Recognised by law

Is it possible to frame an action in both trespass and negligence based on the same set of facts? If so, identify instances when trespass may be more attractive to a plaintiff? Introduction This paper will firstly define the terms trespass and negligence. A discussion of the development or historical background to trespass and negligence will then be provided. A discussion of the historical background of trespass and negligence will assist the discussion of these questions and will provide an understanding of how any overlapping may have come about.

Defining Torts

Trespass and negligence are torts. A tort can be defined as an act or omission by the defendant that is an infringement of an interest of the plaintiff that is recognised by law. The law recognises that the interest is worthy of protection from an infringement created by an act or omission and it allows for a right of civil action for unliquidated damages1. Defining Trespass and Negligence The tort of trespass results from an intentional or negligent act of the defendant that directly inteferes with or causes an injury to the plaintiff's person or property.

This inteference must be without the plaintiff's consent or lawful justification2. The tort of trespass is separated into three distinct torts, these being trespass to the person, trespass to land and trespass to goods. The tort of negligence manifests where a duty of care owed by the defendant to the plaintiff has been breached and that breach has caused actual damage or injury to the plaintiff that is not too remote in law3. A key point emerges from the brief definition of these torts and that point relates to the issue of fault.

Both negligence and trespass require fault on the part of the defendant but in the case of trespass, however, the fault may be intentional or negligent. Where the fault of the defendant is negligent, the trespass is termed 'negligent trespass'. Under the tort of negligence, fault relates to carelessness and is assessed against a standard of care. The tort of negligence by definition excludes acts or omissions that are intentional. Historical Bacground Direct and Consequential injury and damages Complete recognition of negligence as a separate tort did not come about until the landmark case of Donaghue v Stevenson (1932) AC 562.

Prior to this case, negligence was a means of incurring liability in trespass or 'case'. From as far back as the thirteenth century, compensation for injury to the person and to property was awarded by the courts. There was an important distinction, however, under which such cases could be heard. An action in trespass was only successful where the interference was direct. An action (for trespass) on the case, as it was called, was developed to cater for injuries that were consequentially or indirectly inflicted. Trespass on the case was the forerunner of the modern law of negligence4.

CJ Fortescue in Reynolds v Clarke (1726) 1 Str 634 at 636; 93 ER 747 at 748 gave a classic illustration of this distinction where he likened trespass to a log thrown onto a highway that hits a person and an action on the case to where a person tumbles over the log as it lies there. Salmond and Heuston5 explain that an injury is direct when it follows so immediately upon the act of the defendant that it may be termed part of that act. They state an injury is consequential when it is regarded as being caused by some obvious and visible intervening cause that is not part of the defendant's act.

A broad approach to the issue of direct damage or injury, however, was taken as can be seen in the case of Scott v Shepherd (1773) 2 Wm Bl 892; 96 ER 525. Fault – Intentional and Negligent As discussed, the distinction for trespass and actions on the case was whether the injury was direct ( immediate on the act of the defendant) or only consequential on that act. A confusing element arose, however, by the introduction of the distinction between injuries that were intentional and those that were negligent.

In Leame v Bray (1803) 3 East 593, trespass was held to lie for a direct act of the defendant even though the act was negligent, not intentional. After this case, trespass was not infrequently brought for negligent highway accidents6. This accords with the original distinction as the damage is direct. In England until 1965, however, case was the normal remedy for negligent injuries resulting from highway accidents, whether the injuries were consequential or direct. Williams v Holland (1833) 10 Bing 112 was also a landmark decision in that it established a plaintiff could choose either trespass or case if the injury was direct but negligent.

Finally, Stanley v Powell (1891) 1 QB 86 established that there was no liability in trespass where there was an absence of wrongful intention or negligence. An action in trespass was available where the injury was direct, regardless of whether it was intentional or negligent. Clearly then, an overlap existed whereby a direct injury that was negligent could be brought under trespass or under case. Recent Decisions Until 1965, it could be confidently asserted that in both England and Australia, an action for direct injuries that were the result of negligence could be brought under the tort of trespass or negligence, formerly case.

