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Question 1
Issue
1.     Whether there is a duty of care owed by the railway to Palsgraf;
2.     Conditions for an action of negligent tort and remedies.
Legal rules
1.    To establish a negligence, one party must owe the other party a duty of care and the party breaches the duty;
2.    To establish a duty of care, the neighbor test needs to be conducted, foreseeability vulnerability and policy consideration must be present;
3.    The defendant shall only be liable for foreseeable losses or injuries caused by his conduct;
4.    The plaintiff suffers injuries or losses;
5.    The injuries or losses happen as a result of the negligence by the defendant.
6.    The plaintiff may recover material damages and moral damages if suffers bodily injury.
Application
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1.    Establishment of negligence.
The decision of the case Donoghue v Stevenson [1932] provides the basis for development of negligence law by creating the concept of “negligence”. Mrs Donoghue found that there was a snail in the bottle of ginger beer, she felt very sick and sued the manufacture, Mr. Stevenson. The Court held that Mr. Stevenson owed a duty of care to Mrs. Donoghue for Mr. Stevenson had an negligence to ensure the safety and health of his customers and failure of complying with this responsibility would cause harm to his customers. The case is a milestone for the development of law of negligence.
The first step is to determine whether the railway owes a duty of care to Palsgraf. To determine this question, a test named as “neighbor test” is usually conducted. A “neighbor” is a close person who will be directly affected by one’s conducts. If a person is a neighbor of a other person, then the other person generally owes a duty of care to this person, the other person must take reasonable care to not harm this person[1]. As stated in the captioned case, Palsgraf was standing on the platform of the railway waiting a train, she was very close to the railway and would be directly affected by the action or omission of the railway. She is a “neighbor” of the railway therefore the railway generally owes a duty of care to her.
However the establishment of “neighbor” is not enough to establish that the defendant owes a duty of care to the plaintiff, it is just a fundamental condition. The court will find that if it is possible for the defendant to foresee the injuries or losses, that is, whether a reasonable person can foresee the injuries or losses. This is a question of fact and it will determined depending on circumstances[2]. In the captioned case, it seems that the injury suffered by Palsgraf was  foreseeable: a. the injury was caused by an explode, such accident is unusual at a platform of a railway; b. however, the explode happened because a passenger carried fireworks in his luggage; although a reasonable person can not foresee what items are contained in a person’s luggage, as a railway, it has a mean to detect dangerous materials and it is responsible to prevent passengers who carry dangerous materials from entering in its railway station; railway, as a mean of public transportation, shall exercise a higher level of care than ordinal persons. therefore the explode is foreseeable for the railway.
Then a court will consider whether there is a vulnerable relationship. The court will find whether a defendant should control the act or omission or not, whether a plaintiff relies on the defendant and whether the defendant should protect the plaintiff. As analyzed above, the railway is reliable to control and prevent any dangerous materials from entering in the station and platform; Palsgraf relied on the railway for she could not protect her safe by herself and the railway owed a contractual obligation of assuring safety of its passengers.
For public policy consideration, it is moral, fair and equitable to determine that the railway owes a duty of care to Palsgraf.
Concluded from above analysis, the railway owed a duty of care to Palsgraf. The railway also breached its duty of care for it could not prevent the customer from getting on the train. Therefore, there is an negligence by the railway.
2.    Damage
Palsgraf suffered a damage of injury. The sales fell on her and injured her. The damage was not directly caused by the negligence of the railway. However it is appropriate to extend the railway’s liability to cover the injury suffered by Palsgraf for the railway was obliged to protect the safety of its passengers.
3.    Defenses the railway may raise
The railway may raise defenses such as the passenger who carried fireworks used special method to hide the fireworks and the railway had used every efforts to detect dangerous materials and prevent such materials from entering the station, platform and the train. The captioned case does not mention this aspect.
4.    What Palsgraf may recover
Since a scales fell on Palsgraf and caused physical injury to her, she may claim to recover physical damages and moral damages, or apply for extending formal apology.
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Conclusion
Palsgraf has a remedy in negligence against the railway. As for the remedy, she may claim physical damages and moral damages, or apply for extending formal apology.
 
Question 2
Issue
1.    Elements of Trespass to land;
2.    Conditions for remedy in trespass against a trespasser.
Legal rules
1.    Trespass means an action of entering in and remaining on a land which is not belonged to, or under possession of the actor, intentionally or negligently, without a lawful reason. Trespass is mainly a civil wrong.
2.    The trespassed exclusively possess the land at the time the trespass happens.
3.    Lawful reasons include license from the possessor has been obtained; there is a lawful easement or any other lawful justifications. A lawful reason may exclude the existence of trespass.
4.    Trespass to land includes entry on the ground , entry in blew the ground of the land and entry on the airspace above the land.
5.    Trespass is a tort which is actionable per se, that is, the trespasser may be sued even the conduct causes no harm to the land owner. Damage is not necessarily demanded in an action of trespass.
