LAWS1003A Lecture Notes - Lecture 4: All England Law Reports, Independent Contractor, Statutory Interpretation
2 Jul 2018
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LAWS 1003: Sem 1 2017, wk 4
1.0: What is ‘land’?
Land is an area of three-dimensional space, its position identified by natural or imaginary points
located by reference to the earth’s surface: Butt Land Law (6 ed, 2010) [202]. The common-law
maxim: “Whoever has the soil, also owns the heavens above and to the centre beneath.” However,
it is not trespass for an aircraft to pass over someone’s land at a height greater than the owner
needs for ordinary use and enjoyment of his or her lands and the structures upon it: Bernstein v
Skyviews & General Ltd [1978] 1 QB 479.
Trespass under land in Bocardo SA v Star Energy UK Onshore Ltd and anor [2008] EWHC 1756- land
owned by Bocardo in which Star had been drilling for oil 800ft below this land without his
permission; question whether damages for trespass could be recovered and how to value them.
Order of 7 million in compensation was made, for extraction of oil taking place over 6.5 years. There
was long debates since the oil had been vested in the ownership of the crown, however there was
evidently no right of access that had been made. This was later overturned to $1000.
2.0: Trespass to land
“ A trespass occurs when there is an unjustified intrusion by one party upon land which is in the
possession of another”- Lord Hope in Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35 at
[6].
Santow JA in Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353:
“[189] Unlike causes of action in negligence, damage is not the gist of the cause of action in trespass.
Instead, the action exists to protect and vindicate the right of a person in possession of land to his or
her exclusive and peaceful enjoyment of that land. The modern action of trespass to land with which
we are concerned descends from the common-law writ… The slightest incursion constitutes a
trespass, so long as it is not wholly involuntary: see Public Transport Commission of NSW v Perry
(1977) 14 ALR 273.”
“[190] From this emanates both the statement that ‘trespass is actionable per se’, and the
distinction between trespass on the case such as nuisance, and later negligence. Nuisance protects
against unreasonable interference with the plaintiff’s use and enjoyment of his land rather than with
his possession, that interference stemming from conduct of the defendant outside the plaintiff’s
land. In such circumstances, the absence of force and arms interfering with possession did not merit
making the conduct actionable without proof of damage. Hence, nuisance is an action on the case, in
which the plaintiff set out in his writ the damages allegedly suffered and the circumstances in which
they were suffered, with the Court to determine whether in fact the conduct was tortious. In cases
of trespass, by contrast, the disturbance of the plaintiff’s right to exclusive possession was ipso facto
tortious, and the plaintiff was therefore entitled to recover damages even though he had sustained
no actual loss.
As with other actions for trespass, the essence of the action is the incursion across the boundary; the
defendant must then justify this by proof of either consent or other lawful authority.
The burden of establishing consent lies with the defendant.
The relevant intention of the defendant must be either actual intention to cross a boundary,
recklessness or negligence- “a mistaken view of one’s right to enter onto another’s property does
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find more resources at oneclass.com
not excuse the entry or provide a valid defence to a trespass”: Basely v Clarkson [1797] EngR 21;
(1681) 3 Lev 37; 83 ER 565.
Causing something to cross the boundary can be trespass- eg in Lade & Co Pty Ltd & Ors v Black
[2007] QSC 385, it was conceded to be trespass to allow cattle to go onto the plaintiff’s land
(although on the facts the evidence did not support the claim as the cattle could not be shown to
have come from the defendant’s land)
Any incursion into private land, where there is no implied permission, amounts to a wrongful act;
see Spigelman CJ in TCN Channel Nine Pty Limited v Anning [2002] NSWCA 82, LH7 [12.5.1C]
[23] The tort of trespass is committed whenever there is interference with possession of land without
lawful authority or, relevantly, the licence or consent of the person in possession.
However, consent to entry may be implied if the person enters for a lawful purpose: Gaudron &
McHugh JJ in Plenty v Dillon (1991) 171 CLR 635; Cf Lord Parker CJ in Robson v Hallett [1967] 2 QB
939,
the occupier of any dwelling house gives implied licence to any member of the public coming on
his lawful business to come through the gate, up the steps, and knock on the door of the house. [at
951]
Generally, if someone has entered land with permission, this permission may be revoked, and once
that happens the person becomes a trespasser if they do not leave within a reasonable time.
Furthermore, if a house-owner asks the neighbour to keep an eye on the house and tells them
where the spare key is for emergency, entering for any other reason bar an emergency would be a
trespass. This was the case in Thompson v Ward (1953) 2 QB 153.
In Coles Group Property Developments Ltd v Stankovic [2016] NSWSC 852, court issued injunction
preventing homeless man from entering shopping centre after numerous requests to leave after he
attempted to park there on a full-time basis and disturbed a number of patrons and shopkeepers
over a year or so.
