LWZ116 Lecture Notes - Lecture 10: Transport Act 1983, Schizophrenia, Nsw Law Reports
Lecture 10
Torts
A trespass involves:
1. Direct Interference with the person or property of the plaintiff;
2. Trespass must also involve an element of Fault – Intention or Recklessness
3. Trespass is actionable per se i.e. there is no requirement of proof of damage.
DIRECT INTERFERENCE - In Australia to be classified as a Trespass, the interference must be direct.
In Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 - ‘There is an obvious
distinction between direct interference of the kind required to constitute a trespass and leaving something
a sheep might or might not choose to eat in a place where they might or might not choose to go for the
purpose of eating.’
In Hutchins v Maughan [1947] VLR 131 the Complainant was droving a flock of ewes, defendant warned
him that he had laid poisoned baits on land in the vicinity. Complainant thought defendant was bluffing,
brought his sheep and 2 sheep dogs onto land. Dogs then ate bait and died. The question was whether the
injury the complainant suffered in the loss of dogs was immediate or consequential upon the act. The
doing of the act itself did not cause him mischief – he had to intervene by coming to the land with his dogs.
The Court held on the element of directness that the action must be direct and not consequential. Laying
baits in a paddock and having dogs come along later and eat the poison is a consequence, not a direct act.
In Reynolds v Clarke (1725) 1 Stra 634, It was held on the element of directness that for the tort of Battery
to be successful, it must be direct, not consequential - a thrown log hitting someone is direct, a thrown log
later tripped over is merely a consequence.
Battery, assault, Trespass to land and chattels, Nuisance
FAULT – INTENTION - For the defendant to be liable, the act must be intentional, i.e. the defendant
intended to perform the act. Motive is irrelevant.
In case of Involuntariness - ‘An intention – ie, a voluntary act, the mind prompting and directing the act
which is relied on as the tortious act – must be averred and proved. For example, if a person in a condition
of complete automatism inflicted grievous injury that would not be actionable. In the same way, if a
sleepwalker inadvertently, without intention or without carelessness, broke a valuable vase, that would
not be actionable.’ In Morriss v Marsden [1952] 1 All ER 925 [Defendant was a catatonic skitzophrenic and
whilst he did not know what he was doing was wrong (bashing the Plaintiff) he understood that nature and
character of what he was doing. LJ Stable said “I have come to the conclusion that knowledge of
wrongdoing is immaterial and that where there is a capacity to know the nature and the quality of the act
that is sufficient although the mind controlling the hand is diseased.”
In Smith v Stone (1647) Style 65, where the Defendant was carried onto the land of Plaintiff by force and
violence of others; there was trespass by the people who carried D onto the land, and not by D.
In Public Transport Commission (NSW) v Perry (1977) 137 CLR 107, the plaintiff was waiting to get aboard a
train. Whilst awaiting she suffered an epileptic fit, fell unconscious on the rails, and was struck by the train.
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The jury found that the train driver had failed to keep a proper lookout and to take all reasonable care in
driving the train. On the appeal before the High Court of Australia it was contended that the plaintiff was a
trespasser to whom no duty was owed other than the duty not recklessly to harm her. The High Court held
that the plaintiffs involuntary fall from the platform where she was entitled to be did not make her a
trespasser and did not absolve the defendant from its duty to take reasonable care for her safety.
It is sufficient that the defendant had knowledge of the consequences that are likely to result:
‘…it may be that an act should be considered intentional if it is substantially certain that the act will result
in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the
plaintiff’. Carter v Walker [2010] VSCA 340
Actionable Per Se - The cause of action arises upon the direct interference with the plaintiff's right – no
need to prove damage. In Nicholls v Elly Beet Sugar Factory Ltd [1936] 1 Ch 343 The plaintiff owned several
fisheries and sought damages after the defendant polluted the river. He was unable to prove any actual
loss.
Held: Disturbance of a several fishery was an invasion of a legal right, and in such a case the injury to the
legal right carried with it the right to damages. The plaintiff had an incorporeal hereditament in the fishery
and also property in the fish found in the fishery. Commenting on Fitzgerald v Firbank: ‘That therefore
defines the right, and it also defines the cause of action which follows from an infringement of that right. It
is not, I think, material to decide whether the proper description of that cause of action is trespass, or
trespass on the case or nuisance, forms of action which are now abolished. If it were described as
‘nuisance’ the word ‘nuisance’ would be used in that connection as meaning a private nuisance, one which
involved an interference with a private right, so that, as I shall explain in a moment, an action would lie for
that interference.’
