LAW OF TORTS

1
LAW OF TORTS

• LECTURE 2
• False Imprisonment
• Trespass to Land
• Prof Sam Blay

2
THE GENERAL ELEMENTS OF TRESPASS
Intentional/ negligent act
Direct interference
Absence of lawful justification



A specific form of trespass
x element

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SPECIFIC FORMS OF TRESPASS
TRESPASS
PERSON
PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
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FALSE IMPRISONMENT

• The intentional or negligent act of D which
  directly causes the total restraint of P and
  thereby confines him/her to a delimited area
  without lawful justification
• The essential distinctive element is the total
  restraint

5
THE ELEMENTS OF THE TORT

• It requires all the basic elements of trespass
• Intentional/negligent act
• Directness
• absence of lawful justification/consent , and
• total restraint

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RESTRAINT IN FALSE IMPRISONMENT

• The restraint must be total
• Bird v Jones (passage over bridge)
• The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
  reasonable means of escape
• Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
  his/her authority with no option to leave
• Symes v Mahon (police officer arrests P by
  mistake)
• Myer Stores v Soo

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FORMS OF FALSE IMPRISONMENT

• See the following Cases
• Cowell v. Corrective Services Commissioner of NSW
  (1988) Aust. Torts Reporter 81-197.
• Louis v. The Commonwealth of Australia 87 FLR
  277.
• Lippl v. Haines Another (1989) Aust. Torts
  Reporter 80-302 (1989) 18 NSWLR 620.

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VOLUNTARY CASES

• In general, there is no FI where one voluntarily
  submits to a form of restraint
• Herd v Weardale (D refuses to allow P out of mine
  shaft)
• Robinson v The Balmain New Ferry Co. (D refuses
  to allow P to leave unless P pays fare)
• Lippl v Haines
• Where there is no volition for restraint, the
  confinement may be FI (Bahner v Marwest Hotels
  Co.)

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WORDS AND FALSE IMPRISONMENT

• In general, words can constitute FI
• Balkin Davis (1996 edition) pp 55 56
• restraint even by mere threat of force which
  intimidates a person into compliance without
  laying on of hands
• Symes v Mahon

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KNOWLEDGE IN FALSE IMPRISONMENT

• The knowledge of the P at the moment of restraint
  is not essential.
• Meering v Graham White Aviation
• Murray v Ministry of Defense

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WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE
POLICE OFFICER?

• In each case, the issue is whether the police in
  making the arrest acted independently or as the
  agent of the citizen who promoted and caused the
  arrest
• Dickenson vWaters Ltd
• Bahner v Marwest Hotels Co

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THE MENTALLY ILL AND FALSE IMPRISONMENT

• In Common Law, the lawfulness of an act of
  detention of a person must depend on "overriding
  necessity for the protection of himself and
  others per Harvey J in In re Hawke (1923) 40 WN
  (NSW) 58 "
• The situation under statute
• Watson v Marshall and Cade (1971) 124 CLR 621
• The Vic Mental Health Act 1959Any person may be
  admitted into and detained in a psychiatric
  hospital upon the production of
• (a) a request under the hand of some person in
  the prescribed form
• (b) a statement of the prescribed particulars
  and
• (c) a recommendation in the prescribed form of a
  medical practitioner based upon a personal
  examination of such person made not more than
  seven clear days before the admission of such
  person.

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DAMAGES

• False imprisonment is actionable per se
• The failure to prove any actual financial loss
  does not mean that the plaintiff should recover
  nothing. The damages are at large. An
  interference with personal liberty even for a
  short period is not a trivial wrong. The injury
  to the plaintiff's dignity and to his feelings
  can be taken into account in assessing damages
  (Watson v Marshall and Cade )

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OTHER FORMS OF TRESPASS
TRESPASS
PERSON
PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
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TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
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TRESPASS TO LAND

• The intentional or negligent act of D which
  directly interferes with the plaintiffs
  exclusive possession of land

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THE NATURE OF THE TORT

• Land includes the actual soil/dirt, the
  structures/plants on it and the airspace above it
• Cujus est solum ejus est usque ad coelum et
  inferos
• Bernstein of Leigh v Skyways General Ltd
• Kelson v Imperial Tobacco

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STATUTORY EASEMENTS

• Conveyancing Act 1919 s 88K (NSW)
• 1. The Court may make an order imposing an
  easement over land if the easement is reasonably
  necessary for the effective use or development of
  other land that will have the benefit of the
  easement.
• 2. Such an order may be made only if the Court is
  satisfied that
• (a) use of the land having the benefit of the
  easement will not be inconsistent with the public
  interest, and
• (b) the owner of the land to be burdened by the
  easement and each other person having an estate
  or interest in that land can be adequately
  compensated for any loss or other disadvantage
  that will arise from imposition of the easement
• all reasonable attempts have been made by the
  applicant for the order to obtain the easement or
  an easement having the same effect but have been
  unsuccessful

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STATUTORY EASEMENTS

• Conveyancing Act 1999 s 88K (NSW)
• 1. The Court may make an order imposing an
  easement over land if the easement is reasonably
  necessary for the effective use or development of
  other land that will have the benefit of the
  easement.
• 2. Such an order may be made only if the Court is
  satisfied that
• (a) use of the land having the benefit of the
  easement will not be inconsistent with the public
  interest, and
• (b) the owner of the land to be burdened by the
  easement and each other person having an estate
  or interest in that land can be adequately
  compensated for any loss or other disadvantage
  that will arise from imposition of the easement
• all reasonable attempts have been made by the
  applicant for the order to obtain the easement or
  an easement having the same effect but have been
  unsuccessful

