LAW OF TORTS
LECTURE 2
False Imprisonment
Trespass to Land
Greg Young
greg.young@lawyer.com
0423 303 430
THE GENERAL ELEMENTS OF
TRESPASS
Intentional/
negligent act
+
Direct interference
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area
without lawful justification
• The essential distinctive element
is the total restraint
THE ELEMENTS OF THE
TORT
•It requires all the basic elements of
trespass:
– Intentional/negligent act
– Directness
– absence of lawful justification/consent
, and
• total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
– Myer Stores v Soo
FORMS OF FALSE IMPRISONMENT
• See the following Cases:
– Cowell v. Corrective Services
Commissioner of NSW (1988) Aust. Torts
Reporter ¶81-197.
– Louis v. The Commonwealth of Australia
87 FLR 277.
– Lippl v. Haines & Another (1989) Aust.
Torts Reporter ¶80-302; (1989) 18
NSWLR 620.
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Weardale (D refuses to allow P out of mine
shaft)
– Robinson v The Balmain New Ferry Co. (D refuses
to allow P to leave unless P pays fare)
– Lippl v Haines
• Where there is no volition for restraint, the
confinement may be FI (Bahner v Marwest Hotels
Co.)
WORDS AND FALSE
IMPRISONMENT
•In general, words can constitute FI
• Balkin & Davis (1996 edition) pp 55
– 56:
“restraint… even by mere threat of
force which intimidates a person into
compliance without laying on of
hands”
• Symes v Mahon
KNOWLEDGE IN FALSE
IMPRISONMENT
•The knowledge of the P at the
moment of restraint is not essential.
– Meering v Graham White Aviation
– Murray v Ministry of Defense
WHO IS LIABLE? THE AGGRIEVED
CITIZEN OR THE POLICE OFFICER?
• In each case, the issue is whether the
police in making the arrest acted
independently or as the agent of the
citizen who promoted and caused the
arrest
– Dickenson vWaters Ltd
– Bahner v Marwest Hotels Co
THE ‘MENTALLY ILL’ AND
FALSE IMPRISONMENT
 In Common Law, the lawfulness of an act of detention of a
person must depend on "overriding necessity for the
protection of himself and others’ per Harvey J in In re Hawke
(1923) 40 WN (NSW) 58 "
 The situation under statute:
 Watson v Marshall and Cade (1971) 124 CLR 621
 The Vic Mental Health Act 1959:Any person may be admitted
into and detained in a psychiatric hospital upon the production
of
 (a) a request under the hand of some person in the prescribed form;
 (b) a statement of the prescribed particulars; and
 (c) a recommendation in the prescribed form of a medical practitioner based
upon a personal examination of such person made not more than seven clear
days before the admission of such person.
DAMAGES
False imprisonment is actionable per se
The failure to prove any actual financial loss
does not mean that the plaintiff should recover
nothing. The damages are at large. An
interference with personal liberty even for a
short period is not a trivial wrong. The injury to
the plaintiff's dignity and to his feelings can be
taken into account in assessing damages (Watson
v Marshall and Cade )
OTHER FORMS OF TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional or
negligent act of D which
directly interferes with
the plaintiff’s exclusive
possession of land
THE NATURE OF THE
TORT
• Land includes the actual
soil/dirt, the structures/plants
on it and the airspace above it
• Cujus est solum ejus est
usque ad coelum et inferos
–Bernstein of Leigh v Skyways &
General Ltd
–Kelson v Imperial Tobacco
STATUTORY EASEMENTS
• Conveyancing Act 1919 s 88K (NSW)
– 1. The Court may make an order imposing an easement over land if the
easement is reasonably necessary for the effective use or development of
other land that will have the benefit of the easement.
– 2. Such an order may be made only if the Court is satisfied that:
» (a) use of the land having the benefit of the easement will not be
inconsistent with the public interest, and
» (b) the owner of the land to be burdened by the easement and each
other person having an estate or interest in that land …can be
adequately compensated for any loss or other disadvantage that will
arise from imposition of the easement
» all reasonable attempts have been made by the applicant for the order
to obtain the easement or an easement having the same effect but
have been unsuccessful
STATUTORY EASEMENTS
• Conveyancing Act 1999 s 88K (NSW)
– 1. The Court may make an order imposing an easement over land if
the easement is reasonably necessary for the effective use or
development of other land that will have the benefit of the easement.