After 1965, England and Australia differed in this regard. The landmark decision in Letang v Cooper (1965) 1 QB 232 challenged this notion. In this case, injury was direct and negligent so an action could be brought under trespass or negligence. The Court sought to remove the distinction between trespass and negligence that was based on direct or consequential injury. It preferred instead that the distinction should be based on whether the injury is intentionally or negligently inflicted and that the action should be brought under trespass or negligence respectively.

In Australia the situation was different. The High Court took a different approach in Williams v Milotin (1957) 97 CLR 465; (1957) ALR 1145. In this case, as in Letang v Cooper, injury was direct and negligent. The High Court observed that on the same set of facts two causes of action arose and it did not challenge that notion. Williams v Milotin is representative of the current law in Australia. That is, an injury resulting from a direct act (on or off the highway), that is founded in negligence, can on the same set of facts, establish two distinct causes of action, these being trespass and negligence.

Advantages of trespass over negligence Trespass may be more attractive as an action than negligence for a number of reasons, these being: Damages – There is no requirement to prove damages under trespass. Trespass is actionable per se whereas the essence of the tort of negligence is damage (O'Donohue v Wille (1999) NSWSC 661 at 19)). As a result, in situations where a trespass is committed under circumstances where a plaintiff has suffered humiliating or insulting remarks, trespass may be the only remedy as these are not considered to be actual injuries as required under negligence.

Furthermore, distress or grief are not deemed to be actual injuries under negligence. Under trespass, however, a plaintiff may be awarded aggravated damages for such injuries. Remoteness of damage Under negligence the defendant is liable for injury which arises in a foreseeable way. Balkin7 offers the example that where the defendant should have foreseen damage to the plaintiff's goods by impact, the defendant will not be liable where, carelessly, the defendant sets fire to those goods. Balkin states that it is undecided whether this rule extends to trespass.

As the test in trespass is one of directness rather than remoteness, where the injury is directly inflicted, the plaintiff may recover more in these circumstances from an action brought under trespass than from an action brought under negligence. Contributory Negligence – In matters that are off-highway, the High Court has found that contributory negligence does not apply in a trespass action. (Horkin v North Melbourne Football Club (1983) 1 VR 153 )) ;(Fontin v Katapodis (1962) 108 CLR 177)). In highway cases, however, it may be available. (Venning v Chin (1974)).

Duty of Care – A plaintiff is not required to prove a duty of care under trespass. Trespass may offer an advantage over negligence then where the plaintiff is unable or finds it difficult to prove the defendant owed them a duty of care. Onus of Proof In cases of trespass occurring off the highway, when the plaintiff has proven direct injury by the defendant, the burden of disproving negligence is on the defendant. Under the tort of negligence, however, the plaintiff is obliged to prove the defendant acted in the manner ascertained causing direct injury as well as the actions were negligent.

This places the plaintiff at a procedural advantage in trespass. Duty to third party Where an action is careless to a third party and is also a breach of duty to a third party but the action is not careless to the plaintiff the question arises whether it is actionable in trespass. Balkin8 provides an example whereby A hits a golf ball without warning B who is on the green 100 metres ahead. If the ball hit B there is little doubt that B could sue A in either trespass or negligence for such a careless act.

However, if C is sleeping in the rough grass off the fairway and is hit by A's shot in circumstances where A could not have foreseen the consequences of the negligent act, an action in negligence would fail. In such an instance where the injury is a direct result of an act by the defendant and the action is not reasonably forseeable, the action will fail in negligence. In Australia, where the onus of disproving fault under trespass is on the defendant once the plaintiff proves a direct injury, the action in trespass may have a greater chance of success9.

Limitation of Actions Whereas in cases like Letang v Cooper the action was affected by the Limitation Acts, in most Australian jurisdictions the period is the same whether the action is brought under negligent trespass or negligence. The only exception is in Western Australia where the period of limitation is shorter for trespass to the person than all other torts. The decision in Williams v Milotin (1957) CLR 465, however, makes it clear that where the facts of a case falls under both causes of action, both periods of limitation will apply.

As the plaintiff is free to choose which cause of action to take, the plaintiff may take the action under the longer limitation period if the period under the other action has expired. Conclusion In Australia, an action may be framed under negligence and trespass on the same set of facts. This provides flexibility and choice with regards to matters that can come under either of these causes of action. Additionally, it provides persons with the opportunity to take advantage of the benefits discussed of framing an action in trespass where those benefits are advantageous.