Trespass The law of trespass is concerned with direct interference with persons or property. It is divided into three types: - trespass to person - trespass to land - trespass to goods.

Trespass to person - 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.

Defences to trespass to the person The primary defence to trespass to the person is that the plaintiff consented to the conduct. This consent must be freely given with no hint of threat, duress or intimidation. There are many types of situations where the plaintiff's consent is at issue. A boxer may consent to bodily contact in the boxing ring, but contact that occurs outside the contest may lead to a case in battery. Parents have the role of disciplining their children. However, this is not a defence if the discipline involves a battery that amounts to bodily harm. The discipline must be reasonable or it will lead to intervention by child welfare authorities. A second defence is that the conduct was lawful. A law enforcement officer such as a member of the police force has the power to arrest a person, thereby stopping the person's right to freedom of movement. Where the arrest is lawful, no court action in trespass to person is possible. Also, if the person resists arrest, the police officer can use reasonable force so there can be no action for the trespass of battery.

Decide whether or not a trespass to person has occurred in each of the following situations. Where appropriate give reasons for your answer Frank was frustrated when his four-year-old son was being uncooperative so he smacked the child on his legs. Barry gave consent to his surgeon to remove a lump in his neck. When Barry was under anaesthetic the doctor also removed a large mole on Barry's neck. Kathy is caught shoplifting from a department store and willingly accompanies the store security guard to an office to discuss the matter. Jennifer, in a fit of rage, threw a glass of red wine over her boyfriend's head and clothes. Mia was travelling in a crowded tram when another passenger accidentally bumped into her, causing her to fall over. Even though Wally knows Suzanne does not like him, he kissed her on her face.

Trespass to land and goods and related defences - Trespass to land 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. 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 eg breaking of the plaintiff's fence, hammering nails into the wall of the plaintiff's building 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? 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.

Defences to trespass to land The defendant may argue that he or she had consent or was authorised by legislation to enter the premises. For instance, a person reading a meter for the water, gas or electricity supply to a property is authorised to enter properties for this purpose. In many instances, there is implied consent to enter property. This includes shopping centres and cinemas. However, the defendant becomes a trespasser if he or she does not leave when the plaintiff withdraws consent.

Trespass to goods The tort of trespass to goods protects the rights of the plaintiff to possess their goods and to maintain the physical condition of their goods without the interference of others. The main remedy is a claim for damages. The trespass can take a variety of forms. The defendant may remove the goods from the plaintiff's possession or shift them to another location. These acts constitute a direct interference even though the goods may not have been damaged.

Defences to trespass to goods There are a number of possible defences to an action for trespass to goods including: the interference was indirect the plaintiff was not in possession of the goods at the time of the unlawful interference. Whether or not the person who was in possession of the goods was the actual owner of the goods is irrelevant. Only the person who had actual possession of the goods at the time of interference has the ability to sue. The interference was not intentional. In cases where there has been an accidental interference rather than a deliberate interference there can be no liability for damage caused. Thus, a person who, while excavating, accidentally damages a cable owned by the plaintiff, will not be liable if he or she had no way of knowing the cable was there.

Decide whether or not there has been a trespass to land or a trespass to goods or both in the following situations Rebecca likes to walk in the country. One day while out walking she spotted mushrooms growing in a field. She climbed over the fence and picked the mushrooms. Stephen is a keen footballer and likes to practise in the backyard. One day Stephen kicked the ball over the fence where it crashed through the neighbour's greenhouse window. John was on his way to the tip with a load of rubbish. To avoid the tip fees he dumped the rubbish bags over someone's fence. Isabel was irritated by her neighbour's quacking duck so she shot the bird.