LAW OF TORTSLAW OF TORTS

LECTURE 2LECTURE 2

False ImprisonmentFalse Imprisonment

Trespass to LandTrespass to Land

Greg YoungGreg Young

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentional/negligent act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

FALSE FALSE IMPRISONMENTIMPRISONMENT

• The The intentionalintentional or or negligent negligent act act of D which of D which directly directly causes the causes the total restraint total restraint of of P and thereby confines P and thereby confines him/her to a delimited area him/her to a delimited area without lawful justificationwithout lawful justification

• The essential distinctive The essential distinctive element is the element is the total restrainttotal restraint

THE ELEMENTS OF THE ELEMENTS OF THE TORT THE TORT

• It requires all the basic It requires all the basic elements of trespass:elements of trespass:– Intentional/negligent actIntentional/negligent act–DirectnessDirectness

–absence of lawful absence of lawful justification/consent justification/consent , , andand

• total restrainttotal restraint

RESTRAINT IN FALSE RESTRAINT IN FALSE IMPRISONMENTIMPRISONMENT

• The restraint must be The restraint must be totaltotal– Bird Bird v v Jones Jones (passage over bridge(passage over bridge))

– The Balmain New Ferry Co v RobertsonThe Balmain New Ferry Co v Robertson

• Total restraint implies the absence of a Total restraint implies the absence of a reasonable means of escapereasonable means of escape– Burton Burton v v Davies Davies (D refuses to allow P out of car)(D refuses to allow P out of car)

• Restraint may be total where D subjects P to Restraint may be total where D subjects P to his/her authority with no option to leavehis/her authority with no option to leave– Symes Symes v v Mahon Mahon (police officer arrests P by (police officer arrests P by

mistake)mistake)– Myer Stores Myer Stores v v SooSoo

FORMS OF FALSE FORMS OF FALSE IMPRISONMENTIMPRISONMENT

• See the following Cases: See the following Cases: –Cowell v. Corrective Services Cowell v. Corrective Services Commissioner of NSWCommissioner of NSW (1988) (1988) Aust. Torts Reporter ¶81-197.Aust. Torts Reporter ¶81-197.

–Louis v. The Commonwealth of Louis v. The Commonwealth of Australia Australia 87 FLR 277. 87 FLR 277.

–Lippl v. Haines & Another Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-(1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.302; (1989) 18 NSWLR 620.

VOLUNTARY CASESVOLUNTARY CASES

• In general, there is no FI where one In general, there is no FI where one voluntarily submits to a form of voluntarily submits to a form of restraintrestraint– HerdHerd v v Weardale Weardale (D refuses to allow P out (D refuses to allow P out

of mine shaft)of mine shaft)– Robinson Robinson v v The Balmain New Ferry Co. The Balmain New Ferry Co. (D (D

refuses to allow P to leave unless P pays refuses to allow P to leave unless P pays fare)fare)

– Lippl Lippl v v HainesHaines

• Where there is no volition for Where there is no volition for restraint, the confinement may be FI restraint, the confinement may be FI ((Bahner Bahner v v Marwest Hotels Co.)Marwest Hotels Co.)

WORDS AND FALSE WORDS AND FALSE IMPRISONMENTIMPRISONMENT

• In general, words can In general, words can constitute FIconstitute FI

• Balkin & Davis (1996 edition) Balkin & Davis (1996 edition) pp 55 – 56:pp 55 – 56:

““restraint… even by mere restraint… even by mere threat of threat of force which force which intimidates a person into intimidates a person into compliance without laying on of compliance without laying on of

hands”hands”• Symes v MahonSymes v Mahon

KNOWLEDGE IN KNOWLEDGE IN FALSE FALSE

IMPRISONMENTIMPRISONMENT•The knowledge of the P at The knowledge of the P at

the moment of restraint is the moment of restraint is not essential.not essential.– Meering Meering v v Graham White AviationGraham White Aviation– Murray Murray v v Ministry of DefenseMinistry of Defense

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

POLICE OFFICER?POLICE OFFICER?• In each case, the issue is In each case, the issue is

whether the police in making the whether the police in making the arrest acted independently or as arrest acted independently or as the agent of the citizen who the agent of the citizen who promoted and caused the arrest promoted and caused the arrest –Dickenson vWaters LtdDickenson vWaters Ltd–Bahner Bahner v v Marwest Hotels CoMarwest Hotels Co

