Date: Fri, 5 Dec 2003 07:21:43 –0500

From: David Cheifetz

Subject: Negligent trespass

Lewis,

I can't help with the answer; however, I wonder if there wouldn't be some help? hints? in US tort law because it didn't take the Donoghue v Stevenson route of (trying to bring in) bringing the action on the case torts under one theory - so it has that multitude of nominate torts. I vaguely remember seeing something that might help you as I was putting together my contribution paper. If I kept it the reference - or a hint as to where it was - it'll be in a box of papers I'll look through this weekend. I'm not optimistic, though, that I did. I'm a packrat for tangential references that might be important at some unforeseen future instance. That, though, might have been too remote to keep.

David Cheifetz
Fernandes Hearn LLP

----- Original Message -----
From: "Lewis KLAR"
Sent: Thursday, December 04, 2003 5:17 PM
Subject: ODG: Negligent trespass

Colleagues:

I am writing a brief note on "negligent trespasses" as it applies within Canadian law.

In Winfield and Goodhart's 1933 L.Q.R. classic article on Trespass and Negligence the authors distinguish between the "nominate torts of assault, battery and false imprisonment" and the "residual forms of trespass to the person". The difference between the two categories however is not explained. For example, the old case of Weaver v Ward which involved a firearm discharging and injuring the plaintiff is classified by the authors as a trespass for assault and battery. Underwood v Hewson (1723) however which also involved a firearm discharging and injuring the plaintiff as an example of the residual form of trespass. It appears to me that there is no distinction between the two cases and I would describe both as batteries.

Can anyone explain to me what the distinction between the nominate torts and residual torts is and if anything results from this distinction, especially as it relates to the issue of "negligent trespass"?

I appreciate whatever you can offer.

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