Tort Law - Trespass

The civil law of trespass has an immensely long history in the common law jurisdiction. Originating in the 14th Century, it was a means for commoners to bring the authority of government to bear upon others who had wronged them – in preference to retaliatory action. The law of trespass has changed little in its fundamentals over the centuries.


Basic overview

Establishing a civil law claim of trespass revolves around the violation of a personal bodily right which extends also to one’s possessions. The right in question can be one of three things.


1) The right not to be touched, restrained or threatened in an unwelcome manner,

2) The right not to have one’s personal property interfered with in an unwelcome manner, or,

3) The right to control who enters one’s real property and what they do therein.


Interestingly, the law does not provide any minimum level of offence to qualify as an actionable breach of these rights. Neither is there any requirement that harm be caused. Therefore the merest touch or brush against the person is a trespass against the person, and merely placing one’s toe over a property boundary (except where access is to be expected) is a trespass to property. The act needs to be intentional or negligent (but not purely accidental – although unless it occurs entirely without knowledge of the offender, then a negligent trespass will likely be provable). This is an area of the law which is somewhat feared and maligned for its hair-trigger qualities, but in reality the law of trespass is not frequently relied upon.


Directness – and a Note on Indirect Torts

Another important aspect of trespasses is that the offence must be directly the result of the defendant’s actions. This however does not prevent a person being sued for a trespass that occurred when they were not even present. In Hutchins v Maughn,[1] the defendant set poisoned bait on an area of ground where the plaintiff was droving sheep. The plaintiff’s dogs ate the bait and they died. This was found at trial to be a trespass to goods (the dogs)....






[1] Hutchins v Maughan [1947] VLR 131.