– 2. Such an order may be made only if the Court is satisfied that:
» (a) use of the land having the benefit of the easement will not be
inconsistent with the public interest, and
» (b) the owner of the land to be burdened by the easement and
each other person having an estate or interest in that land …can
be adequately compensated for any loss or other disadvantage
that will arise from imposition of the easement
» all reasonable attempts have been made by the applicant for the
order to obtain the easement or an easement having the same
effect but have been unsuccessful
RESTRICTIONS ON
STATUTORY EASEMENTS
• ‘Property rights are valuable rights and the court
should not lightly interfere with [such] property
rights… [the section] does not exist for people build
right up to the boundary of their property [or] build
without adequate access and then expect others to
make their land available for access’ per Young J
Hanny v Lewis (1999) NSW Conv. R 55-879 at 56-875
• ‘Developers have a responsibility to act reasonably
as do the proprietors of adjoining land and the
developers should not just proceed as if they would
automatically get what they seek without
negotiations’ (per Windeyer J Goodwin v Yee
Holdings Pty Ltd (1997) 8 BPR)
The Conditions
• Note that under s88K the ‘Court may make an order imposing an
easement over land if the easement is reasonably necessary for the
effective use or development of other land’
• What is reasonably necessary and what constitutes effective use or
development is a question of fact and would depend on the
circumstances of each case
• The applicant need not prove absolute necessity but the easement
must be more than ‘merely desirable’
– 117 York Street Pty Ltd v Proprietors of SP 16123 (1998) 43 NSWLR 504
– Hanny v Lewis (1998) 9 BPR 16,205
– Grattan v Simpson (1999) NSW Conv. R 55-880
• The applicant must have made all reasonable attempts to obtain
the easement Coles Myer Ltd v Dymocks Book Arcade Ltd (1995) 7
BPR 97,585
The Issue of Compensation
• 88K (2) Such an order may be made only if the Court is
satisfied that: the owner of the land to be burdened by the
easement and each other person having an estate or interest
in that land …can be adequately compensated for any loss or
other disadvantage that will arise from imposition of the
easement
• Adequate compensation:(Wengarin Pty Ltd v Byron Shire
Council [1999] NSWSC 485)
–
–
–
–
the diminished market value of the servient land
associated costs that would be caused to the owner
loss of amenities such as peace and quite
where assessment proves difficult, the court may assess compensation on a
percentage of the profits that would be made from the use of the easement
Neighbouring land Access and
Utility Service Orders
• The Access to Neighbouring Land Act 2000 ss11 and 13
– (1) A Local Court may make a neighbouring land access /utility
service access order if it is satisfied that access to land is required
for the purpose of carrying out work on or in connection with a
utility service situated on the land and it is satisfied that it is
appropriate to make the order in the circumstances of the case
– (2) The Court must not make a utility service access order unless it
is satisfied:
– (a) that the applicant has made a reasonable effort to reach
agreement with every person whose consent to access is required as
to the access and carrying out of the work, and
– (b) if the requirement to give notice has not been waived, that the
applicant has given notice of the application in accordance with [the
Act]
The Nature of D’s Act: A
General Note
•...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can
set his foot upon my ground without my
license, but he is liable to an action, though
the damage be nothing.... If he admits the
fact, he is bound to show by way of
justification, that some positive law has
empowered or excused him ( Entick v
Carrington (1765) 16 St Tr 1029, 1066)
THE NATURE OF D’S ACT
• The act must constitute
some physical interference
which disturbs P’s exclusive
possession of the land
–Victoria Racing Co. v Taylor
–Barthust City Council v Saban
–Lincoln Hunt v Willesse
THE NATURE OF THE PLAINTIFF’S
INTEREST IN THE LAND
• P must have exclusive
possession of the land at the
time of the interference
exclusion of all others
THE NATURE OF
EXCLUSIVE POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
• Possession may be immediate or
constructive
•The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION:
CO-OWNERS
• In general, a co-owner cannot
be liable in trespass in respect of
the land he/she owns; but this is
debatable where the
’trespassing’ co-owner is not in
possession. (Greig v Greig)
•A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF TRESPASSERS
AND SQUATTERS
•
A trespasser/squatter in
exclusive possession can
maintain an action against
any other trespasser
THE POSITION OF
LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments
v Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a continuing
trespass
• Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may
constitute trespass ab initio (Barker
v R)
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P ( Halliday v Neville)
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
Police Officers; The Common
Law Position
•The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So
be it- unless he has justification by
law’. ( Southam v Smout [1964] 1QB 308,
320.
REMEDIES
• Ejectment
•Recovery of Possession
•Award of damages
• Injunction
•Parramatta CC v Lutz
•Campbelltown CC v Mackay
•XL Petroleum (NSW) v Caltex Oil
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS