trespass

Question 1

Two elements of trespass vi et armis

Answer 1

1. Direct harm – no break in time between the act and the injury (Reynolds v Clarke)
2. Actionable per se – no burden on the plaintiff to prove any loss/damage

Question 2

What is battery?

Answer 2

A voluntary and positive act, done with the intention of causing contact with another, that directly causes that contact

Question 3

Battery – direct

Answer 3

The interference must be a direct consequence of the defendant’s act
(Carter v Walker)

Question 4

Battery – positive

Answer 4

The act must be active – a positive act, not passive – an omission
(Innes v Wylie)

Question 5

Battery – intentional

Answer 5

The defendant must act (1) voluntarily and (2) intend physical contact
(cf. NSW v Ibbett)
* Hostility is not a requisite of intention (In re F; Rixon v Star City)
* A tortfeasor may have no intention of causing any harm/damage (Wilson v Pringle)
* Intention may arise subsequently, even if the defendant did not initially intend physical contact (Fagan v MPC)

Question 6

Battery – contact

Answer 6

The physical contact may be however slight and includes contact to an object that the plaintiff is holding or wearing, not just to the plaintiff’s body

Question 7

What is assault?

Answer 7

A direct and positive threat, made with the intention to cause another to reasonably apprehend the imminent application of force

Question 8

Assault – direct and positive threat

Answer 8

The act must directly threaten impending harm to the plaintiff and must be made actively (Stephens v Myers)
* A threat may manifest in the form of words (Barton v Armstrong)
* A conditional threat that unequivocally indicates that no threat is in fact being made negates a reasonable apprehension of imminent harm
(Tuperville v Savage)

Question 9

Assault – intention to arouse an apprehension of imminent battery

Answer 9

The defendant must intend to create an apprehension of imminent harm in the plaintiff’s mind (cf. Rixon v Star City)
* Whether the defendant actually intends on carrying out the threat is immaterial (Zanker v Vartzokas)
* Fear is not a requisite of apprehension (Brady v Schatzel)

Question 10

What is false imprisonment?

Answer 10

An intentional, total and direct restraint on a person’s liberty

Question 11

False imprisonment – direct

Answer 11

The restraint must be a direct act by the defendant (Dickenson v Waters)
* A third party does not break the chain of directness if they are ‘active in promoting and causing the imprisonment’ (Coles Myer v Webster)

Question 12

False imprisonment – intentional

Answer 12

The defendant must act (1) voluntarily and (2) intend to deprive the plaintiff of liberty (Ruddock v Taylor)
* False imprisonment is a ‘tort of strict liability’ (Ruddock v Taylor), thus intention to restrain need not be wrongful/unlawful to hold the defendant liable (Cowell v Corrective Services Commission)
* A plaintiff’s knowledge of the false imprisonment is not necessary as a plaintiff may be unconscious during the tort (Murray v Ministry of Defence)

Question 13

False imprisonment – total restraint

Answer 13

The restraint must be total, not a mere partial obstruction (Bird v Jones)
* There must be no reasonable means of escape (R v Macquarie)
* Restraint need not be physical and may manifest psychologically if there is ‘evidence of complete submission’ (Symes v Mahon)

Question 14

What is the defence of self-defence for trespass to the person?

Answer 14

An interference to protect the plaintiff from a threat of imminent harm
* Must be reasonably necessary (i.e. the only reasonable way to avoid the threat)
* Must be in ‘reasonable proportion to the emergency’ and cannot be excessive
(Fontin v Katapodis)

Question 15

What is the defence of consent for trespass to the person?

Answer 15

The plaintiff has freely and voluntarily agreed to the interference (Bain v Altoft)
* ‘Implied consent’ is a defence against battery incorporating ‘all physical contact which is generally acceptable in the ordinary conduct of everyday life’ (Collins v Wilcock)
* However, consent cannot extend beyond what the plaintiff agreed to, such as to physical violence or grievous bodily harm (Giumelli v Johnston; Lergesner v Carroll)

Question 16

What is the defence of lawful authority for trespass to the person?

Answer 16

The defendant possesses the lawful authority to do, something that would otherwise be, a tortious act (e.g. police or citizen’s arrest)
* The defendant’s conduct must fall under the scope of the lawful authority being employed
* A plaintiff may be bound by terms of a contract which impliedly waives their rights to sue for false imprisonment as the defendant’s conduct is contractually authorised (Herd v Weardale)

Question 17

What is trespass to land?

Answer 17

An intentional, direct and positive intrusion to land in the exclusive possession of another

Question 18

Trespass to land – direct and positive intrusion

Answer 18

The defendant’s positive act must bear a close relationship/connection to the intrusion (cf. Esso Petroleum)

Question 19

Trespass to land – intrusion must be with land

Answer 19

This includes the airspace above the land (Kelson v Imperial Tobacco)
However, the extent is limited ‘to such height as is necessary for [the plaintiff’s] ordinary use and enjoyment of [the] land’ (Bernstein v Skyviews)
Transient intrusions are sufficient to amount to trespass (Graham v KD Morris & Sons)

Question 20

Trespass to land – land must be in the exclusive possession of the plaintiff

Answer 20

The plaintiff’s exclusive possession of the land must be lawful (cf. Delaney v TP Smith)

Question 21

Trespass to land – defendant must have acted intentionally

Answer 21

The plaintiff’s intrusion must be voluntary and deliberate (cf. Public Transport Commission v Perry)

Question 22

What is the defence of consent for trespass to land?

