LAW OF TORTS

1. LAW OF TORTS LECTURE 2 False Imprisonment Trespass to Land Greg Younggreg.young@lawyer.com0423 303 430

2. THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act Direct interference Absence of lawful justification + + + A specific form of trespass “x” element =

3. SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

4. FALSE IMPRISONMENT • The intentional or negligent act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification • The essential distinctive element is the total restraint

5. THE ELEMENTS OF THE TORT • It requires all the basic elements of trespass: • Intentional/negligent act • Directness • absence of lawful justification/consent , and • total restraint

6. RESTRAINT IN FALSE IMPRISONMENT • The restraint must be total • Bird v Jones (passage over bridge) • The Balmain New Ferry Co v Robertson • Total restraint implies the absence of a reasonable means of escape • Burton v Davies (D refuses to allow P out of car) • Restraint may be total where D subjects P to his/her authority with no option to leave • Symes v Mahon (police officer arrests P by mistake) • Myer Stores v Soo

7. FORMS OF FALSE IMPRISONMENT • See the following Cases: • Cowell v. Corrective Services Commissioner of NSW (1988) Aust. Torts Reporter ¶81-197. • Louis v. The Commonwealth of Australia 87 FLR 277. • Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.

8. VOLUNTARY CASES • In general, there is no FI where one voluntarily submits to a form of restraint • Herd v Weardale (D refuses to allow P out of mine shaft) • Robinson v The Balmain New Ferry Co. (D refuses to allow P to leave unless P pays fare) • Lippl v Haines • Where there is no volition for restraint, the confinement may be FI (Bahner v Marwest Hotels Co.)

9. WORDS AND FALSE IMPRISONMENT • In general, words can constitute FI • Balkin & Davis (1996 edition) pp 55 – 56: “restraint… even by mere threat of force which intimidates a person into compliance without laying on of hands” • Symes v Mahon

10. KNOWLEDGE IN FALSE IMPRISONMENT • The knowledge of the P at the moment of restraint is not essential. • Meering v Graham White Aviation • Murray v Ministry of Defense

11. WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER? • In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest • Dickenson vWaters Ltd • Bahner v Marwest Hotels Co

12. THE ‘MENTALLY ILL’ AND FALSE IMPRISONMENT • In Common Law, the lawfulness of an act of detention of a person must depend on "overriding necessity for the protection of himself and others’ per Harvey J in In re Hawke (1923) 40 WN (NSW) 58 " • The situation under statute: • Watson v Marshall and Cade (1971) 124 CLR 621 • The Vic Mental Health Act 1959:Any person may be admitted into and detained in a psychiatric hospital upon the production of • (a) a request under the hand of some person in the prescribed form; • (b) a statement of the prescribed particulars; and • (c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made not more than seven clear days before the admission of such person.

13. DAMAGES • False imprisonment is actionable per se • The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

14. OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

15. TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

16. TRESPASS TO LAND • The intentional or negligent act of D which directly interferes with the plaintiff’s exclusive possession of land

17. THE NATURE OF THE TORT • Land includes the actual soil/dirt, the structures/plants on it and the airspace above it • Cujus est solum ejus est usque ad coelum et inferos • Bernstein of Leigh v Skyways & General Ltd • Kelson v Imperial Tobacco

18. STATUTORY EASEMENTS • Conveyancing Act 1919 s 88K (NSW) • 1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. • 2. Such an order may be made only if the Court is satisfied that: • (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and • (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement • all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful

19. STATUTORY EASEMENTS • Conveyancing Act 1999 s 88K (NSW) • 1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. • 2. Such an order may be made only if the Court is satisfied that: • (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and • (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement • all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful

20. RESTRICTIONS ON STATUTORY EASEMENTS • ‘Property rights are valuable rights and the court should not lightly interfere with [such] property rights… [the section] does not exist for people build right up to the boundary of their property [or] build without adequate access and then expect others to make their land available for access’ per Young J Hanny v Lewis (1999) NSW Conv. R 55-879 at 56-875 • ‘Developers have a responsibility to act reasonably as do the proprietors of adjoining land and the developers should not just proceed as if they would automatically get what they seek without negotiations’ (per Windeyer J Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR)

21. The Conditions • Note that under s88K the ‘Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land’ • What is reasonably necessary and what constitutes effective use or development is a question of fact and would depend on the circumstances of each case • The applicant need not prove absolute necessity but the easement must be more than ‘merely desirable’ • 117 York Street Pty Ltd v Proprietors of SP 16123 (1998) 43 NSWLR 504 • Hanny v Lewis (1998) 9 BPR 16,205 • Grattan v Simpson (1999) NSW Conv. R 55-880 • The applicant must have made all reasonable attempts to obtain the easement Coles Myer Ltd v Dymocks Book Arcade Ltd (1995) 7 BPR 97,585

22. The Issue of Compensation • 88K (2) Such an order may be made only if the Court is satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement • Adequate compensation:(Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485) • the diminished market value of the servient land • associated costs that would be caused to the owner • loss of amenities such as peace and quite • where assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easement

23. Neighbouring land Access and Utility Service Orders • The Access to Neighbouring Land Act2000 ss11 and 13 • (1) A Local Court may make a neighbouring land access /utility service access order if it is satisfied that access to land is required for the purpose of carrying out work on or in connection with a utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the case • (2) The Court must not make a utility service access order unless it is satisfied: • (a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work, and • (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with [the Act]

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

25. THE NATURE OF D’S ACT • The act must constitute some physical interference which disturbs P’s exclusive possession of the land • Victoria Racing Co. v Taylor • Barthust City Council v Saban • Lincoln Hunt v Willesse

26. THE NATURE OF THE PLAINTIFF’S INTEREST IN THE LAND • P must have exclusive possession of the land at the time of the interference exclusion of all others

27. THE NATURE OF EXCLUSIVE POSSESSION • Exclusive possession is distinct from ownership. • Ownership refers to title in the land. Exclusive possession refers to physical holding of the land • Possession may be immediate or constructive • The nature of possession depends on the material possessed

28. EXCLUSIVE POSSESSION: CO-OWNERS • In general, a co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the ’trespassing’ co-owner is not in possession. (Greig v Greig) • A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)¯

29. THE POSITION OF TRESPASSERS AND SQUATTERS • A trespasser/squatter in exclusive possession can maintain an action against any other trespasser

30. THE POSITION OF LICENSEES • A licensee is one who has the permission of P to enter or use land (belonging to P) • A licensee is a party not in possession, and can therefore not sue in trespass • A licensee for value however may be entitled to sue(E.R. Investments v Hugh)

31. THE TRESPASSORY ACT • Preventing P’s access Waters v Maynard) • The continuation of the initial trespassory act is a continuing trespass • Where D enters land for purposes different from that for which P gave a license, D’s conduct may constitute trespass ab initio (Barker v R)

32. THE POSITION OF POLICE OFFICERS • Unless authorized by law, police officers have no special right of entry into any premises without consent of P ( Halliday v Neville) • A police officer charged with the duty of serving a summons must obtain the consent of the party in possession (Plenty v. Dillion )

33. Police Officers; The Common Law Position • The poorest man may in his cottage bid defiance to all forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold of the ruined tenement. So be it- unless he has justification by law’. ( Southam v Smout [1964] 1QB 308, 320.

34. REMEDIES • Ejectment • Recovery of Possession • Award of damages • Injunction • Parramatta CC v Lutz • Campbelltown CC v Mackay • XL Petroleum (NSW) v Caltex Oil

35. TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS