Date: Tue, 28 Feb 2006 07:24:08

From: Robert Stevens

Subject: Innocent intentional trespass

"Wright, Richard" writes:

Thanks, Lewis, for your message and for the Ranson v. Kitner citation. Phil Lister wrote to me that he remembers a British case from his law school days (1967), then just a few years old: Cooper vs Letang.

Letang v Cooper [1965] 1 QB 232. It is here - usually read as killing off 'negligent trespass' in England.

In a separate message to me, Robert Stevens argues (continuing, as he notes, a prior debate between us on proximate cause, remoteness, extent of responsibility):

"In running over the box, you are asserting a liberty with respect to the (property) right to the box. The child's right to bodily safety is another right altogether. The driver didn't by his actions intend to assert a liberty with respect to the child's bodily safety, although the reasonable person would know that there is a slight risk of someone being inside."

It seems to me that the driver is asserting a liberty with respect to not only the box but the contents of the box, whatever they might be.

The difference is between foresight and intent. If I back my car out of my driveway I can foresee that there is a (slight) risk of running over my neighbour's dog. If I do so, I cannot be liable in trespass because I do not intend to exercise a liberty to crush the canine. Only liability for negligence is possible.

Similarly, when I run over the box, I do intend to exercise a liberty to destroy it and so will be liable to the owner for trespass. However, although I can foresee the (slight) risk of there being a child in the box I do not intend to exercise any liberty with respect to the child's bodily safety, any more than I did with the pooch.

Robert Stevens
Barrister
University of Oxford

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