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The tort of trespass has been developed by the courts. It had its beginnings some time around the thirteenth century, at a time when the distinction between criminal and civil law was not as clear as it is today. The law of trespass is concerned with direct interference with persons or property. It is divided into three types:
1. trespass to person
2. trespass to land
3. trespass to goods.
1. trespass to person
2. trespass to land
3. trespass to goods.
Trespass to person
This covers the right that a person has to their own personal safety and freedom from personal inconvenience.
This is commonly referred to as assault and can result in criminal and civil prosecution.
Assault
Assault under the tort of trespass has a different meaning to assault under criminal law.
In tort, an assault occurs when the defendant’s words or actions cause the plaintiff to believe that he or she is about to suffer bodily injury. For example, if you are in a public car park and a person carrying a baseball bat comes towards you in a menacing way, causing you to fear that you are about to suffer physical harm, that is sufficient to meet the tort of assault.
To prove assault the plaintiff must show that a reasonable person in the same circumstances would be in fear of suffering a physical injury. It is doubtful whether or not words alone constitute an assault. Usually, the threatening words need to be accompanied by some sort of action like pointing a gun at the plaintiff or shaking a fist at the plaintiff’s face.
However, if the circumstances are such that the plaintiff believes, on reasonable grounds, that the defendant has the ability to carry out the threat, words alone can amount to assault. This includes threats made over a telephone.
Battery
Battery refers to the actual application of force to the plaintiff’s body. A battery occurs:
• when the defendant causes physical contact with the plaintiff
• the action is direct, intentional or negligent
• the action was carried out without the plaintiff’s consent.
Unlike the tort of negligence it is not necessary for the plaintiff to have suffered actual damage or loss. This means even a light slap can constitute a battery.
However, in such circumstances the court is likely to award a very small amount of damages with the view to acknowledging that the plaintiff’s rights have been infringed. Other examples of actions that constitute a battery include cutting a person’s hair without his or her consent, hitting, throwing water on the plaintiff or spitting on the plaintiff’s face.
Whatever form the battery takes, it must be without the plaintiff’s consent in order to win a case of trespass. In some instances, it is possible to determine that the plaintiff has consented by examining the circumstances of the case. For example, a person who voluntarily gets into a crowded train and gets bumped by another passenger has consented to the contact. In relation to sport, limits are placed on the plaintiff’s implied consent to bodily contact. For instance, the deliberate punching of another player’s jaw during a soccer match has been held by the courts to be a trespass.
False Imprisonment
False imprisonment is concerned with the protection of an individual’s right to freedom of movement.
It occurs when the defendant deliberately or negligently confines (imprisons) the plaintiff in such a way that there is no means of escape. The imprisonment must be without lawful justification. The actual place of imprisonment is not important. It could include confinement to a house, department store, car or aircraft.
In the case of Myer Stores Ltd v. Soo [1991] 2 VR 597, a person was recorded on security camera apparently shoplifting. A week later when the plaintiff was in the store the security guard suspected he was the same person who had been shoplifting. The plaintiff agreed to do as he was instructed by the security guard. He walked behind the guard with two police officers following on behind to the security room for interrogation. The interrogation lasted approximately one hour. The Supreme Court found that he had been falsely imprisoned from the time he was first spoken to in the store to the time he was released from the security room.
This is commonly referred to as assault and can result in criminal and civil prosecution.
Assault
Assault under the tort of trespass has a different meaning to assault under criminal law.
In tort, an assault occurs when the defendant’s words or actions cause the plaintiff to believe that he or she is about to suffer bodily injury. For example, if you are in a public car park and a person carrying a baseball bat comes towards you in a menacing way, causing you to fear that you are about to suffer physical harm, that is sufficient to meet the tort of assault.
To prove assault the plaintiff must show that a reasonable person in the same circumstances would be in fear of suffering a physical injury. It is doubtful whether or not words alone constitute an assault. Usually, the threatening words need to be accompanied by some sort of action like pointing a gun at the plaintiff or shaking a fist at the plaintiff’s face.
However, if the circumstances are such that the plaintiff believes, on reasonable grounds, that the defendant has the ability to carry out the threat, words alone can amount to assault. This includes threats made over a telephone.
Battery
Battery refers to the actual application of force to the plaintiff’s body. A battery occurs:
• when the defendant causes physical contact with the plaintiff
• the action is direct, intentional or negligent
• the action was carried out without the plaintiff’s consent.