THE ‘MENTALLY ILL’ AND THE ‘MENTALLY ILL’ AND FALSE IMPRISONMENTFALSE IMPRISONMENT

In Common Law, the lawfulness of an act of detention of a In Common Law, the lawfulness of an act of detention of a person must depend on "overriding necessity for the person must depend on "overriding necessity for the protection of himself and others’ per Harvey J in protection of himself and others’ per Harvey J in In re HawkeIn re Hawke (1923) 40 WN (NSW) 58 " (1923) 40 WN (NSW) 58 "

The situation under statute:The situation under statute: Watson v Marshall and CadeWatson v Marshall and Cade (1971) 124 CLR 621 (1971) 124 CLR 621

The Vic The Vic Mental Health ActMental Health Act 1959:Any person may be admitted 1959:Any person may be admitted into and detained in a psychiatric hospital upon the production into and detained in a psychiatric hospital upon the production of of (a) a request under the hand of some person in the prescribed form; (a) a request under the hand of some person in the prescribed form; (b) a statement of the prescribed particulars; and (b) a statement of the prescribed particulars; and (c) a recommendation in the prescribed form of a medical practitioner based (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 upon a personal examination of such person made not more than seven clear days before the admission of such person. days before the admission of such person.

DAMAGESDAMAGES

False imprisonment is actionable False imprisonment is actionable per seper se The failure to prove any actual financial loss The failure to prove any actual financial loss

does not mean that the plaintiff should recover does not mean that the plaintiff should recover nothing. The damages are at large. An nothing. The damages are at large. An interference with personal liberty even for a interference with personal liberty even for a short period is not a trivial wrong. The injury to short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be the plaintiff's dignity and to his feelings can be taken into account in assessing damages (taken into account in assessing damages (Watson Watson v Marshall and Cadev Marshall and Cade ) )

OTHER FORMS OF OTHER FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO LANDTRESPASS TO LAND

• The The intentionalintentional or or negligent act negligent act of D of D which which directly directly interferes interferes with the with the plaintiff’s plaintiff’s exclusive exclusive possession of landpossession of land

THE NATURE OF THE THE NATURE OF THE TORTTORT

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

• Conveyancing ActConveyancing Act 1919 s 88K (NSW) 1919 s 88K (NSW)– 1. The Court may make an order imposing an easement over 1. The Court may make an order imposing an easement over

land if the easement is reasonably necessary for the effective land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of use or development of other land that will have the benefit of the easement. the easement.

– 2. Such an order may be made only if the Court is satisfied 2. Such an order may be made only if the Court is satisfied that:that:» (a) use of the land having the benefit of the easement will (a) use of the land having the benefit of the easement will

not be inconsistent with the public interest, and not be inconsistent with the public interest, and » (b) the owner of the land to be burdened by the easement (b) the owner of the land to be burdened by the easement

and each other person having an estate or interest in that and each other person having an estate or interest in that landland … …can be adequately compensated for any loss or can be adequately compensated for any loss or other disadvantage that will arise from imposition of the other disadvantage that will arise from imposition of the easementeasement

» all reasonable attempts have been made by the applicant all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement for the order to obtain the easement or an easement having the same effect but have been unsuccessful having the same effect but have been unsuccessful

STATUTORY EASEMENTSSTATUTORY EASEMENTS

STATUTORY EASEMENTSSTATUTORY EASEMENTS

• Conveyancing ActConveyancing Act 1999 s 88K (NSW) 1999 s 88K (NSW)– 1. The Court may make an order imposing an easement over land if 1. The Court may make an order imposing an easement over land if

the easement is reasonably necessary for the effective use or the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. 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: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 (a) use of the land having the benefit of the easement will not be

inconsistent with the public interest, and inconsistent with the public interest, and » (b) the owner of the land to be burdened by the easement and (b) the owner of the land to be burdened by the easement and

each other person having an estate or interest in that landeach other person having an estate or interest in that land … …can can be adequately compensated for any loss or other disadvantage be adequately compensated for any loss or other disadvantage that will arise from imposition of the easementthat will arise from imposition of the easement

» all reasonable attempts have been made by the applicant for the all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same order to obtain the easement or an easement having the same effect but have been unsuccessful effect but have been unsuccessful

