Torts Week 4 - Notes PDF

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Torts Seminar: Week 4 1. 

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What is land? Land is an area of three-dimensional space, its position identified by natural or imaginary points located by reference to the earth’s surface. – Butt Land Law (6th ed, 2010) [202]. Hence, land has a ‘vertical extension’ as well as boundaries on a plan. Common law maxim: Cuius est solum, eius est usque ad coelum et ad inferos.  “Whoever has the soil, also owns the heavens above and to the centre beneath.” Pickering v. Reid (1815) 4 Camp. 219 and Lord Bernstein of Leigh v. Skyviews & General Ltd. [1978]:  ‘If applied literally…is a fanciful notion leading to the absurdity of a trespass at common law being committed by a satellite every time it passed over a suburban garden.’ This view was accepted by the NSWCA in ACQ Pty Ltd v Cook [2008] NSWCA 161 at [131]:  ‘It is in any event not a trespass for an aircraft to pass over someone’s land at a height greater than the owner needs for the ordinary use and enjoyment of his or her land and the structures upon it.’ The Civil Liability Act 2002 (NSW):  Removes any action for trespass against an aircraft ‘at a reasonable height.’ Schleter v Brazakka Pty Ltd (2002) 12 NTLR 76 (noted in (2004) 78 ALJ at 431) held that:  ‘There was no trespass where a plane passed over land at a height of 600ft.’ However, civil action taken at lower heights have often been successful. Cases of cranes and other tall machinery overhanging private property often lead to either and injunction or damages paid. As seen in:  Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 [Bryson J] LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490  In Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311:  An encroachment of 6 cm of cladding on a building was acknowledged to be a trespass into the adjacent airspace, and an injunction requiring removal of the cladding was upheld. Davies v Bennison (1927) 22 Tas LR 52:  Discusses whether or not the firing of a bullet from a neighbouring property at a cat amounted to a trespass into the airspace above the property where the cat was situated.  The court decided that the bullet intruded onto the land through the airspace above the surface. Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52:  Chief Justice Young granted an injunction for the removal of a series of ‘rock anchors’, which intruded on the plaintiffs land, to provide support for the construction of the defendants land.  ‘Idon otc o ns i de rt ha tt hed e f e nc et ha tt h er oc ka nc h or s ,whi c hc a nnowa c t ua l l ybes e e ni nt hee x c a v a t i on,a r es of a r b e l owa st obebe y on dt h er e a c ho ft r e s pa s s ,[ s uc c e e d s ] . ’ The case Bocardo SA v Star Energy UK Onshore Ltd [2008] discusses trespass occurring underneath land.  Star had been drilling for oil 800ft beneath Bocardo’s land without permission. The court had to determine whether damages for trespass could be recovered and how to value them.  The defendant argued that, established in Bernstein, there was no trespass by an aircraft 600ft high in the sky, so there could be no trespass at a depth of 800ft.  This argument was rejected due to the fact that the soil at closer levels would have to have been breached in order to reach the oil. And generally held that the same reasoning could not be applied.  An order for 7 million pounds to be paid in compensation to Bocardo was made, for the extraction of oil over 6 and a half years. The case Johnson v Buchanan (2012) exemplifies the rule that trespass into air space amounts to trespass to land.  A neighbour was leaning on a high fence between two properties and had his arm extended over the fence, he was then bitten by the defendant’s dog, but the defendant was able to rely on the defence that ‘trespass’ had been the cause of the dog bite. Trespass to Land ‘Trespass to land is constituted by unjustifiable interference with the possession of land.’ - WVH Rog e r s ,Wi nfie l dand . J ol owi c zonTo r t( 14 t he d;London:Swe e t& Max we l l , 1 994 ) Lord Hope in the case Star Energy Weald Basin Ltd v Bocardo SA (2010) UKSC 35 defines trespass to land as:  ‘ Anu nj us t i fie di nt r us i o nbyon ep a r t yu ponl a ndwhi c hi si nt h ep os s e s s i ono fa n ot h e r . ’ Port Stephens Council and Anor v Tellamist Pty Ltd (2004) NSWCA 353 summarises trespass to land as:  ‘ Da ma g ei sno tt hegi s toft h ec a us eo fa c t i o ni nt r e s p a s s .I ns t e a dt h ea c t i o ne x i s t st opr ot e c ta n dv i nd i c a t et h er i g ht o fap e r s o ni npo s s e s s i onofl a n dt ohi sorhe re x c l us i v ea n dpe a c e f ul e nj o yme n toft ha tl a nd. ’  ‘The slightest incursion constitutes a trespass, so long as it is not wholly involuntary.’

