Tort - Trespass

TRESPASS TO LAND DEFINITION (ENG)

Winfield & Jolowicz ‘On Tort

Trespass to land is constituted by an unjustifiable interference with the possession of land’

Once permission is withdrawn a reasonable time must be allowed for the visitor to leave.

(ENG)

Robson v Hallett: 

ACTIONABLE PER SE (don't have to prove damage) (MY)

Hashim v Sato Kogyo

Trespass to land right is protected under Constitution

Article 13(1)

WHO CAN SUE? (MY)

Yip Shou Shan v Sin Heap Lee Marubeni Sdn Bhd

ELEMENTS OF TRESPASS TO PERSON

1. Actual interference with the right of exclusive possession

2. Intention

WAYS TRESPASS CAN HAPPEN?

1. Directly entering without perms.

2. Remaining upon land

3. Places or projects object on someone else’ land.

4. Airspace

5. Subsoil

WHAT IS LAND?

Law of Property Act 1925: Land includes mines and minerals whether or not held apart from surface, buildings or part of building.

ENTERING UPON LAND KEY CASE (ENG)

• Basely v Clarkson

ENTERING UPON LAND KEY CASE (MY)

Haji Jaafar b Haji Rahman v Rohani bte Ab Latip

TRESPASS TO AIRSPACE (ENG ACT AND 3 CASES)

• Civil Aviation Act provides that no action shall lie in trespass by reason only if flight of an aircraft over any property at a height above ground is reasonable.

• Kelsen v Imperial Tobacco Co: sign

• Wandsworth Board of Works v United Telephone wire

• Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd cranes swinging

TRESPASS TO AIRSPACE (MY)

Karuppan s/o Chellapan v Balakrishnen s/o Subban

TRESPASS TO SUBSOIL (2 CASES 1 ACT ENG)

Bulli Coal Mining Co v Osborne

Bocardo SA v Star Energy UK Onshore Ltd

Infrastructure Act

Irrelevant that he did not know he was entering P’s land.

Conway v George Wimpey

Intention is not fulfilled if D’s entry onto P’s land is without consent/involuntary. (+ rebuttal)

Smith v Stone

• REBUTTAL: Gilbert v Stone

  • Duress is an irrelevant motive in all torts.

Intention established when D can foresee the trespass

League Against Cruel Sports Ltd v Scott

Landowners can claim for damages for animals straying into their land. (Act)

Animals Act (Wandering Animals):

INTERFERENCE ENTERING LAND OR PART OF IT

Hickman v Maisey

INTERFERENCE ENTERING LAND OR PART OF IT (my)

Kerajaan Negeri Selangor v Sagong bin Tasi

Remaining after perms with withdrawn is trespass. (eng)

Holmes v Wilson

Remaining after perms with withdrawn is trespass. (my)

Tay Tuan Kiat v Pritam Singh

Placing or projecting object on land. (2 eng case)

R v Khan

Westripp v Baldock: Ladder against another’s wall.

Placing or projecting object on land. (2 MY case)

• Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd

• K Mahuranan v Osmond Chiang Siang Kuan

TRESPASS TO SUBSOIL (MY)

Chin Lih Lih & Ors v Sunrise Alliance Sdn Bhd & Anor

HIGHWAY KEY CASE (ORDINARY PASSAGE)

• Hickman v Maisey

  • If owner of subsoil consents for person to pass along highway in course of ordinary passage and take part in activities incidental to that it is not trespass.

    • If it is, that purpose is exceeded.

HIGHWAY KEY CASE (abused use of highway)

Harrison v Duke of Rutland

HIGHWAY KEY CASE (MY)

Government of Malaysia & Anor v Kong Ee Kim

DEFENCE: LAWFUL AUTHORITY (ENG)

• DPP v Jones

  • Peaceful assembly on highway does not mean unreasonable interference.

DEFENCE: LAWFUL AUTHORITY (MY)

• Azizah bte Zainal Abidin & 5 Ors v Dato Bandar Kuala Lumpur

  • HC held DBKL has statutory authority to enter P’s land and widen a river under Street, Drainage and Building Act.

DEFENCE: NECESSITY SITUATIONS

• Re F 3 situations which necessity defence applies

1. Public necessity such as destruction of property to prevent spreading fire.

2. Private necessity where D went on P’s land to prevent fire spreading to neighbouring land.

3. Action taken to come of aid to another person or property in imminent danger (usually restricted by courts)

DEFENCE: NECESSITY APPLICATION

• Rigby v Chief Constable of Northamptonshire

  • There was armed psychopath in a gun shop.

  • Police teared gas canister which caused fire in shop.

  • Shop claimed damages for trespass to land.

  • Defence of necessity was upheld.

REMEDIES: DAMAGES

• Monsanto v Tilley and others

  • Damages given as there were damages to genetically modified crops.

REMEDIES: INJUNCTION

Jaggard v Sawyer

REMEDIES: Self-help

Hemming v Stoke Poges Golf Club

Distress Damage Feasant

Arthur v Anker