RESTRICTIONS ON RESTRICTIONS ON STATUTORY EASEMENTSSTATUTORY EASEMENTS

• ‘‘Property rights are valuable rights and the Property rights are valuable rights and the court should not lightly interfere with [such] court should not lightly interfere with [such] property rights… [the section] does not exist property rights… [the section] does not exist for people build right up to the boundary of for people build right up to the boundary of their property [or] build without adequate their property [or] build without adequate access and then expect others to make their access and then expect others to make their land available for access’ per Young J land available for access’ per Young J Hanny v Hanny v Lewis (Lewis (1999) NSW Conv. R 55-879 at 56-8751999) NSW Conv. R 55-879 at 56-875

• ‘‘Developers have a responsibility to act Developers have a responsibility to act reasonably as do the proprietors of adjoining reasonably as do the proprietors of adjoining land and the developers should not just land and the developers should not just proceed as if they would automatically get proceed as if they would automatically get what they seek without negotiations’ (per what they seek without negotiations’ (per Windeyer J Windeyer J Goodwin v Yee Holdings Pty Ltd Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR)(1997) 8 BPR)

The ConditionsThe Conditions

• Note that under s88K Note that under s88K the ‘Court may make an order the ‘Court may make an order imposing an easement over land if the easement imposing an easement over land if the easement is reasonably is reasonably necessarynecessary for the for the effective use or developmenteffective use or development of other land’ of other land’

• What is reasonably necessary and what constitutes effective use or What is reasonably necessary and what constitutes effective use or development is a question of fact and would depend on the development is a question of fact and would depend on the circumstances of each casecircumstances of each case

• The applicant need not prove absolute necessity but the easement The applicant need not prove absolute necessity but the easement must be more than ‘must be more than ‘merely desirable’merely desirable’– 117 York Street Pty Ltd v Proprietors of SP 16123117 York Street Pty Ltd v Proprietors of SP 16123 (1998) 43 (1998) 43

NSWLR 504NSWLR 504– Hanny v Lewis Hanny v Lewis (1998) 9 BPR 16,205(1998) 9 BPR 16,205– Grattan v Simpson Grattan v Simpson (1999) NSW Conv. R 55-880(1999) NSW Conv. R 55-880

• The applicant must have made all reasonable attempts to obtain The applicant must have made all reasonable attempts to obtain the easement the easement Coles Myer Ltd v Dymocks Book Arcade Ltd Coles Myer Ltd v Dymocks Book Arcade Ltd (1995) 7 (1995) 7 BPR 97,585BPR 97,585

The Issue of CompensationThe Issue of Compensation

• 88K (2) Such an order may be made only if the Court is 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 satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest easement and each other person having an estate or interest in that landin that land … …can be adequately compensated for any loss or can be adequately compensated for any loss or other disadvantageother disadvantage that will arise from imposition of the that will arise from imposition of the easementeasement

• Adequate compensation:(Adequate compensation:(Wengarin Pty Ltd v Byron Shire Wengarin Pty Ltd v Byron Shire CouncilCouncil [1999] NSWSC 485) [1999] NSWSC 485)– the diminished market value of the servient landthe diminished market value of the servient land

– associated costs that would be caused to the ownerassociated costs that would be caused to the owner

– loss of amenities such as peace and quiteloss of amenities such as peace and quite

– where assessment proves difficult, the court may assess compensation on a where assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easementpercentage of the profits that would be made from the use of the easement

Neighbouring land Access Neighbouring land Access and Utility Service Ordersand Utility Service Orders

• The The Access to Neighbouring Land ActAccess to Neighbouring Land Act 2000 2000 ss11 and 13ss11 and 13– (1) A Local Court may make a neighbouring land access /utility (1) A Local Court may make a neighbouring land access /utility

service access order if it is satisfied that access to land is required 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 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 utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the caseappropriate to make the order in the circumstances of the case

– (2) The Court must not make a utility service access (2) The Court must not make a utility service access order order unless it is satisfied:unless it is satisfied:

– (a) that the applicant has made a reasonable effort to reach (a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as agreement with every person whose consent to access is required as to the access and carrying out of the work, andto the access and carrying out of the work, and

– (b) if the requirement to give notice has not been waived, that the (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with applicant has given notice of the application in accordance with [the Act][the Act]

