LAWS1003A Lecture Notes - Lecture 3: Supreme Court Of The United Kingdom, False Imprisonment, New Ferry
2 Jul 2018
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TRESPASS: WEEK 2 TORTS.
General Characteristics of Trespass.
Trespass is a family of tort actions, and one of the oldest of actions in the common law. The Law of
Torts refers to cases of crossing other ‘boundaries’- such as the boundary of a person’s body.
1. Trespass is an action based on ‘direct’ harm, not indirect.
Action on the case is used to deal with indirect harm (negligence)- not trespass.
- For trespass, harm must be directly caused by action of defendant.
- ie. Hutchins v Maughan [1947] VLR 131, plaintiff’s dogs harmed by
poisoned bait laid by Maughan. Trespass was not possible, since laying of
baits needed to be followed by another action- it was indirect.
- ie. Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356,
feeding sheep pellets ‘contaminated’ with pig met (made unsuitable to
export to Muslim countries) could not be regarded as a ‘trespass to goods’
as harm was not ‘direct’ enough.
- Question of directness is mainly to do with causation- was it directly caused or
were there intervening events.
- Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 held battery
of a child where a man hit a woman holding a child, who then dropped the
child so that its head hit the floor, the directness was not broken by chain of
events.
2. Trespass is actionable per se, without proof of actual harm.
- There can still be no additional harm in some cases, but there will still be an
entitlement to damages.
3. The burden of proof issue.
- once some crossing of the boundary is proven, the defendant must prove that their
actions were justified.
- plaintiff must show that there has been a voluntary crossing of a relevant
boundary.
- Defendant must show that this was justified.
4. The relevance of intention to Trespass.
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- Not required to show that the defendant intended to do harm, but show that it
was voluntary act (not necessarily that harm was intended, but act itself was
intended).
- Either intention or negligence as to the act constituting the trespass must be
present- held since Stanley v Powell [1896].
Excursus (discussion) on other reasons for choosing ‘trespass’ rather
than ‘negligence’ as an action.
Contributory Negligence:
Whether or not contributory negligence on the part of the plaintiff will operate to reduce
damages in a case of trespass based on negligence. This is a defence for the defendant. It is
not available in an action for intentional trespass. Ie. a person being sued for hitting
someone cannot use this defence saying that they made them angry etc. it is not a defence
for battery.
It might be available, however, in a case of trespass based on negligence ie. Venning v Chin
91974) 10 SASR 299.
Remoteness of damage:
In an action of negligence the rules of “remoteness” limit recovery for unforeseeable
damage, but it can work for battery etc. as all that needs to be shown is a causal connection
to a chain of events leading from the wrong of the defendant to the plaintiff, as exemplified
in Allan v New Mount Sinai Hospital (1980) 109 DLR (3d) 634, in which the claimant had
refused consent to anaesthesia, which was administered despite this (battery); result was a
severe and previously unknown medical condition; the action in negligence failed (as
condition was unforeseeable) but the action in battery succeeded.
Excursus on Intention:
Type of Action Intentional
Action
Negligent Action Non-negligent
Action
Involuntary
Action
Description There is a positive
intention to do
action, which
constitutes a tort-
ie. crossing
boundary.
Action is
committed
carelessly, through
lack of due care.
Action committed
but was
unforeseeable that
it would cause
something.
Defendant’s
involvement of the
action was not
their conscious
choice; their will
was somehow
overpowered.
Example A punch is thrown
intending to hit
plaintiff
Defendant was
waving their arms
about carelessly,
hits plaintiff
The defendant in
the course of
behaving carefully,
bumps plaintiff
with their elbow.
Someone grabs
defendant’s hand
and causes it to hit
the plaintiff against
their will.
These two columns only need a prima
facie case of trespass for the onus to
be on the defendant to show that
neither intention nor negligence was
present.
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5. Burden of Proof in trespass.
In a non-motor accident case, the burden of proof of showing that the action of trespass was
neither negligent nor intentional, rests on the defendant. Once plaintiff has shown there has
been a voluntary action which is a prima facie trespass, then it is up to the defendant to
establish that the action was neither intentional nor negligent.
For example, in Dale V Fox [2012] TASSC 84- plaintiff Dale was suing Fox following an
incident which occurred when Dale, with a group of other heavies, had turned up in a van
intent on doing harm to Fox. Fox waved a shotgun that he produced to deter the group from
getting out of the van. The shotgun eventually discharged and Dale was injured. The judge
ruled that it was hard to treat any of the witnesses who had been called as reliable, and
found that Fox most likely did not intend to press the trigger, hence rejecting Dale’s claim of
battery.
In motor-accident cases, for pragmatic rather than logic reasons, it has been accepted that a
different rule applies in motor accident cases- see Venning v Chin (1974) 10 SASR 299 (FC),
in which Bray CJ highlights that there are different rules for highway accidents, in which in
trespass for injury in motor vehicle accidents, the plaintiff must prove either intention or
negligence on the part of the defendant.
Trespass to the Person: Battery.
Battery is an act that directly and intentionally (or negligently) causes offensive (not necessarily
hostile) physical contact with another person- Slaveski v Victoria [2010] VSC 441.
In Collins v Wilcock [1984] 3 All ER 375, Robert Goff LJ said that “it has long been established that
touching of another person, however slight, may amount in battery… but so widely drawn a principle
must inevitably be subject to exceptions. For example, children may be subjected to reasonable
punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable
force may be used in self-defence or for the prevention of crime. But, apart from these special
instances where the control or constraint is lawful, a broader exception has been created to allow
for the exigencies of everyday life.”
Anger is not necessary, nor is hostility.
Generally accepted that consent is a defence, and must be proved by defendant.
Lawful defence is another defence for the defendant. This was an issue in the ‘Rocky Case’.
SEE RIXON V STAR CITY PTY LTD.
Trespass to the Person: Assault.
Assault is committed, not by actual contact, but when a person is put in apprehension of actual
contact. For example, in the Barton v Armstrong [1969] 2 NSWR 451, the justice claims ‘there is a
tortious assault where the act of a person causes another person reasonably to apprehend a threat
of force of violence.’
There can be:
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Document Summary
Trespass is a family of tort actions, and one of the oldest of actions in the common law. Torts refers to cases of crossing other boundaries"- such as the boundary of a person"s body: trespass is an action based on direct" harm, not indirect. Action on the case is used to deal with indirect harm (negligence)- not trespass. For trespass, harm must be directly caused by action of defendant. Ie. hutchins v maughan [1947] vlr 131, plaintiff"s dogs harmed by poisoned bait laid by maughan. Trespass was not possible, since laying of baits needed to be followed by another action- it was indirect. Question of directness is mainly to do with causation- was it directly caused or were there intervening events. There can still be no additional harm in some cases, but there will still be an entitlement to damages: the burden of proof issue.
