Class Notes (838,544)
Australia (1,845)
Law (441)
JSB171 (400)
Unknown (45)
Lecture 4

LWB147 Lecture Notes - Week 4.docx

6 Pages
Unlock Document


LWB147 Week Four Lecture Notes False Imprisonment and Trespass to Land False Imprisonment  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 dismissed.  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 liable).  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. Fault  Defendant’s act must be intentional or negligent. Lawful Authority  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 o Direct o Unauthorised  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 more permanent. 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’? Land includes:  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
More Less

Related notes for JSB171

Log In


Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.