Answer 22

The defendant has the plaintiff’s permission to be on the land, either expressly or impliedly (Halliday v Nevill)
* Consent may be revoked and the plaintiff must be given a reasonable time to leave before becoming liable for trespass (Cowell v Rosehill Racecourse)
* Notwithstanding consent, if the plaintiff is on the defendant’s land fraudulently (i.e. not for the consented purpose), the plaintiff is liable for trespass (TCN v Anning)

Question 23

What is the defence of lawful authority for trespass to land?

Answer 23

The defendant possesses statutory justification to be on the plaintiff’s land
* If the police have lawfully entered, they cannot stay on the plaintiff’s land, once asked to leave, without lawful justification (Kuru v New South Wales)

Question 24

What is the remedy of compensatory damages for trespass actions?

Answer 24

Damages awarded proportional to the loss suffered by the plaintiff that are ‘natural and probable consequences’ of the trespass (TCN v Anning)

Question 25

What is the remedy of aggravated damages for trespass actions?

Answer 25

Damages awarded for a trespass causing severe humiliation or distress to the plaintiff so as to embarrass or outrage the plaintiff’s dignity (NSW v Ibbett)

Question 26

What is the remedy of user fee damages for trespass actions?

Answer 26

Damages proportional to a reasonable rent for using the plaintiff’s land

Question 27

What is the remedy of account for profits for trespass actions?

Answer 27

Damages proportional to the defendant’s gain made through the trespass

Question 28

What is the remedy of punitive damages for trespass actions?

Answer 28

Damages reserved for severe intrusions to punish the trespasser and deter future wrongdoing (TCN v Anning)

Question 29

What is the remedy of injunction for trespass and nuisance actions?

Answer 29

A discretionary court order preventing the trespass from repeating, available only if the hardship on the defendant is not excessive (Break Fast v PCH Melbourne)
* Also applicable to nuisance (Kennaway v Thompson)

Question 30

What is the remedy of abatement for trespass actions?

Answer 30

The ejection of a trespasser with reasonable force, preceded by a request to leave (Hemmings v Stoke Poges Golf Club)

Question 31

Two elements of nuisance

Answer 31

1. Indirect interference (Esso Petroleum)
2. Action on the case – the plaintiff must prove actual damage or loss

Question 32

Nuisance – title to sue

Answer 32

The plaintiff must possess an interest in the land or the title to sue (Hunter v Canary Wharf)

Question 33

Nuisance – creator, adopter or authoriser

Answer 33

The defendant must be the creator, adoptor or authoriser of the nuisance (Peden v Bortolazzo)

Question 34

Nuisance – use and enjoyment

Answer 34

The interference must be against the plaintiff’s use and enjoyment of the land (Hunter v Canary Wharf)
* Material damage (physical injury) – the Court will generally award remedies for nuisance
* Personal discomfort (amenity harm) – the Court must find substantiality and unreasonableness of the nuisance before awarding remedies nuisance

Question 35

Nuisance – substantial and unreasonable

Answer 35

The interference must be substantial and unreasonable
* Substantial – more than trivial (Walter v Selfe)
* Unreasonable – the Court must balance the plaintiff’s interest in use and enjoyment of the land with the defendant’s interest in carrying out the act
* This give and take between the neighbours is assessed by the standard of the reasonable man (Kennaway v Thompson; Clary v The Principal)

Question 36

Nuisance – other factors determining unreasonableness

Answer 36

1. Locality – the Court will assess whether the nuisance is reasonably proportionate to its locality (Lawrence v Fen Tigers)
2. Duration, time, frequency and extent – the Court will assess how long the nuisance lasts, whether it occurs at an antisocial time of day, how often it occurs, and how severe it is (Seidler v Luna Park)
3. Hypersensitivity – a plaintiff’s state being ‘exceptionally delicate’ is immaterial and will not be considered by the Court (Robinson v Kilvert)
4. Motive – the defendant will nonetheless be held liable for nuisance if it is caused ‘deliberately and maliciously’ (Hollywood v Emmett)

Question 37

Defences to nuisance

Answer 37

1. Statutory authority – the defendant’s nuisance is lawfully authorised within the scope of the legislation, indicated by clear and unambiguous language to this effect (Allen v Gulf Oil)
2. Moving toward the nuisance – it is an insufficient defence for the defendant to claim that the nuisance was already present before the plaintiff arrived (Miller v Jackson)
3. Reasonable user – the defendant carries the burden of proof to show that the nuisance was reasonable in the circumstances