TRESPASS TO PERSON
In determining liability for battery, there must be satisfactory evidence of the elements of the tort, being (1) directness, (2) that the act
must be intentional or negligent, and (3) there must have been harmful or offensive contact with the body of the plaintiff.
1. Must be a direct application of force
2. Must be intentional or negligent
a. Battery cannot be the result of an accident.
b. Fagan v Metropolitan Commissioner of Police
i. Although initial application of accidental force is not battery, a refusal to remove it is.
c. Rixon v Star City
i. Application of force is not unreasonable when it is not out of the ordinary in the course of normal
3. Must make contact with the body of the plaintiff
Then consider defences.
Assault requires a direct threat, which intentionally or negligently creates a reasonable apprehension of imminent contact to the body of
1. A threat
a. Words, acts.
i. Can be conditional threats.
Rozsa v Samuels
A person is guilty of an assault if he unlawfully displays force against another in such a
way that he creates in the mind of that other the belief that force is about to be used
against him, provided he intended to create that belief.
The appellant judge found with the judge at first instance in that he was correct in holding
the defendant’s threat wen ‘beyond the ordinary bounds of self-defence’.
1. Therefore, whether a conditional threat amounts to an assault is dependent on the
circumstances in which the threat is made.
ii. Mere words are not enough.
2. Intentionally creates a reasonable apprehension
a. Zanker v Vartzokas
i. A young woman accepted a lift from the accused. While the van was moving, the accused
accelerated the vehicle saying: “I’m going to take you to my mate’s house. He will really fix you
up.” She was put in fear and jumped out of the moving vehicle.
ii. This was held to be an assault on the basis that the complainant was put in fear of relatively
immediate imminent violence which continued to have effect as the vehicle continued toward the
threatened destination while she was unlawfully imprisoned and at the continuing mercy of the
3. Of imminent contact FALSE IMPRISONMENT
2. Intentional (negligent)
3. Total restraint of liberty
o In order for restraint to be total, there must be no reasonable means of escape.
Bird v Jones.
o Note that restraint does not have to be the result of physical force; i.e., it can be based on a submission to
another power, i.e., psychological restraint.
See Symes v Mahon.
Was his liberty restrained totally?
Yes, he was compelled by the authority of the police officer.
o OR, contract.
Balmain New Ferry Co Ltd v Robertson
Herd v Weardale
o Dickinson v Waters
Police instructed by shop to arrest shopper.
Shop held liable for false imprisonment.
o Does not have to be for any length of time.
4. Without lawful justification
DEFENCES TO TRESPASS TO PERSON
Mistake is not an excuse
o Can be express, implied or tacit.
o Sport. McNamara v Duncan.
Self-defence. TRESPASS TO LAND
- Trespass to land is the:
o Direct (2)
o Intentional or negligent interference (3)
o With land (4)
o In the possession of the plaintiff. (1)
- Consent is the usual defence that may excuse the interference, and in many cases, a claim turns on the issue of
- Trespass to land is actionable without proof of substantial physical or economic loss or damage (contrast
negligence), and may thus be useful in protecting civil liberties and privacy.
- It is actionable per se.
1. TITLE TO SUE
Title to Sue
- The trespass action does not vindicate ownership, but actual exclusive possession of land.
- A tenant in possession may sue any unauthorised intruder, even including the landlord.
- Further, a person who in fact has exclusive possession while lacking a legal or equitable interest in the land may sue
o Newington v Windeyer
o Next to the plaintiffs’ property, there was a large area of vacant land. Plaintiffs constructed gardens and a
park-type scenario on the land to their enjoyment. One day, a new owner moved in on the other side of the
grove, and extended her fence onto the grove for easy access in the same way as the 4 plaintiffs. Plaintiffs
took offence to this, sued for trespass.
o Court held that this was trespass, applying the test of possession.
o A person who is in possession of land adverse to the true owner has a legal interest in the land.
2. DIRECT ACT
An act will be direct when it follows so closely from the act as to be part of the act. Scott v Shepard.
3. INTENTIONAL OR NEGLIGENT INTERFERENCE
Must be with a protected interest: New South Wales v Ibbett  HCA 57
- Mr. Ibbett was pursued to his mother’s house at 2 am, after they had been ‘keeping an eye out for him’ outside the
home, and he was only suspected of a driving offence.
- Ibbett drove his car into the garage, and while the door was closing, one of the police officers slid under the door,
pointed a gun at him and sought to unlawfully arrest him.
- The commotion awakened Mrs. Ibbett, and she asked the officer who he was and demanded that he leave.
- The officer pointed the gun at her, demanded she open the door to let the other officer in, and proceeded to
unlawfully arrest her son, search his van, and strip search him in the garage.
- The court held that it is will established that the tort of trespass to land protects the interest of the plaintiff in
maintaining a right to exclusive possession of the place of residence, free from uninvited physical intrusion by
strangers without consent.
Can include: - Placing or throwing material on land or leaving objects unlawfully placed on land
o Konskier v B Goodman Ltd
o Garbage left on roof after restoration, but was then responsible for a choked gully which flooded the home
of the plaintiff. Action for damages brought on the basis of trespass to land.
o By failing to remove it they rendered themselves substantially trespassers and the trespass was a
continuing trespass. But a new occupier entering upon premises on which there is a continuing trespass
has a cause of action in trespass in respect of it.
- Entering the land without consent of the possessor:
o Lincoln Hunt Australia Ltd v Willessee
o The plaintiff sought an injunction to restrain the defendant from televising videotape allegedly made during
a trespass on the plaintiff’s place of business. The hearing took place on the day after the alleged trespass,
and judgment was delivered the following day.
o Trespass to land is committed whenever a person without excuse and without consent or invitation of a
landholder enters that holder’s property.
o Court held that the implied invitation by the plaintiff for the public to visit its premises was limited to
members of the public bona fide seeking information or business with it or with it or to clients of the
firm, and not to those whose motives were to go onto the premises with video cameras or to harass the
inhabitants by asking questions which would be televised throughout the State.
- Remaining on land after permission to remain has been withdrawn
- Where there is no implied licence to enter:
o Halliday v Nevill
o Mr. Halliday, unlicenced, was sitting in his car in the driveway. He began to back out and saw a police car
cruising down the street, in which there were officers aware of his unlicensed status. The police then
entered the driveway and proceeded to arrest him. Halliday, however, broke free and escaped into his
house. He was charged with resisting arrest and escaping lawful arrest. The police had no warrant, but if he
had been on the street, he could certainly have been arrested.
o However, if they were trespassing on another’s land, the police could not lawfully arrest Halliday.
o The issue was whether there was implied consent as to the allowance of people to enter the driveway, as
it is the means to contact the homeowner, and to what purposes this consent extends.
o High Court held that it did. If the driveway was left unobstructed, it was a lawful means of
communication with the occupier. A passerby may go there for legitimate purposes, so long as it involves
no injury or interference with the protected interests of the occupier.
4. WITH LAND
On the meaning of land:
Area above land is “land” only for the purposes necessary for the use and enjoyment of the structures on it. Bernstein
(Baron) v Skyviews & General Ltd
- The defendant flew over the Baron’s estate, taking photos of them from a great height. They tried to sell the Baron
the photos of his land, and he took violent exception to this, demanding they cease immediately.
- The defendant declined, and the Baron sued.
- The court held that the limit of the airspace was not forever. They proposed a test for deducing height that was
that which was necessary for the use and enjoyment of the structures of it.
- There was no trespass, as there was no interference with a protected interest.
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd
- The defendant was constructing a building and sought permission to erect scaffolding over the plaintiff’s land. - The plaintiff sought payment of a lump sum of $30,000 and a rental price of $570 per week for two months and
$1140 per week thereafter before they would consent.
