Trespass to Land

Trespass to Land.............................................................................................................................................................................................................1Scope of the Tort.......................................................................................................................................................................................................3

Direct interferences with land; without lawful authority or justification; implied permission; statutory authority.........................................4Southport Corporation v Esso Petroleum Co Ltd [1954] – SHORE OIL..........................................................................................................4Reynolds v Clarke (1726) 1 Strange 643 - SPOUT..........................................................................................................................................5Cowell v Rosehill Race Course Co (1937) - RACECOURSE..............................................................................................................................5League Against Cruel Sports v Scott [1956] QB 240 - HOUNDS.....................................................................................................................5Konskier v Goodman Ltd [1927] ALL ER 187 - TRASH....................................................................................................................................5Public Transport Commission of NSW v Perry (1977) – EPILEPTIC FIT..........................................................................................................6Halliday v Nevill (1984) 155 CLR 1 – DRIVEWAY ARREST...............................................................................................................................6TCN Channel Nine v Anning (2002) – MOTORCYCLE TRACK..........................................................................................................................7Coco v The Queen (1994) 179 CLR 427 – LISTENING DEVICE........................................................................................................................8Kuru v New South Wales (2008) – PEPER SPRAY...........................................................................................................................................9

Title to sue. Trespass to land as a wrong to possession, not ownership...............................................................................................................10Macintosh v Lobel (1993) (Kirby P) – SELF HELP SHOPPING MALL.............................................................................................................10Newington v Windeyer (1985) – THE GROVE..............................................................................................................................................11Rodrigues v Ufton (1894) – STRIP OF LAND.................................................................................................................................................11

Aerial Trespass........................................................................................................................................................................................................12Overflight by aircraft.........................................................................................................................................................................................12

Bernstein v Skyviews & General [1978] – AERIAL PHOTOGRAPHER...........................................................................................................12Schelter v Brazakka (2002) – THE LOST CITY...............................................................................................................................................13

Intrusion by structures......................................................................................................................................................................................13Didow v Alberta Power [1988] – POWER LINES..........................................................................................................................................13Bendal v Mirvac Project (1991) - CRANE.....................................................................................................................................................14LJP Investments v Howard Chia Investments (1989) - SCAFFOLDING............................................................................................14

Damage by Aircraft.................................................................................................................................................................................................15*Civil Liability Act 2002 (NSW) s 73 (Statutory extracts).............................................................................................................................15Damage by Aircraft Act 1952 (NSW) s 2(2), (4)(5) - ABOVE.........................................................................................................................15Damage by Aircraft Act 1999 (Cth) ss 3, 8-11..............................................................................................................................................16Southgate v Commonwealth of Australia (1987) - HELI HORSE..................................................................................................................17Glen v Korean Airlines Co [2003] – WITNESS CRASH...................................................................................................................................18ACQ v Cook (2008) - POWER LINE............................................................................................................................................................19

Underground Trespass............................................................................................................................................................................................19Edward v Sims (1929) – CAVE (Kentucky Court of Appeals)........................................................................................................................19Di Napoli v New Beach Apartments [2004] – ROCK ANCHORS...................................................................................................................19Bocardo v Star Energy UK Onshore [2009] - OIL..........................................................................................................................................20

Damages Recoverable............................................................................................................................................................................................20a) Liability of an intentional trespasser...........................................................................................................................................................21

TCN Channel Nine v Anning (ABOVE)..........................................................................................................................................................21b) Vindication of the plaintiff's right to exclusive possession.........................................................................................................................21

Plenty v Dillon (1991) - SUMMONS –..........................................................................................................................................................21c) Reinstatement/restoration or diminution in value?...................................................................................................................................22

Evans v Balog [1976] – SANDY SOIL.............................................................................................................................................................22Parramatta City Council v Lutz (1988) – FIRE/COMPENSATION..................................................................................................................23Hansen v Gloucester Developments [1992] – UNUSED LAND....................................................................................................................24Harbutt’s Plasticine v Wayne Tank & Pump Co Ltd [1970] - FACTORY........................................................................................................24C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] – BILLIARD HALL........................................................................................................24

d) Aggravated and exemplary damages..........................................................................................................................................................25XL Petroleum (NSW) v Caltex Oil (Aus) (1985) - WATERTANKS............................................................................................................25

Invasion of privacy and "the fruits of the trespass"...............................................................................................................................................25Victoria Park Racing & Recreation Grounds v Taylor (1937) - PLATFORM..................................................................................................26Lincoln Hunt Australia Pty Ltd v Willesee (1986) - FILMING.......................................................................................................................27ABC v Lenah Game Meats (2001) - POSSUM...............................................................................................................................................27Giller v Procopets (2008) - RANDO..............................................................................................................................................................28Wilson v Ferguson [2015] - NAKED..............................................................................................................................................................28

Elements of trespass to land

• the defendant directly entered into land, i.e., the defendant must commit an affirmative act of trespass (Perry)• intentional or negligent: Williams v Holland;• voluntarily enter onto land within the plaintiff's exclusive possession: Plenty v Dillon; (Basely v Clarkson)• without the consent of the plaintiff or other lawful justification: Halliday v Nevill

- Without justification of via statute

- NB The act needs to be above the de minimis threshold before a court will concern itself with the claim.

A person who lawfully enters another’s land may become a trespasser if he or she voluntarily exceeds his or her invitation on to the land: Public Transport Commission v Perry

The owner of the land may revoke the licence for entering their land at any time: Halliday v NevillOnly person with actual possession of the land can sue another for trespass: Newington v Windeyer• An owner out of possession may bring an action on the case in respect of damages to the owner’s reversionary

interest if damage could be proved: Rodrigues v Ufton

A person with title to land owns the land up to the sky and down to the depth• Aerial trespass: LJP Investments v Howard Chia Investments• Underground trespass: Di Napoli v New Beach Apartment• Notwithstanding the depth beyond the effective control of the occupier of the land: Bocardo v Star Engergy UK

Onshore

Because trespass – no emphasis on damage

Nuisance = indirect, trespass = direct

A person who lawfully enters another person’s land may become a trespasser if he or she voluntarily exceeds his or her invitation on the land, either in time or in purpose (Public transport Commission v Perry (1977)).

A statue may confer a right upon a person to enter onto another person’s land but it must do so by either express provision or necessary implication (Plenty v Dillon (1991); Coco v R (1994)).

Scope of the Tort

"In order to support an action for trespass to land the act done by the defendant must be a physical act done by him directly to the plaintiff's land" (Southport Corp v Esso Petroleum Co [1954])

OBJECTIVE: protect the plaintiff’s right to exclusive possession of land: Macintosh v Lobelo Owner often in possession so purpose of many a suit in trespass not the recovery of

damages but settlement of disputed rights over land and a judgement may be backed by sanction of an injunction if the action succeeds

More intentional rather than negligent, voluntary

• YOU NEED TO INTEND THE INTERFERENCE IN A WAY THAT IS A TRESPASS - THE IMPACT, NOT TORImmediate actRequires a voluntary act: Public Transport Commission v Perry

• Recently - Australian courts demonstrated a willingness in appropriate cases (Encorp Pty Ltd v ABC; Rinsale Pty Lt] v ABC; Heritage Real Estate Pty Ltd v ABC) to grant injunctions to restrain the televising of film and sound recordings obtained in course of trespass

• Actionable per se - Title to sue shown by plaintiff

• Land includes actual soil/dirt, structures/plants and airspace aboveo Not smells, noise - nuisance / breach of privacy alone (photos)o Cause some foreign matter to enter/come into physical contact, fire a gun into soil, place

ladder against/drive nails into wall, remove doors and windows, throwing person onto land - trespass

• Mistake is no defence to trespass (Basely v Clarkson)There is no trespass if the defendant enters land with the permission of the owner. Permission is alternatively

described as a “leave” or a “licence” (Robson v Hallett [1967] - Permission is of two kinds – expressed or implied.

