Trespass to Land

Trespass to Land..............................................................................................................................................................1
Scope of the Tort..........................................................................................................................................................3
Direct interferences with land; without lawful authority or justification; implied permission; statutory authority 4
Southport Corporation v Esso Petroleum Co Ltd [1954] SHORE OIL...............................................................4
Reynolds v Clarke (1726) 1 Strange 643 - SPOUT..............................................................................................5
Cowell v Rosehill Race Course Co (1937) - RACECOURSE..................................................................................5
League Against Cruel Sports v Scott [1956] QB 240 - HOUNDS........................................................................5
Konskier v Goodman Ltd [1927] ALL ER 187 - TRASH........................................................................................5
Public Transport Commission of NSW v Perry (1977) EPILEPTIC FIT................................................................6
Halliday v Nevill (1984) 155 CLR 1 DRIVEWAY ARREST...................................................................................6
TCN Channel Nine v Anning (2002) MOTORCYCLE TRACK...............................................................................7
Coco v The Queen (1994) 179 CLR 427 LISTENING DEVICE............................................................................8
Kuru v New South Wales (2008) PEPER SPRAY................................................................................................9
Title to sue. Trespass to land as a wrong to possession, not ownership...................................................................10
Macintosh v Lobel (1993) (Kirby P) SELF HELP SHOPPING MALL...................................................................10
Newington v Windeyer (1985) THE GROVE...................................................................................................11
Rodrigues v Ufton (1894) STRIP OF LAND......................................................................................................11
Aerial Trespass...........................................................................................................................................................12
Overflight by aircraft.............................................................................................................................................12
Bernstein v Skyviews & General [1978] AERIAL PHOTOGRAPHER................................................................12
Schelter v Brazakka (2002) THE LOST CITY...................................................................................................13
Intrusion by structures..........................................................................................................................................13
Didow v Alberta Power [1988] POWER LINES................................................................................................13
Bendal v Mirvac Project (1991) - CRANE..........................................................................................................14
LJP Investments v Howard Chia Investments (1989) - SCAFFOLDING...............................................14
Damage by Aircraft...................................................................................................................................................15
*Civil Liability Act 2002 (NSW) s 73 (Statutory extracts).................................................................................15
Damage by Aircraft Act 1952 (NSW) s 2(2), (4)(5) - ABOVE.............................................................................15
Damage by Aircraft Act 1999 (Cth) ss 3, 8-11..................................................................................................16
Southgate v Commonwealth of Australia (1987) - HELI HORSE.......................................................................17
Glen v Korean Airlines Co [2003] WITNESS CRASH.......................................................................................18
ACQ v Cook (2008) - POWER LINE................................................................................................................19
Underground Trespass...............................................................................................................................................19
Edward v Sims (1929) CAVE (Kentucky Court of Appeals).............................................................................19
Di Napoli v New Beach Apartments [2004] ROCK ANCHORS........................................................................19
Bocardo v Star Energy UK Onshore [2009] - OIL..............................................................................................20
Damages Recoverable...............................................................................................................................................20
a) Liability of an intentional trespasser..............................................................................................................21
TCN Channel Nine v Anning (ABOVE)...............................................................................................................21
b) Vindication of the plaintiff's right to exclusive possession.............................................................................21
Plenty v Dillon (1991) - SUMMONS ................................................................................................................21
c) Reinstatement/restoration or diminution in value?........................................................................................22
Evans v Balog [1976] SANDY SOIL.................................................................................................................22
Parramatta City Council v Lutz (1988) FIRE/COMPENSATION........................................................................23
Hansen v Gloucester Developments [1992] UNUSED LAND.........................................................................24
Harbutts Plasticine v Wayne Tank & Pump Co Ltd [1970] - FACTORY.............................................................24
C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] BILLIARD HALL.............................................................24
d) Aggravated and exemplary damages.............................................................................................................25
XL Petroleum (NSW) v Caltex Oil (Aus) (1985) - WATERTANKS................................................................25
Invasion of privacy and "the fruits of the trespass"..................................................................................................25
Victoria Park Racing & Recreation Grounds v Taylor (1937) - PLATFORM.........................................................26
Lincoln Hunt Australia Pty Ltd v Willesee (1986) - FILMING.............................................................................27
ABC v Lenah Game Meats (2001) - POSSUM....................................................................................................27
Giller v Procopets (2008) - RANDO...................................................................................................................28
Wilson 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 anothers 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
Nevill
Only 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
owners 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 persons 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 persons 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 plaintiffs right to exclusive possession of land: Macintosh v
Lobel
o 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 TOR
Immediate act
Requires 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 above
o 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'

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 purpose

o 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 Southports 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 Plaintiffs wall, and rotted it. This was held not
to be trespass to the land, as it wasnt 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 Plaintiffs land and when the Defendant's
dogs entered the Plaintiffs 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 Plaintiffs land.

Konskier v Goodman Ltd [1927] ALL ER 187 TRASH

Defendant was doing repairs on his roof. He wished to go onto the neighbours 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 view
o 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 damages
o 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 arent fulfilling
statutory purpose they will be found to be trespasses.
Police have no special privileges except for statute
If 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 Sydney
o 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 sisters 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

o
o

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 with
Thus for leases - proper plaintiff is tenant and not landlord: Rodrigues v Ufton
Can sue landlord for coming in unannounced
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 1820), 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
Held
Held 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 womans land by 15 years and 20 years before that by buildings

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 land
o 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 persons 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 thing
covered 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 aircraft
o 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

o
o

Qualifications:
Possessor's subterranean rights extend so far as can exercise control or
dominion: Edwards v. Sims (dissent: Logan J)
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 oilfield
o 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 action

o 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 buildings
o 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 trespass
o 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. Plenty
o Exemplary damages available but must reflect the extent of
the interference e.g. XL Petroleum
o Tenant who is unlawfully evicted
o 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.
Held
NO 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 damages
o 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.

Harbutts 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 price
o 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 issues
o Could court award different damages of separate amounts from
different tortfeasors

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.
Defendants wealth is a factor used when considering
damages.
Exemplary is to punish the defendant contumelious
regard

Held

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 damage
o 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. TCN

o Entering for purpose other than what license implied: trespass
o Making use of video from someone's property not appropriate because
would allow the 'fruits of trespass' - need injunction
o 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 case
o 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 Ds 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
-

Ds 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 CJ
".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 male

Claimant's legal problem not if she could protect her trust/confidence but
the remedy for the clear breach of it
o 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 2008
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 mental
distress short of psychiatric illness available
NSWLRC also wished to free statutory privacy protection
from the tort-based definitions of the term: by not defining
'privacy,' the legislation would leave to the courts the role
of developing the concept in the future, within defined but also broad objectives
o
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."