Orange Cosmos

Copyright © 2019 by Dyarne Jessica Ward

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Land Law – ownership – above and below the surface VII

An aircraft flying over private property however does not constitute trespass by virtue of the Civil Aviation Act 1949. S 40 (1) of the act elaborates further on the subject:-

“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight so long as the provisions of Part II and this Part of this Act and any Order in Council or order made under Part II or this Part of this Act are duly complied with.”

Copyright © 2019 by Dyarne Jessica Ward

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Land Law – ownership – above and below the surface VI

In Gifford v Dent (1926) a sign that had been erected on a wall on the ground floor premises and stood some four feet eight inches above the floor was held to constitute a trespass. “Accordingly I reach the conclusion that a trespass and not a mere nuisance was created to the plaintiff’s airspace by this sign.” – McNair J

Copyright © 2019 by Dyarne Jessica Ward

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Land Law – ownership – above and below the surface V

In Elwes v Brigg Gas Company (1886) a tenant on a property discovered an ancient boat of some value some 6 feet below the ground and sought to make it his. The owner brought an action in court claiming that the boat belonged to him and it was held that the boat belonged to the owner i.e. the owner of the land had proprietorship of the boat and not the tenant.

“Whether the boat was regarded as mineral or part of the soil in which it was embedded, when discovered, it belonged to the landowner.”

Copyright © 2019 by Dyarne Jessica Ward

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Land Law – ownership – above and below the surface IV

In Wandsworth Board of Works v United Telephone Co. (1884) it was held that an unauthorized telephone wire that passed over the plaintiff’s land was an intrusion to his airspace and that the plaintiff was within his rights to cut the telephone wire

“As at present advised I entertain no doubt that an ordinary proprietor of land can cut and remove a wire, placed at any height above his freehold” – Fry J.

“The man who has land has everything above it, or at all events is entitled to object to anything else being put over it”. – Bowen L.J.

Copyright © 2019 by Dyarne Jessica Ward

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Contract law cases: Tweddle v. Atkinson (1861)

In Tweddle v. Atkinson (1861) the parents of the bride and groom agreed to pay a certain sum to the groom upon his marriage to the bride. The bride’s father died before the payment could be made and the groom brought a claim against his estate. The court ruled that because consideration did not move from him, he was unable to claim i.e. a party who has not provided consideration for the promise cannot enforce the promise.

Copyright © 2019 by Dyarne Jessica Ward

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Contract law cases: Currie v Misa (1875)

In Currie v Misa (1875) it was held that consideration from the perspective of the law may consist of some right, benefit, interest or profit accruing to the party or some loss, sufferance, detriment, or responsibility incurred by the party.

Copyright © 2019 by Dyarne Jessica Ward

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Contract law cases: Dillwyn v Llewelyn (1862)

In Dillwyn v Llewelyn (1862), a father signed a memorandum leaving his son his farm so that he could build a dwelling or a home on it. The son built a house incurring considerable expenses in so doing, with the knowledge and approval of his father, but the father died without transferring the farm to his son and upon his death his estate sought to gain control of the farm and the plaintiff brought the matter before a judge.

It was held that the son was entitled to the farm. As per the doctrine of promissory estoppel – when one party makes a promise to another party and the second party relies on the promise and acts to his or her detriment than that promise is a valid promise and is a promise that is enforceable at law.

“A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift. So if A puts B in possession of a piece of land, and tells him, “I give it to you that you may build a house on it,” and B on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance.” – Lord Westbury LC.

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S.47 of the Offences Against Person Act (1861) (Summary)

S.47 of the Offences Against Person Act (1861) reads as follows:-

“ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).”

Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998)

Assault is a prerequisite to obtaining a s47 conviction. Assault  is defined as  the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim.

In order to convict for assault the prosecution does not have to proof or establish physical injury and therefore it stands to reason that in order to obtain a conviction under s.47 of the Offences Against the Person Act (1861) the prosecution does not need to proof or establish physical injury either and it gives the prosecution some scope to convict defendants for causing or precipitating psychiatric illnesses.

A conviction under s47 of the Offences Against Person Act (1861) is more serious that a conviction for assault (assault is a summary offence). The maximum sentence for a s.47 conviction is 7 years whereas the maximum sentence for an assault is only 6 months.

However a s.47 offence is considered a less serious offence when compared to a s18 or a s20 offence of the Offences Against Person Act (1861). Whether an act will amount to an assault or otherwise depends on the facts see R v Wilson (1955).

It is also possible to substitute a s.20 conviction of the Offences Against Person Act 1861 with a s.47 conviction see R v Bollom (2004).

Mens Rea

The mens rea (mental element) for a s.47 offence is either –

  1. Intention
    or
  2. Recklessness

The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions.

In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault occasioning actual bodily harm and found not guilty of sexual assault. The defendant appealed on the grounds that he did not foresee or could not foresee the consequences of his actions or the victim’s reaction.

It was held that foresight of consequences is not a prerequisite to obtaining a conviction for a s.47 offence. It suffices that the victim’s reaction was a natural and probable consequence of the defendant’s actions.

In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly.

While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted.

The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys got their hands on a revolver and one boy pointed the revolver at the other not realizing that there was a bullet in the chamber and pulled the trigger. The boy was tried for unlawful act manslaughter and the court held that there was no unlawful act.

