ABC v Lenah Game Meats Pty Ltd: Privacy, Trespass & Media Law

Case Name: Australian Broadcasting Corporation (ABC) v Lenah Game Meats Pty Ltd

Citation: [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1
Date of Decision: 15 November 2001
Court: High Court of Australia
Judges: Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, and Callinan JJ
Area of law: Tort of privacy, freedom of speech, and equitable remedies

Case Overview

The case involves the Australian Broadcasting Corporation (ABC) and Lenah Game Meats Pty Ltd. It was heard in the High Court of Australia on 15 November 2001.

The main legal question revolves around whether the ABC could be restrained from broadcasting a video that showed footage of possum processing at Lenah Game Meats’ facility. The footage was obtained illegally by trespassers who secretly recorded the operations and later provided the tape to ABC.

Background Facts (ABC v Lenah Game Meats Pty Ltd)

Lenah Game Meats operated a possum processing facility.

Unidentified trespassers broke into the facility, installed hidden cameras, and filmed the possum processing operations without Lenah’s consent.

The video was handed over to Animal Liberation Limited, an animal rights organization, which later passed it to the ABC.

ABC intended to broadcast the footage on its program, the “7.30 Report.”

Lenah Game Meats sought an injunction to prevent ABC from airing the footage, arguing that it would cause financial harm to their business.

Legal Issues

The case primarily considered whether the court could grant an injunction to prevent ABC from broadcasting the footage. The various legal issues included:

1. Equity & Interlocutory Injunctions:

Whether Lenah had a serious legal claim that justified the interlocutory injunction (a temporary order before a final decision). The Supreme Court of Tasmania had initially denied the injunction, but the Full Court later granted it. ABC appealed to the High Court, arguing that Lenah had no legal right to prevent the broadcast.

2. Tort of Privacy:

The case raised the question whether Australian law recognizes a “right to privacy” and, if so, whether it applies to corporations. The court examined whether privacy laws should be extended to companies.

3. Freedom of Speech & Public Interest:

ABC argued that preventing the broadcast would infringe upon freedom of speech and the public’s right to know. The implied freedom of political communication under the Australian Constitution was also considered.

4. Trespass & Use of Illegally Obtained Material:

The footage was obtained through illegal trespassing, but ABC itself did not participate in the trespass. The question arose whether ABC could be restrained from using material that was unlawfully obtained by a third party.

High Court’s Decision in ABC v Lenah Game Meats Pty Ltd

The High Court ruled in favour of ABC, setting aside the Full Court’s injunction. The key findings were:

1. Lack of a Strong Legal Claim by Lenah:

Lenah did not have an equitable or legal right that justified an injunction. There was no confidential information involved—the processing of possums was a licensed and regulated activity.

Gleeson CJ said –

“It is not suggested that the operations that were filmed were secret, or that requirements of confidentiality were imposed upon people who might see the operations. The abattoir is, no doubt, regularly visited by inspectors, and seen by other visitors who come to the premises for business or private reasons. The fact that the operations are required to be, and are, licensed by a public authority, suggests that information about the nature of those operations is not confidential.”

2. No Established Right to Privacy for Corporations:

The court did not recognize a general tort of privacy in Australia. Even if such a right existed, corporations do not have personal privacy rights like individuals.

3. Public Interest Considerations:

The public interest in broadcasting the footage outweighed Lenah’s claims. Freedom of speech and media should not be restricted unless there was a strong legal basis.

Gleeson CJ said –

“If the respondent cannot demonstrate that there is at least a serious question as to whether the appellant is free to keep the video and to use it as it thinks fit, how could conscience require or justify temporary restraint upon the use of the video by the appellant?”

4. Illegally Obtained Material:

The fact that the footage was obtained by trespassing did not automatically mean ABC should be restrained from using it. Courts should be cautious in blocking media publications just because material was obtained unlawfully.

