Tort law revision notes on trespass to land and to the person (battery, assault and false imprisonment). Based on lecture notes and textbook reading at the University of Nottingham.
Intentional, direct, actionable per se, no reasonableness requirement
Don’t have to show you’ve suffered any adverse consequences to win a claim
Reynolds v Clarke
If a man throws a log into highway and in that act hits me I may maintain that trespass
because it is an immediate and direct wrong, but if it lies there and I tumble over it and
receive an injury I may bring an action upon the case – negligence.
Difference is direct or indirect harm – trespass or negligence?
Intention
Intended Consequences
Recklessness
A person acts recklessly if he or she foresees the risk of harm resulting from an action, yet
nevertheless decides to take that action
Authority – Pritchard and co-operative group : “‘intentional’ must embrace ‘recklessness’.”
Trespass to Land
Unlawful, direct and immediate interference with land in the possession of another person,
without the right to enter onto the land, amounts to trespass to land
Ability of claimant to sue based on possession of land – don’t have to own it. People other than
the owners of land can be claimants, e.g. if you have a lease you can bring a claim in trespass,
because you possess that land
There must be direct interference with the land
The interference has to be voluntary (Stone v Smith)
if pushed or thrown onto someone’s land, not liable as not voluntary (but the person who
pushed may be liable for trespass)
The defendant need not be aware that they are trespassing
gives rise to possibility of innocent trespass if defendant is mistaken about ownership of
land/ availability of permission (Conway v George Wimpey & Co)
No requirement of damage or harm (=actionable per se [of itself])
Failure to leave
trespass to land is a continuing tort – this means that fresh liability arises as long as the
tortious conduct continues – e.g. Mark puts ladder on Harry’s land, he is liable at that point
in time + will incur further liability if he subsequently refuses to remove ladder upon Harry’s
request
Can be an object – park on neighbour’s land, or your bin on their property etc.
Manifestations of trespass to land (pg 162)
, Physical entry onto land
Remaining on land after permission is revoked
Exceeding the extent of permission granted
Placing or projecting objects onto the land
Examples:
Unauthorised walking on land
Unauthorised entry into buildings
Unauthorised throwing of things onto land (Rigby v Northamptonshire CC)
Unauthorised discharge of sewage into river or stream
Unauthorised entry into airspace above the land (Kelsen v Imperial Tobacco) but the right to
ownership of airspace was limited to a ‘height as is necessary for the ordinary use and
enjoyment of land’ (Bernstein v Skyviews)
Defences
Consent: a person who has permission (express or implied) to enter isn’t a trespasser – e.g.
can enter a shop during opening hours (ensure D hasn’t exceeded the limits of permission if
you are using this defence – e.g. stealing whilst in shop)
Contractual licence: such as payment of an entry fee or purchase of tickets for a sporting
event
Statutory Authority: fire service have statutory authority to enter into anyone’s property in
order to put out a fire – can kick your door down to stop fire and you cannot sue; also police
(Police and Criminal Evidence Act 1984)
Necessity: this justifies trespass in emergency situations to deal with perceived threat – it
doesn’t matter if the threat is real provided the defendant believes it’s real
Trespass to Goods
Unlawful, direct and immediate physical interference with goods amounts to trespass to goods
Examples
I pick up chair and smash it – trespass to goods as its somebody else’s chair I have damaged
Slashing tyres of car
Carving name into desk
Trespass to the Person
Definitions (Collins v Wilcock [1984])
Battery: ‘the actual infliction of unlawful force on another person’
Assault: ‘an act which causes another person to apprehend the infliction of immediate,
unlawful force on his person’
False imprisonment: ‘the unlawful imposition of constraint upon another’s freedom of
movement from a particular place’
Why have trespass torts?
Compensation and Corrective Justice
, Vindication – preventing people taking these steps (not about damages)
Deterrence
Actionability: Actionable per se: Slater v Swann
Reasonableness: irrelevant: Weir
The tort and crime relationship:
Conduct covered by trespass is also a crime
Evidence and proof
Choice of procedure
Civil battery = lots of different crimes
Trespass vs negligence
Can’t sue in trespass when damage was inflicted negligently
Distinction between the two
Intention vs. Negligence
Direct vs. Indirect
No cause of action for trespass where harm was inflicted due to negligence (Letang v Cooper)
Possibly action for negligence where harm was inflicted intentionally or recklessly
Reynolds v Clarke – good example of the difference between trespass and negligence
Negligent Trespass?
Breslin v McKenna
suggests there should be space for people to be held liable for trespass in person even if
done negligently
Fowler v Lanning remains authority for the proposition that trespass may be inflicted
negligently” (para 16(c))
Implications of choice
Why choose trespass or negligence?
Limitation period better for trespass in person initially but could be extended to trespass in
negligence also (A v Hoare)
Pleading – must plead and prove intention (or recklessness) in trespass
Defences – no contributory negligence defence in trespass in person
Battery
‘The actual infliction of unlawful force on another person’
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