The facts of R v Lamb (1967) can be distinguished from the facts in R v Venna (1975). In R v Lamb (1967) both the defendant and the victim were minors and in R v Venna (1975) both the defendant and the victim were adults. Some exceptions may be made for minors.

Secondly the boys were clearly fooling around, and their actions can be construed as frivolous or horseplay, though that in itself is not a defense on a charge of involuntary manslaughter, where the defendant points the gun and pulls the trigger see R v Jones (1874).

However, as a general rule in order to convict for unlawful act manslaughter the act must be above something that is construed as frivolous or horseplay see R v Church (1965).

In R v Venna (1975) it is clear that the defendant was not fooling around, and he did intent to resist arrest and did so by pulling away, lashing out with his hands and kicking and while doing so or while trying to resist arrest he injured a police officer.

The conviction was upheld, and it was decided that the defendant need not intend to harm the victim or cause him or her some form of injury. It sufficed that the injury was a likely and probable consequence of the defendant’s actions.

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.

On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided that in order to convict for Caldwell recklessness the accused must have some appreciation of the risk.

It is clear that the Caldwell test is too broad and widens the scope of liability and the judge in R v Spratt (1990) recognizing the dangers of the Caldwell test has tried to limit or restrict its scope by looking at the accused’s state of mind at the time he committed the act.

Actus Reus

The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998).

Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence.

Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –

“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.

However in order for the defendant to be guilty of battery the act must be unlawful. A defendant has a valid excuse to use force:-

When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself.

When the defendant is trying to prevent a crime as per s.3 (1) of the Criminal Law Act 1967. The act reads as follows:-

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.

What amounts to reasonable force is a question of fact and it is for a court or a jury to decide.

While the victim can be found guilty of causing or precipitating a psychiatric illness under s47 of the Offences Against Person Act (1861) see R v Burstow (1997) and R v Ireland (1998) he or she cannot be found guilty under s47 of the Offences Against Person Act (1861) for causing nervous shock for example in situations like that of Bourhill v Young (1943).

In R v Chan Fook (1994) the defendant had accused the victim of stealing his fiancé’s ring. The defendant after striking the victim several times, locked him in a second-floor room. The victim fearing that the defendant might return and hit him again, tried to escape through a window and as a result sustained injury. The defendant was charged under s47 of the Offences Against Person Act (1861) for causing him fear and panic. According to the direction given by the trail judge (first instance) to the jury, ABH or actual bodily harm includes inducing panic and hysteria. The defendant was convicted and appealed the conviction.

On appeal in was decided that panic and hysteria or inducing or, precipitating a situation that sends the victim into panic and shock, for example where the victim suffers from shock after witnessing a terrible accident, do not fall under s47 of the Offences Against Person Act.

Psychiatric illness is different from nervous shock in that the victim succumbs to a psychiatric illness after being constantly and repeatedly harassed  by the defendant whereas with nervous shock there is no harassment involved and the victim succumbs to nervous shock after witnessing  what is often a horrible and terrible accident, and it normally occurs on the spot or just after the mishap see Alcock v Chief Constable of South Yorkshire (1992) and White v Chief Constable of South Yorkshire (1998).

For the purposes of s47 of the Offences Against the Person Act (1861) actual bodily harm is defined as any act that causes a break in the continuity of the skin see JJC v Eisenhower (1984), any acts that precipitate or induce a psychiatric illness see R v Burstow (1997) and R v Ireland (1998) and it also includes any act that falls within the ordinary meaning of the term “actual bodily harm” which includes causing cuts, bruises, lacerations etc. to another.

It also includes acts that may seem trivial to others but impacts the victim’s emotional well-being for example the cutting-off of the victim’s hair without the consent of the victim.

In DPP v Smith (2006) the defendant went over to his ex-girlfriend’s house and cut off her pony tail with a pair of kitchen scissors and while there was no physical injury or there was no break in the continuity of the skin, the victim was distressed, and the defendant was charged with occasioning actual bodily harm. At first instance the magistrate concluded that there was no actual bodily harm (ABH) and the DPP appealed.

On appeal it was decided that the cutting-off of another’s hair, without the person’s consent, does constitute an offence that falls under s47 of the Offences Against the Person Act (1861).

As long as it is regarded or considered to be part of the body regardless of whether it is on the surface of the skin or beneath the surface of the skin, on the head or on the scalp, regardless of whether the tissue is alive or dead, any damage to it will fall under s47 of the Offences Against the Person Act (1861).

Furthermore, a person’s hair is regarded as an integral part of a person’s identity and it is intrinsic to who the person is and how that person wants to be perceived by others and to cause damage to it (the hair) is to cause damage to not only the person but also to the person’s identity.

Copyright © 2019 by Dyarne Jessica Ward

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Contract law cases: Dickinson v Dodds (1876)

In Dickinson v Dodds (1876) the plaintiff was given an option to purchase some land from the defendant and the defendant stated that the option would remain open for 2 days. The defendant however sold the land to someone else the next day and the plaintiff came to know of it the same day. The plaintiff then decided to take up the offer, after coming to know that the land had been sold. It was held that there was no contract in place and it was clear that the defendant did not intend to sell the plaintiff the property – it was as obvious as if the defendant had told the plaintiff so himself.

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