LAWS1012 Lecture Notes - Lecture 2: Firecracker, Eaves, 6 Years

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2| Historical Background
I: Trespass and Action on the Case the historical distinction through
cases
Modern tort law has been developed through medieval forms of action of:
(a) Trespass vi et armis
(b) Trespass on the case: action on the case, case or action of trespass on the case
Distinctions:
1. Direct and immediate acts + Intentional fault = Trespass
2. Direct and immediate acts + reckless/negligent fault = Trespass OR action on the case
3. Indirect and consequential acts = Action on the case
Establishment of which form of action to take:
1. Need to establish whether the act is direct or consequential
Direct acts are those that immediately cause injury
Consequential act is upon the part of the defendant and then subsequently an injury
occurs as a result of that act
2. Need to establish the type of fault
3. When established: In trespass, forcible direct interference means you do not need to show proof
of damage. In action on the case, indirect damage is the gist of the action and must be established
in every case
a) Direct and indirect injury
o Reynolds v Clarke (1725)
The facts: The plaintiff suffered for damage to the walls of his house, caused by water
flowing from the erected eaves on the defendants house
The action: the plaintiff sued in trespass
One of the first cases where the court rejected the suit on the ground that the action
should have been case
Fortescue J:
Trespass held for immediate wrongs, case for those which caused harm
consequentially
Cited log example where a man throws a log into the highway: if it hits a person
on the highway, trespass will be the appropriate form of action. However, if
someone tumbles over the log as it lies there, he must bring an action on the
case
o Scott v Shepherd (1773)
The facts: The defendant, Shepherd, threw a lit squib (firecracker) into a crowded
marketplace and onto Williss stand. Willis, to protect himself, threw the firecracker
away into Ryals stand, who then threw it to another area of the market where it landed
in the plaintiffs face and he lost sight in one eye.
The action: The plaintiff sued in trespass
The Court agreed on the distinction between trespass and action, though it was
questionable as to whether trespass was maintainable upon the facts
Blackstone J (dissenting):
The question will be whether the injury which the plaintiff suffered was
immediate or consequential
Believes Scott is not answerable in an action of trespass since there were two
new variables to which both gave a new motion to the firecracker, as free
agents
Believes Ryal, the immediate actor in throwing the firecracker onto the plaintiff,
should be liable in trespass
De Grey CJ:
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Every one who does an unlawful act is considered as the doer of all that follows
All that happened following the throwing of the firecracker was done
subsequent of the original and first act
Any person throwing away the firecracker did so in self-defence and was not as
free as Blackstone emphasised. They acted under compulsive necessity
o Hutchins v Maughan (1947)
This case, upon using the distinction between trespass and case, determines that interference with
the plaintiff is only direct when it is so immediate following the defendant’s act that it is deemed
also to be a part of that act
The facts: The complainant was told by the defendant that there were some poisonous
baits laid down on some land. The complainant later rode to that area with his two
sheepdogs. The dogs picked up the baits and died
The action: The plaintiff sued in trespass. Previously, the police magistrate had awarded
the complainant damages, though the court now reviewed the decision
Herring CJ:
The basis of the defendants contention was that the injury suffered by the
complainant in the present case was not occssioned by but was merely
consequential upon the defendants act complained of laying the baits and so
was not a trespass
The baits were laid by the defendant before the dogs had entered the land
…had he not chosen to come into the vicinity and bring his dogs with him he
would have suffered no injury from the defendants act
Before he could suffer an injury, he had himself to intervene by coming to the
land ad bringing his dogs thereon
Had the baits been thrown by the defendant to the complainants dogs then no
doubt the injury could properly have been regarded as directly occasioned by
the act of the defendant
o Southport Corp v Esso Petroleum Co (1954)
Defendants tanker became stranded in a river
Oil was thrown over the tanker and carried by tide to the shore of the plaintiff
Injury was consequential
Action on the case
b) The rule in Williams v Holland
The issue of directness was no longer the issue: rather, the delineation between negligence and intention
as fault elements…
o Williams v Holland (1833)
Where the plaintiff is injured by the defendant’s direct or immediate act, they may bring an action
on the case if the defendant’s act was negligent, However, where the defendant’s act is both direct
and intentional, the only cause of action available to the plaintiff is trespass.
The facts: Holland had lost control of his horse and carriage as a result of his careless
and reckless driving. His carriage had collided with Williams vehicle which contained
his son and daughter. Damage was sustained to the vehicle and his children were thrown
from the vehicle and were seriously damaged
The action: The plaintiff brought an action on the case
Tindal CJ:
…Upon examining the cases cited in argument, both in support of, and in
answer to, the objection, we cannot find one in which it is distinctly held, that
the present form of action is not maintainable under the circumstances of this
case
Leane v Bray: Form of action was trespass. Only rule established was that an
action of trespass might be maintained, not that an action on the case could not
Where the injury is occasioned by the carelessness and negligence of the
defendant, although it be occasioned by his immediate act, the Plaintiff may, if
he thinks proper, make the negligence of the Defendant on the ground of his
action and declare it in case
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Document Summary

I: trespass and action on the case the historical distinction through cases. Modern tort law has been developed through medieval forms of action of: (a) trespass vi et armis (b) trespass on the case: (cid:494)action on the case,(cid:495) (cid:494)case(cid:495) or (cid:494)action of trespass on the case(cid:495) Distinctions: direct and immediate acts + intentional fault = trespass, direct and immediate acts + reckless/negligent fault = trespass or action on the case. Indirect and consequential acts = action on the case. Establishment of which form of action to take: need to establish whether the act is direct or consequential. Direct acts are those that immediately cause injury. Trespass held for immediate wrongs, case for those which caused harm consequentially. Cited log example where a man throws a log into the highway: if it hits a person on the highway, trespass will be the appropriate form of action. Believes scott is not answerable in an action of trespass since there were two.

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