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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). The court of appeal ruled that the interference can include any act that commences an unbroken series of events, the last of which ultimately causes the breach of the plaintiff’s rights. This is sufficiently direct, as long as there was no new intervening act altering the causal chain.


If the facts of the case show that the person accused was not directly responsible, but there was some other event linking their action to the trespass suffered, then this can be sued on under different laws. The most popular is negligence, which is examined later in this chapter. Then there is nuisance, which applies where a land owner experiences harm from a neighbouring property, which is also addressed later. Finally there is the action on the case, a law which covers anything that would otherwise be a trespass had it involved a direct act.




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

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