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RESTRICTIONS ON STATUTORY EASEMENTS

• Property rights are valuable rights and the
  court should not lightly interfere with such
  property rights the section does not exist
  for people build right up to the boundary of
  their property or build without adequate access
  and then expect others to make their land
  available for access per Young J Hanny v Lewis
  (1999) NSW Conv. R 55-879 at 56-875
• Developers have a responsibility to act
  reasonably as do the proprietors of adjoining
  land and the developers should not just proceed
  as if they would automatically get what they seek
  without negotiations (per Windeyer J Goodwin v
  Yee Holdings Pty Ltd (1997) 8 BPR)

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The Conditions

• Note that under s88K the Court may make an order
  imposing an easement over land if the easement is
  reasonably necessary for the effective use or
  development of other land
• What is reasonably necessary and what constitutes
  effective use or development is a question of
  fact and would depend on the circumstances of
  each case
• The applicant need not prove absolute necessity
  but the easement must be more than merely
  desirable
• 117 York Street Pty Ltd v Proprietors of SP 16123
  (1998) 43 NSWLR 504
• Hanny v Lewis (1998) 9 BPR 16,205
• Grattan v Simpson (1999) NSW Conv. R 55-880
• The applicant must have made all reasonable
  attempts to obtain the easement Coles Myer Ltd v
  Dymocks Book Arcade Ltd (1995) 7 BPR 97,585

22
The Issue of Compensation

• 88K (2) Such an order may be made only if the
  Court is satisfied that the owner of the land to
  be burdened by the easement and each other person
  having an estate or interest in that land can be
  adequately compensated for any loss or other
  disadvantage that will arise from imposition of
  the easement
• Adequate compensation(Wengarin Pty Ltd v Byron
  Shire Council 1999 NSWSC 485)
• the diminished market value of the servient land
• associated costs that would be caused to the
  owner
• loss of amenities such as peace and quite
• where assessment proves difficult, the court may
  assess compensation on a percentage of the
  profits that would be made from the use of the
  easement

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Neighbouring land Access and Utility Service
Orders

• The Access to Neighbouring Land Act 2000 ss11
  and 13
• (1) A Local Court may make a neighbouring land
  access /utility service access order if it is
  satisfied that access to land is required for the
  purpose of carrying out work on or in connection
  with a utility service situated on the land and
  it is satisfied that it is appropriate to make
  the order in the circumstances of the case
• (2) The Court must not make a utility service
  access order unless it is satisfied
• (a) that the applicant has made a reasonable
  effort to reach agreement with every person whose
  consent to access is required as to the access
  and carrying out of the work, and
• (b) if the requirement to give notice has not
  been waived, that the applicant has given notice
  of the application in accordance with the Act

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The Nature of Ds Act A General Note

• ...Every invasion of private property, be it
  ever so minute, is a trespass. No man can set
  his foot upon my ground without my license, but
  he is liable to an action, though the damage be
  nothing.... If he admits the fact, he is bound to
  show by way of justification, that some positive
  law has empowered or excused him ( Entick v
  Carrington (1765) 16 St Tr 1029, 1066)

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THE NATURE OF DS ACT

• The act must constitute some physical
  interference which disturbs Ps exclusive
  possession of the land
• Victoria Racing Co. v Taylor
• Barthust City Council v Saban
• Lincoln Hunt v Willesse

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THE NATURE OF THE PLAINTIFFS INTEREST IN THE LAND

• P must have exclusive possession of the land at
  the time of the interference exclusion of all
  others

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THE NATURE OF EXCLUSIVE POSSESSION

• Exclusive possession is distinct from ownership.
  
• Ownership refers to title in the land.
  Exclusive possession refers to physical holding
  of the land
• Possession may be immediate or constructive
• The nature of possession depends on the material
  possessed

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EXCLUSIVE POSSESSION CO-OWNERS

• In general, a co-owner cannot be liable in
  trespass in respect of the land he/she owns but
  this is debatable where the trespassing
  co-owner is not in possession. (Greig v Greig)
• A co-possessor can maintain an action against a
  trespasser (Coles Smith v Smith and Ors)

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THE POSITION OF TRESPASSERS AND SQUATTERS

• A trespasser/squatter in exclusive possession
  can maintain an action against any other
  trespasser

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THE POSITION OF LICENSEES

• A licensee is one who has the permission of P to
  enter or use land (belonging to P)
• A licensee is a party not in possession, and
  can therefore not sue in trespass
• A licensee for value however may be entitled to
  sue(E.R. Investments v Hugh)

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THE TRESPASSORY ACT

• Preventing Ps access Waters v Maynard)
• The continuation of the initial trespassory act
  is a continuing trespass
• Where D enters land for purposes different from
  that for which P gave a license, Ds conduct may
  constitute trespass ab initio (Barker v R)

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THE POSITION OF POLICE OFFICERS

• Unless authorized by law, police officers have
  no special right of entry into any premises
  without consent of P ( Halliday v Neville)
• A police officer charged with the duty of
  serving a summons must obtain the consent of the
  party in possession (Plenty v. Dillion )

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Police Officers The Common Law Position

• The poorest man may in his cottage bid defiance
  to all forces of the Crown. It may be frail- its
  roof may shake- the wind may blow through it- the
  rain may enter- but the King of England cannot
  enter- all his force dares not cross the
  threshold of the ruined tenement. So be it-
  unless he has justification by law. ( Southam v
  Smout 1964 1QB 308, 320.

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REMEDIES

• Ejectment
• Recovery of Possession
• Award of damages
• Injunction
• Parramatta CC v Lutz
• Campbelltown CC v Mackay
• XL Petroleum (NSW) v Caltex Oil

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TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS