Trespass is an intentional tort on multiple fronts. The theory of intentional tort was first proposed by Frederick Pollock and Oliver Wendell Holmes in the nineteenth century and was eventually recognized as the "doctrine of prima facie tort", which, if summarized simply, is that if the infliction of an harm is intentional and lacks justification, it is actionable. Modern intentional torts also include new causes of action, such as intentional infliction of emotional distress, intentional interference with contract, and intentional interference with prospective advantage. Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an Original Essay This research paper seeks to argue that while negligence is often considered the dominant or shadow tort in legal and academic circles, the tort of trespass has stood the test of time. Due to its valuable characteristics and historical judgments, trespass, in the face of the growing scope of negligence, is still widely used, applicable and appreciated. Firstly, this article delves into what exactly the crime of trespass involves: to the person, property and movable property. It will then define negligence and show how it developed into an overbearing tort by describing the growth of negligence into the realm of trespass. This is demonstrated in detail by the cases of Cusack v Stayt 2000 and Wilson v Horne 1999. Subsequently, it will be argued that certain features of trespass – its strict definition of intention, the fact that it is “actionable in itself” and in terms of burden of proof – have exemplified the validity of the crime of trespass and its criticality. Before that, it will briefly define trespass and an overview of its jurisprudence highlighting its origins and history. What is trespassing? These functions were considered so important that the action of trespass was itself actionable and prima facie unlawful.” The King's Court in early England issued the writ of trespass to any litigant who could show that he had suffered physical contact upon his person or property, by the activity of another. If this litigant could convince the court that the defendant had intent, he could seek relief on the grounds of trespass, unless the defendant could justify his act. But if the litigant failed to prove intent, then, to recover, he or she had to show that he or she had suffered some actual harm to his or her person or property. “Before the nineteenth century, tort did not include a category known as intentional tort. One scheme, conceived by Oliver Holmes, organized tort law into three categories: causes of action based on intentional conduct, based on negligent conduct, and based on strict liability. This pattern gave rise to the concept of intentional tort.'' Injuries to person, property, and personal property are described in detail below. First, trespassing requires direct interference with a body or liberty. Secondly, for an action to constitute trespass, intent must be proven. The defendant must have acted to cause harm. Generally, trespassing can be divided into battery, assault, and false imprisonment. Battery is committed through an act of making direct, hostile contact with another. This contact is not permitted byapplicant. Battery becomes clear in Fagan v Metropolitan Police Commissioner 1969. Assault, however, does not require physical contact between the plaintiff and the defendant. “An assault is an attempt… with violence to inflict a bodily injury on another, as if one raised his fist in a threatening manner… within reach.” The essence is the defendant's conduct, which makes the plaintiff fear the use of force. Stephens v Myers 1830 is a primary example. Third, false imprisonment involves the inhibition of one person's freedom of movement by another. The detention is intentional, without consent and illegal. Similarly, trespassing is entering another's private property without consent while in possession. The violator will be liable even if he has not caused damage. The interference must be direct. The right to act belongs only to those who have exclusive possession of the property. In order to take action against the infringer, the following conditions must be met: first, there must be unwarranted contact with the plaintiff's property, and second, the cause of the damage must be intentional. In the case of Jones v. Llanrwst UDC [1911], sewage accidentally leaked out and polluted the banks of the river which flowed downstream causing damage to the plaintiff's field. The Honorable Court held that it was a trespass and was of the opinion that such interference amounts to direct interference due to the natural flow of the river. An action involving direct, unauthorized physical interference with personal property or property belonging to another is the tort of trespass or trespass. For example, removing a tire from a passenger car. Even the violation of movable property is prosecutable in itself, without any proof of actual damage. It is essentially an infringement of the right of possession and not of ownership. It is actionable only against a person who is in possession of the property at the time of the act committed. The following elements are necessary to prove trespass. There must be intent, as well as lack of owner consent; the person interfered with or expropriated movable property without permission. Furthermore, “interference” of movable property may occur; A person commits trespass to chattels by dispossessing another's chattels, using or interfering with chattels in the possession of another, or ultimately damaging the chattels. This is made clear in the case of Vincent v. Lake Erie (1910), where the plaintiff sued the defendant, for damage done to the plaintiff's dock. Whereas trespass has been carefully clarified, this paper will now go on to detail how negligence defines and grows into the realm of trespass. The Predominance of Negligence Traditionally, the act of negligence in tort law has relied largely on negligent rather than deliberate conduct. The definitions focus on breach of duty of care and lack of ability to conform to the standard of a reasonable person. The negligent act, therefore, does not meet the requirements of wrongdoing according to its definition: the failure to exercise a degree of care that would be followed by a reasonable person to avoid foreseeable harm. The idea of ​​negligence as a dominant tort is widely accepted in the academic community: "negligence is certainly the dominant concept in law today." Fleming James argues that this is largely due to two reasons: first, it is a type of fault that forms the basis for civil liability