- The defendant rejected this offer and build the scaffolding anyway, which extended 1.5m over the plaintiff’s
property, and 100mm inside the plaintiff’s land at ground level
- Held that the relevant test is not whether the intrusion actually interferes with the occupier’s actual use of the
land, but whether it is of a nature and height which may interfere with any ordinary uses of the land the occupier
might see fit to undertake.
- Applying this test, the defendant’s act was a direct, intentional interference with land in the possession of the
Di Napoli v New Beach Apartments Pty Ltd
- Beneath the surface, the extent to which trespass protects against intrusions is uncertain. Practical issues arise in
- In Di Napoli, the defendant, as part of a building construction project, installed rock anchors which extended beyond
its boundary into the substratum of the plaintiff’s land.
- This was done despite the plaintiff’s refusal of consent.
- The plaintiff sought an order that the defendant remove the anchors and pay damages.
- Young CJ held that there was a trespass.
- He referred to ‘a series of cases in Kentucky involving caves which… make it clear that, at least for subterranean
rights, a person has substantial control over land underneath his or her soil for a considerable depth… In
Australia, the same flavor comes through in cases such as Graham v KD Morris and Stoneman v Lyons… I do not
consider that… the rock anchors, which can now actually be seen in the excavation, are so far below as to be
beyond the point of trespass.
DEFENCES TO TRESPASS TO LAND
- The most commonly raised defence to trespass to land is consent.
- Mistake is not a defence to trespass generally, especially that in belief of consent.
- Applies to trespass to land.
- Authority is Kuru v New South Wales.
o Kuru v New South Wales  HCA 26
o Turns on precise interpretations of NSW Crimes Act allowing police entry in the context of domestic
violence. Simply, Kuru, who lived in a unit in Sydney, was the subject of a phone call in which there was a
complaint of screaming and suspected domestic violence. After a few minutes, he became abusive, and
after a while throws himself at police, when he is arrested and charge.
o The question of whether the arrest was lawful depended on whether the police were trespassing at the
time of arrest.
o Basically, the legislation gave permission for police to enter when the person in possession of the premises
gave consent. The legislation was unclear as to whether the police were required to leave once consent was
There were suggestions for both arguments.
o Court held (4-1) that the legislation did not authorize the police to continue to stay, and so the arrest was
o The dissenting judgment was that of Justice Hayden, who felt that the legislation should be reread to
allow continued presence on the property so as to allow the police to finish their investigation. NUISANCE
Elements of Nuisance
1. A substantial (indirect or consequential) unreasonable interference in use and enjoyment of land;
2. In the possession of the plaintiff with proprietary interest (i.e., the plaintiff has the right or title to sue);
3. For which the defendant is responsible, either having created the nuisance, or ‘adopted or continued’ it.
4. With damage.
1) Title to sue
a. Proprietary interest in land
i. Hunter v Canary Wharf
2) Substantial and unreasonable interference in use and enjoyment of land
a. Where there is material damage to property, that is prima facie substantial and unreasonable.
b. Where it is intangible, calculated by:
i. Walter v Selfe.
ii. Standards of reasonableness calculated by calculus of nuisance.
a. Munro v Southern Dairies
a. Luna Park
b. Fox Farm
a. Fox Farm v Emmett
b. Christine v Davy
a. Where interference arises because the plaintiff is sensitive, they generally
b. Robinson v Kilvert
3) For which the defendant is responsible
a. Who can be sued?
i. Creator – Fennel v Robson
ii. Adopter – Sedleigh-Denfield v O’Callaghan
iii.Continuer – Tarrette House Pty Ltd v Berkman
a. Must be reasonably foreseeable.
o Kiddle v City Business Properties Ltd. Building designed in a certain way so that, when a storm came,
guttering on the defendant’s land caused flooding and damage. Court held there was no nuisance as they
had to take the land structure as it was when they bought it.