Direct interferences with land; without lawful authority or justification; implied permission; statutory authority

Nature of direct interference

• Personally entering/remaining on plaintiff's land or directly causing physical matter to come into contact with land/leave objects on land

• Affirmative act• Remain on land itself - 'continuing trespass'

o Only when that which continues after the first action is itself a trespass, hence for a person to remain or leave goods (Holmes v Wilson) on land would be a trespass

• Person can become a trespasser when asked to leave even if entered peacefully i.e. entered with authority

What does possession entail? : Possession to the exclusion of all others but not the legal ownership.

Lawful authority

• Enter land with permission of license of possessor trespass if remain there after termination of permission or withdrawal of license e.g. Cowell v Rosehill Race Course Co

• License to enter a property needs not be expressed - may be implied e.g. sign saying "Keep Out" - not a license to wander at will but presupposes genuine and legitimate purpose

o Halliday v Nevill: May be implied, for example, by a householder who leaves a front gate unlocked - any member of public with lawful reason may proceed from gate to front/back

• If no other way to get in - law will imply can go on driveway for lawful communication

• To expressly imply/revoke right of people to come onto the front garden - fence, lock the gate, knock

• Only to enter for a lawful purposeo Implied license can be breached where the license is exceeded in time or purpose; TCN

Channel Nine v Anning

• Where a lessee in possession of land holds over at the expiration of the term, to remain on the land is not an act of trespass but the lessee may be removed by an action for ejectment

State of mind of the defendant

• Defendant who mistakes the land for his or her own still trespassing• No liability ensues when act committed by third persons• Negligent unintentional act of trespass is enough

Southport Corporation v Esso Petroleum Co Ltd [1954] – SHORE OIL

Trespass must be direct

Oil from the Esso vessel washed up on Southport’s beach. It was held not to be a trespass as it was not a direct act which caused the oil to wash up onto the beach.

Reynolds v Clarke (1726) 1 Strange 643 – SPOUT

Consequential act cannot be trespass

Water dripped from a waterspout onto the Plaintiff’s wall, and rotted it. This was held not to be trespass to the land, as it wasn’t sufficiently direct.

Cowell v Rosehill Race Course Co (1937) - RACECOURSE

Principle: A patron of public amusement who pays for admission requires a contractual right and license to remain on the property to view the amusements; but in the event that the license is withdrawn, whether for good cause or not, the licensee who refuses to leave becomes a trespasser.

Facts:• Plaintiff paid 4 shillings to watch races. - Defendant's servants and agents requested him leave the land, which he refused to do. - Servants and agents thereupon removed him, using no more force than was necessary for that

purpose. - P said removal of plaintiff was alleged assault in ejecting him from the racecourse

Held• The contract pleaded created no equity in the appellant which enabled him to say that he would

not be a trespasser although the respondent assumed to revoke his license to go on the land and see all the races

• The licensee does not become a trespasser until he has received notice that the license is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the license

• Appeal dismissed

League Against Cruel Sports v Scott [1956] QB 240 - HOUNDS

The Defendant was hunting in the vicinity of Plaintiff’s land and when the Defendant's dogs entered the Plaintiff’s land, the Plaintiff sued for trespass to land.

Held

This was a trespass as the Defendants were recklessly indifferent to the possibility of the hounds entering Plaintiff’s land.

Konskier v Goodman Ltd [1927] ALL ER 187 - TRASH

Defendant was doing repairs on his roof. He wished to go onto the neighbour’s roof in order to work on his chimney. He was allowed to do this, but, he left rubbish on the roof. This blocked the gully and the basement was flooded. The Plaintiff sued for trespass to land.

Held

The court held that the rubbish left behind was a trespass and that this was an ongoing trespass and so, did not diminish the Plaintiff's ability to sue.

Public Transport Commission of NSW v Perry (1977) – EPILEPTIC FIT

Principle of Law: There is no liability if there is no voluntary act on the part of the defendant; a person thrown onto the land by a third party is not liable in trespass. So where the defendant suffered an epileptic fit and fell unconscious onto a railway track, her action was regarded as involuntary and not a trespass.

Facts:• Woman was subject to some form of epileptic attack which rendered her unconscious. She was then

standing at a point proximate to the edge of the platform which, in that state, she fell onto the railway track

• The direct evidence of the driver was that he looked forward down the line towards the next station. When he closely approached the "Accept Signal" for Linfield station, though there was a slight bend in the line, his view forward allowed him to see the place where the respondent lay on the railway track

• He said that he then immediately applied his brakes to their full extent by operating the emergency breaking mechanism. There was clearly nothing else he could then have done to avoid injury to the person on the line

Held:• Even on an assumption that the respondent was in law to be categorized as one to whom no higher

duty was owed than a duty owed by an occupier towards a trespasser, the appellant does not succeed in the submission that there was no evidence of breach of that duty

• Appeal dismissed

Halliday v Nevill (1984) 155 CLR 1 – DRIVEWAY ARREST

Principle of Law: Trespass to land comprises a direct interference without lawful authority. If entrance is not blocked, license is implied, until it is revoked that authority.

Facts• 2 police officers were on patrol and saw the appellant, who was known as a disqualified driver. P

reversed car out of the driveway of a private residential premises• After the appellant saw police car, drove back into driveway. Police officers stopped their car and

walked down open driveway where they arrested the appellant for driving while disqualified. Prior to arrest the police officers did not seek and were not given express permission by occupier of

premises to enter the driveway• Appellant charged with various offences on information laid by officers• Information dismissed by magistrate on grounds that arrest of the appellant was unlawful because

police officers were trespassers at the time of the arrest. Supreme Court of Vic - Brooking J made

absolute orders nisi to review magistrate's decision. Appellant appealed

Held• There are circumstances in which a license, will, as a matter of law, be implied unless objective facts

negated or revoked the license• If the path or driveway leading to the entrance of a dwelling is left unobstructed and with the

entrance gate unlocked, and there is no notice that entry by visitors is unauthorized, the law will imply a license in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication

o Such an implied or tacit license can be precluded or at any time revoked by express or implied refusal or withdrawal it

o The implied or tacit license to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon a driveway in the ordinary course of his duty

The conviction of the appellant was dismissed at trial as a consequence of the trespass on land by Nevill.• Appeal dismissed

NEED TO HAVE AUTHORITY TO CROSS LAND/EXPLICIT FROM CONDUCT - TOLD YOU CAN, IMPLICIT FROM WHAT YOU SAY/HOW DEAL WITH PROP.

Implied permission- Narrow view –

o Persons, scope, qualification, license not revoked, objective test – specific cases where you can and cannot come on land.

- Wide viewo Police officer had ‘had an implied or tacit licence” from the occupier to enter land under the

following conditions In course of duty, open driveway, purpose of arresting

Wide view arrest was justified – narrow view it was not

TCN Channel Nine v Anning (2002) – MOTORCYCLE TRACK

Principle of Law: There is no implied license to enter land in use as business premises for the purpose of filming, as distinct from requesting permission to film, the occupier or the occupier's activities on the land.

The test for recovery of consequential damage after trespass to land, an intentional tort, is whether the damage is the natural and probable consequence of the tort. EXEMPLARY

Facts:• Respondent (plaintiff), Anning, was lessee of fenced rural land on which built motor cycle race track.

On this property - large quantity (70,000) used tyres which the respondent had purchased• Environment Protection Authority, which wax concerned that an offence in relation to waste disposal

may have been committed, conducted a "Raid" of respondent's property accompanied by television journalist and camera crew employed by the appellant (A Current Affair)

o Appellant's employees entered respondent's property, with cameras rolling, through a gate which had been unlocked by the respondent to allow delivery truck to enter

• Upon confronting the television journalist and camera crew, the respondent told them to leave the property, which the appellant's employees immediately did

• District Court of NSW - appellant had committed trespass to land. No damage to respondent's property but $100,000 for general, aggravated and exemplary damages (to deter channel 9 from doing it again) - hurt to respondent's feelings, humiliation, affront to dignity and mental trauma

Held:• Trespass and purpose of Entry: There was no issue about the appellant's (Channel 9) physical entry

onto, or its remaining on, the land in the respondent's position – APPEAL • Implied license: Persons conducting business on private property are entitled to do so without others

intruding for purposes unrelated to the business activities they are conducting. The appellant entered the land for the purposes of filming the raid, recording the Respondent's use of the land, conducting such interviews as it could with a view to broadcasting a programme. It was wholly outside any implied license.