The Nature of D’s Act: A The Nature of D’s Act: A General NoteGeneral Note

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

THE NATURE OF D’S ACTTHE NATURE OF D’S ACT

• The act must constitute The act must constitute some physical some physical interference which interference which disturbs P’s exclusive disturbs P’s exclusive possession of the landpossession of the land–Victoria Racing Co. v TaylorVictoria Racing Co. v Taylor–Barthust City Council v SabanBarthust City Council v Saban–Lincoln Hunt v WillesseLincoln Hunt v Willesse

THE NATURE OF THE THE NATURE OF THE PLAINTIFF’S INTEREST IN THE PLAINTIFF’S INTEREST IN THE

LANDLAND

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

THE NATURE OF THE NATURE OF EXCLUSIVE EXCLUSIVE

POSSESSIONPOSSESSION• Exclusive possession is distinct Exclusive possession is distinct

from ownership. from ownership. • Ownership refers to Ownership refers to titletitle in the in the

land. Exclusive possession refers land. Exclusive possession refers to to physicalphysical holding of the land holding of the land

• Possession may be Possession may be immediateimmediate or or constructive constructive

•The nature of possession depends The nature of possession depends on the material possessedon the material possessed

EXCLUSIVE EXCLUSIVE POSSESSIONPOSSESSION: CO-: CO-

OWNERSOWNERS• In general, a co-owner In general, a co-owner cannot be liable in trespass in cannot be liable in trespass in respect of the land he/she respect of the land he/she owns; but this is debatable owns; but this is debatable where the ’trespassing’ co-where the ’trespassing’ co-owner is not in possession. owner is not in possession. ((Greig Greig v v GreigGreig))

•A co-possessor can maintain A co-possessor can maintain an action against a trespasser an action against a trespasser (Coles Smith v Smith and (Coles Smith v Smith and Ors)¯Ors)¯

THE POSITION OF THE POSITION OF TRESPASSERS AND TRESPASSERS AND

SQUATTERSSQUATTERS

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

THE POSITION OF THE POSITION OF LICENSEESLICENSEES

• A licensee is one who has the A licensee is one who has the permission of P to enter or permission of P to enter or use land (belonging to P)use land (belonging to P)

• A licensee is a party not in A licensee is a party not in possession, and can therefore possession, and can therefore not sue in trespass not sue in trespass

• A licensee for value however A licensee for value however may be entitled to suemay be entitled to sue(E.R. (E.R. Investments v Hugh) Investments v Hugh)

THE TRESPASSORY THE TRESPASSORY ACTACT

• Preventing P’s access Preventing P’s access Waters Waters v v Maynard)Maynard)

• The continuation of the The continuation of the initial trespassory act is a initial trespassory act is a ccontinuing trespassontinuing trespass

• Where D enters land for Where D enters land for purposes different from that purposes different from that for which P gave a license, for which P gave a license, D’s conduct may constitute D’s conduct may constitute ttrespass arespass ab initio b initio (Barker v R)(Barker v R)

THE POSITION OF THE POSITION OF POLICE OFFICERSPOLICE OFFICERS

• Unless authorized by law, Unless authorized by law, police officers have no special police officers have no special right of entry into any premises right of entry into any premises without consent of P ( without consent of P ( Halliday Halliday v Nevillev Neville))

• A police officer charged with A police officer charged with the duty of serving a summons the duty of serving a summons must obtain the consent of the must obtain the consent of the party in possession (party in possession (Plenty v. Plenty v. Dillion Dillion ))

Police Officers; The Police Officers; The Common Law PositionCommon Law Position

•The poorest man may in his cottage The poorest man may in his cottage bid defiance to all forces of the bid defiance to all forces of the Crown. It may be frail- its roof may Crown. It may be frail- its roof may shake- the wind may blow through shake- the wind may blow through it- the rain may enter- but the King it- the rain may enter- but the King of England cannot enter- all his of England cannot enter- all his force dares not cross the threshold force dares not cross the threshold of the ruined tenement. So be it- of the ruined tenement. So be it- unless he has justification by law’. ( unless he has justification by law’. ( Southam v SmoutSoutham v Smout [1964] 1QB 308, [1964] 1QB 308, 320.320.

REMEDIESREMEDIES

• EjectmentEjectment•Recovery of PossessionRecovery of Possession•Award of damagesAward of damages• InjunctionInjunction•Parramatta CC v LutzParramatta CC v Lutz•Campbelltown CC v MackayCampbelltown CC v Mackay•XL Petroleum (NSW) v Caltex XL Petroleum (NSW) v Caltex

OilOil

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS