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 The Form of Liability in the
Torts of Trespass
Allan Beever*

Abstract: This paper examines the form of liability found in the law of
trespass. Though it is frequently held that liability in these torts is based
on the intentional fault of the defendant, it is argued that the torts are in
fact strict. The paper approaches this issue by examining the nature of
intention in the law of trespass and the judgments in Letang v Cooper
and Re F. The paper also explores the nature of the negligent trespass
actions available in Australia.
Keywords: fault, intention, Letang v Cooper,strict liability, trespass

I. Introduction
Do the torts of trespass impose strict or fault based liability? Given
that these torts are among the oldest actions in existence, one might
have thought that there would be general agreement on the answer to
this question. But that does not exist. Commentators are almost
evenly split between the various possibilities.'
What is even more surprising is that the existence of this disagree-
ment passes almost entirely unremarked. Commentators tend to re-
port their views without remarking on the contrary positions of
others. This is surely very odd indeed. Understanding the form of liab-
ility in trespass is essential if we are to comprehend the nature of
those torts, and yet not only is there no consensus in this regard, there
is not even significant discussion of the dissensus.
This paper is intended to do two things. First, it aims to bring the
disagreement and the reasons for it into the open. Secondly, it takes a
stand on how the disagreement ought to be resolved. It contends that
both trespass to property and trespass to the person are forms of
strict liability.

* Professor of Law, University of South Australia. Thanks to the Leverhulme Trust

for the Major Research Fellowship that facilitated the writing of this paper.
1 For instance, the claim that trespass to the person is fault based is made by
S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin's Tort Law,
6th edn (Clarendon Press: Oxford, 2008) 451-2; J. Fleming, The Law of Torts,
9th edn (LBC Information Services: Sydney, 1998) 24; F. A. Trindade, P. Cane and
M. Lunney, The Law of Torts in Australia, 4th edn (Oxford University Press:
Melbourne, 2007) 33 and appears to be implied by W. V. H. Rogers, Winfield and
Jolowicz on Tort, 18th edn (Sweet & Maxwell: London, 2010) 97-9. The claim that it
is strict is made by M. A. Jones, Textbook on Torts, 8th edn (Oxford University
Press: Oxford, 2005) 508-9 and N. J. McBride and R. Bagshaw, Tort Law, 3rd edn
(Pearson Education Ltd: Harlow, 2008) 246-7. The claim that trespass to property is

378 Common Law World Review 40 (2011) 378-399

DOI: 10.1350/clwr.2011.40.4.0228
 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

Before conducting that investigation, it is first necessary to clarify

what is meant by 'strict liability'. Despite common belief, this term is
not used univocally but is often taken to refer to different things. In
fact, many of the debates concerning the place of strict liability in the
law are mired in confusion because the antagonists use the term to
refer to different concepts. For the purposes of this paper, a tort is a
tort of strict liability if it is possible to be liable in that tort without
being at fault in either the legal or non-legal senses of that term,
assuming that they are distinct.' In other words, a tort of this kind
contains no legally defined fault element, such as the law of negli-
gence's standard of care, and it is possible for a defendant to be liable
in that tort without being personally to blame for the action that
generates liability.
The paper is structured around these ideas. Section II examines the
notion that the torts of trespass contain a specific fault requirement,
namely the demand that the defendant's behaviour be intentional. It
argues that the intention requirement is not a fault requirement. Sec-
tions III and IV examine the notion that, even if no fault standard is
present, it is nevertheless impossible for a defendant to be liable un-
less at fault. In this regard, the difficulties presented by the decision of
the Court of Appeal for England and Wales in Letang v Cooped and
the rather perplexing decisions of English courts in cases involving
trespass to the person are examined.
Finally, Section V discusses the availability of actions for negligent
trespass in Australia. Naturally, it is not denied that these are fault
based, but the argument is that, though these actions of course exist
as a matter of positive law, our understanding of the nature of liability
in tort ought not to be affected by them. This is because the actions
are redundant in the sense that they permit no recovery that would
not be available without them. In effect, the argument will be that the
actions for negligent trespass are best conceptualized, not as fault
based forms of trespass, but a distorted form of the law of negligence,
retained to overcome perceived difficulties with that law.

II. Intention and Fault in Trespass

Discussions of the law of trespass frequently examine the law's inten-
tion requirement by comparison with the standard of care in negli-
gence. This appears to support the view that liability in the torts of
trespass is fault based. The idea is as follows.

fault based is made by Trindade, Cane and Lunney, ibid. at 139 and that it at least
contains fault elements by Fleming, ibid. at 46. That it is strict is asserted by
Deakin, Johnston and Markesinis, ibid. at 483-4, Jones, ibid. at 494-5, McBride and
Bagshaw, ibid. at 246-7 and Rogers, ibid. at 685-7.
2 For an examination of this issue, see A. Beever, Rediscovering the Law of
Negligence (Hart: Oxford, 2007) chs 2-3.
3 [1965] 1 QB 232, CA.

379
COMMON LAW WORLD REVIEW

With respect to the law of negligence, the relevant question is: Was
the defendant negligent? This seems to be asking whether the defend-
ant was at fault.' The parallel question in the law of trespass is: Did the
defendant intend to touch the claimant or the claimant's property?'
This also seems to be asking whether the defendant was at fault, the
idea being that, if the defendant had the relevant intention, then he or
she must have been at fault as the possession of that intention evi-
dences fault.
That, however, is mistaken. It is possible to intend to perform an
action that turns out to be prohibited without being at fault. In other
words, an intention to touch the claimant or the claimant's property
need not evidence fault-a point to which we return.
The notion that the intention requirement of the law of trespass is
concerned with fault is also reinforced by analogy with the criminal
law where intention, as an aspect of mens rea, is connected with fault.
But the analogy with the criminal law is inapposite. In the criminal
context, a defendant can be liable only if he or she intends to perform
the actus reus, which is defined as touching without consent. Accord-
ingly, with respect to the crime of battery:
the prosecution must ... prove that the defendant intended to apply
force to the person of the victim without his consent. If [the defendant]
did not intend the whole of this italicised phrase-and in particular, if
she did not realise that [the victim] had not consented-[the defendant]
is entitled to an acquittal ...
.
In tort, however, things are different. With respect to the tort of bat-
tery, for instance, the required intention is an intention to touch a
person, not an intention to touch a person who has not consented.
With respect to trespass to land, the necessary intention is the inten-
tion to enter the land, not to enter the land of another who has not
consented.' Now, a trespass will not be committed if the claimant
consented and hence liability requires the absence of consent. But the
point is that liability does not require that the absence of consent
featured in the defendant's intention. The flip side of this coin is that
mistake, even reasonable mistake, is no defence to an action in tort.
Again, then, comparison with the criminal law does not support the
idea that the torts of trespass are fault based.
These considerations also suggest a solution to a related difficulty.
Imagine that I set up a stall with a banner reading 'Free kisses' and as
a result people queue in front of the stall. Seeing the crowd but not

4 I say 'seems', because some have denied this. See e.g. T. Honore, Responsibility and
Fault(Hart: Oxford, 1999) 14.
5 Throughout this paper, I speak of touching as a key element in the law of trespass.
This is for convenience. Of course, some torts, such as conversion, require more
than this while others, such as false imprisonment, do not require touching.
6 A. Simester and W. Brookbanks, Principles of Criminal Law (Brookers: Wellington,
2002) 581.
7 Cf Basely v Clarkson (1681) 3 Lev 37; 83 ER 565.

380
 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

knowing why they are there, you decide to join the queue. Eventually
getting to the front, I immediately press my lips against yours. You,
however, find me revolting and never had any intention of letting me
kiss you. Is this a battery?
The answer is surely 'no'. But that does not prove that liability in
battery is fault based. This is because, in the sense relevant to this
context, you have consented to being kissed. This is the private law.
We are not interested in your subjective intentions. We are interested
only in your intentions as they objectively appear. And, objectively
speaking, as you joined the queue to be kissed by me, you have con-
sented to being kissed.' Hence, the reason I escape liability is not
because I was free of fault (though I was), it is because my action was
not an unconsented to touching.
Accordingly, the law of trespass contains no fault element. The
intention requirement is not a fault requirement.

III. The Decision in Letang v Cooper

Letang v Cooper is often thought to support the idea that the law of
trespass is fault based. It is now argued that this is mistaken.
In order to understand Letang v Cooper, it is necessary briefly to
deal with the distinction between trespass and trespass on the case.
As is well known, the distinction originally turned on the directness of
the connection between the defendant's wrongful act and the claim-
ant's injury. If the injury was a direct result of the wrongful act-such
as if the defendant threw a piece of wood that hit the claimant-then
the proper action was trespass. On the other hand, if the injury was
indirectly caused by the act-if the defendant threw a piece of wood
on the road and the claimant later tripped over it, for example-then
the appropriate action was trespass on the case.9
Because of the manner in which this distinction was drawn, it
seemed quite natural to hold that both trespass and trespass on the
case could deal with negligently caused injuries. For instance, the
view that the law of trespass should manage direct injuries that were
intentionally or negligently caused and that the law of trespass on the
case should handle indirect injuries so caused appeared intuitive.
Consequently, when the Court of King's Bench in Leame v Brayo
ruled that a trespass could be committed negligently as long as the
claimant's injury was a direct result of the defendant's action, that
seemed relatively unremarkable. In Fowlerv Lanning," Diplock J con-
firmed this approach.

8 For my attempt to justify this position, see A. Beever, 'Agreements, Mistakes, and
Contract Formation' (2009) 20 King's Law Journal21.
9 See Fleming, above n. 1 at 22.
10 (1803) 3 East 593; 102 ER 724.
11 [1959] 1 QB 426.

381
COMMON LAW WORLD REVIEW

Today, however, this position seems unstable. This is because tres-

pass on the case evolved into the tort of negligence and, to modern
lawyers, the chief distinction between trespass and negligence lies in
the fact that the first is either strict or based on intentional fault while
the second is based on unintentional fault. On this view, then, the idea
that negligence can be a factor in trespass is jarring.
Accordingly, in Letang v Cooper,'" the Court of Appeal revised its
approach. According to Lord Denning MR, in cases involving negli-
gent rather than intentional touching of the claimant, the claimant
could succeed only in negligence. Trespass would not be available.
Danckwerts LI agreed.
So far so good. The problem is that Diplock LI maintained that if
the claimant could prove that she was directly injured by the defend-
ant's negligence, then she would have a cause of action in trespass.
This is despite the fact that trespass does not usually require proof of
negligence or injury.
This has led some to conclude that the position of the law remains
undecided. For instance, it has been claimed that:
Diplock LJ thought that trespass could still be committed
negligently ...
In the wake of Letang v Cooper,therefore, it would appear that ac-
tions for negligent trespass have effectively disappeared .... But .. . we
still cannot conclusively assert that trespass has no relevance when
negligent conduct is relied on. There may still be particular cases where
a claimant perceives there to be an advantage to be gained from framing
a claim in trespass rather than in negligence."
A further complication is that Letang v Cooper was a case involving
trespass to the person, while Leame v Bray concerned trespass to
property. Accordingly, some hold that, whatever the position regard-
ing trespass to the person and negligence, it is possible to commit
negligent rather than intentional trespasses to property.14
However, these positions are not supported by any of the judg-
ments in Letang v Cooper. Obviously, they were rejected by Lord
Denning and Danckwerts LI, who maintained that trespass should not
be available unless the defendant intended to touch the claimant or

12 Above n. 3.
13 J. Murphy, Street on Torts, 12th edn (Oxford University Press: Oxford, 2007) 235.
14 Ibid. at 286-7; Rogers, above n. 1 at 685-7. See also League Against Cruel Sports v
Scott [1986] QB 240, in which Park J held at 252 that 'where a master of
staghounds takes out a pack of hounds and deliberately sets them in pursuit of a
stag or hind, knowing that there is a real risk that in the pursuit hounds may enter
or cross prohibited land, the master will be liable for trespass if he intended to
cause hounds to enter such land, or if by his failure to exercise proper control over
them he caused them to enter such land'. Though the reference to a 'real risk' is
misleading, as it suggests the failure to live up to the standard of care in
negligence, it is clear that Park J was right. This is because in these circumstances
the defendant would have been reckless and hence would have possessed the
appropriate intention, as those terms are defined in the law of tort.

382
 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

their property. But nor, I shall argue, are they consistent with Diplock
LI's view.
The central difference between Lord Denning and Danckwerts LI
on the one hand and Diplock LI on the other is not what it appears to
be. As Diplock LI insisted, their disagreement is not over the require-
ments for liability," rather it concerns the meaning of the term 'cause
of action'. Once we become aware of this we can see that the judges
were, in fact, saying the same things in different ways.
According to Lord Denning:
If one man intentionally applies force directly to another, the plaintiff
has a cause of action ... in trespass to the person. . . . If he does not
inflict injury intentionally, but only unintentionally, the plaintiff has no
cause of action today in trespass. His only cause of action is in negli-
gence, and then only on proof of want of reasonable care....
The modern law on this subject was well expounded by Diplock J in
Fowlerv Lanning, with which I fully agree. But I would go this one step
further: when the injury is not inflicted intentionally, but negligently, I
would say that the only cause of action is negligence and not trespass. If
it were trespass, it would be actionable without proof of damage; and
that is not the law today. 16
In this passage, Lord Denning made three claims: (i) if the defendant
intentionally touched the claimant, then the claimant has a cause of
action in trespass; (ii) if the defendant negligently but not intentionally
touched the claimant, then the claimant has no cause of action in
trespass; and (iii) in the circumstances just mentioned, the claimant
may have a cause of action in negligence. Lord Denning, then, was
concerned to show that the only possible cause of action available to a
claimant injured by a defendant who acted merely negligently is
negligence.
It is important to see that this discussion operates against the back-
ground assumption that it is conceptually possible for multiple causes
of action to be available for particular fact patterns. With respect to
the case at hand, the reason a claimant injured by a defendant acting
merely negligently has a cause of action in negligence only is not
because a claimant can only ever have one cause of action, but rather
because (a) the only other potential cause of action is trespass and
(b) such liability would be premised on the notion that one can be
liable in trespass 'without proof of damage', which 'is not the law
today'.
For this reason, Lord Denning's judgment does not support the
notion that a claimant injured by a defendant acting intentionally
would not have causes of action in both trespass and negligence. Nor
does it deny that there would be other circumstances, involving other

15 Letang v Cooper,above n. 3 at 243.

16 Ibid. at 239-40.

383
COMMON LAW WORLD REVIEW

torts or areas of the law, in which alternative causes of action are

available. This, of course, is an idea with which lawyers are familiar.
The second important point to make in this context is that Lord
Denning's view entails that the assertion that the claimant has a cause
of action means that he or she has a cause of action in at least one tort
or other branch of the law-a locution that is used three times, and
implied once more, in the passage quoted above. In other words, on
this view, though one can say 'The claimant has a cause of action'
without specifying any tort or alternative action, the assertion implies
that the cause of action is in some area of the law, e.g. one or more
torts, breach of contract, etc. Or to put it yet another way, the conten-
tion 'The claimant has a cause of action but that cause of action is not
in any area of the law' is incoherent, as it is conceptually impossible
for a cause of action to be independent of all areas of the law.
To summarize then, the key point concerns Lord Denning's use of
the term 'cause of action'. His Lordship used the term to refer to a
claim possessed by the claimant, a claim captured by a certain set of
principles, that can be brought to court, and that justifies the defend-
ant being held liable to the claimant. On this understanding, to say
that a person has a cause of action in negligence is to say that the facts
of the case in conjunction with the principles relevant to the law of
negligence result in the defendant being liable to the claimant. Sim-
ilarly, to say that a person has a cause of action in trespass is to say
that the facts of the case plus the principles of the law of trespass
generate liability in the defendant to the claimant. On this view,
alternative causes of action can be available with respect to a particu-
lar fact pattern and causes of action must always be in some area of
the law.
Accordingly, Lord Denning's insistence that the only cause of
action available when the defendant caused the claimant's injury un-
intentionally is negligence has the following meaning: when a defend-
ant unintentionally causes a claimant's injury, the claimant is
potentially able to sue only under the set of principles associated with
the law of negligence, the set of principles relevant to the law of
trespass having no application in this context.
Diplock LJ is taken to have denied this. If that were correct, then his
Lordship's position would have been the following: when a defendant
unintentionally causes a claimant's injury, the claimant is potentially
able to sue under the set of principles associated with the law of
negligence and, with certain modifications, under the set of principles
relevant to the law of trespass. But what did Diplock LI actually say?
His Lordship maintained that 'A cause of action is simply a factual
situation the existence of which entitles one person to obtain from the
court a remedy against another person'. 7 On the face of it, this is
entirely unremarkable. It utilizes the definition of 'cause of action' one

17 Ibid. at 242-3.

384
 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

is likely to find in legal dictionaries." But it must be noted that this use
of the term is inconsistent with Lord Denning's.
For Diplock LI, the assertion that a claimant has a cause of action
means that the claimant can point to a set of facts that warrant finding
the defendant liable to the claimant. Notice the absence on this view of
any reference to principles of law. Again, two consequences of this
view must be noticed. First, it is strictly impossible for a claimant to
have two alternative causes of action with respect to any one set of
facts. On this view, the claim 'The claimant has two causes of action'
can mean, not that one set of facts can be pursued in court in two
different ways (e.g. through the law of negligence and through an
action for breach of contract), but that there are two different, though
perhaps partially overlapping, sets of facts to which the claimant can
point that will generate liability in the defendant to the claimant. Sec-
ondly, on this view, the assertion that the claimant possesses a cause
of action does not mean that that cause of action is in any area of the
law. Rather, we should say that the claimant possesses a cause of
action because of a certain area of the law. For Lord Denning, as we
saw, the contention 'The claimant has a cause of action but that cause
of action is not in any area of the law' is incoherent, because it is
conceptually impossible for a cause of action to be independent of all
areas of the law. For Diplock LI, on the other hand, the same conten-
tion is a necessary truth. On his understanding, it is impossible to
speak of a cause of action being in any area of the law, because a
cause of action is just a set of facts and facts are not in anything in the
relevant sense. The facts are simply the facts.
Diplock U also distinguished the concept of a cause of action from
that of a form of action." The latter refers to the historical procedures
by which a legal claim could be brought. Though the forms of action
have been abolished, the concept is nevertheless quite closely related
to Lord Denning's notion of a cause of action. For one thing, like Lord
Denning's causes of action, alternative forms of action could have
been available for an individual fact pattern. For another, it is often
said that the forms of action have been replaced by causes of action,
but this can rightly be said only of causes of action in Lord Denning's
sense of the term. Sets of procedures that function as rules to deter-
mine liability can be replaced by sets of principles that have that same
function, but they cannot be replaced by 'factual situation[s] the exist-
ence of which entitles one person to obtain from the court a remedy
against another person'.20
Diplock LI went on to say:

18 E.g. B.A. Garner, Black's Law Dictionary,7th edn (West Group: St Paul, Minn,
1999).
19 Letang v Cooper,above n. 3 at 243.
20 Ibid. at 242-3.

385
COMMON LAW WORLD REVIEW

Certain procedural consequences, the importance of which diminished

considerably after the Common Law Procedure Act, 1852, flowed from
the plaintiff pleader's choice of the form of action used. The Judicature
Act, 1873, abolished forms of action. It did not affect causes of action; so
it was convenient for lawyers and legislators to continue to use, to
describe the various categories of factual situations which entitled one
person to obtain from the court a remedy against another, the names of
the various 'forms of action' by which formerly the remedy appropriate
to the particular category of factual situation was obtained. But it is
essential to realise that when, since 1873, the name of a form of action is
used to identify a cause of action, it is used as a convenient and succinct
description of a particular category of factual situation which entitles
one person to obtain from the court a remedy against another
person.2 1
On this view, then, the statement that a claimant sues 'in negligence'
means only that the claimant alleges that a certain category of fact
pattern occurred, a pattern that would lead to recovery. Similarly, the
assertion that a claimant sues 'in trespass' means only that the claim-
ant alleges that a different category of fact pattern occurred, which
would also lead to recovery.
With all this in mind, we are now able to understand the crucial
passage from Diplock Li's judgment.
If A., by failing to exercise reasonable care, inflicts direct personal in-
juries upon B., it is permissible today to describe this factual situation
indifferently, either as a cause of action in negligence or as a cause of
action in trespass, and the action brought to obtain a remedy for this
factual situation as an action for negligence or an action for trespass to
the person-though I agree with Lord Denning MR that today 'negli-
gence' is the expression to be preferred. But no procedural conse-
quences flow from the choice of description by the pleader.. . . They are
simply alternative ways of describing the same factual situation. 22

The claim here has nothing to do with the principles involved. The
idea is not that there is a set of principles under which one can sue,
equivalent to the set found in the law of (intentional) trespass with the
exception (interalia) that the touching can have been negligent rather
than intentional. On the contrary, as Diplock U insisted, 'no proced-
ural consequences flow from the choice of description by the pleader'.
The claim is only that we can describe the set of facts that gives rise to
liability as constituting negligence or trespass as we will. For Diplock
LI, these labels are without any importance whatsoever.
Diplock Li's position was not: when a defendant unintentionally
causes a claimant's injury, the claimant is able to sue under the set of

21 Ibid. at 243.
22 Ibid.

386
 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

principles associated with the law of negligence and, with certain

modifications, under the set of principles relevant to the law of tres-
pass; his Lordship's position was: when a defendant unintentionally
causes a claimant's injury, the claimant is able to sue only under the
set of principles associated with the law of negligence, but we can, if
we want, nevertheless describe the relevant fact pattern ('cause of
action') as negligence or trespass. Accordingly, the disagreement be-
tween Lord Denning and Diplock LJ is of no substantive consequence
at all.
Before moving to the next topic, it is worth examining a related
issue. Recall Diplock LI's contention that 'The claimant's cause of
action is in negligence' means that the claimant alleges that a certain
category of fact pattern obtained that would lead to recovery, and that
'The claimant's cause of action is in trespass' means that the claimant
alleges that a different category of fact pattern occurred that would
also lead to recovery. That begs the question: how are these cate-
gories delimited? What makes the category of 'negligence fact pat-
terns' the category it is, the category of 'trespass fact patterns' the
category it is, and the first category distinct from (though perhaps
partially overlapping with) the second?
The answers to these questions must refer to the principles in-
volved. 'Negligence fact patterns' are those that give rise to liability
because of the principles relevant to the law of negligence. 'Trespass
fact patterns' are those that produce liability because of the alternative
set of principles. But what are we to call these sets of principles?
As noted above, we frequently call them causes of action, but that
produces confusion. Consider the following statements. 'The claim-
ant's statement of claim discloses no cause of action.' This means that
the set of facts set out in the statement of claim would not entitle the
claimant to recovery. That is in accordance with Diplock LJ's use of
the term. But consider also 'There is no cause of action for negligent
trespass in England' or 'The cause of action for negligent trespass was
definitively abolished by Letang v Cooper'.Here, we are talking about
a set of principles, not a fact pattern, in accordance with Lord Den-
ning's use of the term. In that sense of the term, all of the judges in
Letang v Cooper accepted that there would be no cause of action for
negligent trespass.
How is this confusion to be avoided? The only way to do so is to
adopt more precise terminology. My suggestion would be to use
,cause of action' as Diplock LJ did, and simply 'action' to refer to the
relevant set of principles. So, for instance, we could say that, accord-
ing to all of the judges in Letang v Cooper, there is no action for
negligent trespass.
At any rate, we are now able to reach the conclusion necessary
here: Letang v Cooper does not support the idea that the torts of
trespass are or can be fault based.
387
COMMON LAW WORLD REVIEW

IV. Touching in Trespass to the Person

It seems clear that the law of battery was at least once fault based. For
instance, in Cole v Turner Holt CJ famously said that a battery is a
touching in anger.
First, that the least touching of another in anger is a battery.
Secondly, if two or more meet in a narrow passage, and without any
violence or design of harm, the one touches the other gently, it will be
no battery.
Thirdly, if any of them use violence against the other, to force his way
in a rude inordinate manner, it will be a battery; or any struggle about
the passage to that degree as may do hurt, will be a battery.2 3
As we will see, the issue that concerned Holt CJ has been one of the
main obstacles to recognizing that liability for battery is strict.
Imagine that A and B pass in a narrow passageway and brush
against each other. Is this a battery? It appears that the answer must
be 'no'. Such commonplace and unremarkable events should not be
legal wrongs. But what precisely is the legal justification for reaching
that conclusion? It cannot be that A and B did not intend to touch
each other, though that might sometimes be true. This is because
intention in this context does not mean purpose. In most cases, A and
B will have intended to touch each other in the sense required by
law.
So why, then, are A and B not guilty of battery? Holt CJ's answer
was that they did not touch each other in anger. This answer suggests
that battery is fault based. On this view, the reason A and B did not
batter each other was that, though they touched each other without
consent, they were not at fault for doing so because they were not
angry.
However, further case law has revealed this to be the wrong
answer. In Scott v Shepherd," the defendant threw a firework into a
stall at a market as a practical joke. The firework injured the claimant.
This was found to be a battery, but the defendant was not angry when
he threw the firework. Similarly, if I kiss you without your consent,
that is a battery," but I am unlikely to kiss you in anger. For like
reasons, we must also reject the claim, sometimes thought to follow
from Lord Denning MR's judgment in Letang v Cooper,that a battery
requires an intention to injure.
This issue was revisited by the English Court of Appeal in Wilson v
Pringle,2 6 in which Croom-Johnson LI distinguished between friendly
and unfriendly touching, claimed that only the latter was actionable,
and distinguished between the two as follows:

23 (1704) Holt KB 108; 90 ER 958 at 958.

24 (1773) 2 Black W 892; 96 ER 525.
25 Cf Police v Bannin [1991] 2 NZLR 237.
26 [1987] QB 237, CA.

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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

