LWB147 Week Four Lecture Notes
False Imprisonment and Trespass to Land
False imprisonment is a voluntary act where the defendant subjects the plaintiff to total deprivation of
freedom of movement without lawful justification.
There is a high value placed upon a person’s liberty and as a result, there is no minimum time period that a
person must be falsely imprisoned in order to successfully make an action. In other words, no matter how
short the period of imprisonment, the judge should not dismiss it or consider it trivial.
A person may sue for false imprisonment even if they were not aware that they were being falsely or
wrongly detained at the time.
Elements of False Imprisonment
Direct interference with the plaintiff’s liberty
Restraint in all directions
Defendant must be at fault
Direct Interference with Liberty
Where the immediate result of the defendant’s act is the restraint of plaintiff’s liberty
The defendant ‘must be active in promoting or causing the imprisonment’ – Myer Stores v Soo
If restraint is the result of defendant acting upon the information of another, it may be indirect
Total Restraint in All Directions
Must be restraint in all directions.
o In Bird v Jones a man attempted to sue because a bridge had been shut down for a period of time and he was
not allowed to cross. The man argued that because he was not allowed to cross the bridge, he had been falsely
imprisoned. The court held that since the man was not restrained in all directions, and he had the option to
return the way he came or find another way across, he was in fact not falsely imprisoned and the case was
There must be no reasonable means of escape (see Burton v Davies and McFadzean v Construction, Forestry,
Mining and Energy Union)
o Reasonable means of escape typically will mean that in any instance where a person is at risk by attempting to
escape (for example jumping from a second storey window) then that cannot be considered a reasonable
means of escape.
o If the means of escape is illegal, then that is also not able to be considered a reasonable means.
o Furthermore, the plaintiff must be aware of the means of escape (for example, a concealed trap door which
the plaintiff is not aware of cannot be considered as providing a means of escape – the defendant will still be
Need not be physical (see Symes v Mahon and Myer Stores v Soo)
o A person does not necessarily have to be physically held in place by anyone or anything in order to
be falsely imprisoned.
o For example, psychological restraint where the plaintiff believes they must remain in one place under threat of
authority or violence is also a form of false imprisonment.
Defendant’s act must be intentional or negligent.
False imprisonment must occur against the plaintiff’s will (i.e. no consent given).
However, lawful arrest/detainment cannot give rise to an action (unless the policeman steps out of his legal
authority in order to do so).
Right of release may be governed by contract.
o For example, in Balmain New Ferry Co v Robertson a man entered a ferry terminal under contract of the
nearby sign which stated that both entry and departure from the terminal requires a fee each way. The man
missed his ferry and attempted to leave without paying, then proceeded to sue for false imprisonment. The
action failed because by entering the terminal with knowledge of the fees, the man agreed to the contract
where he was required to pay a fee to exit the terminal. Failure to pay meant he had no right to leave. Remedies for False Imprisonment
Remember trespass is actionable per se.
Nominal damages are available if no loss is suffered by the plaintiff
Compensatory damages are available if loss is suffered by the plaintiff
Other possible damages can include aggravated (did the plaintiff suffer humiliation as a result?) and
exemplary (does the court wish to further punish the wrongdoer?) if the circumstances warrant.
Answering a Trespass to Person Problem on the Exam
Read the scenario and identify from the facts all the possible interferences that might give rise to a trespass.
Work through each interference: which trespass action is there (Battery? Assault? False Imprisonment?).
State the elements of the relevant action and work through each. State the law, apply the law to the facts,
cite an authority, and come to a conclusion about whether the element is satisfied or not (use the ISAAC
ISAACS legal problem methodology).
State whether there is an action or not. What are the possible defences and remedies?
At the end of every answer you should also note the following:
o Time Limitations – how much time from the trespass does a plaintiff have to sue? In instances of
personal injury, the plaintiff has three years as per the Limitation of Acts Act 1974 (Qld) s 11 and in
cases where there is no loss (i.e. nominal damages) the plaintiff has six years as per the Limitation of
Acts Act 1974 (Qld) s 10.
o Onus of Proof – state who bears the onus of proof in each case. If it is a highway case then the
plaintiff bears the onus of proof, if it is non-highway then the plaintiff must prove direct interference
and the defendant then bears the onus of proving they are not at fault.
Trespass to Land
Trespass to land is any intentional direct interference with land in the possession of another, without lawful
justification or the occupier’s consent.
Trespass to land is one of the oldest forms of torts.