Application
1.    Entry element.
Scope of land. The word “land” in a trespass to land includes the earth of the land, buildings or structures on the land and space above the land. In the captioned case, Joe’s sign protruded over As indicated in the captioned case, Joe in order to increase the sales of his shop erected a very big sign, which protruded over Pat’s land.
The land was owned by Pat therefore Pat has exclusive possession on the land. The maxim “Cujus est solum ejus est usque ad coelum et inferos” represents that ownership has absolute effect. Old English case established that eventually entry in the airspace on the land does not constitute a trespass unless the entry contacts the land (Butt [203]). In the case Kelsen v Imperial Tobacco Co [1957] 2 QB 334, it was held that the leasee had a right of possession of the space on the building and the sign over the leased building must be removed[3]. From the case it is concluded that as an owner, Pat certainly exclusively possessed the airspace on his land. In the case Woollerton and Wilson v Richard Costain [1970] 1 All ER 483, the defendant installed a high crane which was over 50 feet over the plaintiff’s land, it was held that the trespass shall be issued an injunction but his honor postponed the effect of the injunction until a certain time in the future. In the case LJP Investments Pty Ltd v Howard Chia Investments (No 2) (1989) 24 NSWLR 490, it was held that in order to establish a trespass, the entry in the airspace on a land must be within a height and by a way which interferes with the normal use of the land, thus a airplane flying very high over a land; but a crane jibs enters in a airspace with a height of 50 feet from one’s house had been treated as trespass[4]. Later in the similar case, it was found that it was not necessary to trespass the plaintiff’s land to construct the building, therefore his honor awarded exemplary damages to the plaintiff. It represents the intention of punishing tort of trespass and encouraging of conduct not trespassing other’s land.
From the above case, a trespass which is for the purpose of the trespasser’s benefits may be issued an injunction, but the injunction may be postponed for a period; the entry in an airspace will be treated as trespass to land if with a height or in a manner which may interfere with the normal use by the possessor. If there was other way not trespassing to land, exemplary damages may be awaded. To establish an trespass to an land, the entry must physically interfere in the possession of the land by the plaintiff[5]. The sign erected by Joe actually interfered in the exclusive possession of the land by Pat. It seems that Joe had entered in Pat’s land thus the entry element is established. Since it was very large, it is reasonably concluded that the entry disturbed the normal use by Pat.
2.    Subjective element
To establish a trespass, an enterer must have faulty in his mind, that is, he intentionally or negligently enters in other person’s land. If one is forced to enter in other person’s land, the entry is not a trespass. In the captioned case, Joe erected a big sign which protruded over Pat’s land only for the purpose of increasing awareness of his potential customers and increasing sale, it seems that he did not enter in Pat’s land intentionally; but it was foreseeable that the erection of the big sign would protrude over Pat’s land, therefore it is concluded that Joe negligently entered in Pat’s land.
3.    Lawful reasons
It seems that Joe has no lawful reasons for his entry on Pat’s land: a. permission by the land owner. Pat did not give such permission to Joe; b. easement. Joe was not entitled to an easement to Pat’s land; c. any other lawful justification. No lawful justification is present. Joe erected the big sign only for the benefits of himself.
4.    Damage (not a required element for establishment of trespass to land)
Because the big sign “protrude over” Pat’s land, it did not cause material damage to Pat’s land. It may cause inconvenient to Pat for using the land but this is not mentioned in the captioned case. The damage is not necessarily an material damage, it may be a inconvenience, block or breach of exercise of right. However, trespass to land is a tort of actionable per se, damage or loss is not necessarily required in an legal action.
5.    Remedies
The remedies for trespass to land include injunctions[6], ejectment, recovery of possession[7] and claim damages. In the captioned case, since there was no material damage to Pat’s land, Pat cannot claim damages towards Joe, he may apply for injuction, ejectment or remove the sign to recovery his possession of the land.
Conclusion
Pat has a remedy in trespass against Joe. Pat may apply for ejectment or remove the sign to recovery his possession of the land. The injunction may set a time with it for it takes effect[8]. Besides, if there was other way for erection which would not trespass Pat’s land, Joe may be punished with exemplary damages[9].
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[1] Donoghue v. Stevenson [1932] AC 562, p. 580.
[2] Hay (or Bourhill) v. Young [1943].
[3] Kelsen v Imperial Tobacco Co [1957] 2 QB 334.
[4] Woollerton and Wilson v Richard Costain; Graham v K D Morris and Sons.
[5] Victoria Racing Co. v Taylor.
[6] Parramatta CC v Lutz.
[7] Campbelltown CC v Mackay.
[8] Woollerton and Wilson v Richard Costain [1970] 1 All ER 483.
[9] LJP Investments Pty Ltd v Howard Chia Investments (No 3) (1989) 24 NSWLR 499.

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