Gleeson CJ said –

“The appellant is in the business of broadcasting. In the ordinary course of its business, it publishes information obtained from many sources, thereby contributing to the flow of information available to the public. The sources from which that information may come, directly or indirectly, cover a wide range of behaviour; some of it impeccable, some of it reprehensible, and all intermediate degrees. If the appellant, without itself being complicit in impropriety or illegality, obtains information which it regards as newsworthy, informative, or entertaining, why should it not publish?”

Conclusion

The High Court allowed the appeal, meaning ABC was permitted to broadcast the footage.

The decision reaffirmed the importance of freedom of the press and limited the ability of corporations to claim privacy rights. The case remains a key precedent in Australian law regarding privacy, media rights, and equitable remedies.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2001/63.html

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Roy v O’Neill [2020] HCA 45: A Case Summary

Case Name & Citation: Roy v O’Neill [2020] HCA 45

Court: High Court of Australia
Date of Judgment: 9 December 2020
Judges: Kiefel CJ, Bell, Gageler, Keane and Edelman JJ
Areas of Law: Trespass, Domestic violence, Admissibility of evidence

Roy v O’Neill [2020] HCA 45 is a significant High Court of Australia decision that addressed the scope of the implied licence doctrine concerning police entry onto private property. The case arose from an incident where police officers entered a residence to conduct a welfare check and subsequently administered a breath test to the appellant, Ms. Roy, leading to questions about the legality of their entry and actions.

Facts of the Case (Roy v O’Neill)

In June 2017, a Domestic Violence Order (DVO) was issued against Ms. Roy to protect her partner, Mr. Johnson. The DVO stipulated that Ms. Roy was prohibited from being in Mr. Johnson’s company or at his residence while under the influence of alcohol or other intoxicating substances. On April 6, 2018, as part of “Operation Haven,” a proactive policing initiative targeting domestic violence, Constable Elliott and two other officers visited Mr. Johnson’s unit. Upon arrival, Constable Elliott observed Ms. Roy displaying signs of intoxication and requested that she undergo a breath test, which she consented to and which returned a positive result for alcohol. This led to charges against Ms. Roy for breaching the DVO.

Legal Proceedings

At trial, Ms. Roy challenged the admissibility of the breath test results, arguing that Constable Elliott had trespassed by entering the property without explicit authority, rendering the evidence unlawfully obtained. The trial judge agreed, excluding the breath test evidence on the grounds that the officer lacked the authority to be present on the premises.

The Supreme Court of the Northern Territory (First Appeal) agreed with the trial court. But the Court of Appeal of the Northern Territory (Second Appeal) overturned the decision of the Supreme Court’s ruling, holding that the police had a lawful dual purpose—checking compliance with the DVO and ensuring Mr. Johnson’s welfare.

An appeal was then made to the High Court.

High Court Decision in Roy v O’Neill

The High Court, in a majority decision, sided with the Court of Appeal’s ruling, finding that the police officers had an implied licence to enter the premises.

Chief Justice Kiefel and Justices Keane and Edelman reasoned that the common law permits entry onto private property via an unobstructed path to engage in lawful communication with occupants, such as conducting a welfare check. They determined that Constable Elliott’s initial purpose was to check on Mr. Johnson’s welfare, which fell within the scope of the implied licence. More precisely, the officers’ dual purpose (to ensure compliance with the DVO and to check on Mr. Johnson) was legitimate. Upon observing Ms. Roy’s apparent intoxication, Constable Elliott then had reasonable grounds under section 126(2A) of the Police Administration Act (NT) to remain on the property and request a breath sample.

In contrast, Justices Bell and Gageler dissented. They were of the view that the implied licence did not extend to coercive actions such as requiring a breath test. Since the officers intended to compel Roy to submit to a breath test, they acted beyond the scope of the implied licence and were trespassers.

