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Trespass: a Paramount Tort in an Age Dominated by Negligence

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Trespass is a multi-pronged intentional tort. The theory of intentional tort was initially proposed by Frederick Pollock and Oliver Wendell Holmes in the nineteenth century which eventually got recognized as “prima facie tort doctrine”, which, if summarized in simple words is that if infliction of injury is intentional and is without justification, it is actionable. Modern intentional torts also include newer causes of action, such as intentional infliction of emotional distress, intentional interference with contract, and intentional interference with prospective advantage.

This research paper seeks to argue that while negligence is often regarded as the dominant or overshadowing tort in legal and academic circles, the tort of trespass has stood the test of time. Due to its valuable characteristics and landmark judgments, trespass, in the face of the growing realm of negligence, is still widely used, applicable and appreciated. Firstly, this paper delves into what exactly is entailed under the tort of trespass – to the person, to property and to chattels. It will then define negligence and show how it has developed into a domineering tort by describing the growth of negligence into the realm of trespass. This is shown by detailing the cases of Cusack v Stayt 2000, and Wilson v Horne 1999. Following which, it will be argued that certain characteristics of trespass – its strict definition of intention, the fact that it is ‘actionable per se’, and in terms of burden of proof – have exemplified the validity of the tort of trespass, and its criticalness. Prior to this, it will briefly define trespass, and an overview of its jurisprudence by highlighting its origins and history.

What is Trespass?

“Trespass emerged in the 13th Century with the primary objectives of keeping peace and deterring wrongful interference with honor and dignity. These functions were considered to be so important that the trespass action was actionable per se and prima facie wrongful.” The King’s Court in early England issued the writ of trespass to any litigant who could show that they had sustained a physical contact on their person or property, due to the activity of another. If this litigant could then convince the court that the defendant had intention, they could seek remedy because of trespass, unless the defendant could justify their act. But if the litigant could not establish intent, then, to recover they had to show that they had some actual damage to their person or property.

“Prior to the nineteenth century, tort did not include a category known as intentional tort. A scheme, conceived by Oliver Holmes organized tort law into three categories: causes of action based on intentional conduct, based on negligent conduct, and based on strict liability. This scheme originated the concept of intentional tort.’’ Below, trespass to the person, to property and to chattels is detailed.

Firstly, trespass to the person requires direct interference with a body or liberty. Secondly, for an action to constitute trespass to the person, intention must be proved. The defended must have acted to cause harm. Broadly, trespass to the person can be divided into battery, assault and false imprisonment. Battery is committed through an act in which direct and hostile contact is established with another. This contact is not consented to by the claimant. Battery becomes clear in Fagan v Metropolitan Police Commissioner 1969. Assault, however, does not require physical contact between the claimant and defendant. “An assault is an attempt… with violence to do a corporal hurt to another, as if one lifts up his fist in a threatening manner… within striking distance”. The essence is the conduct of the defendant, which causes the claimant to apprehend the use of force. Stephens v Myers 1830 is a primary example. Thirdly, false imprisonment entails the inhibition of freedom of movement of one person by another. The detention is wilful, without consent, and unlawful.

Similarly, trespass to land is the entering into another’s private property without consent, while they have possession. The trespasser will be liable even if he has not caused damage. The interference has to be direct. The right to sue is only with the person having exclusive possession of the property. The following conditions have to be satisfied to bring action against the trespasser: Firstly, there has to be unjustifiable contact with the property of the plaintiff and secondly, the cause of the damage must be intentional. In the case of Jones v. Llanrwst UDC [1911], sewage accidentally escaped and polluted the banks of the river flowing downstream causing damage to the field of the plaintiff. The Hon’ble court held it as trespass and is of the opinion that such interference amounts to direct due to the natural flow of river. An action which deals with unauthorized, direct physical interference with personal property or goods belonging to another, is the tort of trespass to goods or trespass to chattels. For example, removing a tyre from a motor car. Trespass to chattels is also actionable per se – without any proof of actual damage. It is essentially an injury to the right of possession and not to that of ownership. It is actionable only at the suit of a person who is in possession of the property at the time of the act committed.