Being a form of trespass, trespass to land is actionable per se, meaning that you do not need to prove any
damage to the land in order to sue. It is an interference with your rights, no matter how small or insignificant
the trespass is.
Elements of Trespass to Land
The plaintiff must have title to sue
The interference must be:
o An interference to land
The defendant must be at fault
Element 1: Title to Sue
Exclusive Possession of Land
The plaintiff must have exclusive possession of the land at the time of interference.
Based on Possession NOT Ownership
Trespass is concerned with the protection of property on the land and is not therefore based on ownership.
This means that while the plaintiff may not necessarily own the land, they are entitled to sue if they are
found to have possession of the land (see Newington v Windeyer).
Tenant had Possession of Land – Not Landlord
Note the difference between ownership and possession – possession may be more temporary and does not
necessarily imply ownership and ownership denotes an actual ownership of land or property which is far
o For example, a tenant of a leased property is in possession of the property even if they do not own it
(ownership belongs to the landlord) and therefore they still have excusive possession, giving them
title to sue. Furthermore, since trespass to land is concerned with possession and not ownership, a tenant may sue a
landlord who trespasses on the property without consent and also may sue any other party who trespassed
on the land without their consent, even if the landlord has told the party they are allowed.
o See for example Kelsen v Imperial Tobacco Co where the tenant sued for the intrusion into the air
space directly above the property, despite the landlord allowing the intrusion.
Licensee does NOT have Permission to Sue
In contrast to tenants having right to sue due to possession of land, a person who lives on a premise but is
does not actually have possession of the land is known as a licensee and licensee do not have title to sue.
o See for example Malone v Laskey where the wife of a man who was the legal tenant was injured when
construction work next door disrupted the toiler system and caused the cistern to fall on her head. Although
she lived there, she was not a tenant on the lease and therefore was considered a licensee, meaning she had
permission to be there but was not in possession of the land. As a result, she did not have title to sue.
Trespass by Relation
A plaintiff may bring an action in trespass for interferences which occurred between the time that their right
to possession of land arose and their actual taking of possession of the land.
For example, where a person signs the lease to a land and thereby has possession of the land but does not
actually move into the premises for some time, any trespass which occurs within this time frame may still be
actionable by the plaintiff.
Element 2: The Interference
There are three elements which must be met in regards to interference:
1. The interference must be to land
2. The interference must be direct
3. The interference must be unauthorised
Examples of Actionable Interferences:
Entry onto land (including a building) – see Rinsale Pty Ltd v Australian Broadcasting Commission
Remaining on the property or premises after consent to be there has been withdrawn (e.g. tenants
remaining on property after eviction) – see Colwell v Rosehill Race Course Co Ltd
Causing any object, animal or person to come into contact with the land – see Beckwith v Shordike (1767)
Leaving objects on the land – see Konskier v B Goodman Ltd
Element 2.1: What Exactly Constitutes ‘Land’?
Buildings, the subsoil and the airspace
‘cuius est solum, eius est usque ad coelum et ad infernos’ – a Latin maxim (often slightly misspelled or
misquoted) which essentially means that whoever owns the land owns it all the way to the heaven and all
the way to hell (the land, airspace and beneath the soil).
There are, however, limitations to this because today the area beneath soil and in the air cannot be
exclusively owned for a number of reasons.
Limitations on Subsoil
Unauthorised subterranean trespass into (or more accurately, under) a neighbours property is still a well
recognised type of trespass (see Burton v Spragg).
However, certain rights to subsoil areas may be owned by the Crown (for example, a mine since minerals are
owned by the government).
Limitations on Airspace
We must in this modern time consider the reasonable use and enjoyment of land in regards to airspace.
It is not reasonable to sue for trespass whenever an airplane flies above our property.
Example: Bernstein v Skyviews & General Ltd where an airplane flew over Lord Bernstein’s estate and took an aerial
photograph. Bernstein sued for trespass but it was held that no trespass occurred. Chief Justice Griffith said that in
order to balance the rights of an individual to enjoy their land, and the rights of the public to utilise advancing science,
there would need to be a height above which the land owner had no greater rights than any other member of the
public so long as it did not prevent him from reasonably enjoying his land. Another trespass in which it was this time established that the plaintiff’s airspace had been invaded is
Graham v KD Morris & Sons Pty Ltd in which a construction crane was left on nearby property when unused
and its jib was free to rotate. The jib rotated above the plaintiff’s land, making her uneasy. The court
established that a trespass to land had in fact occur