Conclusion

The appeal was dismissed, confirming that the police lawfully obtained the breath test evidence under the implied licence doctrine, as their entry had a legitimate purpose. The decision reinforced police powers in proactive domestic violence enforcement, allowing them to conduct compliance checks under common law principles.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/45.html

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TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

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TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333

Case Name: TCN Channel Nine Pty Ltd v Anning

Citation: (2002) 54 NSWLR 333
Court: New South Wales Court of Appeal (NSWCA)
Judges: Spigelman CJ, Mason P, and Grove J
Area of Law: Trespass to land, Media Law, Damages
Year of Judgment: 2002

In the case of TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the New South Wales Court of Appeal addressed issues related to trespass, media intrusion, and the awarding of damages.

Facts (TCN Channel Nine Pty Ltd v Anning)

The case involved Anning, who lived in a caravan on his property, where he stored 70,000 second-hand tyres for business purposes. Some of these tyres were sold, while others were used to build a motorbike racetrack. Anning’s property was raided by the Environmental Protection Authority (EPA) due to environmental concerns, but he was not convicted of any offenses.

During the raid, a reporter and camera crew from “A Current Affair” program (operated by Channel Nine) entered Anning’s property and filmed the incident. The footage was later broadcast, leading to a media frenzy.

Legal Issue

Can a media organization be held liable for trespass to land even if no physical damage or personal injury occurs?

Decision in TCN Channel Nine Pty Ltd v Anning

The New South Wales Court of Appeal awarded $50,000 in damages for trespass to land by the media, despite there being no physical damage to property or personal injury. The trial judge’s ruling was upheld.

The media trespassed, regardless of their purpose or lack of physical harm.

Breaking down the Judgment

Anning’s claim for psychiatric injury (anxiety and depression) was rejected due to remoteness. He was instead awarded $25,000 for vindication (to uphold his property rights and recognize the wrong done) and $25,000 in aggravated damages for the humiliation, distress, and affront to dignity caused by the intrusion.

Exemplary damages were denied because the media’s actions, though intrusive, were linked to a genuine public interest, and the crew left when asked.

Implications

TCN Channel Nine Pty Ltd v Anning serves as a significant precedent in media law, illustrating the balance between the rights of property owners and the activities of the press.

It set that media and other powerful entities are not exempt from trespass laws, even when reporting on matters of public interest.

This case underscores the legal boundaries for media entities regarding property rights and the importance of obtaining consent before entering private property for newsgathering purposes. It also highlights that substantial damages can be awarded for trespass, especially when the trespass results in humiliation or distress to the property owner.

References:

https://classic.austlii.edu.au/au/journals/PlaintiffJlAUPLA/2003/65.pdf

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A Case Analysis of Plenty v Dillon [1991]

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A Case Analysis of Plenty v Dillon [1991]

The case, Plenty v Dillon, revolves around whether police officers had the legal right to enter the plaintiff’s farm to serve a summons on his daughter, despite him expressly revoking any implied consent for them to do so.

Case name & citation: Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635

Decided on: 07 March 1991
Court: High Court of Australia
The bench of judges: Mason C.J., Brennan, Toohey, Gaudron and McHugh JJ.
Area of law: Trespass; Revocation of implied licence to enter

Facts of the case (Plenty v Dillon)

Mr. Plenty owned a farm in Napperby, South Australia, and was involved in a legal matter concerning his 14-year-old daughter. In July 1978, a complaint was filed against her under the Juvenile Courts Act 1971-1975 (S.A.), alleging she needed care and control following an offense. A summons for the child to appear before a Juvenile Court was issued and attempted to be served by the police under the Justices Act 1921-1975 (S.A.).

The police first attempted to serve the summons on the child personally on October 6 and then by non-personal service on October 31 by leaving it with her father. The child did not appear in court. Instead of re-serving the summons, the magistrate ordered a fresh summons and issued notices to Mr. and Mrs. Plenty to attend the hearing.

