Case Analysis : Ms Sophie Marsh And A Private Nuisance Against Mr. Frank Stark. Marsh
1767 WordsApr 1, 20178 Pages
TO: Mr Sullivan Moody,
FROM: Mr Nikul Sharma, Junior Solicitor
DATE: Wednesday, 5th of April 2017
Ms Sophie Marsh has possible actions in a trespass to land and a private nuisance against Mr. Frank Stark. Marsh could however be liable of committing a trespass to person, specifically battery, to Stark’s person. The conclusions of each element of the tortious actions, the relevant defences and remedies which may arise from the facts and time periods applicable to each action will be discussed below. Additionally, any further legal facts required to reach informed legal conclusions will be noted.
Jurisdiction for all actions: Queensland
ACTION 1 – Trespass to Land
Marsh v Stark
As the…show more content…
1.3.2 Is it an Interference with land?
The interference must be with ‘land’, defined as either to buildings, the subsoil or the airspace of the plaintiff. Stark walking up the garden path at the side of the house constitutes an interference with ‘land’ (subsoil).
1.3.3 Is it an unauthorised interference?
An unauthorised interference occurs when there is an interference without lawful authority or, relevantly the license of consent of the person in possession. Marsh’s neighbor, the defendant, is working for an electrical company. It needs to be established whether the property has a closed gate or sign explicitly revoking any implied license, as entering the premises to check the electricity at the side of the house could potentially give rise to an implied license, as the purpose can be regarded as a legitimate purpose. Marsh does however make it clear to anyone passing by the house she does not like people coming onto the property. Even so, additional information is required in relation to whether there was communication with the plaintiff and the defendant prior to the defendant’s entry to determine whether the interference is unauthorised. Furthermore, if communication was had and Stark was given express consent by Marsh, Stark would be deemed a licensee. If they acted within his scope of consent, it would be an authorised entrance. 1.4 Element Three: Is Stark at fault?
In determining whether the defendant is