• Damages: Tort of trespass protects the interest of the plaintiff in possession of land. It does not protect a plaintiff's right to bodily integrity. Damages can be recovered for harm that is intended or that is the natural and probable consequence of the tortuous act.

o What is the natural and probable consequence arising from a trespass to land must depend on all the circumstances of a case

• Personal injury, including mental trauma, was not in the circumstances of this case, a "natural and probable" result of the trespass

o Humiliation, injured feelings and affront to dignity may be a natural and probable consequence of intrusion by the media on private property. Such damage is compensable as aggravated

o Mental trauma does not flow "naturally" and "probably" from a trespass to land committed in the way the appellant acted

• Appeal allowed in part in respect of damageso Error in awarding single figure damages - discrete of exemplary to deter, but not necessary

as did not act in contumelious regard

Coco v The Queen (1994) 179 CLR 427 – LISTENING DEVICE

Principle of Law: Statutory authority to engage in what otherwise would be tortuous conduct must be clearly expressed in unmistakable and unambiguous language.

Facts:• Under s 43(1) of the Invasion of Privacy Act 1971 (Qld) - use of a listening device to record a private

conversion was an offence.

But s 43(2)(c) of the Act conferred on a judge of the supreme Court of QLD the power to approve the use of a listening device by a police officer – under tortuous conditiions

Act provided in s46(1) that evidence obtained through unlawful use of listening device was inadmissible in civil/criminal proceedings

STATUTE ALLOWED LISTENING DEVICE NOT TRESPASSING TO INSTALL IT

• Pursuant to approval given by a judge for use of listening device in connection with a criminal investigation, police officers entered, without knowledge or consent of occupier, private factory premises where the appellant had an office and installed a listening device for purpose of recording Mr Coco's private conversations

• At Mr Coco's criminal trial recordings of these convos played for over 200 hours and admitted as evidence and his conviction in offering a bribe to Commonwealth officers upheld by Court of Appeal of Supreme Court of QLD - on appeal the respondent conceded conviction could not be sustained in absence of evidence obtained by use of listening device

Held• A police officer who enters or remains on private property without the leave or license of the

person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law

• S43 of the Act does not contain express words conferring power upon a Supreme Court Judge to authorize conduct which would otherwise be tortuous and involve interference with a fundamental common law right

• In this case - installation of the listening device in the premises infringed the fundamental right of the person to exclude others from his/her prop

• The evidence of the appellant's private conversations was obtained by means of use of a listening device contrary to s43 and was inadmissible

• Appeal allowed. Conviction quashed. New trial ordered

Kuru v New South Wales (2008) – PEPER SPRAY

Principle of Law: On revocation by the occupier of authority to remain on land, an entrant must leave as soon as is reasonably practicable. Thereafter, the entrant becomes a trespasser. In this context, police officers have no special rights except as provided for by statute or the common law. If they aren’t fulfilling statutory purpose they will be found to be trespasses.

Police have no special privileges except for statuteIf license is revoked – entrant must leave asap

Facts• Plaintiff (appellant) - Mr Kuru and his then fiancee (now wife) had noisy argument in plaintiff's flat in

suburban Sydneyo Reported to police - treated as "violent domestic"

• Six police officers went to flat. On arrival police found door open and went inside. At that moment plaintiff in bathroom taking shower - when came out of bathroom and discovered police in flat plaintiff agreed to police request to "look around"

• In response to further police request to see "the female that was here" plaintiff stated fiancee gone to sister’s house and gave sisters phone number - Plaintiff demanded the police leave flat several times, did not

• Plaintiff came into physical contact with one of police officers - he was punched, sprayed with capsicum spray and handcuffed and taken to police station where lodged in cell then released

• Proceedings District Court of NSW: trespass to land/person - aggravated and exemplary damages against defendant, State of NW on basis of its vicarious liability of police officers

• NSW Court of Appeal allowed defendant's appeal and found that at time plaintiff came into physical contact - police were not trespassers - yet did not overturn damages as excessive

Issue: Whether at the time the plaintiff came into physical contact with police officer, the police officers were trespassing in plaintiff's flat? (If trespassers - plaintiff entitled to trespass to person and land)

Held• No statutory or common law justification for the police officers to remain in plaintiff's flat after had

withdrawn his permission for them to be there• Whatever may be the ambit of the power of police (or member of public) to enter premises to

prevent a breach of the peace, that 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?

• In the present matter, by the time police went to the appellant's flat, there was no continuing break of the peace and nothing in evidence of what happened thereafter suggested that, but for police officers not leaving flat when asked to do so, any further breach of peace threatened or expected let alone imminent

• Appeal allowed and case remitted to the New South Wales Court of Appeal for consideration of damages

Plenty v Dylan; Coco v Queen - disobey injunction by owner to enter.

Title to sue. Trespass to land as a wrong to possession, not ownership

Interest in property law requires - STANDING.

Interest of plaintiff in the land

• Plaintiff with legal estate and exclusive possession may sue in trespass• Only a tenant and not the landlord can sue if a third party trespass on the land demised• The tenant in possession may also sue the landlord for trespassing on the land (Kilsen v Imperial

Tobacco Co)• Plaintiff must have exclusive possession (Newington v Windeyer)• Where the tenant is a one-person company that company being the alter ego of its managing director,

the latter has sufficient possession to sustain a suit in trespass (McIntosh v Lobel - Kirby P)• Whether the plaintiff has exclusive possession is a question of fact and one especially difficult to

decide where contractual arrangements for presence upon land are interfered witho Thus for leases - proper plaintiff is tenant and not landlord: Rodrigues v Ufton

• Can sue landlord for coming in unannouncedo However - landlord may sue for damage to a reversionary right: Rodrigues v Ufton

So need actual possession - your own house, or as a tenant/lessee.

Macintosh v Lobel (1993) (Kirby P) – SELF HELP SHOPPING MALL

Principle: The key to the tort is to be found in its purpose. That purpose is the protection of qmiet possession of land.

Landlord cannot sue for trespass to land during the subsistence of a lease, except to recover for injury to the revisionary interest e.g. property damage. Because there was no lease, and it had expired, he could sue.

Facts

- Ejected a tenant whose lease expired with reasonable force

Landlord must forfeit lease

• You can only sue for trespass if you are in possession of the land. In this case, Leasee did not have possession.

o Thus a landlord cannot sue for trespass to land during the subsistence of a lease, except to recover for injury to the revisionary interest e.g. property damage

Commercial tenant in shopping mall who was in debt. Landlord moved in, changed locked. s 18 of the Imperial Acts Application Act 1969 (NSW) does not extinguish the common law remedy

of self-help in regaining possession of land. Enactment of the Imperial Acts Application Act 1969 (NSW) (specifically, ss 18-20), forcible entry

became a statutory offence. Despite this, the above rule regarding forcible entry remains - a landlord is entitled to self-help

using reasonable force.

Owner had taken back the land – according to statute = legal – therefore, lease had no claim of trespass

MacIntosh - landlord

Newington v Windeyer (1985) – THE GROVE

Principle of Law: Actual possession, not ownership as such, confers title to sue in trespass and the plaintiff must prove actual possession of the land at the date of the trespass. Possession is a question of fact.

Facts• The plaintiff had common boundaries with the D 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 period of 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 action for trespass against the D who had common boundary and claimed right to

possession

HeldHeld as trespass as Ps had adverse possession of the land.• Appeal dismissed

Although not registered owners, they could maintain an action of trespass.

Concept of 'Adverse Possession' - Acquire ownership/TITLE over a thirty year period: Ownership of various blocks of land.

Rodrigues v Ufton (1894) – STRIP OF LAND

Principle of Law: The occupier is the only person with title to sue for trespass. However, an owner out of possession may bring an action on the case in respect of damage to the owner's reversionary interest.

Facts:• Small strip of land was argued over by neighbours. Small strip had been enclosed and used in a

woman’s land by 15 years and 20 years before that by building’s owner. • Rodrigues owned building• Defendant entered the plaintiff's property, destroyed a part of the existing fence and erected a new

fence which excluded the plaintiff from enjoyment of the disputed strip of land• Rodriguez objected to this –• Neighbor argued that she could not bring action of trespass as she was not in possession – she was

owner but not tenant.

Held• Only a tenant and not the landlord can sue if a third party trespasses on the land • If a non-trespassory interest in land is violated by a third party, an action derived from the old action

on the case may lie• While an action in trespass can only be maintained by a person who has possession, an action may be

maintained by a reversioner for injury to the reversion done by a trespasser

Rodrigues who owned land could bring action on the case reversionary interest• Judgement for the plaintiff

SO LANDLORD CAN ONLY SUE: DAMAGE TO LANDLORD'S REVERSIONARY INTEREST i.e. land will revert back to him once lease is over, so if has permanent standing the landlord can sue immediately for permanent damage.

Aerial Trespass

• What is included in "Land" - Airspace above, depth and below?o Whoever owns the surface owns up to the heavens and the earth's inferno (Edwards v Sims)

• It is trespass to invade the portion of airspace which is needed for ordinary use of land and structures upon it• Any incursion which is permanent/tangible like overhanging sign/awning/flagpole/crane -

trespass to airspace• Applied to scaffolding (LJP) wires from cross-arm conductors (Didow); mesh and swinging

cranes with full loads (Bendal)

Bernstein and Skyviews: "They [landowners] have no right to erect structures overhanging or passing over their neighbours' land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty"

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd: The relevant test is not whether the incursion actually interferes with the occupier's actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of land which the occupier may see fit to undertake.

o Tree with 10m wire

• 'Ordinary user' theory is also readily applicable to transient incursions of airspace such as the firing of projectiles across neighbouring lando Aircraft: usually fly above property at heights which in no way affect the user of the land

• Davies v Bennison: it is a trespass to shoot across the defendant's property at a cat sunning itself in a shed situated on adjoining property

Overflight by aircraft

Bernstein v Skyviews & General [1978] – AERIAL PHOTOGRAPHER

No infringement of airspace takes place and no trespass has been committed even though the purpose of the over flight was to photography the property below.

Facts:• Aerial photographer who took photos of property and sold back to owners. He did it once and

owner reacted badly - Second time he did it (7 years later) owner brought action in trespass

Plaintiffs action: that the owner owned “up to heavens”

Held• Trespass occurred only if the incursion was at a height which may interfere with the ordinary

user of land, or is into airspace which is necessary for ordinary use and enjoyment of the land/structures upon it

Griffiths J – the balance …best struck in our present society by restricting the rights of an owner in the airspace above his land and the structures upon it

There was no interference in way in which Bernstein used his land - but if there was continued surveillance could have led to nuisance. S(2) of Damage by Aircraft Act meant Bernstein had no action.

Schelter v Brazakka (2002) – THE LOST CITY

Principle of Law: The activities of the defendant did not constitute an aerial trespass over McArther River Station.

Facts:• The prime tourist attraction in and around Cape Crawford in the NT was an ancient sandstone rock

formation knows as 'The Lost City'. This rock formation was located on a property known as McArthur River Station which was the subject of a pastoral lease.

P was running a helicopter tour and they were losing money• The defendant operated helicopter flights for tourists over 'The Lost City'.

The defendant's helicopter flew at a minimum 600 feet above ground level over the property, did not land, maintained a distance of about 5-6 nautical miles from the homestead on the property and did not fly above livestock.

Held:• The activities of the defendant do not infringe any rights of landowner.• Rights of the owner of McArthur River Station are limited to the terms of the pastoral lease.- The HELICOPTER DID NOT INTERFERE WITH THE PASTORAL PURPOSES

Intrusion by structures

Didow v Alberta Power [1988] – POWER LINES

Principle of Law: A landowner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential use and enjoyment of his land, and the proper remedy for interference with the landowner's air space by a permanent fixture is in trespass as opposed to nuisance.

Facts:• The respondent, an electrical utility company, constructed a power line adjacent to the applicants'

farmland. The power line poles were 50 feet high, and the cross-arms and wires protruded six feet into the air space above the applicants' land.

• The applicants, who were reluctant to plant trees in the area of the overhang and concerned with the danger of operating tall machinery and with restrictions relating to aerial spraying and seeding, commenced an action seeking a declaration that the cross arms amounted to a trespass. The action was dismissed at trial, and the applicants appealed.

Held:

• The right to use land includes the right to use and enjoy the air space above the land.• The balance between the rights of the landowner and the rights of the general public to take

advantage of air space is best struck by restricting the rights of an owner in the air space above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on his land.

• Here, the cross-arms constituted a low level intrusion which interfered with the applicants' potential, if not actual, use and enjoyment and amounted to a trespass.

• Appeal allowed.

When do I apply each act?

- If it is an international flight or an interstate flight or flight to, from or within a territory Cth Act- If the aircraft is a Cth aircraft or owned by a foreign corp or trading or financial corp Cth Act (e.g.

Qantas)- If the aircraft takes off or lands at a place acquired by the Cth for public purposes (e.g. most international

airports) Cth Act- If none of the above apply then generally NSW act

Bendal v Mirvac Project (1991) - CRANE

Principle of Law: The test for determining whether activities and an incursion above the surface of land constitute a trespass to land is whether they are 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.

Facts:• Loaded crane hanging over plaintiff's land.

Held:• Encroachment by protective mesh screens projecting from a high rise building site and movement of

materials from ground level to heights above the screens constituted a continuing trespass to the adjoining land and should, in the circumstances, be restrained by injunction

• A loaded crane hanging over will be actionable as trespass.

LJP Investments v Howard Chia Investments (1989) - SCAFFOLDING

Principle of Law: Trespass may be committed by an interference to airspace above the occupier's land.

Invasion of airspace by scaffolding

- Landowner was erecting a property and requested to erect scaffolding on neighboring property- Neighbor refused asking for a fee- Scaffolding erected on boundary – 4.5m up and 1.5m over the fence line- At ground level, two posts supporting the scaffolding were located 10cm inside the plaintiff's

property

Held

Referred to Bernstein – tests is whether neighbours have right to erect a structure that goes over another person’s land

• The relevant test is not whether the incursion actually interferes with the occupier's actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of the land which the occupier may see fit to undertake

• A person is not permitted to use the land of another person for considerable commercial gain for himself, simply because his use of the other person's land causes no significant damage to that other person's land

Court decided that the erection did amount to trespass• Plaintiff entitled to mandatory injunction• Judgement for the plaintiff

Damage by Aircraft

Strict and unlimited liability on the part of aircraft operators.

- The damage by aircraft Act (1999) (Cth) covers aircraft within Commonwealth jurisdiction.- Civil liability Act 2002 (NSW) s 73 covers aircraft which are within state jurisdiction.

*Civil Liability Act 2002 (NSW) s 73 (Statutory extracts)

No action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with.

73 Surface damage by aircraft or articles falling from aircraft

(1) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage are recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.

(2) However, where the material loss or damage is caused in circumstances in which:(a) damages are recoverable in respect of that loss or damage by virtue only of subsection (1), and(b) a legal liability is created in some person other than the owner to pay damages in respect of that

loss or damage, the owner is entitled to be indemnified by that other person against any claim in respect of that loss or damage.

(3) Where the aircraft concerned has been bona fide demised, let or hired out for a period exceeding 14 days to any other person by the owner of the aircraft, and no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, references in this section

Damage by Aircraft Act 1952 (NSW) s 2(2), (4)(5) - ABOVE

2(2): Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft:

Provided that where material loss or damage is caused as aforesaid in circumstances in which:(a) damages are recoverable in respect of the said loss or damage by virtue only of the foregoing provisions of

this subsection, and (b) a legal liability is created in some person other than the owner to pay damages in respect of the said loss or damage,

Section 2 of the Damage by Aircraft Act 1952 (NSW) prevents a trespass action if an aircraft is merely passing above land. But, if some activity takes place from the aircraft, then a trespass action can be brought. It places strict liability upon the aircraft. If material damage is caused, a trespass action can be brought.

Damage by Aircraft Act 1999 (Cth) ss 3, 8-11

ss 3: Object of the Act.The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or

destruction caused by aircraft, or by people, animals or things that arE dropped, or that fall, from aircraft that are in flight.

ss 8: Act binds the Crown.This Act binds the Crown in each of its capacities.

ss 9: Application of Act.(1) This Act extends to each external Territory.(2) This Act does not apply in relation to a Defence Force aircraft. (3) This Act applies to acts, omissions, matters and things within Australian territory.(4) Subject to subsection (2), this Act applies in relation to the following:

(a) Commonwealth aircraft;(b) aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); (c) aircraft (including foreign aircraft) engaged in:

(i) international air navigation; or(ii) air navigation in relation to trade and commerce with other countries and among the

States; or(iii) air navigation conducted by a foreign corporation or a trading or financial corporation

(within the meaning of paragraph 51(xx) of the Constitution); or(iv) air navigation to or from, or within, the Territories; or(v) landing at, or taking off from, a place acquired by the Commonwealth for public

purposes. ss 10: Liability for injury. Los etc.

Ss 10: Liability for injury, loss etc(1) This section applies if a person or property on, in or under land or water suffers personal injury, loss of

life, material loss, damage destruction caused by: (a) an impact with an aircraft that is in flight, or that was in flight immediately before the impact

happened; or(b) an impact with part of an aircraft that was damaged or destroyed while in flight; or(c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or(d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

(1A) However, this section does not apply in relation to a person who suffers mental injury caused by a thingcovered by paragraph (1)(a), (b), (c) or (d) unless the person, or property owned by the person, suffers other personal injury, material loss, damage or destruction caused by such a thing

(2) If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction:

(a) the operator of the aircraft immediately before the impact happened; (b) the owner of the aircraft immediately before the impact happened;(c) if the operator of the aircraft immediately before the impact happened was authorised to use the

aircraft but did not have the exclusive right to use it for a period of more than 14 consecutive days-the person who so authorised the use of the aircraft;

(d) if the operator of the aircraft immediately before the impact happened was using the aircraft without the authority of the person entitled to control its navigation-the person entitled to control the navigation of the aircraft.

(2A) Subsection (2) does not apply to a person if, immediately before the impact happened:(a) the person was the owner of the aircraft; and(b) the person did not have an active role in operation of the aircraft; and

(c) either:(i) there was a lease or other arrangement in force (whether or not with the owner) under

which another person had the exclusive right to use the aircraft; or(ii) another person had the exclusive right to use the aircraft and there was an

agreement in force under which the owner provided financial accommodation in connection with the aircraft.

(3) Paragraph (2)(d) does not apply if the person entitled to control the navigation of the aircraft had taken all reasonable steps to prevent the unauthorised use of the aircraft.

(4) If:(a)an injury, loss, damage or destruction of the kind mentioned in subsection (1)is a result of a

collision or interference between 2 or more aircraft in flight; or (b)2 or more aircraft jointly cause any such injury, loss, damage or destruction; this section applies in

relation to each of the aircraft.

ss 11: Recovery of damages without proof of intention.Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are

recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.

DAMAGE BY AIRCRAFT

Section 109 Constitution - When a law of a State• Section of 9 CTH - reasons to bring within scope of Cth: "When a law of a State is inconsistent with a

law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be valid" State - owned private individuals, pilot = private individual, not flown for trade or commerce, take or land on private land, intrastate flight

Sydney International Airport: land acquired for Commonwealth purposes. So we use the COMMONWEALTH LEGISLATION.

• Plane takes off or lands - if international airports comes under Commonwealth. Where it is a private plane, takes off in Syd and crashes in NSW it comes under the state act.

• Make sure that the flights are not associated with trade/commerce, or that it is not a corporation

Southgate v Commonwealth of Australia (1987) - HELI HORSE

Principle of Law: Legislation imposes strict liability on the owners of aircraft for all material loss or damage to persons or property caused by that aircraft, even when in flight, without proof of negligence or intention or other cause of action.

Facts:• On 27 September 1979, the plaintiff was riding a horse along a beach near Scotts Head, when an RAAF

helicopter flew low above her.• The horse, obviously frightened by this, reared, bolted, and the plaintiff was thrown off. Her right foot

was caught in the stirrup, and she was dragged along before the horse succeeded in kicking her free. She sues the defendant for damages, alleging both negligence and an entitlement to damages under the provisions of the Damage by Aircraft Act 1952.

Held:• The liability of an aircraft owner under the Damage by Aircraft Act 1952, s 2(2), based as it is solely upon

the fact that the owner's aircraft, whilst in flight, caused damage to a person, is 'fault'.• Where damage is caused to a person on the ground by an aircraft whilst in flight, and where the

person is a complete stranger to that aircraft and its operation, it is wrong to say that the Court should approach the question of apportioning damage by saying that the 'fault' of the aircraft owner should be viewed solely on the basis that the person must establish that aircraft owner was guilty of negligence, or some other tort.

Woman was naked

• It is sufficient to have regard to the fact that Parliament has made the defendant absolutely liable under the Damage by Aircraft Act 1952, subject to the question of contributory negligence, for the fact that damage is caused to the person by the aircraft.

Glen v Korean Airlines Co [2003] UK CASE – WITNESS CRASH

Where a person on the ground suffers psychiatric injury as a result of witnessing the crash of an aircraft in flight, what additional requirements (if any) must be satisfied for purposes of the strict liability of the aircraft operator under the damage by aircraft legislation?

• Boeing 747 (defendant) crashed shortly after takeoff• Thirteen claimants in present proceedings lived near crash site and witnessed crash - contended

that as a result of witnessing crash, each had suffered psychiatric injury- Claims to recover founded on s 76(2) of the Civil Aviation Act 1982 (UK) which provided that:

"unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had

been caused by the willful act, neglect or default of the owner of the aircraft"• The words "loss or damage" included psychiatric injury not least because it is "difficult to

see why Parliament should have intended to exclude psychiatric injury from recoverable loss in a 1982 statute"- However in respect of a claim to recover damages for psychiatric injury the ordinary common

law rules relating to reasonable foreseeability of damage and remoteness of damage applied

In Australia - what is the relevance of fact that they were witnesses and not related to persons that crashed, would it come under scope of Damage by Aircraft Act, does "personal injury" in that act include "psychiatric injury?"

Ss10(1) does not cover psychiatric illness form witnessing it, but it does cover psychiatric illness as a result of other damage e.g. loss of limb

ACQ v Cook (2008) - POWER LINE

Principle of Law: In terms of ss10 and 11 of the Damage by Aircraft Act (1999) Cth an aircraft owner and an aircraft operator are strictly liable for personal injury suffered by a person on land caused by something that is an indirect or consequential result of an impact with an aircraft in flight.

Facts• Light aircraft owned by ACQ Pty Ltd and operated by Aircare Moree Pty Ltd collided with and brought

down a power line while engaged in an aerial spraying of a cotton field• Plaintiff, Cook, a linesman employed by the local electricity supply authority, suffered personal

injury when he received an electric shock while attending the scene an hour or so later in response to a report of the incident to his employer

Held• Aircraft owners and aircraft operator strictly liable in damages to plaintiff under the ss10 and 11 of the

act for personal injury• S 10(1)(d) of the Act was intended to apply also to indirect or consequential results of an

impact with an aircrafto Accordingly, in terms of this section, the plaintiff was a person on land who had suffered

personal injury "caused by" something that was a result of an impact with an aircraft in flight• Appeal dismissed

Underground Trespass

• Qualifications:o Possessor's subterranean rights extend so far as can exercise control or dominion: Edwards v.

Sims (dissent: Logan J)o Using neighbour's subterranean land without consent will attract an injunction to restrain use: Di

Napoli v. New Beach Apartments.

Edward v Sims (1929) – CAVE (Kentucky Court of Appeals)

Principle of Law: The true principle owner of the surface owns everything upon or above the land which he may use to his profit or subject it to his dominion or control.

Facts:

• Defendant given visitors access to an underground cave from property.• Upon entry into the caves from the defendant's property, the caves would direct the visitors into the

plaintiff's underground property.• Query whether the profit should be split with the plaintiff since it is his land, and is underground

trespass actionable in these circumstances.

Held:• Stanley CJ: It was a continuing underground trespass. The underground area belonged to the owner

of the surface above it (plaintiff).

Di Napoli v New Beach Apartments [2004] – ROCK ANCHORS

Principle of Law: Trespass to land may be committed beneath the surface.

Facts:• The plaintiff and the defendant were adjoining occupiers of land. In the course of constructing a

building on its land, the defendant placed rock anchors which projected beneath the plaintiff's land and were visible in the excavation on the defendant's land.

• Young CJ in Eq, in an interlocutory hearing of the plaintiff's claim in trespass, granted mandatory order in favour of the plaintiff for the removal of the rock anchors.

Held:• Where a person seeks to develop their land by using neighbouring land for their convenience without

consent, then the court will, almost as a matter of course, grant an injunction to restrain it.• People are entitled to the exclusive use of their land and it is no answer to say that that person is not

suffering financial loss by the defendant's use and that it is extremely important to the defendant to be able to make use of the plaintiff's land for its purposes.

• Order accordingly.

Using neighbour's subterranean land without consent will attract an injunction to restrain use.

Where the trespass is of a continuing nature or is serious, or threatened to be repeated, these requirements will be deemed to be satisfied and the court will interfere by way of injunction:

Bocardo v Star Energy UK Onshore [2009] - OIL

Principle of Law: An intrusion beneath land for the purpose of extracting a resource, such as petroleum, may constitute trespass even although the intrusion occurs at a depth beyond the effective control of the occupier of the surface.

Facts• Part of an oilfield extended beneath land (in Surrey, England) owned and occupied by the claimant

bocardo• The defendant, Star Energy, was the holder of a license from the Crown (the owner of the oil) to

search and extract petroleum from oilfieldo Defendant carried out drilling operations from land adjoining the claimant's land

• Wells drilled by the defendant penetrated to a distance of 0.5-0.7km beneath the claimant's land at a minimum depth of 800 feet

• In respect of the defendant's subterranean intrusion, the claimant sought damages in trespass• Although defendant abandoned an argument that its subterranean intrusion was authorized

by statutory authority, it contended that the subterranean intrusion was at a depth "too far removed" from the claimant's occupation of the surface to be actionable as a trespass

Held• Defendant's subterranean intrusion, bearing in mind its purpose, namely the extraction of petroleum,

constituted a trespass to the claimant's land for which the defendant was liable in damages• I do not think it is a matter a depth; it is a matter of the use to which the access is sought• Whilst there might be an argument (for example) that a deep tunnel through which a railway

must pass can give no actionable trespass, the same is not the case in my view if the access to remove a valuable mineral lying below the surface

• Judgement for the claimant

Damages Recoverable

• Actionable per se - damage not necessarily gist of actiono If it is trivial you will only receive nominal damages

• The basic rule is that the plaintiff is entitled to full restitution for any loss. Generally, the depreciation in selling value will be an adequate measure for destruction or damage to land and buildingso o Gaudron and McHugh - once trespass occurred entitled to damages for trespass AND

vindication (serious right)• Whatever measure of damages is adopted will not preclude the plaintiff also recovering, where

appropriate, special damages, such as business profits and that consequential damages may also be awarded where the loss suffered is the natural and probable result of the trespasso Also vindicatory purpose i.e. Plenty: "every man's home is his castle and you can keep

anybody out when you are in your home"• Any invasion of private property even for a minute is a trespass: any person who "set]s] his

foot upon my ground without my license .. is liable to an action"• For intentional trespass, damages include natural/probable consequences of conduct e.g. TCN

o This case also established that reasonable foreseeability is not an essential test of consequential loss in actions for trespass to land

o Compensatory damages if the person damages property i.e. Trod on roses/tomato crop could sell: put in position to start again

o Aggravated damages awarded to vindicate plaintiff's rights e.g. Plentyo Exemplary damages available but must reflect the extent of the interference

e.g. XL Petroleumo Tenant who is unlawfully evictedo Can also be used - e.g. the defendant has made an effort out of trespass and you build

this in to strip them of their profit e.g. LJP Investments and Howard Shia Award a sum of money which was the amount the defendant would have had to pay for use

of airspace if they had asked: court equipped to make the assessment The measure of damages for wrongful occupancy of land is the reasonable rental value of the land

during time of defendant's occupancy

When a trespass causes damage to property, is the proper measure of damages: the cost of the rectification of the property or the diminution of value of the property?

Award of damages for vindication/damage up to the court and will only upset the verdict [i.e. of an appeal court) if unreasonably low/high, and not if in range of possible verdicts [only so unreasonable normal court would not give it at all).

Injunctions: Order from court, stop somebody from doing something• Can seek injunctive relief as alternative - equitable remedy, where plaintiff shows the court that

damages not adequate remedy or that irreparable harm would be suffered if injunction refused• Injunctive relief may also be employed if not to avert the trespass then at least to suppress its after-

effects i.e. to prevent subsequent publication of a videotape, film, photograph/interview• Often used in nuisance cases

a) Liability of an intentional trespasser

TCN Channel Nine v Anning (ABOVE)- Consequential acts that result from trespass – they are liable

o E.g. footage obtained while trespassing

b) Vindication of the plaintiff's right to exclusive possession

Plenty v Dillon (1991) - SUMMONS –

- Similar to Ibbett- Halliday v Nevill – driveway OPPOSITE

Principle of Law: There are only limited exceptions to the fundamental common law principle that entry onto land without the authority of the occupier is a trespass. The action in trespass to land serves to vindicate an occupier's right to exclusive use and occupation.

Facts• Plaintiff was the owner and occupier of a farm.

NO SIGN NO GATE

The defendant WERE TWO police officer officers who entered the farm without the plaintiff's expressed or implied consent, for the purpose of serving notices on the plaintiff and his wife and a summons on their daughter aged 14

• In respect of this entry the plaintiff sued the defendants in the SC of SA for damages for trespass. The trial judge ruled for the defendants - affirmed by Full Court. Plaintiff appealed to HC.

HeldNO IMPLIED LEAVE OR LICENCE - Without authority

Common law gave no authority to police to go onto Mr Plenty's farm in attempt to serve fresh summons of Plenty's daughter

• Their entry was wrongful, and the plaintiff is entitled to judgement and an award of some damageso This is an action in trespass and not in case and the plaintiff is entitled to some

damages in vindication of his right to exclude the defendants from his farm• A person who enters the property of another must justify that entry by showing that he or she

had entered with the consent of the occupier or otherwise had lawful authority to enter the premises

o A person who enters or remains on property after the withdrawal of the license is a trespasser (Kuru)

• Once a plaintiff obtains a verdict in trespass, he or is she is entitled to an award in damages• If the rights of the plaintiff to his/her property are violated, aggravated damages may be

awarded. Aggravated damages are not awarded for injury to feelings, but also the sense that the

plaintiff has lost title to property. • Appeal allowed

c) Reinstatement/restoration or diminution in value?

COMPENSATORY DAMAGES FOR PROPERTY DAMAGE:

Evans v Balog [1976] – SANDY SOIL

Principle of Law: The appropriate test in such case is the reasonableness of the plaintiffs' desire to reinstate the property;

and this will be judged in part by the advantages to him of reinstatement, measured against the extra cost to the defendant in having to pay damages for reinstatement

family home usually equates to reinsatement

Facts:• Developers, working in sandy soil, by excavations on a block of land which they owned,

undermined the house next door and rendered it uninhabitable; and, having entered into an agreement to repair the damage, failed to do so.

• The adjoining property collapses.• In actions by the householders against the developers for damages for nuisance, negligence and breach

of contract, the defendants argued, and the plaintiffs did not in substance deny, that the measure of damages was the same on each count, namely, the cost of effecting reasonable repairs to the premises, and the trial judge awarded damages on this basis.

• The defendants then appealed.

Held:• The measure of damages in tort is that sum of money which will put the injured party in the same

position as he would have been in, if he had not sustained the wrong for which he is to be compensated, and this, subject to what appears below, would, in a case such as the present, be the amount of diminution in the value of the plaintiffs' property.

• The measure of damages was the cost of restoring what they had lost, namely their home; and not the diminution, however calculated, in the value of their land together with its improvements.

• The measure of damages on the count in contract was, by the terms of the agreement of which the defendants were in breach, the sum necessary to enable the householders to have the necessary repairs carried out.

• Diminution was not significant since the value of the property was going down anyway due to the apartment block constructed next door. The relevant figure was reasonable reinstatement of the property.

Parramatta City Council v Lutz (1988) – FIRE/COMPENSATION

As between the plaintiff and the defendant, considerations of reasonableness may require the defendant to pay compensatory damages amounting to the reasonable cost of reinstatement (rather than replacement) of a dwelling house destroyed as a result of the defendant's negligence.

Facts• Mrs Lutz - owner of land she purchased and lived in cottage built on the land. Almost one year later, the cottage and many of Mrs Lutz's possessions were destroyed by fire• Mrs Lutz alleged that as a result of the negligence of Jixone (neighbour) and the Council, fire had spread to

her property causing damage• She had drawn to the council's attention the danger to her property threatened by the partly burnt,

dilapidated remains of a dwelling situated on Jixone's property• Mrs Lutz claimed when she drew matter to council's attention - she relied on their skill and expertise to

ensure that Jixone's property would not remain a danger to plaintiff and property

• Smart J found that Council had been negligent in circumstances in failing to proceed to deter and demolish the building on Jixone's land within a reasonable time to inform Lutz that it was cautious about doing so and likely to take some considerable time

o She claimed her reliance on council advice that she took no further steps to rectify state of affairs: suffered loss, expense, damage

• Council appealed to court against findings that owned Mrs Lutz duty of care, Lutz cross appealed and claimed damages were inadequate

Held• State of South Australia v Johnston (1982) - "The object is to restore the plaintiff to the position

in which he would have been placed if the wrongful act had not been committed"• Mrz Lutz is entitled to recover the reasonable cost of reinstatement of her house. Taking into account

her personal circumstances, her desire to have the home in which she was living reinstated is not unreasonable. It is certainly not excessive or extravagant .. it is a necessity of life

• She wants a home, not a sum of money• The fundamental rule of the common law is that in an action for damages for tort the court awards:

"that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation"

• Appeal dismissed. Cross-appeal allowed.

Hansen v Gloucester Developments [1992] – UNUSED LAND

Principle of Law: In a case of trespass causing damages to land upon which there is no building, the cost of reinstatement provides the appropriate measure of damages, unless the cost is unreasonable or disproportionate when considered in the light of the diminution in value of the land resulting from such damage. In the latter event, the appropriate measure of damages is such diminution in value.

Facts:• Property bought without house on it.• Plaintiff never lived on the land nor developed it.• Excavation on the road in front of the land damages the face of the property (outskirts

destroyed).

Held:• Circumstances in which it was held that damages for trespass causing damage to unimproved land

should have been awarded on the basis of the resulting diminution in value of the land and not on the basis of cost of reinstatement.

• Court decided not to give reinstatement. Diminution taken into account ($17,000).• Since the plaintiff had not lived there nor developed the land, it is implied that there is little or no

attachment to the land per se and so in the interest of reasonableness, it is only proportional value lost.

Harbutt’s Plasticine v Wayne Tank & Pump Co Ltd [1970] - FACTORY

QUESTION AROSE whether or not the claim should be limited to the value of the old factory or whether the full cost of rebuilding should be recovered.

- Decided that new factory should be recovered as the company had no choice but to build a new one. Unlike cars etc. The wrongdoer could not reduce their claim on account of the fact that the plaintiff got “new for old”.

o Although unnecessary additions include reductions Have to look at what is reasonably avoidable – extra floor, but brand new

heating system = reasonably Unavoidable

C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] – BILLIARD HALL

Facts- Destroyed a disused billiard hall as a result of negligence- Plaintiff relying on Harbutt wanted a new hall despite the site being an investment and not in use.

Held- Held unreasonable to see costs of rebuilding the premises – the claim was restricted to diminution

in value and the cost of various works to make the site safe.

May J stated that in deciding between diminution in value and cost of reinstatement the appropriate test was the reasonableness of the plaintiffs desire to reinstate the property and remarked that the damages to be awarded were to be reasonable as between plaintiff and defendant. He concluded that in the case before him to award the notional cost of reinstatement would be unreasonable since it would put the plaintiffs in a far better financial position then they would have been before the fire occurred

d) Aggravated and exemplary damages• If warranted, exemplary or aggravated damages may also be awarded for action of trespass to land.

The former are punitive in nature and are not intended to express the court's disapproval where the trespass is intentional or accompanied by abusive conduct

• Aggravated Damages are a form of general damages, given by way of compensation for injury to p, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing

o May be awarded as solatium for plaintiff's injured feelings

XL Petroleum (NSW) v Caltex Oil (Aus) (1985) - WATERTANKS

Concurrent liability – could separate damages be awarded to

Principle of Law: The purpose of an award of exemplary damages is to punish and deter a defendant "for conduct showing a conscious and contumelious disregard for the plaintiff's rights." In proceedings against two or more joint tortfeasors where all the tort-feasors are liable for compensatory damages, exemplary damages may be awarded against one (or more) but not necessarily all the tortfeasors.

Facts• Appellant, XL, was a company formed in NSW in 1970 for the purpose of engaging in sale of petrol

at a discounted priceo They took over an old service station of Caltex. Before setting it up, the Caltex manager

contracted a plumber to spike the underground tanks by cementing the pipes and filling the tanks with water - UNUSABLE

• Main issue was with damages• XL commenced in Supreme Court of NSW with an action against Caltex AND plumber for damages

in trespass.

- Central issueso Could court award different damages of separate amounts from different tortfeasors

Held- Yes if some are liable for exemplary damages

o Separate judgements and different amounts was permissible. Jury should consider the financial position of the petrol company as they need

to deter from future behavior. Defendant’s wealth is a factor used when considering damages.

Exemplary is to punish the defendant – contumelious regard

Ejectment: Where a lessee in possession of land holds over at the expiration of the term, to remain on the land is not an act of trespass, but the lessee may be removed by an action for ejectment; Commonwealth v. Anderson and Nichols

Invasion of privacy and "the fruits of the trespass"

• No general tort of invasion of privacy in Australian law• Trespasser who obtains confidential information, e.g. photographic image of a private activity in the

course of committing a trespass may be restrained by injunction for making use of that info High Court in ABC V Lenah Game Meats left door open for development of further

protection of privacy by tort (and equity)• Damage occurs - caused by negligence and that it was not too remote (i.e. within the scope of

liability)o Main way courts limit liability: decision if there was a duty to that person or that class of

people for that sort of damageo Not too remote - "Wagon Mound" No 1. 1967

• Test for negligence is whether the type of negligence was reasonably foreseeable: if you could not too remote, if you couldn't forsee it not too remote

o One action can cause a ripple effect i.e. you are liable for trespass and the stock being lost etc• DIRECTNESS is a logical test for remoteness of damage intrespass: liable for all direct damage from the

trespass

Why should trespasses not be held to the standard of a reasonable person like everyone else and why not reasonably foreseeable? It is liable for a lot more than under the directness test.

• Courts try for something in between e.g. TCNo Entering for purpose other than what license implied: trespasso Making use of video from someone's property not appropriate because would allow the

'fruits of trespass' - need injunctiono Test whether hurt to feelings caused by trespass: is it particular and the

NATURAL/PROBABLE CONSEQUENCE OF THE TORT

Victoria Park Racing & Recreation Grounds v Taylor (1937) - PLATFORM

Principle of Law: The action in nuisance protects an occupier from unreasonable interference with certain legally recognized aspects or incidents of use and enjoyment of the land. Nuisance provides only limited protection to an occupier from being overlooked by others.

This case looked at whether or not a racetrack was entitled to prohibit a man who lived next to race course from viewing and broadcasting races from platform constructed in his backyard.

Facts

- Man built platform in backyard and relayed results via radio broadcaster- Racetrack brought action in nuisance as he was using his land in such a way that he was

interfering with the racetracks proprietary rights. - They also argued that broadcasting was causing economic loss as people were listening instead of

coming.

Plaintiff's case: action upon the case for nuisance affecting the use and enjoyment of the plaintiff's land

Held

- Man was not interfering with racetracks proprietary rights and that his actions did not constitute a nuisance

- Did not affect use of race course- Providing competitive entertainment

o Racecourse is a suitable as ever as it was for races Nor does it interfere with anyone on the race course or those viewing it No rights violated

o Latham J – anyone has right to view at neighbors land – if one wishes for this to not happen they can erect a higher fence.

o Dixon J – occupier is allowed to obscure neighbors view

No cause of action for breach of privacy

o Plaintiff wants to have the broadcasting stopped because prevents people from going to races and paying for admission - evidence shows some people prefer hearing about races as seen by Angles to seeing the races for themselves. Plaintiff contends - damage which it thus suffers gives, in all circumstances - a cause of action

Lincoln Hunt Australia Pty Ltd v Willesee (1986) - FILMING

Ds 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 analyze the existence of an implied/express license within the context of the situation.

The defendant also argued that damages would be more appropriate.

Held

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.

ABC v Lenah Game Meats (2001) - POSSUM

Principle of Law: Equitable jurisdiction exists not only to restrain the publication of a videotape of photograph made by a trespasser, but is equally applicable where such materials have passed into the hands of a third party, itself innocent of the trespass who threatens to publish it.

The case raises novel questions as to the legality of publishing materials that are known to have been unlawfully obtained, and the extent to which media outlets can be restrained from publishing such materials, notwithstanding that there was no illegality on the part of the media outlet.

Facts:• The respondent is a processor and supplier of game meat. It sells possum meat for export.• Respondent's business is conducted according to law, and with benefit of all necessary licences. The

methods, by which the possums are killed, although lawful, are objected to by some people, including people associated with Animal Liberation Limited, on ground that they are cruel.

• A person or persons unknown broke and entered the respondent's premises and installed hidden cameras. The possum-killing operations were filmed, without the knowledge or consent of the respondent. The film was supplied to Animal Liberation Limited.

• Like many other lawful animals slaughtering activities, the respondent's activities, if displayed to the public, would cause distress to some viewers.

Lenah

It is claimed that loss of business would result. Public distress and anger

- Operations were confidential and would be a breach of confidentiality- Material had been obtained as a result of trespass- Publication would amount to the invasion of privacy

Held:• In favour of ABC –

- Confidentiality – https://www.voiceless.org.au/content/case-note-abc-v-lenah-game-meats

The High Court left undecided whether Australian law should recognise a general tort of invasion of privacy: YET DEVELOPMENT

• Rejected assumed authority of Victoria caseo Gummow and Hayne II - "Victoria Park does not stand in the path of the development of .. a

cause of action [for invasion of privacy]'• Quoted Professor WL Morison in 1973: "the independent questions of the rights of a plaintiff who is

genuinely seeking seclusion from surveillance and communication of what surveillance reveals, it may be argued, should be regarded as open to review in future cases even by the High Court decision"

o Callinan J - 'narrow majority' decision was the product of different time as both 'conservative' and having the 'appearance of an anachronism'

Giller v Procopets (2008) – BLACK MAIL

Compensatory damages for mental distress should be recoverable I nthe case of intention conduct of a breach of confidence.

When person breaches that deliberately – may be appropriate to award aggravated damages.

Sexual videos filmed within couple.

He black mailed her.

The court also considered whether a tort of invasion of privacy should be recognized in Australia, though did not draw any firm conclusions on this point.

This case is important because it confirms that plaintiffs who suffer distress and humiliation from a breach of confidence are able to get compensatory relief

Wilson v Ferguson [2015] - NAKED

Facts

- P and D had been in relationship- D had acquired naked photographs of P- Relationship ended and D posted photos on facebook- P felt embarrassed and could not work for 3 months – took leave without pay

Issue

- Did D’s conduct amount to breach of confidence?- If so, was P entitled to injunction- Further, was P entitled to equitable compensation – including compensation for emotional distress

and aggravated damages- Was P entitled to costs on an indemnity basis?

Held

- D’s conduct breached duty of confidence towards P. - Images had necessary quality of confidence - Circumstance which D obtained the photos was under obligation of conscience- D clearly misused photos by posting them – motive was to embarrass

- No reason to deny P injunction. The post conduct of D gave rise to reasonable apprehension that the conduct might be repeated.

- Equitable compensation in Aus had been awarded to compensate economic loss.

- Award 13k for unpaid leave

- Also receive equitable compensation for damage she had sustained in the form of embarrassment, anxiety.

- P had no suffered any psychiatric injury and should not be disproportionate to amounts commonly awarded for pain, suffering and loss of amenity in tortious personal cases.

- 35 k was awarded.

This case reflects recent developments in Australian law allowing damages for embarrassment, anxiety and distress to be awarded in equitable claims for breach of confidence

"Celebrity and the law" by Patricia Loughlan, Barbara McDonald and Robert van Krieken (2010) - Chapter

4 extracts, pp. 157- 167, 169

• Victoria Park Racing - "no general right of privacy" and implicitly encouraged the development of more common law protection of privacy and private information: TORT OF PRIVACY NOT YET RECOGNISED

• ABC v Lenah: Gleeson CJo ".the activities and secretly observed and filmed were not relevantly private .. [Lena] had the capacity .

to grant or refuse permission to anyone who wanted to observe, and record its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner would prefer that it were unobserved"

• Lenah: corporation - lacked the responsibilities which any law of privacy as such would seek to protect

• Breach of confidence no longer requires the information to have been imparted under a pre-existing relationship of trust/confidence

• Higher courts generally have been reluctant to recognise a new freestanding tort of invasion of privacy particularly if other legal avenues are now available

• To hold that negligent conduct by the media, which does not have as its primary purpose a deliberate intrusion or considered disclosure, gives rise to a tort for breach of privacy would have serious ramifications for the concept of open justice and for the media in reporting court and other public proceedings

• Giller v Procopets - consensual sex tape distributed by maleo Claimant's legal problem not if she could protect her trust/confidence but the remedy for

the clear breach of ito Damages for mental distress clear but when falls short of illness it is problematic - does she have

freestanding cause of action in tort for intentional infliction of emotional distress which falls short of a recognised psychiatric illness?

• Extent to which courts of equity may borrow or reflect damages given at common law is highly contentious in Australia and one which is steeped in the history and jurisdiction of the courts of common law and equity

o Remedies for breaches of equitable duties generally comprise compensation for loss or an account of the defendant's monetary or material gains arising from the breach

We have not yet in Australia had a civil case which tests the boundaries between what is public and private information in regards to a celebrity/public figure.

• Celebrities have traditionally used defamation to protect privacy• NSWLRC and ALRC released consultation papers on privacy issues 2008o NSWLRC recommended statutory action but not to be called 'tort' action as would tie to traditional

common law and equitable principles and restraints on remedies• This would be most appropriate - sounds flexible and thus unpredictable but defendant can predict what

its obligations and liabilities will be if it commits a wrong• NSWLRC also envisaged that compensation for mentaldistress short of psychiatric illness available• NSWLRC also wished to free statutory privacy protectionfrom the tort-based definitions of the term: by not defining'privacy,' the legislation would leave to the courts the roleof developing the concept in the future, within defined but also broad objectiveso ALRC: agreed NSWLRC take primary responsibility for formulation of proposals for reform• NO GENERAL TORT OF INVASION OF PRIVACY but courts are rapidly making up for lost time in

developing body of principles that have the equivalent effect: most significant gap in existing law deals with acts of pursuit and surveillance of people, particularly in public eye

• Proposed statutory action - would require a balancing of private and public interests which remains uncertain/unpredictable in Australia

• Make it uniform across all Australian jurisdictions - uniform territorial and state legislation, not federal statute

o Also wide remedies including mental distress

Gleeson CJ in Lenah: "Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of diff ways by other people."