Constables Dillon and Will went to Mr. Plenty’s farm to serve the fresh summons. Mr. Plenty had explicitly revoked any implied consent for police officers to enter his property for serving the summons. Mr. Plenty then sued the officers for trespassing.

Issue

The central legal issue was whether police officers could enter the farm to serve the summons without Mr. Plenty’s consent or any implied license.

Analysis of the principles

The court referred to the principle from Entick v. Carrington (1765), which states that any invasion of private property is a trespass unless justified by law. This principle applies to all, including those acting under the authority of the Crown, such as police officers.

The general rule is that a person who enters premises without the express or implied consent of the occupier is a trespasser. But certain common law and statutory exceptions permit entry without consent. For example, the third rule in Semayne’s Case (1604) allows a sheriff to break into a house to execute the King’s process, like an arrest warrant, but this does not extend to serving a summons.

The court distinguished between coercive process (like an arrest warrant) and non-coercive process (like a summons), emphasizing that serving a summons does not coerce the individual to appear but merely notifies them of the need to appear.

Judgment in Plenty v Dillon

The court found no common law or statutory provision that authorized the police officers to enter Mr. Plenty’s property without his consent (or without any implied licence) to serve the summons. The court concluded that the officers’ entry onto Mr. Plenty’s property was unauthorized and constituted a trespass.

Mr. Plenty was entitled to damages for the trespass. The case was remitted to the Full Court of the Supreme Court of South Australia for the assessment of damages and determination of costs.

Quote from the case

“The common law has a number of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent, express or implied, of the occupier. Thus, a constable or citizen can enter premises for the purpose of making an arrest if a felony has been committed and the felon has been followed to the premises. A constable or citizen can also enter premises to prevent the commission of a felony, and a constable can enter premises to arrest an offender running away from an affray. Moreover, a constable or citizen can enter premises to prevent a murder occurring. In these cases, there is power not only to enter premises but, where necessary, to break into the premises. However, it is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier. See Swales v. Cox (1981) QB 849, at p 853. Furthermore, a constable, holding a warrant to arrest, may enter premises forcibly, if necessary, for the purpose of executing the warrant provided that the constable has first signified “the cause of his coming, and … (made) request to open doors”: Semayne’s Case, at p 91b (p 195 of ER); Burdett v. Abbot (1811) 14 East 1, at pp 158, 162-163 (104 ER 501, at pp 561, 563); Lippl v. Haines (1989) 18 NSWLR 620, at p 631.”

References:

https://jade.io/article/67653

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Revill v Newbery [1996]: A Case Summary

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Revill v Newbery [1996]: A Case Summary

Case name & citation: Revill v Newbery [1996] QB 567; [1996] 1 All ER 291; [1996] 2 WLR 239

Court and jurisdiction: Court of Appeal (Civil Division), England and Wales
Decided on: 02 November 1995
The bench of judges: Neill LJ, Evans LJ, Millett LJ
Area of law: Occupier’s liability; Negligence; Trespass to land; Contributory negligence

What does the case deal with?

Revill v Newbery [1996] deals with issues related to trespass and self-defense. To what extent can force be used to protect one’s property?

Facts of Revill v Newbery

Newbery, a 76-year-old pensioner, was the owner of an allotment shed. There were previous break-ins in his shed so he decided to sleep in it to protect from intruders.

One night, a man named Revill accompanied by Grainger, attempted to break into the shed. With a view to frighten them away, Newbery used his 12-bore shotgun and fired a shot through a hole in the shed’s door. In doing so, he hit Revill and caused him serious injuries.

Criminal proceedings were initiated. Revill admitted he attempted to burgle the shed and was prosecuted accordingly. Newbery was charged with wounding offenses but was subsequently acquitted.

However, Revill brought civil actions against Newbery. He sued him for negligence and breach of duty under the Occupiers’ Liability Act 1984. He sought damages for the injuries suffered as a result of the gunshot fired by Newbery.

Defense of ex turpi causa

Newbery took the defense of the doctrine of ex turpi causa non oritur actio which means that no legal action can be founded on an immoral or illegal act. He claimed that since Revill attempted to burgle his shed, he shouldn’t be allowed to bring an action against him.

In addition, Newbery also contended that even if Revill were allowed to bring an action, his damages should be reduced by two-thirds. He was contributorily negligent for his injuries as he attempted to break-in the shed in the first place.

That is, his own actions were illegal and had contributed to the resultant injuries.

Issue

The main issue in this case was whether Newbery had a duty to prevent harm to trespassers like Revill and whether that duty was breached.

Court’s judgment in Revill v Newbery

In the first instance, the judge ruled in favor of Revill but reduced the amount of damages on account of contributory negligence.

The judge found that Newbery was negligent and that his actions fell below the standard of care that a reasonable person would exercise in similar circumstances. He had used violence in excess of reasonable or justifiable limits.

Newbery appealed.

The Court of Appeal considered the case in connection with s.1(3)(b) of the Occupiers’ Liability Act 1984.

Lord Justice Neill pointed out that Newbery had not just fired a warning shot in the air to frighten the intruders. Instead, he fired a gunshot at a horizontal level where people in the vicinity could easily be hurt.

Even though Newbery couldn’t see who was behind the door, he believed that someone was there and took direct action to injure them.

Further, the defense of ex turpi causa was rejected. Newbery’s liability for negligence should not be absolved merely because Revill himself had engaged in an illegal act (burglary). Under Section 1 of the Occupiers’ Liability Act 1984, an occupier cannot treat a trespasser as an outlaw. This means that an occupier owes a duty to a trespasser to ensure that the trespasser does not suffer injury while on the premises.

Hence, the Court of Appeal dismissed the appeal.

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Kuru v NSW [2008]: A Case Summary

Kuru v NSW [2008] is a tort law case on issues of trespass and false imprisonment.

Case name & citation: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1

The concerned Court: High Court of Australia
Decided on: 12 June 2008
The bench of judges: Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ
Area of law: Trespass to land; False imprisonment; Domestic violence; Trespass to person

Quick Outline

1. On getting a report, police entered a house to check if there was violence.
2. Upon arrival, there were no ongoing arguments.
3. The house owner asked the police to leave, but the police refused. A physical struggle ensued.
4. Held: The police no longer had a legal basis to remain on the property. It was trespassing from the time it was asked to leave.

Facts of Kuru v State of NSW

The incident occurred on 16 June 2001 when six police officers went to Mr. Kuru’s house after receiving a report that a man and a woman were fighting. By the time police arrived, the argument between Kuru and his fiancée had ended and she had left with Kuru’s sister.

When the police entered, two of Kuru’s friends were in the living room and he was in the shower. When he came out, he allowed the police to look around. He said that his fiancée had already left and gave his sister’s telephone number.

Then he asked the police to leave. But the police refused to leave after repeated demands.

Mr. Kuru jumped on the kitchen bench to gain their attention and later moved towards the police with his arms outstretched, making physical contact with an officer.

A physical struggle ensued and Kuru was punched, sprayed with capsicum spray, and handcuffed. He was then taken into custody.

Legal proceedings

Mr. Kuru brought action against the State of NSW in the NSW District Court and claimed damages for trespass to his person and property and false imprisonment. He was awarded damages of $418,265.

The State of NSW appealed to the NSW Court of Appeal. The appeal was allowed. The police were not considered trespassers when Mr. Kuru first made contact with one officer. The police had a statutory right to stay there as they were investigating whether domestic violence was committed.

Kuru appealed to the High Court of Australia.

Judgment of the High Court in Kuru v State of NSW

The High Court allowed the appeal with a 4:1 majority. The main question was whether the police were trespassing at the time of the physical encounter with Mr. Kuru.

