Torts Session 3 - Lecture notes 3 PDF

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Torts Session 3: Trespass to Land; Defenses to Intentional Torts; Wilkinson v Downton   

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Trespass to land is a voluntary, international (or negligent) direct physical interference with the plaintiff’s exclusive possession of land. Land includes the actual soil/dirt, the structures/fixtures and plains on it and the airspace above it, Latin maxim: Cuius est solum ejus est usque ad caelum et usque ad infernos. The Nature of Land- any intrusion into air that is needed for the ordinary enjoyment of land will be a trespass, Berstein v Skyviews & General Ltd (1978) QB 479, LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989)- Supreme Court held that there was a trespass as the incursion into the plaintiff’s air space was “of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake”. The tort of trespass to land aims to ensure that the interests of a person in actual possession of land remain free from unwanted physical interference.

Elements of the tort of trespass to land 1. Voluntary Act of the Defendant  The defendants interference with the plaintiff’s possession of land must be voluntary e.g is defendant is thrown onto plaintiff’s land by others then no trespass to land is committed. (Smith v Stone 1647 Sty 65)  Must be an intention to commit the act which constitutes the trespass even though the defendant may not subjectively appreciate that they are committing a trespass.  Must be defendants voluntary act, not that of a third party however a defendant may be responsible for a trespass committed by a third party when the defendant authorized the act. 2. Directness  Requires a direct interference by the defendant with the plaintiffs property  An interference which is merely consequential upon the defendants act will not be a trespass- may be actionable as nuisance or in the tort of negligence  If defendant act is first in an unbroken chain of events (especially where those events are caused naturally), then a trespass is committed if it can be said that the interference was the natural and probable consequence of the defendants act. 3. Actionable Per Se  It is actionable without proof of damage  The onus of proving lack of fault rests on the defendant- irrelevant whether the plaintiff is the legal owner of the land as the tort is interference with one’s right to enjoy property, it is sufficient that the plaintiff is the person in possession of the land at the time the tort occurred  Dumont v Miller (1873) 4 AJR 152- entry on P’s land by hunters with their beagles, no damage but still trespass 4. Title/Standing to Sue  Plaintiff must establish actual exclusive physical possession of the land the subject of the claim (not necessarily title/ownership and title alone not sufficient)

 Newington v Windeyer (1985) 3 NSWLR 555: to the exclusion of all others, “A person who is in possession of land adverse to the true owner has a legal interest in the land…As long as a person does not abandon his possession, possession…enables him to exclude from the land any person who does not have a better title…”  A Contractual Licensee is NOT in possession, a licence to be upon land is merely a personal right and does not confer any rights to possession of the land.  Any person who has exclusive possession of land, even if they might have gained that possession wrongfully, will be entitled to maintain an action in trespass, cannot argue plaintiff wrongful possession unless defendant has a legal right to exclusive possession.  A trespasser/squatter: any person other than the person with the legal right to possession, may be in exclusive possession and can therefore maintain an action against another trespasser. 5. Nature of the Physical Interference  The act must constitute a physical interference with the land, unauthorized entry into property- a trespass may be committed without the defendant actually entering upon the plaintiff’s land at all, so long as the defendant directly causes some object to come into contact with the property  Bathurst City Council v Saban (1985) 2 NSWLR 704 o Trespass by a licensee: entry to property may be by the consent or license of the occupier, license may be express or implied. An express license is given when the occupier specifically gives permission for a person to enter the property, An implied license e.g. relates to means of access, path leading entrance of normal suburban house, left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized. o Pro tanto (‘so much’) trespass, a person who lawfully enters property having been granted a license to do so may commit a trespass where that person commits a wrongful act upon the property, defendant is a trespasser in relation to the unlawful acts committed on the premisesSingh v Smithenbecker (1923) 23 SR (NSW) Police Powers and Trespass to Land  Unless authorized by law, police officers have no special right of entry into any premises without consent of the person in possession of the land e.g Halliday v Neville  Unless authorized by law to remain, police officers must leave premises within a reasonable time when requested to do so. They have no power to enter for “investigating whether there has been a breach of the peace.” E.g Kuru v NSW  A police officer serving a summons (as opposed to making an arrest by warrant or for felony) must obtain the consent of the party in possession of the land before entry e.g Plenty v Dillion Trespass and Privacy  ABC v Lenah Game Meats (2001) 208 CLR 199

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All members of HC indicated openness to consideration of a tort of privacy when right facts before the bench Tort of privacy would apply to natural persons rather than corporations. Lack of precision in concept of privacy

Related Cases New South Wales v Ibbett (2006) 229 CLR 638 [8] – [32] (Austlii)     

Two police officers dressed in casual clothing came after her son who escaped jail Pointed gun at her and handcuffed son Held as trespass to land and assault On appeal, NSW court of appeal awarded exemplary damages from 10k to 25k and 10k on aggravated damages Sued the crown because couldn’t sue the police officers directly. Crown held that while they were liable for general damages, they were not liable for exemplary or aggravated damages from their employees tortious conduct. HC held they were liable for all damages, which flowed from tortious conduct of their officers performing their duties. (aggravated damages for insulting, humiliating conduct, compensating plaintiff)