From this emanates both the statement that ‘trespass is actionable per se’, and the distinction between trespass and actions on the case such as nuisance, and later negligence.  Nuisance protects against unreasonable interference with the plaintiff’s use and enjoyment of his land rather than with his possession, that interference stemming from conduct of the defendant outside the plaintiff’s land.  The High Court summed up the action of trespass to land in the case New South Wales v Ibbett (2006):  ‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.’  ‘It is not the concern of the law here to protect title in the sense of ownership but, as in the present case, the party in possession may often also be the owner.’  The action for trespass to land is one of the oldest actions known to the law but continues to be relevant in courts today.  See the case The Mayor, Commonality and Citizens of the City of London v Tammy Samede [2012] EWHC 34 which dealt with the eviction of the ‘Occupy London’ protestors.  The basis of the action was the right to possession of the area around St Paul’s by the City. Other actions for trespass:  The essence of the action is the incursion of the boundary; the defendant must then justify this by proof of either consent or other lawful authority. As established in Proprietors of SP 20297 v G & S Developments Pty Ltd [2008] NSWSC 257:  ‘The burden of establishing consent lies within the defendant.’  The relevant intention of the defendant must be either actual intention to cross a boundary, recklessness or negligence.  The tort of trespass to land is ‘actionable per se’, and there is no need to show any specific damage.  See Carina James v North Star Pastoral Pty Ltd (2019) NTSC 72:  The plaintiff had built a fence which ran 2 metres inside her property boundary, and the defendant built a fence which intersected hers at right angles, thinking he was building on his own property.  The court awarded $2500 to vindicate the plaintiff’s rights to land. “The fact that a trespass may be of an apparently trifling nature is no defence. A plaintiff in an action for trespass is entitled to recover damages, even though he or she has sustained no actual loss.”  There must be “directness” of harm, as discussed in the case Tavitian v Commissioner of Highways (2018) SASC 189:  There was a complaint that the water leaking from a government-controlled pipe had come onto the plaintiff’s land.  Chief Justice Kourakis denied this claim on the basis that the damage was “indirect” as the end of the pipe was not on the land. “The Commissioner contends that trespass is constituted by conduct which without lawful justification directly encroaches on the subject land. Damages for indirect injury historically were recovered in the action ‘on the case’ from which evolved the modern actions in nuisance and negligence.”  If someone walks across a boundary without knowing it is there will still be found liable in trespass. If they are negligent as to the existence of the boundary, even if they are not careless about the boundary.  The case League against Cruel Sports v Scott [1985] 3 WLR 400, [1986] QB 240 discusses where negligence in land trespass was found.  It was found actionable for a master of hunt to persist in hunting with hounds near someone’s land knowing there was no way in preventing the hounds from crossing the boundary.  There can also be liability for ‘innocent’ trespass to land, as cited in the case Basely v Clarkson (1681) 3 Lev 37:  There was liability for trespass where the defendant mowed some grass on the plaintiff’s land, thinking he was mowing grass on his own land.  This rule was affirmed in the case Moore v Devanjul Pty Ltd & Ors (No 5) [2013] QSC 323:  ‘A mistaken view of one’s right to enter onto another’s property does not excuse the entry or provide a valid defence to a trespass.’  The rule was also cited with approval in the case Moon v Whitehead (2015) ACTCA 17:  ‘An innocent mistake, and even reasonable mistake, is not generally a defence to an intentional tort. It was held that the defendant’s misapprehension was irrelevant.’  See also Woodley v Woodley (2018) WASC 333:  ‘A trespasser who honestly but mistakenly believes he is entitled to possession is nonetheless guilty of unlawful entry.’ Causing something to cross a boundary can be considered trespass. As seen in the case, Lade & Co Pty Ltd & Ors v Black  [2007] QSC 385:  It was conceded to be trespass for Black to allow cattle to go onto the plaintiff’s land. 

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Chief Justice Spigelman illustrates in the case TCN Channel Nine Pty Limited v Anning [2002] NSWCA 82 that any incursion into private land, where there is no implied permission, amounts to a wrongful act.  ‘The tort of trespass is committed whenever there is interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession.’

Tr e s pa s s by Pol i c e : NSW v Koumdjiev [2005] NSWCA 247  

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Conversely, consent may be implied if the person enters for a lawful purpose as heard in the cases Plenty v Dillon (1991) 171 Thepl a i nt i ff, Mr and Robson vf Hallett CLR 635 Koumd j i e v , wa si nt h e o ye r [1967] 2 QB 939.  ‘ T h e o c c u p i e r o f a n y we l l i n gh ous egi ve si mp l i e dl i c e n c et oa nyme mbe roft h epub l i cc omi n gonhi sl a wf u l ofabl oc ko funi t sl a t ea t d u s i n e s s t o c o met h r ou ght hega t e ,u pt h es t e p s , a ndkno c kont hedo oroft hehou s e . ’ ni gh twb h e n t h e p o l i c e Wilson v State of New South Wales (2010) NSWCA 333 details where two bailiffs (legal officers) came to the front door of a ppr o a c h e dt hef r on td oo r ae property to seize goods as payment for a fine. They were confronted by a male and a female, but the male alleged the female s c or t i n go neo fhi s was the property owner, so whilst the male asked the officers to leave his wife did not, and the license of the officers to enter ne i gh bou r s , MsD.The y the property had not been revoked. r e que s t e dMrKou md j i e vt o  ‘There was no communication from Mrs Wilson suggesting that the implied license was revoked by her.’ ope nt hedoo r . MsDa s ke dh i mn ott o , s o A license to enter will only be revoked where there has been clear communication. her e f us e dt oope nt hedo or The case TCN Channel Nine Pty Limited v Anning (2002) NSWCA 82 establishes that the ‘Current Affairs’ reporter did a ndhe l di ts huta ga i ns tt he not hold an implied license to film a ‘raid’ by the EPA on private property. pol i c e af t e roneoft h e “ T h c ewa sl i mi t e dt oapa r t i c ul a rpur p os e , n a me l y , t oe nt e rt hel a n dt or e qu e s tp e r mi s s i ont ofil m.The ot he rr e s i de nt sunl o c ke d rt hel a n df o rt h a tpur p os e , o rf orpu r pos e swhi c hi nc l u de dt ha tpur po s e .I te nt e r e dt hel a n df ort he t hedoo r . o s e so ffil mi n gt her a i d,r e c o r di n gt h eRe s p ond e nt ’ sus eoft h el a n d,c on du c t i n gs u c hi n t e r v i e wsa si tc o ul dwi t ha Mr K o um d j i e v w a s t h e n v i e w t o b r o a d c a s t i n g ap r ogr a mme .I twaswhol l yo ut s i deanyi mpl i e dl i c e nc e. ” a r r e s t e d u ti na na c t i o n This too is;b supported by Justice Mason in the High Court judgement in Barker v The Queen (1983) 153 CLR 338: a l s e m p r i s o nmor e n tt h e to enter is limited in scope, then an entry which is unrelated to the right or authority will f or f “Ifi the right authority NSWCA h e l d t h a t : t h e amount to a trespass.” pol i c edi dn otha v e p m i s s i o nt oGroup e nt e rt h e Th er c a s e Coles Property Developments Ltd v Stankovic [2016] NSWSC 852 discusses how the court issued an pr e mi s e s , t h a tMr a homeless man from entering the Kellyville Plaza shopping centre. injunction preventing Ko md j i e v wa s l a wf ul l yto park his car on the premises on a full-time basis, disturbing a number of patrons and u He had attempted r e f us i n g e n t r yt op ol i c e , shopkeepers for over a year. Hence, his ‘license to enter’ had clearly been revoked on a number of occasions. a ndt h a thes h ou l dbe a wa r d e dda ma g e s . - Tr e s pa s spr ot e c t st h er i g hto fpos e s s i on ,n otj us town e r s hi p . Ther e l e va n c eo ft r e s p a s s  See Newington v Windeyer (1985) 3 NSWLR 555 wa st h a ti ft h ep ol i c ewe r e - EG:At e na ntu nde rava l i dl e a s e , whi c hgr a nt sar i gh to fe xc l us i v ep os s e s s i on,c a n c omi t t i n gt r e s pa s st ol a nd t a k e a n a c t i o n i n t r e s p a s s , a n d e v e n t h e l a n d l o r d c a n b e s u e d . t oe nt e r , t h e nt h ea r r e s twa s evDe v anj ulPt yLt d& Or s( No5)( 2 013 )QSC - Thi si sd i s c u s s e di nc a s eMoor wr on gf ul ;t hepo l i c eh a d 3 2 3 : a ut h or i t yt ot a k eMsD  ‘ I ti swe l la c c e p t e dt h atat e na ntu nde rav al i dl e as eh ast h ei mme d i at e homea ss hewa s r i g h t t o p o s s e s s i o n w h i c h t h e l a w p r o t e c t s a g a i n s t i n t e r f e r e n c e f r o m i n t o xi c a t e d,bu tt hi s s t r an ge r sand, f ort hi spu r po s e , t hel a nd l or di st ant amoun tt oas t r an ge r . a ut h or i t ywa sno t I t i s t h e l e g a l r i g h t o f e x c l u s i v e p o s s e s s i o n i n t h e t e n a n t w h i c h t h e l a w s p e c i fic a l l ys a i dt o p r ot e c t sb yv a r i ou sr e me d i e s ,i nt e ral i a , byana c t i o nf ort r e s pas s . e mpo we rt h e mt ot r e s pa s s onp r i v a t ep r ope r t y . Thef a c tt ha tano t he r r e s i de ntun l oc k e dt h ed oo r f orp ol i c epr o ve dt ob ea poi n tofc on t e nt i oni n Cou r t . Af t e ra n a l ys i sof ot he rc a s e s ,t hec our the l d t ha ton e‘ t e na nti n yg i v ea c ommon’ma l i c e n s et oas t r a ng e rt o e nt e rt hep r ope r t y . Ho we v e r ,t h i sr i ghtwa s r e as ona bl e s u bj e c tt ot he‘ us ea nde nj o y me nt ’o ft he pr op e r t yb yo t he rc oo wn e r s . He r et h epe r mi s s i ongi v e n b yt heot he rr e s i de ntb y unl o c k i n gt hed oorf o rt he pol i c e , wa se ffe c t i v e l y r e v ok e dbyMrKo umdj i e v

- Justice Jackson in Emprja Pty Ltd v Red Engine Group Pty Ltd [2017] QSC 33 held that:  A person who held land under a sub-lease from the Crown had a right of exclusive possession which could be protected by the law of trespass. - However, someone who is merely a ‘licensee’, not in exclusive possession, does not usually have standing to take an action in trespass. - Trespass involves a direct and immediate interference with land.  This explains the reasoning as to why overhanging tree branches were characterised in common law as a nuisance rather than trespass. - The tort is a continuing one, which is ongoing until the trespass ceases.  An injunction may be granted to prevent ongoing trespass and is often preferred to damages.

Gazzard v Hutchesson (1995) where neighbours entered premises to cut back trees committed trespass; award of "exemplary" (punitive) damages because the defendants in doing the job in blatant contravention of the plaintiffs' express wishes and while they were away: a c t e dwi t hc ont ume l i ousdi s r e s pe c tf ort h er i g ht sofe n j o y me ntbyt h e[ p l a i nt i ffs ]oft het r e e s . [ a t6 2, 36 0]...