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 ........................................ 3
Southport Corporation v Esso Petroleum Co Ltd [1954] SHORE OIL ....................................................................................................... 4
Reynolds v Clarke (1726) 1 Strange 643 - SPOUT ....................................................................................................................................... 4
Cowell v Rosehill Race Course Co (1937) - RACECOURSE ........................................................................................................................... 4
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........................................................................................................ 5
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 ............................................................................................................... 9
Macintosh v Lobel (1993) (Kirby P) SELF HELP SHOPPING MALL ........................................................................................................... 10
Newington v Windeyer (1985) THE GROVE ........................................................................................................................................... 10
Rodrigues v Ufton (1894) STRIP OF LAND ............................................................................................................................................. 11
Aerial Trespass .................................................................................................................................................................................................... 11
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 ........................................................................................................................................................ 18
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 .................................................................................................................. 23
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....................................................................................................................................................... 24
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'
o Only when that which continues after the first action is itself a trespass, hence for a person to
remain or leave goods (Holmes v Wilson) on land would be a trespass
Person can become a trespasser when asked to leave even if entered peacefully i.e. entered with
authority

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

Lawful authority

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

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

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

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

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

Only to enter for a lawful 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

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
o Thus for leases - proper plaintiff is tenant and not landlord: Rodrigues v Ufton
Can sue landlord for coming in unannounced
o However - landlord may sue for damage to a reversionary right: Rodrigues v Ufton

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

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

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

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

Facts

- Ejected a tenant whose lease expired with reasonable force

Landlord must forfeit lease

You can only sue for trespass if you are in possession of the land. In this case, Leasee did not have
possession.
o Thus a landlord cannot sue for trespass to land during the subsistence of a lease, except to
recover for injury to the revisionary interest e.g. property damage

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

Enactment of the Imperial Acts Application Act 1969 (NSW) (specifically, ss 18-20), forcible entry
became a statutory offence.
Despite this, the above rule regarding forcible entry remains - a landlord is entitled to self-help using
reasonable force.

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

MacIntosh - landlord

Newington v Windeyer (1985) THE GROVE

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

Facts
The plaintiff had common boundaries with the D with an area fronting onto the street. Whilst the
plaintiff did not have title over the area, they had gates giving access to it.
- Over period of 50 years, they had cultivated the area as a garden and executed other acts of
possession, and their visitors and trades people used it.
- They brought action for trespass against the D who had common boundary and claimed right to
possession

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

Qualifications:
o Possessor's subterranean rights extend so far as can exercise control or dominion: Edwards v.
Sims (dissent: Logan J)
o Using neighbour's subterranean land without consent will attract an injunction to restrain use: Di
Napoli v. New Beach Apartments.

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

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

Facts:
Defendant given visitors access to an underground cave from property.
Upon entry into the caves from the defendant's property, the caves would direct the visitors into the
plaintiff's underground property.
Query whether the profit should be split with the plaintiff since it is his land, and is underground
trespass actionable in these circumstances.

Held:
Stanley CJ: It was a continuing underground trespass. The underground area belonged to the owner
of the surface above it (plaintiff).

Di Napoli v New Beach Apartments [2004] ROCK ANCHORS

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

Facts:
The plaintiff and the defendant were adjoining occupiers of land. In the course of constructing a
building on its land, the defendant placed rock anchors which projected beneath the plaintiff's land
and were visible in the excavation on the defendant's land.
Young CJ in Eq, in an interlocutory hearing of the plaintiff's claim in trespass, granted
mandatory order in favour of the plaintiff for the removal of the rock anchors.

Held:
Where a person seeks to develop their land by using neighbouring land for their convenience without
consent, then the court will, almost as a matter of course, grant an injunction to restrain it.
People are entitled to the exclusive use of their land and it is no answer to say that that person is not
suffering financial loss by the defendant's use and that it is extremely important to the defendant to
be able to make use of the plaintiff's land for its purposes.
Order accordingly.
Using neighbour's subterranean land without consent will attract an injunction to restrain use.

Where the trespass is of a continuing nature or is serious, or threatened to be repeated, these

requirements will be deemed to be satisfied and the court will interfere by way of injunction:

Bocardo v Star Energy UK Onshore [2009] - OIL

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

Facts
Part of an oilfield extended beneath land (in Surrey, England) owned and occupied by the claimant
bocardo
The defendant, Star Energy, was the holder of a license from the Crown (the owner of the oil) to
search and extract petroleum from 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

Held
- Yes if some are liable for exemplary damages
o Separate judgements and different amounts was permissible.
Jury should consider the financial position of the petrol company as they need
to deter from future behavior. Defendants wealth is a factor used when
considering damages.
Exemplary is to punish the defendant contumelious regard

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

Invasion of privacy and "the fruits of the trespass"

No general tort of invasion of privacy in Australian law

Trespasser who obtains confidential information, e.g. photographic image of a private activity in the
course of committing a trespass may be restrained by injunction for making use of that info
High Court in ABC V Lenah Game Meats left door open for development of further
protection of privacy by tort (and equity)
Damage occurs - caused by negligence and that it was not too remote (i.e. within the scope of
liability)
o Main way courts limit liability: decision if there was a duty to that person or that class of
people for that sort of 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
o ".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
o 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
o 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."