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1. L A W O F T O R T S
TRESPASS

2. THE NATURE OF TORTS
• A tort is a civil wrong
• The law of torts deals with the rights and obligations
people owe to others and the infringement of these
rights and obligations
• The purpose of the law of torts is to provide
compensation or damages to the people whose
rights have been infringed.

3. LAW OF TORTS
• Torts are separated into categories and include:
• Negligence
• Defamation
• Nuisance
• Trespass

4. TRESPASS
• The tort of trespass is divided into three areas –
• Trespass to goods
• Trespass to land
• Trespass to the person

5. TRESPASS TO GOODS
• Trespass to goods is a direct interference by one
person with another person’s possession or goods.
For an action of trespass to be successful it is
necessary for the plaintiff to prove:
• they were in possession of the goods at the time of the
interference
• the act of interference was intentional
• the act of interference was a direct act. For example,
smashing the windscreen of another person’s car is direct
interference, but locking a room where someone’s goods
are left is not direct interference, unless those goods were
intentionally locked away without the knowledge and
permission of the owner.

6. DEFENCES TO TRESPASS TO GOODS
• In defence of a claim for trespass to goods, a
defendant may claim that:
• The plaintiff was not in possession of the goods at the time
• The act of interference was unintentional
• The act of interference was not a direct act by the
defendant

7. TRESPASS TO LAND
• Trespass to land is a direct physical interference with
a person’s exclusive possession of their land by
another person. The interference is usually voluntary
and intentional, although it can include reckless or
careless interferences.
• Land includes everything under the land and over
it, including the ground, soil, rocks, streams and
earth – even airspace above the ground (to a
reasonable height).

8. DEFENCES TO TRESPASS TO LAND
• In defence of a claim for trespass to land, a
defendant may claim that:
• The defendant had consent
• The plaintiff was not entitled to exclusive possession of the
land
• The plaintiff did not have actual possession of the land
• The action was not intentional
• The action was authorised by legislation
• The plaintiff gave permission for the defendant to be on the
land for an express purpose or period of time

9. OVER TO YOU …
• Woollerton and Wilson Ltd v. Richard Costain Ltd
• The defendants were working alongside the
plaintiff’s premises. They were using a tower crane.
During its use the crane swung over the plaintiffs’
premises and into their airspace at a height of 15m.
The plaintiffs sued the defendants for trespass to
land. The court held that the defendants were
liable in trespass.
• What type of trespass does this refer to?
• What would have to be proven in this case?
• What defence could be used?

10. TRESPASS TO THE PERSON
• The tort of trespass to the person includes:
• Assault
• Battery and
• False imprisonment

11. ASSAULT
• As assault is any direct threat by a person that places
another person in reasonable fear of imminent contact.
Usually assault is an intentional threat although the
threats can be reckless or careless.
• In criminal law, assault and battery have been merged
into the one offence — assault. It is possible for a
defendant to face both criminal and civil actions for the
same conduct. Usually, if a person is physically attacked
the defendant will face criminal charges for assault. But,
it is also possible for the victim to initiate civil action for
the torts of assault and battery in order to recover
damages.

12. ASSAULT
• To prove assault:
• The defendant must pose a direct threat to the
plaintiff
• The plaintiff must have reasonable fear of the
defendant
• The plaintiff must have knowledge of the threat

13. BATTERY
• Battery is a direct act by a person which has the
effect of causing contact with another person
without their consent. The contact is usually
intentional but could be reckless or careless
contact. Assault is the threat of contact and
battery is the actual contact.

14. ASSAULT AND BATTERY
• Assault and battery usually occur together, and are
often combined in a single reference to an
‘assault’.
• There can, however, be assault without battery, or
battery without assault. For example, in
circumstances where there was no awareness of
the imminent contact, there would be no threat –
as would happen if the offender came up behind
the victim and hit the victim on the head.

15. BATTERY
• To prove battery:
• There must be direct contact with the body of the
plaintiff by the defendant
• There must be intention to cause contact
• The act must be voluntary – a sleepwalker stepping
on your face while you were asleep on the floor
would not be liable for battery as it would have
been accidental.

16. OVER TO YOU…
• McNamara v Duncan – the plaintiff was injured
during a game of AFL where he received a blow to
the head and sought damages for trespass to the
person.
• What does the plaintiff need to prove for a claim of
trespass to the person?
• What defences could the defendant claim?
• Would you award the plaintiff damages? If so, how
much?

17. FALSE IMPRISONMENT
• False imprisonment is the wrongful total restraint of
the liberty of a person, directly brought about by
another person. The act is usually brought about
intentionally, although there may be actions for
negligent or reckless false imprisonment.

18. FALSE IMPRISONMENT
• To prove false imprisonment:
• There must be total restraint; for example, there
might not be total restraint if a person is locked in a
room but there is a reasonable (but not dangerous
means of escape)
• The act of confining a person must be done directly
by the defendant
• The act must be intentional

19. DEFENCES TO TRESPASS TO THE
PERSON
• In defence of a claim for 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.
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