- Statutory authority
o Lester-Travers v City of Frankston
The statute will generally have to permit the nuisance aspect of that activity.
The plaintiffs were next to a golf course. Golf balls were landing on the property, so they sued the
owner of the course, who happened to be the local council.
Council argued they had statutory authority, as they were permitted to own a gold course.
However, the statute didn’t authorise the nuisance. Contrast with cases in which authority creates unavoidable nuisance. Nuisance here was
avoidable. You can put nets up.
- Reasonable use
o Corbett v Pallas. Complainant installed an in-ground swimming pool in her suburban home. It had
inadequate drainage, and resulted in the flow of rainwater from her property onto that of Mr. Pallas. The
water passed through a retaining wall and into Pallas’ house.He sued Mrs. Corbett, claiming the cost of
replacing the wall and other expenses incurred.
o Court held Corbett was liable, as the construction of the pool may have been an ordinary and natural use
of the land, but the consequential diversion and concentration of water to Pallas’ land was unreasonable
and constituted a nuisance.
- Coming to the nuisance is NOT a defence. Miller v Jackson.
o Cricket club. New housing development put up around the ground.
o Every weekend and in the evenings where players were practicing, balls would land in peoples’ gardens.
o People eventually stopped going to gardens out of fear.
o Argument the cricket club made was that they were there first.
To complain about cricket balls landing in their garden when they bought a house there was
o However, court held that coming to the nuisance was no defence to the existence of the nuisance in the
o In this case, though, they were allowed to continue playing cricket, because no injunction was ordered.
Damages were allocated, however. NEGLIGENCE
[D] will be liable in Common Law Negligence for [P]’s injuries if they owed a duty of care to him/her, breached those
duties, the breach caused the damage that were not too remote and none of the damage was caused by any failure of [P]
to mitigate those damages.
DUTY OF CARE
A duty of care will be owed to [P] by [D] if [P] can establish that the harm suffered by [P] was a reasonably foreseeable
result of [D]’s negligent conduct (Donoghue v Stevenson)
and was within a class of persons to whom that duty was owed (Chapman v Hearse) if it was not ‘far fetched or fancilful’
(Wagon Mound no 2)
The relationship between [P] and [D] falls within the established category of [CATEGORY: CASE].
Road users: Broadhill v Young.
Driver/passenger: Cook v Cook.
Where there is control:
Doctor/patient: Rodgers v Whitaker.
Employer/employee: Smith v Charles Baker & Co.
Occupier/invitee: Australian Safeway Stores v Zaluzna
Manufacturer/consumer: Donoghue v Stevenson
Solicitor/client: Hawkins v Clayton
Rescuer/teacher: Chapman v Hearse
Learner/teacher: Imbree v McNeely
(1) Is it a reasonably foreseeable class of plaintiffs?
(2) Do the salient features support imposition of a duty?
(3) Policy considerations.
[D] owed/did not owe [P] a duty or care as it was reasonably foreseeable that there would be harm him/to invitees (a
class of persons to whom he is a member (Donoghue v Stevenson) and, applying the multifaceted salient features
approach (Sullivan v Moody), [apply relevant]
1. REASONABLE FORESEEABILITY OF CLASS
Reasonable foreseeability is a necessary prerequisite.
Need not be of precise sequence of events, but rather a general foreseeability of that class – Chapman v Hearse;
Palsgraf v Long Island Railroad Co
Seltsam v McNeil – worker spent 12 hours in asbestos house, suffered illness from exposure. Not known in 1961 that
such low-level exposure could cause injury.
2. SALIENT FEATURES
Apply to facts the following:
Floodgates (Sullivan v Moody)
Vulnerability (Gifford v Strong Patrick Stevedoring; Agar v Hyde) Control: Barclay
Coherency of the law (Sullivan v Moody)
Affirmed by Kirby J in Harriton v Stephens
Proximity once required, but no longer. Merely helpful. Dorset Yacht Co Ltd v Home Office; Agar v Hyde. Hookers with
broken necks case. Board didn’t have any control.