within a system that focuses on the fact that liability must be focusedabout a fault, and secondly, negligence is a rather elaborate set of concepts based on broad ideas such as reasonableness. Negligence “rests on a fact-sensitive risk-utility standard of reasonableness.” There are other factors that contribute to this expansion that are case specific. In the 1999 case of Wilson v Horne, examined below, it was the Limitations Act[footnoteRef:28] that prompted the plaintiff to pursue negligence. Therefore, the increase in negligence, it is argued, has been a continuing trend. While negligence began as a cause of action for consequential injuries, it expanded into the area of ​​direct injuries in 1833, so long as the defendant's conduct was involuntary. However, negligence has slowly begun to erode that boundary and has recently turned into willful negligence. This development has been openly recognized by the Australian courts. The development of intentional torts shows an overlap of negligence and trespass, since our definition of trespass depends on being “intentional.” As Lord Denning argued: 'If he does not inflict injury intentionally, the plaintiff has no cause of action... in a case of trespass. His only cause of action is negligence.' However, this definition is questioned with the rise of willful negligence, an interrelationship which highlights the expansion of negligence in tort law In Cussack v Stayt 2000, during a drunken altercation between Sarah Stayt and her boyfriend (Cusack), Stayt attempted to get away. in the car. Cusack smashed the rear window, causing Stayt to lose control of the car and hit a wall. She then drove forward, towards Cusack, while he shouted insults at her. Cusack was unable to get out of the way. causing a collision. Subsequently, Cusack provoked her to hit him with the car. It was found that the act was certainly malicious, following abuse and aggression by the actor. This resonates with our definition of trespass, as it focuses on intent. Ultimately, however, the Court upheld the trial judge's decision that there had been a breach of the duty of care. Heydon JA clearly accepted that battery had occurred, however, neither party disputed that negligence had been alleged. “What is interesting… is the fact that all parties automatically assume that this intentional conduct… on the part of the defendant gave rise to a negligent action.” Similarly, in Wilson v Horne 1999, the plaintiff sued her uncle in 1996 for sexual abuse from 1973-1980. In 1994, repressed memories of the abuse returned to her mind as her sister encouraged her to go to therapy. Once the memories returned, the plaintiff began to suffer from post-traumatic stress disorder. 'The approval of the act of alleged negligence, assault, battery and breach of duty' – assault and battery are both considered trespass to the person. However, 'the statement of claim limits the claim to negligence.' The judge agreed that the plaintiff's circumstances fall into more than one category of tort and might even be "more appropriately described as trespass rather than negligence." However, this fact, the Court holds, does not prevent the court from taking an action for negligence and granting relief. This could be due to numerous reasons, such as the fact that the Limitations Act 1974 imposes a period ofsix-year statute of limitations in case of trespass. The last act of sexual assault against the defendant was in 1980 and the case was heard in 1999. The overlap and infiltration of negligence into the realm of home invasion is clear in the cases mentioned above. The judge is literally applying negligence in lieu of trespass due to logistical limitations. Although there are several judgments arguing along similar lines – blurring the distinction between negligence and trespass, and often using one in place of the other, it would be wrong to argue that negligence made trespass less valid in law of civil liability. The claim that negligence is the primary tort indicates that important aspects of trespass are ignored or entirely forgotten in legal and academic circles. Certainly, there are aspects of trespass that make it not only essential to tort law, but also starkly different and unique from negligence. The Value of Trespassing First, there is no denying the importance of the airtight definition given of trespassing regarding “intention.” Before 1965, trespass could be committed negligently, as in the 1959 case of Fowler v Lanning, where Diplock J equated the burden of proof in cases of "inadvertent trespass" to those of negligence. However, as already mentioned, Lord Denning in the landmark case Letang v Cooper of 1965 proposed to draw a clear line between trespass and negligence. He put forward the argument that if someone directly and intentionally causes harm to another, the plaintiff can raise trespass, however "if... inflicts injury only unintentionally, the plaintiff has no cause of action in the case of trespass domicile His only conduct is in negligence' stated that an inadvertent trespass has absolutely no practical value. Therefore, this highlights the fact that an act of negligence is insufficient in some cases, as it lacks intention and is unintentional The courts of England and Wales have used the decisive ruling of Letang v Cooper 1965 abundantly over the years The importance of “intention” can be found in numerous cases. For example, the distinction between an intentional act and a negligent act is evident in the case of Fagan v Metropolitan Police Commissioner 1969. Initially, the defendant accidentally drove his car onto the road. the appellant's foot, which constituted a negligent act, as it was unintentional, for which he would be negligently liable. However, once the defendant learned of the location of the car at the policeman's feet and refused to move the car, the defendant had committed battery. This is because he intentionally did not move the vehicle away from the policeman's feet. Therefore, this case clarifies the importance and centrality of the trespass tort, as the negligence charge was simply inadequate. While Australian courts would deny the importance of the intention discussed above, the criticality of trespass being "actionable in itself" cannot be rendered useless – as Handford argues, it is then that trespass "truly manifests itself" . Damage is not a necessary element of trespass, whereas in cases of negligence the burden is on the plaintiff to prove the damage. Therefore, there are numerous cases of tort where there may be no harm, but the plaintiff has been wronged. In these cases negligence.