Halliday v Nevill (1984) 155 CLR 1 Gibbs C.J., Mason, Wilson And Deane JJ [5] – [9] and BrennanJ (dissenting) [19]-[21]. (Austlii)

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High Court considered whether two police officers who entered upon the driveway of a private to arrest a disqualified driver, committed a trespass by entering the driveway unwanted. The court held that the officers’ entry was not a trespass as there was an implied licence to enter the open and unobstructed driveway (no gate, no lock or notice of prohibiting entry). The High Court held that there is an implied license for the public access to private dwellings through entry into gardens and yards which lead to dwellings for legitimate purposes in relation to contacting the possessor of the dwellings- “there are circumstances in which such a license will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit license was negated or was revoked.” The police had an implied or tacit license from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway Considerations of public policy be answered in the affirmative by the majority Brennan J (dissenting): tension between the common law privileges that secure the privacy of individuals in their own homes and the efficient exercise of statutory powers in aid of law enforcement, “it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a license that he has not given; it is for those who infringe his privacy to justify their presence on his property.” An implied licence at common law will not operate where it has been revoked,

even for some purposes of law enforcement. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, Judgment of Young JA (LexisNexis)

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The defendants went to the Plaintiff's place of business and filmed a story. The Plaintiff sued for trespass in order to restrict screening of a film which related to a report on dissatisfaction with an investment scheme engineered by the Plaintiff. The Plaintiff was seeking an interlocutory injunction. The Defendant argued that there was an implied license as it was a place of business and involved people coming and going from it. But, Young J noted that one had to analyse the existence of an implied/express license within the context of the situation. The defendant also argued that damages would be more appropriate. Young J stated that the court could provide an injunction even if confidentiality was not an issue. He noted that “the court will only grant an injunction if it can be seen that irreparable change will be suffered by the plaintiff if such an injunction is not given.” It was decided that damages were a more appropriate remedy, and thus, there was no interlocutory injunction.

Newington v Windeyer (1985) 3 NSWLR 555 Judgment of McHugh JA pp 563-4 (LexisNexis)

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The Plaintiff had common boundaries with the Defendant with an area fronting onto the street. Whilst the Plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it They brought an action for trespass against the Defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right. It was held that there was a trespass as the Plaintiffs had adverse possession of the land.

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 (Judgment of Lord Hope DP) Bailii

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An energy company had carried out activities relating to the extraction of oil beneath a property without the title owner’s permission. The issue raised was whether this constituted a trespass, and to what extent does the owner of the surface land also own the substrata which lie beneath The Court held that a landowner owns all substrata which lie beneath his property up to a undefined depth where the notion of ownership becomes absurd. It was held as trespass and Bocardo was entitled to some of the profits

Bernstein (Baron) v Skyviews & General Ltd [1978] QB 479 Judgment of Griffiths J

(http://www.bailii.org/uk/cases/UKSC/).    

Flying an aircraft over a person’s land is not necessarily of itself a trespass Defendant company took aerial photographs of properties and offered to sell them to the owners of the properties Plaintiff argued that the photographs were taken without consent, thus an invasion of privacy and had been trespassing onto his airspace and thus the photos be destroyed Held: There was no trespass as land owners only have rights in airspace to a certain degree à If action for trespassing were successful, remedy of destroying the photos would be unsuccessful as there is no law against taking pictures o Griffiths J: § If “Cujus est solum, ejus est usque ad coelum et ad inferos– whoever owns the soil it is theirs up to heaven and down to hell” were applied – trespassing would be committed every time a satellite passed a suburban garden § Owner of land had restricted rigthts in regards to the height of the airspace above the land § Above that height, the plaintiff had no greater rights than any other member of the public

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 pp 495-497 only (LexisNexis) 

Defendant was a commercial developer and asked a neighbor to allow them to erect scaffolding over the plaintiff’s land  Plaintiff asked for a fee, the defendant refused and erected the scaffolding  Hodgson J § Incurrence occurs where it is of the nature and height which interferes with ordinary usages of the land à noted that damages shouldn’t be ordered § However, ordered nominal damages as he believed an injunction wouldn’t be oppressive TCN Channel Nine Pty Ltd v Anning (2002) NSWLR 333 Judgment of Spigelman CJ [23] – [62] and [99] – [110]. (Austlii).     