3. POLICY CONSIDERATIONS
When confronted with a novel situation, judges do not merely apply established principles, but actually make new law.
They need to have a mind on society generally.
Police in investigation of crime Cran v State of NSW; Cumming v State of NSW
Advocates’ Immunity D’Orta-Ekenaike v Victoria Legal Aid
CPA Sullivan v Moody; Williams v Minister Aboriginal Land Rights Act
Illegality Gala v Preston teens stole car, crashed, passenger injured. Don’t want civil law to condone breaches of
criminal law. Illegality taints the whole enterprise. BUT NOTE Miller v Miller. Sufficient withdrawal may allow for duty
DUTY OF CARE SPECIAL PROBLEMS
Generally, where a plaintiff claims that a public authority owed him a duty of care in a situation not yet recognised by
the common law, the court must examine a number of matters, raised in Barclay Oysters v Ryan:
1. Was it RF?
2. Did the council have power to control the situation?
3. Was the injured party vulnerable?
4. Did the authority know or ought to have known of the specific risks to that class of P?
5. Does it interfere with policy/legislative decision-making?
6. Are there any other policy matters to consider?
Generally, positive answers to 5/6 impede a duty, even if there are positive answers to the first 4.
S 34: statutory authority defined as a local government or any public authority constituted under an Act.
S 35: Authority may rely on (a) financial limitations, (b) general allocation of funds or resources the authority cannot
challenge, (c) functions required to be exercised by the authority are to be decided to reference to broad range of its
activities, (d) compliance with general principles and applicable standards for exercise of functions as evidence of
proper exercise of those functions.
THE POSITION OF ROAD AUTHORITIES
Until 1930, a road authority could never be liable for nonfeasance. However, this was overturned in the case of Brodie v
Shingleton Shire Council. P drove over bridge, it collapsed. Bridge was in terrible state of disrepair, unable to support
the weight. He sued the council for not doing anything in relation to the bridge’s state of repair, or at least failing to
make available reasonable alternatives.
Held in 4:3 decisions that general principle now applies.
BUT consider s 37:
S 37: Restrictions on liability of public or other road authorities:
(1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to
any function it has as a road authority
(a) To repair a road or to keep a road in repair; or
(b) To inspect a road for the purpose of deciding the need to repair the road or to
keep the road in repair. (2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the
particular risk the materialisation of which resulted in the harm.
Basically, if the authority doesn’t know about it, it can’t be liable.
o In cases of contributory negligence, it exacerbates it where the plaintiff is negligent, and a non-negligent
person in the position of the plaintiff would not have been injured.
o There’s no duty to safeguard.
o Ironically, the more obvious the defect, the less likely it is that D will be liable. Boroondara CC v Cattanach.
Woman jogging along with dogs fell into hole. Hole was obvious to someone taking reasonable care for
their own safety. No liability.
SCOPE OF DUTY
Sometimes, a court will limit the scope of the duty to prevent it covering the particular harm caused by the conduct.
However, in this instance, it is appropriate for D’s duty to extend to the particular harm caused because of the:
DUTY TO PROTECT THOSE UNDER D’S CONTROL FROM HARM
Control goes a long way to establishing scope.
Modbury Triangle Shopping Centre v Anzil
Assault in carpark. Established duty, owner/occupier, but the scope did not extend. No control over third parties.
Unpredictable. Shifts criminal’s liability to someone with no culpability. No liability.
Contrast with Adeel’s palace. Restaurant had a party on NYE. Lots of revelry. A fight started. Guy came back with gun,
shot people at random. Had control, but that didn’t really make a difference in causation, because what would a security
have done against a raged gunman anyway?
Jones v Bartlett. Guy ran through glass. Massive burden in allowing this. Huge costs to landlords and tenants.
