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Slide 4 of 39
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To maintain an action in trespass there must be direct interference with land belonging to another (i.e. there must be direct damage to the land). The action is therefore only available to an owner/occupier of land.
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There must also be a direct deposit of the pollutant onto the land. Again this a limiting factor as many water pollutants do not directly affect the foreshore. For example, as a result of a pollution incident all marine life could be destroyed but there would be no action in trespass unless there was damage to the foreshore and even then the owner of the foreshore could only recover for the damage to the foreshore.
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There is a defence of Necessity to an action for trespass but it is rarely allowed.
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Trespass is actionable per se. The means that the mere act of trespass is actionable. The claimant is not required to prove anything but the act of trespass.