The police did not have statutory or common law powers to stay at Kuru’s house. As per Section 357F of the Crimes Act, police were entitled to enter or remain even if the occupier of the house objected provided that the police were invited by a domestic violence victim.

However, in this case, the police were not invited by a domestic violence victim.

In addition, Section 357H provided that police who entered a house by invitation or with a warrant could remain there only as long as needed to investigate whether an offense had been committed, to render aid to an injured person, to make an arrest, to prevent further offenses, etc.

The police, in this case, had already inspected the house and did not need to stay to speak to the fiancée.

After Kuru had asked them to leave, the police were not entitled by Sections 357F or 357H to remain at the house.

Also, the common law recognized that trespass on land could be justified in emergencies, but in this case, there was no danger to life or property, and no emergency situation.

Mr. Kuru’s refusal or withdrawal of permission for the police to enter or remain on the property could not be overridden in this case.

Conclusion

The High Court held that the police officers refused to leave Kuru’s house after he asked them to do so and engaged in a physical struggle with him. They had committed a trespass to his person as well as his property.

References:

High Court of Australia. (n.d.). https://www.hcourt.gov.au/assets/publications/judgment-summaries/2008/hca26-2008-06-12.pdf

Nedim, U. (2020, May 6). Can police enter and leave my property as they please?. Sydney Criminal Lawyers. https://www.sydneycriminallawyers.com.au/blog/can-police-enter-and-leave-my-property-as-they-please/

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A Summary of Halliday v Nevill (1984)

Case name & citation: Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1

The concerned Court: High Court of Australia
Decided on: 06 December 1984
The bench of judges: Gibbs C.J., Mason, Wilson, Brennan and Deane JJ.
Area of law: Trespass to land; Lawfulness of arrest; Access to premises

Facts of Halliday v Nevill

This is an appeal case originating from a decision by Brooking J. of the Supreme Court of Victoria. Brooking J. ordered to review decisions made by a Stipendiary Magistrate of dismissing charges against the appellant.

The charges concern an incident in West Heidelberg when two police officers on a motorized patrol, observed the appellant reversing a car out of a driveway at 375 Liberty Parade. One of the officers knew him to be a disqualified driver. When the appellant saw the police car coming, he drove back into the driveway. The police officers entered the premises at 375 Liberty Parade and arrested the appellant for driving while disqualified from obtaining a license and for driving while he had been drunk. When the appellant was being taken by the police, he suddenly ran away into his own home at number 370. The police officers pursued him into the house and a scuffle ensued. Charges of assault and of resisting the police were also imposed.

Initial decisions

The Magistrate decided that the arrest of the appellant in the driveway of 375 Liberty Parade was not lawful as the police officer arresting him was considered to be a trespasser on those premises. Hence, the Magistrate dismissed the charges against the appellant.

On the other hand, Brooking J. concluded that despite the possibility that the police officer arresting the appellant was a trespasser on the premises at 375 Liberty Parade, the arrest itself was lawful. Further, the act of the appellant breaking away from the police constituted an escape from lawful custody. Brooking J. also found that the entry of the police officers into the appellant’s home at 370 Liberty Parade in pursuit of him was authorized by s.459A of the Crimes Act 1958.

Issue

The appellant’s counsel raised many issues concerning this case. The central issue for the appeal’s outcome depended on whether the police constable was a trespasser when he arrested the appellant in the driveway of 375 Liberty Parade.

Court’s judgment in Halliday v Nevill

Based on available evidence, the majority of the Court concluded that as a matter of law, the police constable had an implied license from the occupier of the premises to be on the driveway.

In this regard, the Court gave the following example:

“The most common instance …… If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with the entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a license in favor of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house.

Such an implied or tacit license can be precluded or at any time revoked by express or implied refusal or withdrawal of it.

The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such license, it should not be implied because subjectively he or she had not intended to give it.”