Undesirable. Duty is only to identify risk readily noticeable to the ordinary landlord. Scope does not require the
landlord to take expert assessment of the building each time they let the premises.
PARENT AND CHILD
Robertson v Swincer. Child hit by car. Claimed damages. Driver sought contribution. Parents differ wildly as human
beings, and while there is a moral duty, to give that legal recognition would be immensely problematic, as attributing
duties to them as a class is difficult. Also, a child being able to sue and having access to their parents’ assets is troubling.
DUTY TO CONTROL ANOTHER PERSON WHO WAS RESPONSIBLE FOR THE HARM
Smith v Leurs. Was using a Shanghai, playing with other kids in street. Shot one kid in the eye while playing a semi-hostile
came. Did parents owe a duty to control Brian’s conduct? Yes. Special relations can give rise to a duty. It is incumbent on a
parent who exercises control over a child to take reasonable steps to control the child. However, HCA held there was no
breach. Telling him just to use it around the home was sufficiently responsible and reasonable.
MEDICAL DUTY TO RESCUE
Lowns v Woods. Court of Appeal (NSW). Child on holiday with mother. Child suffers epileptic fit. Child’s sister goes to doctor’s
surgery down the road. It is just before opening time. Doctor says no. At trial, doctor said he didn’t even see the girl.
However, court accepted evidence of girl. Held in a 2-1 majority that there was a duty, based on the ethical and professional
misconduct obligations. GOOD SAMARITAN PROVISIONS IN CLA
- S 26
- Essentially, if a rescue takes place, and it is done badly or negligently, there is no liability in other states.
- In Queensland, the limit of this exemption is made out in the prescribed regulations. A very narrow exemption.
DUTY OF CARE
A person is considered to have breached their duty of care when their conduct falls below that expected of a reasonable
person in the same position as [D] (Blyth v Birmingham Waterworks Company)
If fault is not shown, there will be no action for damages
Derrick v Cheung; Manley v Alexander.
GENERAL STANDARD OF CARE
S 9 CLA
(1) A person does not breach a duty to take precautions against a risk of harm unless:
(a) The risk was foreseeable (a risk of which the person knew or ought reasonably to have known); and
Wyong Shire Council v Shirt. Water skiing on lake. Dredged channel for boats. Put up signs saying ‘deep water’, except
water was not deep beyond the signs. Fairly misleading.
(b) The risk was not insignificant; and
RTA v Dederer
(c) In the circumstances, a reasonable person in the position of the defendant would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to
consider the following:
(a) The probability that the harm would occur if care were not taken;
Bolton v Stone – cricket.
(b) The likely seriousness of the harm;
Paris v Stepney Bough – consequences of lost eye greater
Rogers v Whitaker – risk of total blindness (serious)
(c) The burden of taking precautions to avoid the risk of harm;
Graham Barclay Oysters v Ryan – no practical steps could be taken.
(d) The social utility of the activity that creates the risk of harm.
New South Wales v Fahy – for example, police work needs to be uninhibited
Also relevant in determining standard of care:
[D] was insane, but this is judged on the basis of an ordinary sane person, as the courts do not want to penalize
innocent plaintiffs. Carrier v Bonham
As [D] is a minor, his conduct is to be judged based upon a reasonable child of the same age (McHale v Watson).
Although [D] is a minor, they engaged in a dangerous adult activity and will be judged by the standard of a reasonably
prudent adult (Tucker v Tucker).
[D] must exercise the level of skill they hold themselves out as having (Philips v William Whitely)
[D] will be judged according to a higher degree of skill when he actually possesses that skill level. (Stokes v Guest, Keen
& Nettlefolds) Professionals – S 22
Does not apply to advice, risks or warnings.
A doctor must give warnings of risk if a patient would attach significance to it (1/14000 chance of damage to eye).
(Rogers v Whitaker- refused to apply Bolam test -> Dr needs to warn of risk)
Imbree v McNeely