Civil & Personal Litigation – Private Trespass

Free Consultation

At Odyssey Legal, we understand that trespass disputes can be stressful, particularly as they often occur with your neighbours and therefore, it is something you can't simply get away from.

We invite you to schedule a free 15-minute consultation to discuss your concerns and allow our civil litigation lawyers to guide through the correct avenues.

Executive Summary

Since COVID-19, we have seen an increasing number of disputes arising between neighbours, often resulting in claims of nuisance or trespass, or alternatively, in peace and good behaviour complaints being made.

The tort of nuisance and trespass can be causes of action in the civil jurisdiction, entitling a person to make a claim for damages.

There are two (2) forms of private trespass, specifically trespass to land and trespass to the person.

Within this article, our civil litigation lawyers will breakdown the elements of private trespass. Nuisance and Peace and Good Behaviour Complaints have been discussed in separate articles.

What is Trespass?

There are two (2) forms of private trespass, namely:

1. Trespass to Land – The intentional or negligent unlawful act of an individual which directly interferes with another individual’s land.

2. Trespass to the Person – The infringement of a person’s rights regarding their body by direct, unlawful, interference of another, which may be intentional or negligent.

Elements of Trespass to Land

In Cosenza v Origin Energy Limited [2017] SASC 145, Blue J summarised the elements as follows:

1. The plaintiff is in exclusive possession of land;

2. The defendant enters onto the land or otherwise directly interferes with the plaintiff’s exclusive possession of the land; and

3. The entry onto the land is a voluntary act or the direct interference with the plaintiff’s exclusive of the land is an intentional act.

Examples of trespass to land include:

1. Entering another person’s property without consent or reason.

2. Dumping dirt or other items on another person’s property.

3. Construction intruding onto another person’s property.

4. Breaking fences or causing damage to another person’s property.

5. Low flying drone over a property.

Trespass to the Person

There are three (3) forms of trespass to the person:

1. Assault - Assault deals with cases where a person intentionally creates in another person an apprehension of imminent harmful or offensive contact. Physical contact is not necessary to establish the tort of assault.

The word ‘apprehension’ in this context requires consideration of the following:

a. Whether the person knew of the threat;

b. Whether the person committing the assault appears to have the ability to carry out the threat;

c. Whether the person committing the assault appears to have the intent to carry out the threat;

d. Whether the apprehension was reasonable. It must be proved that a reasonable person in the same circumstances would have apprehended contact.

2. Battery – Batter relates to actual infliction of unlawful physical contact with another person. The elements are:

a. an intentional or negligent act by the perpetrator;

b. that immediately or directly caused physical contact with you; and

c. such contact was offensive, in that it was likely to cause injury or affront.

3. False Imprisonment – False imprisonment is concerned with another person’s deprivation of liberty and can include wrongful imprisonment by the police. The elements are:

a.  That a person was unlawful imprisoned by another person without their consent; and

b. There was no legal justification for the imprisonment.

What are the remedies for trespass?

The remedies for an action in trespass include:

1. Self-abatement – This means to take steps to remove things that may cause a trespass (i.e. overhanging branches).

2. Injunctions – An injunction is an order from the Court restraining the other party from the conduct constituting the trespass, or alternatively, requiring the other party to perform a specific task to remove the thing that is causing the trespass.

3. Damages – If the other person is found liable for trespass, then you are entitled to damages from them. The damages that could be claimed include:

a. Compensatory Damages – Are damages to compensate the party for the trespass, which can include general damages (as well as pain and suffering), lost income and superannuation (past and future), care and assistance (past and future) and out of pocket expenses (i.e. medical expenses).

b. Aggravated Damages – Are damages that allow the injured party to claim for humiliation, embarrassment, distress, stress or indignity. For an award of aggravated damages, there must be an aggravating factor (i.e. malice).

c. Exemplary Damages – Are damages for purpose of punishing the person who trespass to attempt to deter similar conduct in the future.

Relevant Cases

1. Gardiner v Doerr [2022] QSC 188:

Facts:

a. The plaintiff (Ms. Gardiner) and the defendant (Mr. Doerr) were married for 15 years and had two children together.

b. After their separation, Mr. Doerr verbally and physically abused Ms. Gardiner.

c. One night, Mr. Doerr broke into Ms. Gardiner’s house, assaulted her, and threatened her family.

d. Ms. Gardiner recognised Mr. Doerr during the assault, which led to the violence diminishing.

e. Ms. Gardiner subsequently commenced proceedings against Mr. Doerr.

Judgment:

f. The court found the elements of the tort of battery were made out.

g.  Judgment was given in favour of Ms. Gardiner, awarding her $967,113.40 in damages, due to the significant physical (injuries) and emotional impact of the conduct (diagnosis of PTSD). The damages awarded were comprised of:

i.      General damages: $8,410.

ii.     Past economic loss: $358,123.

iii.    Interest on past economic loss: $58,302.

iv.    Future economic loss: $343,081.

v.     Gratuitous services: $35,560.

vi.    Special damages: $13,412.40.

vii.   Interest on special damages: $1,899.

viii.  Future special damages: $13,126.

ix.    Aggravated damages: $50,000.

x.     Interest on aggravated damages: $17,600.

xi.    Exemplary damages: $50,000.

xii.   Interest on exemplary damages: $17,600.

2.  Wilden v Jennings (No 1) [2021] NSWDC 705:

Facts:

a. The plaintiff (Ms. Wilden) brought a civil claim against her former husband, Michael Jennings, a former NRL star, for four instances of rape during their relationship.

b. The abuse occurred from approximately October 2014 to May 2016.

c. Ms. Wilden was diagnosed with Panic Disorder, Post-Traumatic Stress Disorder (PTSD), Generalised Anxiety Disorder, and Acute Stress Disorder as a result of the abuse.

Judgment:

d. The court found Mr. Jennings liable for the psychological injuries suffered by Ms. Wilden.

e. The statute of limitations did not start running until Ms. Wilden was diagnosed with PTSD in February 2020, giving her until February 2023 to bring the claim.

f. Ms. Wilden was awarded $490,091.05 in damages (due to the severity of the emotional and physical trauma), which included:

i.      General damages: $200,000

ii.    Interest on general damages: $10,000

iii.   Aggravated damages: $50,000

iv.   Interest on aggravated damages: $2,500

v.    Exemplary damages: $75,000

vi.   Out-of-pocket expenses: $1,341.05

vii.  Future treatment expenses: $51,250

viii. Economic loss: $100,000.

g.  Mr. Jennings subsequently appealed the decision to the Court of Appeal; however, the appeal was dismissed, and Mr Jennings was ordered to pay Ms. Wilden’s legal costs.

3. Brodsky & Anor v Willi [2018] QDC 1:

Facts:

a. The plaintiffs, Dmitry Brodsky and another party, owned a property that was subject to an easement.

b. The defendants, Alan Neville Willi and another party, owned the servient tenement.

c. A dispute arose regarding the rights and duties created by the easement.

d. The plaintiffs claimed that the defendants had trespassed on their property.

Judgment:

e. The court ordered declaratory relief and damages for the trespass committed by the defendants.

f. The defendants were ordered to pay damages amounting to around $50,000.

Conclusion

In conclusion, private trespass, whether it involves trespass to person or land, remains a critical area of law that safeguards individuals’ rights to personal security and property. Trespass to person encompasses any unauthorised physical interference, ensuring protection against assaults, batteries, and false imprisonments. On the other hand, trespass to land addresses unauthorised intrusions onto one’s property, reinforcing the sanctity of private ownership.

At Odyssey Legal, we understand that trespass disputes can be stressful, particularly as they often occur with your neighbours and therefore, it is something you can't simply get away from.

We invite you to schedule a free 15-minute consultation to discuss your concerns and allow our civil litigation lawyers guide you to the correct avenue..