Common elements of trespass

Question 1

What are the common elements of trespass?

Answer 1

• fault (intention or negligence)
• act by the defendant
• directness
• actionable per se

Question 2

What is Australia’s position on negligent trespass?

Answer 2

• They are actionable [Williams; McHale]

- so they can claim an action in the tort of trespass or negligence

Question 3

Does a trespass require fault?

Answer 3

• traditionally it did. Now, trespass requires fault of either intention or negligence

Question 4

What does a ‘positive’ act by the defendant mean?

Answer 4

• That the interference was not an act of omission - of not doing something [Innes]

In Innes, security guards did not commit a battery because they were merely standing there.

Question 5

What does a ‘voluntary’ act by the defendant mean?

Answer 5

• That the D acted consciously and willed his actions. This means that those with mental impairments or cannot control their actions would be a defence
• There must be conscious thought
• Does not apply to reflexes

Question 6

Directness

Answer 6

• That the interference was caused directly from the D’s conduct

Question 7

Principle case for directness

Answer 7

Hutchins

> Act alone must have brought about the interference - no intervening acts
‘part of the same act’

• bait
• dogs

Question 8

What constitutes as intervening acts?

Answer 8

• nature [Esso]
• human actions [Myers v Soo; Hutchins]

NOT self defence/reflexive - does not break the chain [Scott ‘quib case’]

Question 9

What does fault entail?

Answer 9

• intention or negligence

- intention as careless as to the RESULT, not just the actions

Question 10

What are the two types of intention?

Answer 10

• actual intention
• (possibly) deemed intention –> objective test. Where there is not evidence to attribute to actual intention, an objective test is used where a reasonable person in D’s perspective would have known that this outcome would follow D’s actions
• deemed to have intended to cause the outcome
• or reckless/indifferent to the result which would reasonable occur from the actions

Question 11

What does negligence mean?

Answer 11

• Where the D could have acted with more care

Question 12

Who carries the burden of proving fault?

Answer 12

• the defendant (to prove that they could not have acted with more care) [McHale]

EXCEPTION: highway cases [Venning v Chin]

• burden on P because they assume a position of danger by being on the roads
• must prove that D was at fault