Trespass

Question 1

What is trespass?

Answer 1

Unlawful intentional interference with possession.

Question 2

What are the elements of trespass?

Answer 2

• Plaintiff in possession
• Intentional (direct physical) act by defendant (ie. act must be voluntary)
• Intentional act is unlawful interference (e.g. no consent from plaintiff)

Question 3

What is possession?

Answer 3

Ordinary meaning consists of physical control and intent to exclude others.

However, its meaning can extend to being a social fact. This considers the context and lived experiences (a reasonable person would deem someone in possession: is a matter of fact) does not always have physical control over the thing.

Question 4

What are remedies for trespass?

Answer 4

Actionable per se (on its own) - do not have to prove loss suffered to succeed ie. asportation.

Compensation - paid the value or amount to restore the chattel.

Consequential damages - cover consequential loss from the trespass.

Vindicatory damages - award the fact that your rights have been breached, does not matter the actual loss.

Question 5

What is the objective of remedies in tort law?

Answer 5

Meant to put the plaintiff in the position they were prior to the wrong being committed.

Question 6

Wilson v New Brighton Panelbeaters

Answer 6

Ratio: Intentional act
Intentional (voluntary/accidental) conduct not just blameworthy (e.g. theft) conduct.

Facts: Wilsons car parked up the driveway. Walters calls NBP to deliver it. NBP delivers.

Question 7

Penfold wines v Elliot

Answer 7

Ratio: Must be in possession
Penfold may have had immediate right to possession but not possession (Elliot obtained bottles lawfully).

Facts: Penfold kept ownership of wine bottles. Elliot was given some of these bottles by customers. Elliot reused these bottles.