TV Crew from a current affairs program accompanied inspectors from the Environmental Protection Agency onto plaintiff’s property through an unlocked gate NSW Court of Appeal held they were trespassers and thus had to pay damages Implied license limited à in order to enter the land and film, permission was required CJ found that the trial judge was in error in awarding a single figure amount for general, aggravated and exemplary damages. Spigelam CJ concluded that the respondent’s damaged be reassessed à respondent was entitled to an award of aggravated damages ($25 000)

Defenses to Intentional Torts

Defence of the Person and of Property  A defendants intentional tort may be justified if it is committed in self defence. Force may be used to defend one’s own or another person’s property or person but the force used to defend the person or property must be reasonable in all the circumstances. Self-defence: At common law a person who is attacked or threatened with an attack: a. May use such force as is necessary for this defence to operate b. He or she reasonably has no other option open to them; and c. Believes their life is in danger or that the attack or threatened attack will cause serious bodily harm      

No other option available: The question as to the options open to the defendant is a question of fact Reasonable belief in risk of death or serious bodily harm: The question to ask is whether the accused believed upon reasonable grounds that it was necessary in selfdefence to do what he did. Actual attack or threat of imminent threat Only use such force as is reasonably necessary in the circumstances: Fontin v Katapodis; McClelland v Symonds A ‘pre-emptive’ strike can be self-defence S 54 CLA: No damages to be awarded where conduct of P on the balance of probabilities constitutes a “serious offence” Case samples: Presidential Security Services of Australia v Brilley [2008] NSWCA 204, Sangha v Baxter [2009] NSWCA 78, Hall v Van der Poel [2009] NSWCA 436

Degree of force:

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The force used must be reasonable, that is proportional to any threat and must not be excessive. ‘The law denies to a person assaulted the right to strike a further blow by way of revenge’. (per Sholl J at 162) (McClelland v Symons) [1951] self- defence cannot be pleaded when the incident that called for the self-defence is past and a retaliatory blow is struck in revenge. The onus rests upon the plaintiff to prove the acts of violence, beyond those which the court might find were justified.

Defence of another person at common law: According to this doctrine, a person may come to the defence of another who is attacked or threatened with an attack: a. using such force as is necessary to protect the other person where; b. he or she reasonably believes that the other person’s safety is in danger  same principles apply as in self-defence  Defense of another person: Watkinds v Victoria [2010] VSCA 138, Gambriell v Caporelli (1975) 54 DLR 661, Goss v Nicholas [1960] Tas SR 133 Defence of own property at common law: Reasonable force may be used to defend one’s own or another person’s property. Property includes both land and goods. The person using this force must be in possession of the property. Therefore, possessors of property may eject trespassers but may not eject an owner of land who has entered upon the land for the purpose of retaking possession to which he or she is immediately entitled.  This defence includes the notion of self-help: a person who has exclusive possession to land may re-enter the land using reasonable force and eject the person who is no longer entitled to be there. Denial of Liability  Elements of cause of action not made out (e.g Defence not at fault; or no directness etc) Legal Authority Confession and avoidance  The defendant concedes the truth of the plaintiff’s allegations but asserts new facts to avoid the legal effect of the claim. Consent  Must be voluntary and come from a competent person  The onus is on the defendant to prove consent.  UK: Freeman v Home Office (no 2) [1984] 2 WLR 130  Australia: Department of Health & Community Services (NT) V JWB & SMB (Marion’s case) *note difference in onus of proof between UK and AUS  The essential element of the tort is an intentional or reckless, direct act of the defendant which makes or has the effect of causing contact with the body of the plaintiff.  Other persons do not have the right to interfere with an individual’s body unless he or she proves lack of consent to the interference.  When a plaintiff has given consent, there will be no trespass to land, person, or goods.  Consent may be expressed (written or oral) or implied (from conduct).

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Consent may be withdrawn at any time, must be clear and communicated to the defendant. Must be given to act complained of: McNamara v Duncan (1971) 26 ALR 584 Must be no vitiating factors nullifying consent Must be genuine

In order for consent to be valid it must: a. Be voluntary; b. Be given with knowledge; c. Come from a competent person; d. Be in relation to the act complained of. (Provocation is not a defense in torts, just a factor ) Consent and Sport  McNamara v Duncan (1971) 26 ALR 584 - “…deliberate injury in the sense of something done solely, or principally, with a view to causing sensible hurt is not justified by the rules and usages of the game…”  Giumelli v Johnston (1991) Aust Torts Reps 81-085 (SA FC) - A player’s consent extends to force within the rules of the game and also to “commonly encountered infringements of the rules”… but not to violence in contravention of the rules where a player intends to cause bodily harm. Consent and Medical Treatment  Department of Health and Community Services (NT) V JWB & SMB (Marion’s case) Per McHugh J - “At common law… every surgical procedure is an assault unless it is authorised, justified or excused by law.”  Rogers v Whitaker (1992) 175 CLR 479 No doctrine of ‘informed consent’ - For valid consent, a patient must be advised in broad terms of the nature of the procedure to be performed. If a patient is not warned of risks then the proper remedy is in Negligence not Trespass.  Gillick v West Norfolk AHA [1986] AC 112 - parental power to consent diminishes gradually as child matures. - rate of development depends on individual child

 Department of Health & Community Services (NT) v JWB &SMB (Marion’s case) - A minor is … capable of giving informed consent when he or she achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed…” - non-therapeutic medical procedures are outside the scope of a parent or guardian under the Family Law Act 1975 (Cth). Court must determine best interests of  Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422 - Court over-rode child’s (over 16) refusal of consent to blood transfusion on grounds of ‘best interests of child’.

 Minors (Property and Contracts) Act 1970 (NSW)...