Date: Fri, 24 Feb 2006 20:21:56 +1100

From: Neil Foster

Subject: Can Trespass to land be committed without fault (other than in Canada)?

Dear Colleagues;

First, thank you very much for the speedy and thought-provoking responses! I have already incorporated some of the material into a lecture on Trespass to be delivered to my Torts class next week!

Professor Wright's response made me think very carefully. What it seemed to tell me was that not only did I not have a full grip on the area of trespass to land, but I wasn't really sure whether I properly understood Stanley v Powell. In Stanley the defendant loosed off a shot-gun and what the jury was taken to have decided was that a pellet ricocheted off an oak branch and hit the plaintiff, an employee standing off to one side to pick up the deceased game. It had to be assumed that the shot was not careless (ie the defendant could not have foreseen his shot would so rebound), nor of course intentional. However, there is no doubt that it was voluntary and causally related to the plaintiff's injury- the defendant pulled the trigger, the shot left the gun, no conscious force intervened before it hit the plaintiff. The defendant was found not liable. The judgement of Denman J there seems to adopt (at p 93) the proposition put forward by Bramwell B in Holmes v Mather (1875) LR 10 Ex 261 that for a trespass to be wrongful it must be "either as being wilful or as being the result of negligence".

Does the explanation lie in the precise nature of what the defendant intends? That is, if the defendant intends to cause contact with a person in front of them, there will be liability even if through no carelessness of the defendant the person does not consent. (Eg a colleague suggested to me a surgeon who operates on a patient believing that the patient has consented because he has been told so by a normally trustworthy colleague.) In that case a rule of "strict" liability will operate (in much the same way as a rule of strict liability for vicarious behaviour of employees?) as a very strong incentive to get your information right - in other words, don't only "believe" that someone is consenting before touching them, you must "know". So with the stranger whom you slap on the back (although here I must say there would be few of these cases where some sort of carelessness could not be proved.)

When I first read Prof Wright's message I thought he was referring to the "leg" of the table (an inanimate object). When I re-read it I see he means another person's leg. But take my misreading: what of slapping what you think is a chair leg that turns out to be someone else's leg? Here the defendant does not even intend to touch a person (much as you may say that the defendant shooter in Stanley v Powell had no intention to cause contact with a human being).

Of course Stanley may be wrong, but it seems to have been accepted as correct in the area of trespass to the person for many years. For Australia see the careful and highly regarded judgement of Bray CJ in Venning v Chin (1974) 10 SASR 299, esp at 310: "I take it that there is no liability in trespass for the use of force against the person which is neither intentional nor negligent". The judgement of Windeyer J at first instance in the High Court of Australia in McHale v Watson (1964) 111 CLR 384 is also highly regarded: "the plaintiff could not succeed in trespass if what the defendant Barry Watson did was done without intent that the thing he threw should hit her and without negligence on his part".

So, as others have said, it seems that we need to consider the nature of the interest protected by the particular form of trespass. Does this represent a fair schema?

(1) Trespass to the person: the interest protected in battery is bodily integrity, in the sense of the interest not to be touched. If D intends to touch P's person, then D will be liable even if honestly mistaken about some fact that would excuse the touching. But if D does some action which does not involve intention to touch (someone's?) person, then D is not liable in the absence of fault. (This will allow for Stanley).

(2) Trespass to land: the interest protected is "geographical" integrity: the right not to have any part of my land touched or occupied by someone else. If D intends to enter the geographical space which constitutes my land, then D will be liable even if honestly mistaken about, say, the line of the boundary or the legal ownership of the land. Are there cases like Stanley where D does some action which leads to an invasion of my space but had no intention of actually entering that space? It seems more difficult to come up with an answer here. For trespass to the person there are a number of objects in the universe I could be intending to touch, only some of which are persons. But for trespass to land whenever I move, I intend to enter some geographical space.

(3) Presumably the analysis can be extended to trespass to chattels: the interest protected being the right not to have my chattel touched by someone else (I can't at the moment think of an adjective to describe that sort of "integrity"!) [I will ignore for the moment the debate about whether trespass to chattels is actionable per se - I think there are good arguments to say it should be.] If D intends to touch a chattel which is in fact mine, then even if mistaken about the ownership of the chattel D is liable. But if D did not even know that a chattel existed, intending simply to dig up the ground, then there will be no liability unless it was careless not to check first (my take on National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.) This fits in with the accepted doctrine of strict liability in conversion, etc. Perhaps one could argue that if D intended to throw a punch at me, but hit my chattel instead, then he ought not to be liable for trespass to chattels!

I dare say this is all basic stuff for most here. But it has helped me to think through some useful issues.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> "Wright, Richard" 23/02/06 2:06 >>>

An old, but well known, United States case is Maye v. Yappen, 23 Cal. 306 (1863), in which both defendants and plaintiffs were initially unaware of the true location of the boundary line between their adjoining mining claim properties, and one of the plaintiffs assured the defendants that they were still 40 to 50 feet away from the boundary. The defendants tunneled only 25 more feet, then had a survey done, which disclosed that they had crossed the boundary into plaintiffs' property. Held: trespass, regardless of reasonableness of mistake; no consent; no estoppel.

The statement in Stanley v Powell [1891] 1 QB 86, that you need to show either negligence or actual intention for trespass to the person to be made out, applies also for trespass to land, but is not contrary to liability in these types of cases. For person or land, the required intent is simply the intent to make physical contact with the body actually contacted or to enter onto the land actually entered. A mistake regarding ownership or consent, no matter how reasonable, is not a defense (unless it was deliberately or negligently caused by the defendant). If I slap a stranger on the back, mistakenly thinking it is a friend who agrees to such touching, it is a battery. If I slap at a fly on a leg under the table, mistakenly thinking it is my leg, I have committed a battery, no matter how reasonable my mistake. The same for land.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>