The respondent, Bird built a boundary wall and fence that trespassed upon land belonging to his neighbour, the appellant Horsford. Horsford applied to the court for an injunction to remove the offending boundary wall and fence but his application was refused. Instead, the trial judge ordered Bird to pay Horsford substantial damages including an unspecified amount for aggravated damages for a "total disregard" of Horsford's rights. Bird appealed against the level of damages. The Court of Appeal agreed with Bird and said that there was no case for aggravated damages. The Court therefore reduced the damages payable to Horsford to some 20% of the original sum awarded by the trial judge. Horsford appealed to the Privy Council, asking it to restore the original sum of damages awarded by the trial judge.

What was the proper measure of damages payable by Bird to Horsford for trespass?

Reference

Their Lordships considered that this was not an appropriate case for awarding aggravated damages, as Bird had not acted in a "high-handed, insulting or oppressive" way towards Horsford.

However, their Lordships did consider that the Court of Appeal had made a mistake in the way they valued the land as it had failed to take into account the way in which the encroached upon piece of land had enhanced the amenities of Bird's new house. Additionally, their Lordships considered that the damages awarded should reflect the fact that Bird had enjoyed exclusive use and benefit of the encroached upon piece of land ever since the wall and fence had been built. Their Lordships therefore increased the level of damages payable by Bird to Horsford to about 60% of the original damages ordered by the trial judge.

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*Full case details
Judgment of the Lords of the Judicial Committee of the Privy Council, Judgment Delivered by Lord Scott of Foscote.

Postscript

The basic measure of damages for trespass is the loss caused by the wrong and, as this case shows, includes looking not only at the reduction in the value of the innocent party's land but also the benefit gained by the wrong-doer. This case began its life as a simple boundary dispute and wound its way through the various courts to the Privy Council. It therefore underlies the importance of defining land boundaries before a building contract is entered into and well before building works begin.