TRESPASS TO LAND - Elements
1. There must be a Direct Physical Interference/Intrusion with Land; Damage, Causation and
Remoteness need not be proved.
2. Interference must be Intentional (or Negligent);
3. Plaintiff must be in Possession of Land
Direct Physical Interference with land:
‘An injury can be described as being directly produced by the defendant’s act when it flows naturally from
it, without the necessity of an intervention by another independent factor. Where, however, the
defendant’s act merely creates the situation of danger, and requires an additional act to produce the
ultimate injury, the injury can be described as only flowing indirectly from the initial act. A test of
directness can be posed as follows: would the result have occurred had it not been for the intervention of
another independent agency?’ Klar (2008)
In Mann v Saulnier (1959) 19 DLR (2d) 130 - snow and frost caused Defendant's fence to lean onto
Plaintiff's land, was not considered trespass because the leaning was not attributed as a direct and
reasonable interference. However, if the Defendant’s would have kicked in or knocked over the fence into
the Plaintiff’s side, that would have been a direct interference, which was not the case here. Further it was
not considered as nuisance because no special damages were proven.
In Atlantic Aviation v Nova Scotia Light & Power Co (1965) 55 DLR (2d) 554 Defendant built high
transmission towers on the land adjacent to the Plaintiff’s flying school. The Court reviewed case law that
suggested that deliberate or malicious obstruction of airspace was objectionable as a nuisance but other
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Lecture 10
Torts
than that a land owner had a right to erect structures on his land in exercise of is use and enjoymet of his
land, even if the obstructions interfered with the free passage of aircraft taking off and landing on an
adjoining airfield. The erection and use of the towers and wired by the Defendant was lawful, reasonable
and necessary use of the defendant’s air space.
Every unauthorized intrusion onto the plaintiff’s land, no matter how trivial or fleeting, is actionable
The defendant’s interference with the land must be physical (excludes smog, chemical fumes, smoke,
noise, odour, and vibrations)
Trespass to land is committed in three ways;
1. Enter Land: First, and most commonly, it is a trespass to enter personally onto land in possession of
the plaintiff without permission.
2. Place Objects: Second, it is a trespass to place objects on the plaintiff’s property. It is treated as a
continuing Trespass and gives rise to a cause of action each day until the object is removed.
3. Revocation of Permission: Third, a trespass may arise when the possessor revokes a visitor’s
permission or licence to be on the property. For example ejection of patrons from the bar.
Trespass could be on land, underground and in the airspace.
IN AIR –
In Woollerton v Costin [1970] 1 All Er 483 The defendants were building contractors and the crane they
were using overhung the claimant’s land approximately 50 ft above ground level. The defendants admitted
trespass to the claimant’s airspace, and offered compensation to the claimant. The claimant would not
accept the compensation, and asked for an interim injunction preventing the trespass. Stamp J said: ‘In
principle there ought to be an injunction, but on the particular facts of this case, not until the defendants
had a chance of finishing the job.’
In Berstein v Skyviews & General Ltd [1978] QB 479 where the issue was does flying over a person's
property constitute trespass of airspace? The Court held the rights of landowners in the airspace above
their land is restricted to such a height necessary for the ordinary use and enjoyment of his land and the
structures upon it – above that height he has not greater rights then the general public. Defendant's
aircraft did not infringe any rights of Plaintiff's airspace – thus no trespass.
TRESPASS TO LAND –
In Halliday v Nevill (1984) 155 CLR 1, Police noticed an unregistered driver back out of his driveway. When
approached he ran back onto his property, the police entered and arrested him. The police were found to
have trespassed and the Police appeal was dismissed with costs, in the High Court.
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Document Summary
Direct interference - in australia to be classified as a trespass, the interference must be direct. In hutchins v maughan [1947] vlr 131 the complainant was droving a flock of ewes, defendant warned him that he had laid poisoned baits on land in the vicinity. Complainant thought defendant was bluffing, brought his sheep and 2 sheep dogs onto land. The q uestion was whether the injury the complainant suffered in the loss of dogs was immediate or consequential upon the act. The doing of the act itself did not cause him mischief he had to intervene by coming to the land with his dogs. The court held on the element of directness that the action must be direct and not consequential. Laying baits in a paddock and having dogs come along later and eat the poison is a consequence, not a direct act. Battery, assault, trespass to land and chattels, nuisance.