Conclusion

The Court said that there were no indications that the driveway of 375 Liberty Parade was locked, closed, or had any notice forbidding entry. Therefore, various individuals with legitimate purposes had, as a matter of law, an implied license from the occupier of the premises to access the driveway. Based on common sense and public policy, the Court considered that this license was not only confined to the general public. A member of the police also had an implied license to go to the driveway in the ordinary course of his duty to question or arrest a trespasser or a lawful visitor upon it.

Since there were no indications that the occupier had taken any actions to negate or revoke any implied license, the police officer was deemed to be lawfully on the driveway of 375 Liberty Parade when he arrested the appellant.

Consequently, the appeal was dismissed.

One might note that Justice Brennan dissented from this view and had a different opinion on the matter.

Read the full text of the case: https://jade.io/article/67165

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Lowery v Walker [1911]: A Quick Summary

Lowery v Walker [1911] is a UK tort law case concerning the liability of an occupier to people habitually crossing his land and the occupier’s acquiescence to this.

Given below are the case details:

Case name & citation:	Lowery v Walker [1911] AC 10; [1910] UKHL 1; [1910] UKHL 726
Court and jurisdiction:	House of Lords; England and Wales
Decided on:	9 Nov 1910
Area of law:	Occupier’s liability; Negligence; Trespass to land

Facts of the case

The plaintiff, Lowery, was crossing a field owned by the defendant, Walker. The field had been used by people for many years as a shortcut to a local railway station. This was known to the defendant but had not taken effective steps to prevent people from coming onto the land. While crossing the field, the plaintiff was attacked and stamped by a dangerous horse owned by the defendant. The horse was put to graze in the field without any warning. Additionally, the defendant knew that the horse was dangerous.

The plaintiff sued the defendant for damages for injuries suffered.

It was argued that the plaintiff here was a trespasser and hence, no duty was owed to him.

Issue raised

Was the defendant liable for the injuries suffered by the plaintiff?

Was the plaintiff a trespasser or did he have a right to be on the field?

The decision of the Court in Lowery v Walker

The Court held that the defendant was liable for the plaintiff’s injuries. Although the plaintiff did not have explicit permission to be on the land, an implied license was granted due to repeated trespassing by members of the public and the defendant’s lack of action against it. In other words, a license to be there could be implied.

Though objections were raised, it was found that the defendant had not taken effective steps to prevent people from coming on his land all these years, particularly because some were his customers who bought milk from him. Further, by placing the horse in the field, a risk of danger was created for these known trespassers.

Thus, the defendant was found to be negligent.

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Hackshaw v Shaw [1984]: A Case Summary

Case name & citation: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

The concerned Court: High Court of Australia
Decided on: 11 December 1984
The bench of judges: Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.
Area of law: Negligence; Occupier’s liability; Duty of care; Trespass to land; Contributory negligence

What is the case about?

Hackshaw v Shaw [1984] is a tort law case that revolved around issues of negligence, trespass, and duty of care. It dealt with the question of whether an occupier of property can be held liable for causing an injury, though unknowingly, to a trespasser.

Facts of the case (Hackshaw v Shaw)

The defendant, Shaw, was the owner of a farm located at Korong Vale in Victoria. There was a petrol tank at the farm which was installed for refuelling any motor vehicles used on the farm. On many occasions, it was found that the petrol was stolen at night. Therefore, Shaw decided to lie in wait near the petrol tank to catch the thieves the next time.

One night, Cox, who was driving a stolen car, went to the defendant’s farm. He was accompanied by a sixteen-year-old girl, Hackshaw – the plaintiff. Cox turned off the headlights and began to steal petrol.

Shaw, not knowing that Hackshaw was in the car, fired two warning shots with his rifle at the vehicle. Unfortunately, Hackshaw was hit who was in the front seat of the car.

As a result, Hackshaw sued Shaw seeking compensation for her injuries.

