In Jake’s case, the main issue is whether Pam’s actions constitute a trespass to land.
Trespass to land requires the defendant to: directly, voluntarily, and intentionally interfere with the plaintiff’s land without the plaintiff’s consent. By entering the land to chase Sally, Pam satisfies the first three criteria, leaving only the last one, plaintiff’s consent, in contention.
Despite not having explicit licence, Pam could argue she had an implied licence, as established by Halliday v Nevill. In Halliday, the majority of the High Court of Australia ruled that police officers have an implied licence enter a property “for the purpose of questioning or arresting a trespasser or a lawful visitor upon it”.
In this case, however, Pam entered …show more content…
In Pam’s case, she entered the property to chase Sally who had earlier run into the property. Given that she was “four years old and impetuous and disobedient by nature”, it would be reasonable for Pam to chase after her lest Sally injure herself.
Hence, Pam could argue she was not trespassing as she was relying on the judgement issued in Halliday. However, this passage is not considered part of the ratio decidendi, hence it would not be binding on the lower court. But, it could still act as a persuasive precedent that the lower court may adopt, especially considering the implication that Sally would have to be left alone should Pam be required to first seek help from Jake.
Another issue is whether Pam was allowed to enter through the pedestrian gate, especially considering that it was closed and that the driveway was obstructed.
The decision in Halliday states: “If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked”, then one has the implied licence to enter the property. In addition, even if the owner “subjectively … had not intended to give [the implied license]”, but fails to objectively show the he or she does not, for example by locking the gate, then an implied license still
Trespass to land requires the defendant to: directly, voluntarily, and intentionally interfere with the plaintiff’s land without the plaintiff’s consent. By entering the land to chase Sally, Pam satisfies the first three criteria, leaving only the last one, plaintiff’s consent, in contention.
Despite not having explicit licence, Pam could argue she had an implied licence, as established by Halliday v Nevill. In Halliday, the majority of the High Court of Australia ruled that police officers have an implied licence enter a property “for the purpose of questioning or arresting a trespasser or a lawful visitor upon it”.
In this case, however, Pam entered …show more content…
In Pam’s case, she entered the property to chase Sally who had earlier run into the property. Given that she was “four years old and impetuous and disobedient by nature”, it would be reasonable for Pam to chase after her lest Sally injure herself.
Hence, Pam could argue she was not trespassing as she was relying on the judgement issued in Halliday. However, this passage is not considered part of the ratio decidendi, hence it would not be binding on the lower court. But, it could still act as a persuasive precedent that the lower court may adopt, especially considering the implication that Sally would have to be left alone should Pam be required to first seek help from Jake.
Another issue is whether Pam was allowed to enter through the pedestrian gate, especially considering that it was closed and that the driveway was obstructed.
The decision in Halliday states: “If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked”, then one has the implied licence to enter the property. In addition, even if the owner “subjectively … had not intended to give [the implied license]”, but fails to objectively show the he or she does not, for example by locking the gate, then an implied license still