The elements of trespass to Land - tort law PDF

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Summary

Tort law - elements needed to show trespass to land elements needed to show trespass to land elements needed to show trespass to land...

Description

Trespass to Land

Definition

Element 1: Possession

Trespass to Land Trespass to and occurs when there is direct interference with property in the possession of another without his or her consent • Examples include: o person walks (or drives) onto another’s land without consent; o remains upon the land after permission to remain, express or implied has been withdrawn; o places or throws or leaves any object or animal on the land; o encroachments by adjoining buildings, swinging cranes, scaffolding or structures. • Scope: o Trespass can be to land, fixtures (house, factory, equipment attached to the land) and airspace o Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479:§ An occupier’s rights are restricted to “such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it” • • • •

Has to do with title to sue/standing RULE: The plaintiff must have possession of the land at the time of the trespass NOTE that “exclusive possession” NOT ownership is required to bring an action for trespass to land Newington v Windeyer (1985) 3 NSWLR 555 o Seisin (possession) gives ownership good against everyone except a person who has a better, because older, title

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• Element 2: Directness

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Element 3: Fault

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o This means that a person in adverse (to the true owner) possession still has a legal interest and can sue for trespass so long as have a better title than the trespasser 2 elements essential for possession: o Intention to exclude others; and o Actual possession by the exercise of acts of ownership A temporary absence would not amount to a surrender of possession Plaintiff must show that the injury was immediate upon the act done: Leame v Bray (1803) 102 ER 724 per Le Blane J TEST: Did the impact follow so closely on the defendant’s act that it might be considered part of the act? May be established by intentional or negligent conduct Intentional conduct: a desire or purpose upon the part of the defendant to cause an interference but also encompasses situations in which the defendant should have had knowledge, to a degree of substantial certainty that the interference would occur as a result of their act Negligent conduct: requires assessment of whether the defendant failed to exercise reasonable care and as a result caused the interference

Element 4: Damage

Actionable per se

Onus/Burden of Proof

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Plaintiff onus of proving that there was a direct interference Def bears onus of disproving fault

Defences

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Consent/implied licence o Consent may be revoked (see Kuru below) o Halliday v Nevill (1984) 155 CLR 1 § “If the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with nay entrance gate

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unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose …” Necessity to preserve life or property Lawful authority to enter o Kuru v State of New South Wales [2008] HCA 6:§ Except in case provided for by the common law and by statute police have no special rights to enter land § Whatever may be the ambit of the power of police to enter premises to prevent a breach of the peace, the power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened § An authority to enter land may be revoked and that if the authority is revoked the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable o Warrant – overrides occupier’s refusal or withdrawal of permission to enter or remain on the premises Mistake is no defence Contributory negligence (where the act of the def involves negligent conduct) Others? See textbook...