AUSTRALIAN PRINCIPLES OF TORT LAW
The plaintiff bears the burden to prove the facts which constitute the
trespass but not the fault of the defendant. The onus is on the defendant to prove
lack of fault.
The historical differences between trespass and case are clearly referable to the
type of interest each aims to protect. Trespass protects a plaintiff from direct
interference; case protects a plaintiff from indirect interference. As Fortescue CJ
Reynolds v Clarke
(1725) 1 Str 634 explains:
[T]he difference between trespass and case is, that in trespass the plaintiff
complains of an immediate wrong, and in case, of a wrong that is the conse-
quence of another act.
The classic illustration of the difference between a trespass (direct interference)
and case (indirect interference) is found in the following passage from the judg-
ment of Fortescue CJ in
Reynolds v Clarke
(1725) 1 Str 634:
[I]f a man throws a log into the highway, and in that act it hits me; I may
maintain trespass, because it is an immediate wrong; but if as it lies there I
tumble over it, and receive an injury I must bring an action upon the case.
From this example, it is clear that intentionally throwing a log and hitting
someone is a trespass, a direct interference by one individual against another's
person which is accorded importance by the law. This is reflected in the fact that
initially the writ of trespass attracted both criminal and civil sanction. A legal
remedy exists for trespass independently of damage as the tort is itself the wrong.
In terms of policy, the law of trespass aims to prevent people from intentionally
interfering with others. On the other hand, actions on the case are based on
indirect interference and it is the damage which the law aims to compensate. In
Fortescue CJ's example, anyone could have tripped over the log left on the road.
For plaintiffs to recover for indirect interference, they must prove damage and
prove that their damage is a consequence of the defendant's action.
2.3 Elements of the Torts Derived from the Action for Trespass
The trespass torts comprise Trespass to Person (being Battery, Assault and False
Imprisonment), Trespass to Land and Trespass to Goods. All these trespass torts
have certain common elements which must be proved. The elements are that the
defendant's intentional (or reckless or negligent)
act directly caused an interfer-
ence with the plaintiff's person, goods or land.
Intentional, reckless or negligent act: fault
There is an old line of English authority that suggests that trespass to person,
at least, was a tort of strict liability though today it is settled that fault is the
basis of liability in trespass. In
Leame v Bray
(1803) 3 East 593, 600; 102 ER 724
Grose J held:
In Australia in a trespass action arising out of a highway accident the onus of proof of fault
is on the plaintiff. See discussion at [2.3.4].
See below for a discussion of the divergence between Australian and English authorities
on the sufficiency of a negligent act to ground an action in trespass.
Stewart, Pam, and Anita Stuhmcke. Australian Principles of Tort Law, Federation Press, 2021. ProQuest Ebook Central,
Created from uts on 2023-08-07 09:26:22.
Copyright © 2021. Federation Press. All rights reserved.