To prove trespass to chattels, following elements are required. There has to be intent, along with the lack of owner’s consent; the person interfered with or dispossessed the chattel without permission. Moreover, there can be an ‘interference’ of chattels; A person commits a trespass to chattel by either dispossessing another of the chattel, using or intermeddling with a chattel in the possession of another, or finally, damaging the chattel. This is made clear in the case of Vincent v. Lake Erie (1910), where the plaintiff sued the defendant, for damages done to plaintiff’s dock.

Considering trespass has been carefully elucidated, this paper will now go on to detail how the definition and growth of negligence into the realm of trespass. The Dominance of Negligence Traditionally, the act of negligence in Tort Law has been largely based on a conduct which is careless rather than deliberate. Definitions focus on the breach of duty of care factor, and a lack of being able to conform to the standard of a reasonable person. The act of negligence, therefore, does not meet the requirements of trespass on its definition: a failure to comply to a degree of care which would be followed by a reasonable person to avoid foreseeable harm. The idea of negligence as the dominant tort is widely accepted in the academic community -‘negligence is certainly the dominant concept in law today’. Fleming James argues that this is largely due to two reasons: firstly, it is a kind of fault which forms a basis for tort liability within a system which focuses on the fact that liability must be focused on a fault, and secondly, negligence is a rather elaborate set of concepts based on broad ideas such as reasonableness. Negligence ‘relies on a fact-sensitive risk-utility standard of reasonableness’. There are other factors which contribute to this expansion that are case specific. In Wilson v Horne 1999, explored below, it was the Limitations Act[footnoteRef:28] that prompted the plaintiff to pursue negligence. Therefore, the rise of negligence, it is argued, has been an ongoing trend.

While negligence began as cause of action for indirect injuries, it expanded into the area of direct injuries in 1833, as long as the defendant’s conduct was unintentional. However, negligence slowly began to erode that boundary, and recently it has branched into intentional negligence. This development has been openly recognized by Australian Courts. The development of intentional wrongs shows an overlap of negligence and trespass, as our definition of trespass is contingent on being ‘intentional’. As Lord Denning argued ‘If he does not inflict injury intentionally, the plaintiff has no cause of action… in trespass. His only cause of action is negligence’. However, this definition comes into question with the rise of intentional negligence, an interrelation which highlights the expansion of negligence in tort law.

In Cussack v Stayt 2000, during a drunken altercation between Sarah Stayt and her boyfriend (Cusack), Stayt attempted to get away in a car. Cusack smashed the rear window, upon which Stayt lost control of the car and hit a wall. She then drove forward, toward Cusack, while he yelled abuses at her. Cusack failed to get out of the way, causing a collision. Following which, Cusack taunted Stayt by provoking her to hit him with the car. She then drove the car at him and caused him a severe injury. Cusack sued Stayt for negligence. It was found that the act was certainly intentional, following abuses and assault by the plaintiff. This is in tune with our definition of trespass, as it is focused on intent. However, the court eventually upheld the decision of the trial judge which believed there was a breach of duty of care. Heydon JA clearly accepted that a battery had taken place, however, no party questioned the fact that negligence had been argued. ‘What is of interest… is the fact that all parties automatically assumed that this intentional conduct… by the defendant gave rise to action in negligence.’Similarly, in Wilson v Horne 1999, the plaintiff sued her uncle in 1996 for sexual abuse from 1973-1980. In 1994, the repressed memories of the abuse returned to her mind as her sister had encouraged her to go to counseling. Once the memories returned, the plaintiff began to suffer from Post-Traumatic Stress Disorder. ‘The endorsement on the writ alleged negligence, assault, battery and breach of duty’ – assault and battery both fall under trespass to the person.

However, ‘the statement of claim confined the claim to negligence’. The judge agreed that the circumstances of the plaintiff fit more than one category of tort, and even be ‘more appropriately described as trespass rather than negligence’. However, this fact, the court argues, does not inhibit the court from entertaining an action in negligence and grant remedy. This could be due to numerous reasons, such as the fact that the Limitations Act 1974 imposes a six year limitation period in cases of trespass. The last act of sexual assault on the defendant was in 1980, and the case was argued in 1999. The overlap and infiltration of negligence into the realm of trespass is clear in the above cases. The judge is quite literally applying negligence in place of trespass due to logistical limitations.

While there are several judgments that argue along similar lines – blurring the distinction between negligence and trespass, and often using them as one in place of another, it would be wrong to argue that negligence has made trespass any less valid in tort law. That it is argued that negligence is the paramount tort, indicates that important aspects of trespass are ignored or altogether forgotten in legal and academic circles. Certainly, there are aspects of trespass that make it not only essential in tort law, but rigidly different and unique from negligence.

The Value of Trespass

Firstly, one cannot deny the importance of the air-tight definition given to trespass regarding ‘intention’. Prior to 1965, trespass could be committed negligently, as in the case of Fowler v Lanning 1959, where Diplock J equated the burden of proof in cases of ‘unintentional trespass’ with those in negligence. However, as aforementioned, Lord Denning in the landmark case of Letang v Cooper 1965proposed that a clear line be drawn between trespass and negligence. He put forth the argument that if someone directly and intentionally causes harm to another, the plaintiff can raise trespass, however ‘if he does… inflict injury only unintentionally, the claimant has no cause of action in trespass. His only course is in negligence’. He declared that an unintentional trespass is of absolutely no practical value. Lord Denning is stressing that the operative word behind trespass to the person is intention and without intention, it appears almost impossible to prove. Thus, this stresses the point that an act of negligence is insufficient in certain cases, as it lacks intent and is not deliberate.

The courts of England and Wales have used the decisive judgment of Letang v Cooper 1965abundantly over the years. The usefulness and importance of ‘intention’ can be seen in numerous cases. For example, the distinction between an intentional act and a negligent act is evident in Fagan v Metropolitan Police Commissioner 1969. Initially, the defendant accidently drove his car over the claimant’s foot which was a negligent act, as it was unintentional, for which he would be liable under negligence. However, once the defendant had knowledge of the car’s position on the policeman’s foot and refused to move the car, the defendant had committed a battery. This was because he intentionally did not move the vehicle from the policeman’s foot. Therefore, this case elucidates the importance and centrality of the tort of trespass, as the claim of negligence was simply inadequate.

While the Australian courts would negate the importance of intention discussed previously, the criticality of trespass being ‘actionable per se’ cannot be rendered futile – as Handford argues, that is when trespass truly ‘comes into its own’. Damage is not a necessary element of trespass, whereas in negligence, it is the plaintiff who has to prove damage. Therefore, there are numerous cases of tortious wrong in which there may not be any damage, but the plaintiff has been wronged. In these cases, negligence will prove to be insufficient. For example, in the case of Stephen v Myers 1830, the plaintiff, Stephen, was chairing a meeting which the defendant was part of. The plaintiff asked the defendant to leave, to which he responded by saying he would rather throw a chair than leave the room. Advancing towards the plaintiff with a clenched fist, following which, the defendant was accused of assault. Despite there being no injury to the defendant, it is merely the intention behind the action which is required, along with a reasonable fear of immediate and direct harm. Evidently, there is a greater liberty and flexibility with regard to damages under trespass. Trespass acknowledges that there are wrongs, such as inconvenience, loss of time, and emotional distress and that these wrongs have a place within the law. There are substantial damages for wrongs that do not entail a material loss in trespass, versus in negligence, which is inadequate in cases which include such non-material damage.

Furthermore, the defenses under negligence are numerous – contributory negligence, volenti non fit injuria etc. This inconvenience is in addition to the fact that the burden of proof in cases of negligence lies upon the plaintiff. These inconveniences arguably cause multiple obstructions in the way of the plaintiff’s relief. In the view of the plaintiff, this obstruction to his or her justice is can be circumvented when they file for trespass. Firstly, defenses in trespass are limited. Secondly, authorities maintain that the onus of proof lies with the defendant. This is the primary advantage for those seeking relief, ‘the burden for disproving fault lies with the defendant’. Therefore, trespass helps protect the rights of the plaintiff.

Therefore, while it is argued that negligence is the tort of the day, this paper has proven that there are innumerable aspects of trespass which make it critical to the fairness of tort law. In short, trespass offers the individual an area in which he or she is able to protect agency far more than in cases of negligence. Often, negligence is rendered insufficient, and the tort of trespass is availed for the restoration of justice. It makes sure that no tortfeasor walks freely at the expense of the aggrieved party. Most importantly, it maintains a balance between the various facets in the tort law system.

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