Issues raised

The main issue that laid before the Court, in this case, was whether Shaw could be held liable for the injuries sustained by Hackshaw.

Did Shaw owe a duty of care to Hackshaw despite the fact that she trespassed on his land?

Was there a breach of duty when Shaw fired at the car?

Did Hackshaw contribute to her injuries by trespassing on the land?

Judgment of the Court in Hackshaw v Shaw

The Court decided that Shaw owed a duty of care to Hackshaw to avoid injuring her with his rifle. He should have reasonably foreseen the possibility of a passenger in the car and that firing the rifle at the car was an unreasonable and negligent action.

However, it was also found that since Hackshaw accompanied Cox in entering Shaw’s property without authorization, she had contributed to the injury.

Quotes from the case

Deane J. said as under:

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to him or her. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required.

The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.”

Refer full text of the case here: https://jade.io/article/67169

Conclusion

The given case clarifies that it is possible in legal contexts that an occupier of property can owe a duty of care to a trespasser. This duty arises if it can be established that it was reasonably foreseeable that the trespasser could be injured due to the negligent actions of the occupier.

Therefore, it can be said that in certain circumstances, a duty of care may be owed to individuals who commit the illegal act of trespass. Occupiers/owners may still have a duty to exercise reasonable care to prevent harm to trespassers if it is foreseeable that their actions could cause harm. Nevertheless, the existence and extent of duty shall depend on specific case facts, circumstances, legal standards, and precedents.

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A Quick Summary of Cowell v Rosehill Racecourse Co Ltd [1937]

Cowell v Rosehill Racecourse Co Ltd [1937] is a tort law case from Australia differentiating between contractual rights and property rights.

Case name & citation: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605; [1937] ALR 273

The concerned Court: High Court of Australia
Decided on: 22 April 1937
The bench of judges: (Latham C.J., Starke, Dixon and McTiernan JJ., Evatt J. dissenting)
Area of law: Trespass to land; Assault

What is the case about?

The case is about the revocability of licenses and whether someone buying a ticket for admission to a public entertainment event has a property interest or only a contractual right.

Facts of the case (Cowell v Rosehill Racecourse Co Ltd)

The plaintiff had paid for admission to the defendant’s racecourse but was later asked to leave on account of inappropriate behavior. Upon refusal by him to leave, he was ejected by the defendant’s servants without undue force (i.e., using no more force than was necessary).

The plaintiff filed a lawsuit seeking damages for assault. The defendant’s defense was that they had revoked the plaintiff’s license to be on the land, making him a trespasser and justifying his ejection.

Issue

Whether the plaintiff’s license to be on the racecourse a contractual right or a property one?

Could the defendant rely on the license’s revocation as a defense against the alleged assault?

Judgement of the Court in Cowell v Rosehill Racecourse

The High Court emphasized that the right to see a spectacle is not a proprietary right but a contractual one, and therefore, it cannot make the license irrevocable. It affirmed that a license is generally revocable, whether under seal or not, unless it is a license coupled with a grant of property.

Upholding the decision of the Supreme Court of New South Wales, the Court clarified that purchasing a ticket for admission to a public entertainment event grants the holder a contractual right, not a proprietary right. Further, a license remains revocable at law, even if there is an express contract not to revoke it. Revoking a license exposes the licensor to a breach of contract claim but does not affect the license’s revocability. Despite the breach of contract and the revocation of the license, the licensor is not prevented from using the termination of the license as a defense in a tort action (for example, a claim of assault in this context). The licensor can argue that the revocation of the license justified their actions, such as ejecting the licensee from a property or using reasonable force to expel trespassers.

The Court also concluded that equity would not decree specific performance or grant an unconditional injunction to prevent the revocation of a license in cases like these. It affirmed that the plaintiff had no equitable claim against the revocation of the license and was only entitled to remedies for a breach of contract.

Due to these points, the plaintiff could not be successful.

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