2 HISTORICAL BACKGROUND

TRESPASS AND ACTION ON THE CASE

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Reynolds v Clarke (1725)

Water dripped from a waterspout onto the Plaintiffs wall, and rotted it. This was held not to
be trespass to the land, as it wasnt sufficiently direct.
Not direct but consequential injury
Scott v Shepherd (1773)

Settled distinction is that where the injury is immediate (direct) an action for trespass will lie.
Where the injury is consequential (indirect) it must be an action on the case.
Uninterrupted chain of events because it was direct consequence of Ds actions that cause P
the injury (loss of sight in one eye)
Hutchins v Maughan [1947] directness

Complainant met with defendant who warned him that a paddock is which he was droving
was poisoned.
Complainant convinced he was bluffing, went to check and saw no baits, dogs picked up baits
in paddock and died.
The courts found the injury to be CONSEQUENTIAL ie tossing the poison to the dogs to eat
is direct
South Corp v Esso Petroleum Co [1954]
Small oil tanker must pass through an estuary as part of trading path, gets stranded due to bad
weather., gets stranded due to bad weather. Cargo oil tanks- thrown overboard to keep
afloat,
Out pour of oil was not directly poured onto the foreshore therefore action on the case due
to no control over the tides (a natural cause)
William v Holland (1833) election of cases of action : direct & indirect injury = elect case
or trespass, direct & immediate = trespass,

Where a plaintiff is injured by the defendants direct or immediate act the plaintiff may elect
to bring an action on the case (rather than trespass) provided that the defendants act is
negligent. However, where the defendants act is both direct and international, the only cause
of action available to the plaintiff is trespass.
Daughter and son of plaintiff injured when defendant drove negligently into their carriage
causing severe injury.
William v Milotin (1957) apart of Australian law

Plaintiff is struck while riding his bike in the street by a motor truck
Two causes of action
o Negligence Plaintiff must prove fault and prove negligence
o Trespass to person- battery P only had to prove the facts then the onus was on D to
prove the lack of fault

TRESPASS
Weaver v Ward

Defendant Ward had shot and wounded plaintiff Weaver during military training exercise.
There is no liability in trespass where the trespassory act was committed without fault by the
defendant,
Holmes v Mather
Trespass & highway cases out of control horse connected to a horse drawn carriage injures
pedestrian despite the efforts of the defendants servant.
Defendant was not liable

Stanwell v Powell
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Bird is aimed at and shot fires from the defendants gun and ricochets off an oak tree and hits
plaintiff in the eye.
NOT intentional, no element of fault found, case dismissed no damages.

ONUS OF PROOF
Blacker v Waters
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Plaintiff visits defendant that owns a shooting range and both fire at a metal sheet, as plaintiff
leaves the course, a stray bullet hits his eye.
ONUS; upon the defendant to prove no fault
Dismissed
McHale v Watson (1964)

Old fashioned dart at hard wood post and gets girl in the eye.
ONUS; the plaintiff need only prove the facts and once the plaintiff as proved that , then the
onus on disproving fault law on D.
Two actions;
o Negligence damage is necessary,
o Trespass the injury was direct?
Vennin v Chin (1974)

Highway case; as a general rule, in trespass the onus is on the efendant to disprove fault.
However in trespass for injury caused in a highway accident, the onus is on the plaintiff to
prove fault on the part of the defendant.
Plaintiff was crossing a public road when she was kit
o Contributory negligence for not having due regard for her own safety ie looking
around, if there was an approaching car she would not have gone.
Q ; is trespass still available for injuries caused by negligence?
o Bray CJ yes, the true criterion was whether the injury wwas immediate on the act of
the defendant himslf or only consequential on that act or was caused by the act of his
servant.
Platt v Nutt (1988)

Onus of proof of the trespassory act is an issue distinct form onus of proof of fault. The
plaintiff in trespass must prove that the defendant committed the trespassory act of which the
plaintiff complains.
Trial judge accepted the respondants case that the appellant had slammed the door and
rejected that the contention he had done it with the intention to injure. Case would only be
successful if her injury resulted from negligent conduct on the apart of the appellant [well

established that entitlement to succeed in trespass although the injury was not intended by the
defendant if it resulted from his negligence.
Onus is on defendant to defeat the claim by establishing justification ie self-defence, lack of
intent or absence of negligence.
She put out her hand as a reflex action to impede the passage of the closing door.
ANALOGY : A hits B with the hand of C therefore A is still liable sets a motion of
unbroken series of continuing consequeces the last of which ultimately caused injury to
plainfiff he may be liable in trespass
Appeal allowed ; the injury ws resultant of own infependant actions not the conduct of the
appellant
Failed to establish on the balance of probabilities that her injuries were casued by the
appellants use of force rather than as a consequence of ther own wilful act.
ESTABLISHED ; proof that the plaintiffs injury was the direct result of the defendants force
has historically been regarded as sufficient to give rise to a prima facie cse of trespass.