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Law Notes Tort Law Notes

Laws301 Lecture Notes Land Based Torts Notes

Updated Laws301 Lecture Notes Land Based Torts Notes

Tort Law Notes

Tort Law

Approximately 368 pages

Highly comprehensive notes covering all topics in Torts to the Person (part 1), Property based Torts (part 2), and Negligence (part 3)...

The following is a more accessible plain text extract of the PDF sample above, taken from our Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Land-based Torts 3

Trespass to land 3

Elements of the tort of trespass to land 3

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 4

Cf trespass in tikanga Maori 4

What constitutes an intrusion upon land? 5

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 489 5

Facts 5

Issue 5

Rule 5

Application 5

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 6

Facts 6

Issue 6

Rule 6

Application 6

Cf tikanga 7

Defences: express or implied licence 8

Tararo v R [2010] NZSC 157 8

Facts 8

Issue 8

Rule 8

Cf tikanga 9

Civil remedies: injunction or damages (nominal or compensatory) 10

Nuisance 11

What is private nuisance? 11

Context 11

Elements of private nuisance 11

An interference with the right to the use or enjoyment of land 12

Hunter v Canary Wharf Ltd [1997] UKHL 14 12

Facts 12

Issues 12

Rule 12

Analysis 13

Outcome 14

Problem Question 14

Substantial and unreasonable interference 16

St Helen’s Smelting Co v Tipping (1865) 11 ER 1483 (HL) 16

Facts 16

Issue 16

Rule 17

Analysis 17

Hawkes Bay Protein Ltd v Davidson [2003] 1 NZLR 536 (HC) at [17] 18

Facts 18

Issue 18

Rule 18

Analysis 18

Problem question: 2019 1(a) 20

Defendant’s responsibility for the interference 22

Creating a nuisance 22

Matheson v Northcote College Board of Governors [1975] 2 NZLR 106 22

Continuing a nuisance 23

Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HL) 23

Rylands v Fletcher 25

Non-natural use 25

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264 (HL) 26

Facts 26

Rule 26

Application 26

Outcome 26

Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2012] 1 NZLR 120 (HC) 27

Facts 27

Rule 27

Analysis 27

Unison Networks Ltd v Nottingham Forest Trustee Ltd [2019] NZHC 2280 28

Facts 28

Rule? 28

Analysis 28

The meaning of strict liability 29

The escape need not be reasonably foreseeable 29

The type of damage must be reasonably foreseeable 29

Does reasonable foreseeability of the type of damage apply to claims in nuisance? 30

Relationship with nuisance 31

Problem Question template 32

Problem Question 33

Land-based Torts

Trespass to land

Lecture 25: (26/05/20)

Problem Question: Tom wants to know whether his neighbour, Mark, committed trespass when he did the following acts:

  1. Planting a hedge that is intruding on Tom’s property;

  2. Flying a drone over Tom’s house.

Elements of the tort of trespass to land

“A trespass occurs when there is an unjustified intrusion by one party upon land which is in the possession of another” – Bocardo at [6].

  • Unjustified means that the party has no authority or defence to be on the land

Function of trespass to land:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all”: Entick v Carrington (1765) 95 ER 807 at 817.

  • The harm resulting from trespass is already in the in already in the intrusion on land.

  • Even if the plaintiff has not suffered from tangible damage, a defendant can still be liable in trespass – it is actionable per se.

  • This is unusual in the law of torts, which is usually about receiving compensation for loss.

3 elements:

  1. Voluntary act of intrusion

  2. A physical act must be done directly on to the plaintiff’s land

  • Southport Corporation v Esso Petroleum Co Ltd at 195, cf nuisance

  • Requirement of directness and physicality.

  • E.g. If Maria sets foot onto her neighbour’s land, that is a physical act.

  • However, if she makes pickled cabbage, and the smell wafts over to her neighbour’s land, that smell is not a physical entity. There is no physical intrusion, so no trespass has been committed.

  1. The plaintiff must have exclusive possession of land

  • This is because trespass is concerned with protection of possessory rights.

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB

A ship releases oil in the estuary of a river. The oil is carried by tide to the foreshore of the plaintiff, causing significant damage.

  • Plaintiff had pleaded their claim in 3 different causes of action – trespass, nuisance, negligence.

“In order to support an action for trespass to land, the act done by the defendant must be a physical act done by him directly on to the plaintiff’s land.” – Lord Denning

  • In Read v Lyons, Vicount Simon affirmed distinction that circumstances in Rylands v Fletcher did not constitute a case of trespass because the damage was consequential, not direct.

  • Here, the discharge of oil was not done directly on the plaintiff’s foreshore, but outside in the estuary. It was carried by the tide onto their land consequently and was not direct.

  • There was therefore no trespass.

Cf trespass in tikanga Maori

Land in tikanga is conceptualised differently than that in the common law.

  1. Basis in concept of mana whenua (and collective and tribal title), not individualised title

  2. Examples of aukati (no-trespass rāhui): see Hirini Mead Tikanga Māori (revised ed, Huia, 2016) at 155

  3. See ET Durie “Will the Settlers Settle?” (1996) 8 OLR 449

What constitutes an intrusion upon land?

Lecture 26: (28/05/20)

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 489


Defendants took an aerial photo of the plaintiff’s country house as a part of thousands of photos taken over the past 17 years as part of their business offering them for sale to the owners.

  • Plaintiff alleged that the defendants wrongfully entered into the air space above his premises – trespass, actionable invasion of his right to privacy


The issue was whether an aircraft flying hundreds of feet above the plaintiff’s house to take a photograph of his house was a trespass.


Plaintiff relied on the old Latin maxim usque ad coelum – to whomsoever it belongs, it is his all the way to the heavens (and all the way to hell):

  • Court accepted that an owner has certain rights in the air space above their land

  • In Kelsen v Imperial Tobacco [1957], McNair J granted a mandatory injunction which ordered the removal of a sign which projected only 8...

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