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Client Interview and Advice Part 1
There are three primary legal issues that have been raised by the statement from Jay Rowland. These include, trespass to land, private nuisance as well as battery. As will be seen in the subsequent analysis, Rowland has potential actions against Poppy Clarke, his nieghbour for both trespass to land and private nuisance. On the other hand, Clarke has a possible action against Rowland for assault and battery.
Rowland v Clarke-Trespass to Land
In a trespass to land action, the law requires the plaintiff to be in actual possession of the said land. However, the plaintiff does not necessarily have to be legally own the land in question. Since, Rowland is the proprietor of the bar, he can be said to have exclusive ownership of the property, and therefore the tittle to sue.
Clarke actively walked into Rowland’s property despite a visible sign erected at the door prohibiting her entrance. This eliminates the possibility of an inevitable accident or a consequential damage. Instead, it is an immediate result of her action which directly qualifies as a direct interference. It is also worth noting that Clarke’s entrance was at ground level. In this regard, there is no dispute that it was Clarke’s entrance was an interference with land. Clarke has a probable defense about her right to enter Rowland’s bar as a customer under the implied licence where as a member of the public, she is allowed to enter the premise for legitimate purposes. However, this is negated by the fact that she refused to order anything in two hours and also declined to leave the premise when asked to do so by the owner.
Fault of the Defendant
Despite the visible sign at the doorway prohibiting individuals from entering the bar with the objective of soliciting charity funds from the customers, Clarke proceeded to approach customers persuading her to support her charity initiative. In this respect, Clarke’s actions were intentional which put her at fault. In addition, her sudden outburst of dashing towards the door without looking where she was going is careless and puts her at fault because she risked the safety of other customers. Be that as it may, it is not known with certainty if Clarke was actually soliciting for donations on the material day, or whether she was merely having a conversation with the customers when Rowland confronted her.
Rowland v Clarke- Private Nuisance
In a private nuisance land action, the plaintiff must be a legally reorganized party with interest in the land and must actually be in possession of the land at the time of the said interference. Since, Rowland is the legal tenant in possession of the land on which the bar sits, he can be said to have the tittle to sue.
Interference with a Legally Recognised Right
By walking into the bar, soliciting charity funds from the customers, Clarke was interfering with the normal business operations at the bar by posing a continuing interference as she was disturbing the customers’ peace. Similarly, Clarke takes one of the seats and refuses to order anything for two hours. Despite repeated requests to leave the bar, she remains defiant.
During Clarke’s two hour stay at the bar, the establishment had to turn away customers who would have liked to order drinks because the defendant has refused to leave. In this regard, Clark caused the bar damages in the form of lost income. Essentially, Clarke caused substantial and unreasonable interference with the plaintiff’s use and enjoyment of land / rights. More importantly, it must be noted that just because there is social benefit to the defendant’s activities, does not avoid liability. In this case, Clarke’s charity is a noble activity but her actions still amount to private nuisance. Since Clarke’s incident at the bar led to some form of financial losses to the business establishment, it cannot be ruled out as a trifling or small inconvenience. On the contrary, Clarke’s action amounted to real quantifiable damages. However, it is not known with certainty if indeed she refused to order anything or leave the bar for two hours as she could be waiting for a friend. This information is necessary to establish damages or nuisance.
Clarke v Rowland -assault
In an assault action, there must be any act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his or her person. As stated by Rowland, he asked Clarke to leave immediately failure to which he would take some measures. While he did not reveal exactly what actions he intended to take, his threats made Clarke frightened prompting her to run towards the exist for fear of unspecified consequences. According to the law, even words alone can amount to assault. In this respect, there was threat of imminent direct contact from Rowland which effectively makes him liable for assault.
Reasonable belief/ Apprehension
For an assault charge to be brought, one of the key thresholds is that a plaintiff must be aware of the threat. When Rowland walked up to Clarke at her table, he made her aware that if she did not leave, there would be dire consequences. In this respect, his intentions to take drastic measures were made known to Clarke which makes him liable for assault. Similarly, another element of an assault charge is that the defendant must have either the actual ability or the apparent present ability to carry out the threat. As is evident in the case of Rowland and Clarke, the defendant is a male of reasonable strength. Walking up to Clarke and reaffirming his intentions to take drastic measures qualify as credible threats to Clarke. Essentially, Rowland made a conditional threat when he told Clarke that there would be dire consequences if she refused to leave. Legally, a conditional threat may qualify as an assault.
In the altercation that ensued between Rowland and Clarke, he actually intended to create the apprehension of harm in Clarke’s mind which essentially prompted her to bolt towards the door while screaming. In this case, the plaintiff does not have to prove that Rowland actually intended to carry out the threat. Rowland’s actions can be said to have recklessly caused apprehension. Be that as it may, we need to establish exactly what consequences Rowland used as a threat to Clark. In this case it is important to know the exact words to establish the existence of assault.
Clarke v Rowland -Battery
In a battery action, the law requires that the defendant must have actually directly caused some physical contact with the person of the plaintiff. As reported in Rowland’s statement, he pushed Clarke as she was running towards to the exit of the bar. While she did not topple and fall as a result of the push, the fact is the defendant made physical contact with the plaintiff. Essentially, there needs to be contact with the plaintiff’s body.
When Rowland shoved Clarke as she was running out, there was a direct application of force which makes it an actionable interference for battery. There would be a possible defense for Rowland if the physical contact was as an incidence of everyday life. However, this was not the case as Rowland actively pushed Clarke with a view to protecting a customer he thought was in her way. Similarly, another possible defense for Rowland could be in the form of consent which can either be express or implied. In this case, there was neither express nor implied consent on the part of the plaintiff which makes it an actionable interference for battery.
Fault of the Defendant
During the confrontation between Rowland and the plaintiff, the defendant acted both intentionally and in a negligent manner as he deliberately decided to push her so she could not run into one of his customers which puts him at fault. While the defendant stated that he did not actually mean to cause harm to the plaintiff, this does not void liability on his part. The defendant was acting voluntarily and was not coerced or forced into confronting the plaintiff. In this respect, his actions make him liable for battery.
Legal Interviewing and Questioning
Before proceeding with the case, there are several issues that the client may need to clarify in order to obtain the additional information needed in relation to the case. This information can be retrieved by asking the following questions.
• Do you have any legal documentation that authorizes you to operate your bar in that facility?
• How did you determine that Clarke was actually soliciting for donations and not just having a chat with the customers?
• Do you have any video/audio evidence of the incident as you describe it?
• What did you actually tell Clarke you would do if she refused to leave?
• How did you determine that she was going to run into one of your customers unless you push her?