United States Supreme Court held in Georgia v Randolph 547 US 103 (2006) that where police are
attempting to enter premises to conduct a search, they may not do so where one of the co-owners
of the property denies them permission (even if one of the others grants permission)
It is not necessary to prove that any damage actually occurred for the right to some order for
damages to be paid; this award is made simply because the “right of exclusive occupation” has been
breached- eg in the Anning case, $25,000 for this head of damages- see para [178], but of course, if
there is actual damage above and beyond the trespass then it will be compensated
Principle for award of damages spelled out by Spigelman CJ in Anning
[100] The High Court has recently explained recovery for consequential loss in the case of
intentional torts by invoking a general test. Damages can be recovered for harm that is intended
or that is the natural and probable consequence of the tortious act. (See Palmer Bruyn &
Parker Pty Ltd v Parsons [2001] HCA 69; 76 ALJR 163 esp at [13], [14], [73], [75]-[76], [114].)
Damage that is the “natural and probable consequence” of conduct is within the “presumed intent”
of the actor. (Palmer Bruyn & Parker at [73] and [80] per Gummow J.)
Furthermore, trespass protects the right of possession not just ownership, see Newington v
Windeyer (1985) 3 NSWLR 555, this means, for example a tenant under a valid lease which grants a
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right to exclusive possession can take an action in trespass to even the landlord unless authorised to
enter by the terms of the lease.
The principle adopted by Santow JA in Port Stephens SC v Tellamist at [191] holds that no award
would be made for alleged ‘psychological injury’ flowing from the trespass, as that was not a natural
and probable result of what happened, however it can cause an award of aggravated damages,
which allows the court to take into account distress and indignity suffered by the plaintiff.
Trespass involves a direct and immediate interference with land.
The tort is a continuing one, which is ongoing until the trespass ceases; injunction may be
granted to prevent ongoing trespass, and will often be preferred to damages.
Causing something to cross the boundary can be trespass.
USE New South Wales v Ibbett [2006] HCA 57, as it uses both assault and also trespass to land.
Where police officer did a roll under the garage door that was closing, to hold a gun up to Ms
Ibbett’s son who had been in a police pursuit.
3.0: Private Nuisance
Generally an action on the case, as it is available where damage is indirect, in very limited
circumstances, it may be actionable without proof of actual harm.
Involves “unlawful interference with a person’s use or enjoyment of land, or some right over or
connection with it”- [WVH Rogers, Winfield and Jolowicz on Tort (14th ed; London: Sweet &
Maxwell, 1994), at 404].
3.1: Elements
Summarised in Onus v Telstra Corporation Limited [2011] NSWSC 33 as follows:
144In Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40, Windeyer J defined at 59 the
tort of private nuisance to be an unlawful interference with the occupier's use or enjoyment of
land, or of some right over, or in connection with it. His Honour said at 62:
"In nuisance liability is founded upon a state of affairs, created, adopted or continued by one
person (otherwise than in the reasonable and convenient use by him of his own land) which, to a
substantial degree, harms another person (an owner or occupier of land) in his enjoyment of the
land."
In Coventry v Lawrence [2014] UKSC 13 Lord Neuberger summed up the law as follows at [3]:
A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act)
on the part of a defendant, which is not otherwise authorised, and which causes an interference
with the claimant's reasonable enjoyment of his land, or to use a slightly different formulation,
which unduly interferes with the claimant's enjoyment of his land. As Lord Wright said in
Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903, "a useful test is perhaps what is reasonable
according to the ordinary usages of mankind living in society, or more correctly in a particular
society." (emphasis added)
Doubt over whether damages for personal bodily injury can be recovered in an
action for nuisance.
For an interesting case on interference with enjoyment see Church of Jesus Christ of
Latter Day Saints v Price [2004] EWHC 3245- defendant opposed to Mormon beliefs engaged
in “prolonged shouting and offensive comments” outside churches while meetings were
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find more resources at oneclass.com
Document Summary
Land is an area of three-dimensional space, its position identified by natural or imaginary points located by reference to the earth"s surface: butt land law (6 ed, 2010) [202]. Skyviews & general ltd [1978] 1 qb 479. Order of 7 million in compensation was made, for extraction of oil taking place over 6. 5 years. There was long debates since the oil had been vested in the ownership of the crown, however there was evidently no right of access that had been made. A trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another - lord hope in star energy weald basin ltd v bocardo sa [2010] uksc 35 at. Santow ja in port stephens shire council & anor v tellamist pty ltd [2004] nswca 353: [189] unlike causes of action in negligence, damage is not the gist of the cause of action in trespass.
