Because negligent trespass is a hybrid of the torts of negligence and trespass confusion arises from which particular rules apply and in which circumstances they are applicable. Further confusion has emanated from the development of modern case law on the subject. In an attempt to understand this area I hope to identify such hybrid characteristics and demonstrate how negligent trespass overlapped the present torts of negligence and trespass. Finally I hope to determine whether there is any merit in maintaining negligent trespass as a form of action.
To understand this concept it is necessary to determine why and what the differences are within trespass itself. Why aren't assaults, batteries and false imprisonments dealt with under the one tort of trespass? (If only life were that simple). Originally this was the case with such actions being brought under the ancient writ of trespass vi et amis. Where the invasion was unintentional or indirect the claimant would request the court look at the facts of the case outwith the context of 'by force of arms'. This practice developed further and the courts began to recognise that trespass to the person was more complex in nature.
As far back as 16171 the court is enquiring whether acts have been negligent. Unfortunately change was slow, as evidenced in Scott v. Shepherd2, where the majority were satisfied to consider whether the defendant's act was simply lawful or unlawful. Notably in this case Blackstone J (dissenting) preferred to look at whether the defendant's act was direct or indirect. Was this rationale the beginnings of a change? It is unclear where or when the tort of trespass began to split the classification of the invasion to the person, but it did inevitably happen.
The position was that where there was a direct invasion the action lay in trespass and where the invasion was an indirect or consequential invasion the action lay in trespass on the case. Such an approach although a positive step on from Scott was perhaps still somewhat unjust in that liability was based on evidence of an invasion alone, the focus was on the act, rather than being a subjective test of the defendant's intentions. During the 19th century the courts moved away from focusing on the act itself and began to look to the defendant's state of mind; intentional or negligent. The case of Stanley v.
Powell3 demonstrates such a shift in focus. Fowler4 took this point further, Diplock J holding that a claimant must identify as a cause of action whether the wrong was committed intentionally or negligently. However, the real sea-change came in Letang5 where Lord Denning concluded that if the defendant's act was intentional then the action lay in trespass, but if his act was unintentional then the action lay in negligence. In our analysis of trespass, it is useful to consider how the tort of negligence developed. Prior to 1932 the tort of negligence was very different to the tort of negligence today.
Jones6 suggests 'there was no generalised duty of care in negligence. The tort was applied to damages caused in very particular circumstances where the courts had decided that a duty should be owed, e. g. , road accidents, bailment's and chattels regarded as dangerous per se. ' This perhaps gives us a greater understanding of how or more relevantly why negligent trespass (on the case) developed as it did – because the tort of negligence didn't fill the gap. Prior to 1932 a duty was recognised7 but only where the consumption of the product was immediate and by the purchaser8. Come 1932 Mr Stevenson and Mrs.
Donoghue9crossed paths and negligence was reborn. In this case Lord Atkin went much further developing liability based on a duty of failing to guard against foreseeable risks, the scope was across the board rather than just applicable to manufacturers. In theory this could be said to have plugged the gap. Returning to Letang in the light of such developments might we say that Lord Denning was following a natural course of progression? Stanley emphasised that the courts could look to the defendant's mind (intentional or negligent). If negligent then there would be a requirement of proof of damage10, whereas trespass is actionable per se.
Fowler adds the burden of proof to the equation. In this case it was emphasised that where a trespass was unintentional or negligent then the burden of proof will lie with the claimant11 (as is the case in negligence), whereas for intentional trespass once the claimant has proved the injury caused by the defendant then the burden of proof moves to the defendant. Taking such changes into consideration one might say that prima facie unintentional trespass was going through a metamorphosis. Comparing these characteristics one might conclude that it was beginning more and more to resemble the tort of negligence.
Was it the natural progression to continue to fracture or had it reached a satisfactory stage whereby it offered a useful bridge or overlap between the two torts? Lord Denning didn't appear to think so. In what we might say was the final stage of the transformation, Lord Denning in Letang closed the chapter on negligent trespass, (or so it would be held due to the lack of authority since this case). It is submitted that Lord Denning may have been continuing the natural progression, for it is recognised that post Donoghue the tort of negligence had "driven the action for trespass for personal injuries into the shade.
"12 However there is always the possibility that he was simply denying the claimant the possibility to 'manipulate the cause of action and thus benefit from a more advantageous limitation period by calling it trespass'13 we can but assume. Considering negligent trespass as a concept; if we take each word individually in its own context then there is clarity, but combining them we introduce their substantive meanings and functions into the general meaning and confusion follows. Take negligence; within the core meaning of this tort we associate with a duty of care.
Yet when we analyse any of the reported cases of trespass to the person they refer to intentional and unintentional acts by the defendant (no mention of a duty). If the term negligent trespass is to be taken in the literal sense then in theory we should, where an act is unintentional, be requiring some evidence that a duty is owed. The writer submits that evidence of such a requirement in cases of trespass to the person is nowhere to be found. On this basis are we to assume that the use of the word 'negligent' in the term negligent trespass is not the same as the use of the word when relating to the tort of negligence?
Is the use of the word negligent, in the context of trespass representing a milder meaning, perhaps that of inadvertence or carelessness? It is acknowledged that such definitions are the very essence of negligence; however a person may act in such a manner without necessarily owing a legal duty of care. The example of the shopper in a supermarket pushing a laden trolley that inadvertently clips the heel of another shopper causing injury. Would it be fair and just to suggest that D reasonably foresaw the injury and therefore owed C a legal duty of care?
No. But if this were so then surely in the litigious society that we live in today, shopping trolleys would be swathed with padding and splashed with disclaimer notices. If D had been skating round on the trolley at speed then perhaps there is forseeability of some injury, but the former scenario not. Thus, the D had inadvertently caused injury but is not considered to owe a duty and therefore an action in negligence would not lie, however this example would fit nicely into the boundaries of negligent trespass.
If we were to desire a tort that remained and overlapped the two, but didn't have the strict duty principles of negligence or the intention of trespass then negligent trespass would suit the purpose. Commentators such as Trindade14 have suggested that there are great benefits to be gained from the use of negligent trespass, but the counter argument against this proposition is that such a tort would open the floodgates, because it would broaden the scope of the liability and claimants such as our shopper would receive damages.
The writer submits that such liability is absurd, however it is recognised that there would be cases such as (chap who shoots the coupling bonking in the long grass thinking it is a rabbit) that may fall between the two torts. In balancing such considerations it is suggested that it may be better to have a few injustices rather a floodgate situation of farcically unmeritous claims.