast. The explanation for these arises from the fact that the two had been in a heated argument, and so the physical movements would have been assumed to be relatively hostile at the time, and, accepting Holt CJ’s remark, constituting battery.
Thus, if the court accepts the Holt CJ’s ratio dicendi given in Cole, it is likely that an ACT court would be persuaded to classify Monica’s conduct towards Rachel as battery. If the court overlooks this remark, on the other hand, the court would most likely decide that the conduct was ‘generally acceptable’, and Monica would not be liable.
6. Was there battery committed against Rachel during her blood transfusion?
The legal issue here is (i) whether Rachel’s blood transfusion was lawful. The elements that this determination depends upon are (ii) whether there was a lawful refusal of consent to the blood transfusion, and if the disregarding of that refusal was lawful.
The relevant rule in this case comes from Re T, in which Lord Donaldson MR stated the principle,
‘Every adult has the right and capacity to decide whether or not he will accept medical treatment… However the presumption of capacity to decide… is rebuttable.’ 15
Because in this case there was an expressed refusal of consent, irregardless of the medical urgency of the treatment, the plaintiff would rely on Lord Donaldson MR’s principle. The defendant can seek to use Lord Donaldson’s ending remark of the principle and claim that it was possible that the note, or its intent, was not genuine, and so the plaintiff’s ‘capacity’ was questionable. The court may accept this only if the defendant can prove that he had a reasonable amount of evidence to believe that the note was illegitimate. Another issue of contention is that the plaintiff, at the age of 17, cannot have the capacity to understand the full implications of refusing the procedure; however Rachel could argue that medically and in this case, she should be considered an adult.
Unless the court decides to accept the defendant’s claims of the plaintiff’s questionable ‘capacity’, it is likely that Ross and his medical team would be found guilty of battery as held by the general principle in Re T16.