Unlike the tort of negligence it is not necessary for the plaintiff to have suffered actual damage or loss. This means even a light slap can constitute a battery.
However, in such circumstances the court is likely to award a very small amount of damages with the view to acknowledging that the plaintiff’s rights have been infringed. Other examples of actions that constitute a battery include cutting a person’s hair without his or her consent, hitting, throwing water on the plaintiff or spitting on the plaintiff’s face.
Whatever form the battery takes, it must be without the plaintiff’s consent in order to win a case of trespass. In some instances, it is possible to determine that the plaintiff has consented by examining the circumstances of the case. For example, a person who voluntarily gets into a crowded train and gets bumped by another passenger has consented to the contact. In relation to sport, limits are placed on the plaintiff’s implied consent to bodily contact. For instance, the deliberate punching of another player’s jaw during a soccer match has been held by the courts to be a trespass.
False Imprisonment
False imprisonment is concerned with the protection of an individual’s right to freedom of movement.
It occurs when the defendant deliberately or negligently confines (imprisons) the plaintiff in such a way that there is no means of escape. The imprisonment must be without lawful justification. The actual place of imprisonment is not important. It could include confinement to a house, department store, car or aircraft.
In the case of Myer Stores Ltd v. Soo [1991] 2 VR 597, a person was recorded on security camera apparently shoplifting. A week later when the plaintiff was in the store the security guard suspected he was the same person who had been shoplifting. The plaintiff agreed to do as he was instructed by the security guard. He walked behind the guard with two police officers following on behind to the security room for interrogation. The interrogation lasted approximately one hour. The Supreme Court found that he had been falsely imprisoned from the time he was first spoken to in the store to the time he was released from the security room.
TRespass to land
From the earliest days of its development, court-made law has been concerned with the protection of rights of landowners. The tort of trespass to land helps to achieve this aim by protecting the interests of the plaintiff from any unauthorised physical intrusion of the land. To succeed in an action for trespass the plaintiff does not have to prove damage occurred. It is also irrelevant whether or not the plaintiff actually owns the property. A tenant who rents the land has exclusive possession and, therefore, has the right to sue in trespass.
It is sufficient for the plaintiff to show that:
• there has been a direct, unauthorised physical contact with the land • the land was exclusively possessed by the plaintiff.
In most cases of trespass to land, the defendant enters or remains on the property after being asked to leave. However, it is also a trespass if the defendant directly causes an object to make contact with the land. The breaking of the plaintiff’s fence, hammering nails into the wall of the plaintiff’s building and using a bulldozer to push earth onto the plaintiff’s property have all been held to be trespasses to land.
A question that courts have had to consider is, how far above and below the land does the ‘land’ extend? Is it a trespass if the intrusion is into the sky above or the ground below the surface of the land? In various cases before them, the courts have held that scaffolding, an advertising sign and tree branches intruding into the airspace above the plaintiff’s land constitute a trespass. Two areas that are treated differently are:
In the case Stoneman v. Lyons (1975) 133 CLR 550, the defendant had excavated a trench under the plaintiff neighbour’s garage as part of the construction process of building a supermarket. Damage to the garage occurred. The court held that the defendants had committed the tort of trespass to land
It is sufficient for the plaintiff to show that:
• there has been a direct, unauthorised physical contact with the land • the land was exclusively possessed by the plaintiff.
In most cases of trespass to land, the defendant enters or remains on the property after being asked to leave. However, it is also a trespass if the defendant directly causes an object to make contact with the land. The breaking of the plaintiff’s fence, hammering nails into the wall of the plaintiff’s building and using a bulldozer to push earth onto the plaintiff’s property have all been held to be trespasses to land.
A question that courts have had to consider is, how far above and below the land does the ‘land’ extend? Is it a trespass if the intrusion is into the sky above or the ground below the surface of the land? In various cases before them, the courts have held that scaffolding, an advertising sign and tree branches intruding into the airspace above the plaintiff’s land constitute a trespass. Two areas that are treated differently are:
- aeroplanes flying in the airspace over a person’s land. It is not possible to initiate an action to claim this as trespass.
- minerals in the ground are in a different category because they are owned by the Crown, although a licence to mine may be granted.
In the case Stoneman v. Lyons (1975) 133 CLR 550, the defendant had excavated a trench under the plaintiff neighbour’s garage as part of the construction process of building a supermarket. Damage to the garage occurred. The court held that the defendants had committed the tort of trespass to land