Read the following factual account:
James and Tom live next door to each other. On James' property there is a large gum tree which has loose branches that hang over Tom's fence. Tom is concerned that a strong wind could force the branches to fall off causing damage his property or even injury to his family. Tom has written to James on several occasions asking him to attend to the problem, however, James has ignored the letters.
After a particularly windy night where the branches were crashing against the roof of Tom's garage, he went to James's house to discuss the problem. James ordered Tom off his property telling him to mind his own business.
Several weeks later a heavy storm with gale force winds caused the branches from James' overhanging tree to tear off and smash hard
against the roof of Tom's garage. Part of the roof collapsed causing extensive damage to Tom's car. Tom wrote to James seeking compensation for the damage caused by James' tree. Again, James has refused to acknowledge the letter.
Tom has come to you for advice regarding any legal rights that he may have in relation to this matter.
Answer ALL of the following questions:
(1) Assume that you are a legal adviser and Tom has described the events leading to the damage to his property, would you advise
him to take a civil or criminal action against James? Explain why you have chosen this type of action.
(2) What cause of action would you advise Tom to take against James? State the name of the case that this cause of action originated from and provide its reference.
(3) List the elements of the cause of action that Tom would need to prove in order to succeed. Apply the elements of this cause of action to the facts.
(4) What is the likely outcome for Tom of a successful action against James?