in a battery there must be an intentional touching or contact in one form

or another of the plaintiff by the defendant. That touching must be
proved to be a hostile touching. That still leaves unanswered the ques-
tion 'when is a touching to be called hostile?' Hostility cannot be
equated with ill-will or malevolence. It cannot be governed by the
obvious intention shown in acts like punching, stabbing or shooting. It
cannot be solely governed by an expressed intention, although that may
be strong evidence. But the element of hostility, in the sense in which it
is now to be considered, must be a question of fact for the tribunal of
fact. It may be imported from the circumstances. Take the example of the
[defendant] police officer in Collins v Wilcock [1984] 1 WLR 1172. She
touched the [claimant] woman deliberately, but without an intention to
do more than restrain her temporarily. Nevertheless, she was acting
unlawfully and in that way was acting with hostility. She was acting
contrary to the woman's legal right not to be physically restrained. 27
It must already be apparent that this will not do either. First, Croom-
Johnson LI insisted that hostility is not ill-will or malevolence. What is
it then? According to the Oxford English Dictionary,'hostile' means
'Of, pertaining to, or characteristic of an enemy; pertaining to or
engaged in actual hostilities' and 'Of the nature or disposition of an
enemy; unfriendly'. Can one be or act as an enemy without having or
exhibiting ill-will or malevolence? Can one with no ill-will act with
hostility toward someone?
What we see here is the all too familiar tendency of common
lawyers to bend the meanings of words so as to appear to be explain-
ing. Though Croom-Johnson LI would be prepared to say that the
defendants in Scott v Shepherd and Collins v Wilcock were hostile and
that I am hostile when I kiss you without your consent, this is not what
the word means in ordinary English.
Croom-Johnson LJ's use of 'hostile' does not mean hostile. What
does it mean? He tells us that the reason the defendant in Collins v
Wilcock was liable was because she acted contrary to the claimant's
legal right. But that is also unhelpful. To say that the defendant acted
contrary to the claimant's legal right is, in this context, just to say that
the defendant committed a battery.28 Hence, reference to the claim-
ant's rights cannot in itself explain the meaning of the term 'hostile'.
The issue was revisited in Re F (Mental Patient: Sterilisation). Lord
Goff said:
In the old days it used to be said that, for a touching of another's person
to amount to a battery, it had to be a touching 'in anger' (see Cole v
Turner ...); and it has recently been said that the touching must be
'hostile' to have that effect (see Wilson v Pringle . . .). I respectfully doubt
whether that is correct. A prank that gets out of hand; an over-friendly
slap on the back; surgical treatment by a surgeon who mistakenly thinks
that the patient has consented to it-all these things may transcend the

27 Ibid. at 252-3.
28 Note that the focus here is entirely on the claimant's primary rights. Cf Beever,
above n. 2 at chs 6-8.

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COMMON LAW WORLD REVIEW

bounds of lawfulness, without being characterised as hostile. Indeed the

suggested qualification is difficult to reconcile with the principle that any
touching of another's body is, in the absence of lawful excuse, capable of
amounting to a battery and a trespass. Furthermore, in the case of med-
ical treatment, we have to bear well in mind the libertarian principle of
self-determination which, to adopt the words of Cardozo J (in Schloen-
dorff v Society of New York Hospital (1914) 105 NE 92, 93), recognises
that:
'Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without his patient's consent commits an
assault.' 2 9
Though this rejects the misleading talk of hostility, it remains prob-
lematic in that it does not appear to solve the issues encountered
above. In our example, A and B touch each other and appear to have
no lawful excuse for doing so.
Re F concerned a request to perform a sterilization operation on a
woman who was mentally disabled and unable to give (or refuse) her
consent to the operation. In relation to that issue, Lord Goff said:
In Wilson v Pringle ... the Court of Appeal considered that treatment or
care of such persons may be regarded as lawful, as falling within the
exception relating to physical contact which is generally acceptable in
the ordinary conduct of everyday life. Again, I am with respect unable to
agree. That exception is concerned with the ordinary events of everyday
life-jostling in public places and such like-and affects all persons,
whether or not they are capable of giving their consent. Medical
treatment-even treatment for minor ailments-does not fall within that
category of events. The general rule is that consent is necessary to
render such treatment lawful. If such treatment administered without
consent is not to be unlawful, it has to be justified on some other
principle.3 1
We are not interested in the issue of the sterilization of the mentally
incompetent. Our concern is rather with an issue tangential to Lord
Goff's discussion: the reason why 'jostling in public places and such
like' is not a battery.
On the face of it, Lord Goff claimed that this was because such
touching was ordinary. But in fact that is not what he said. Rather, his
point was that it is irrelevant to the case he was discussing-i.e. the
sterilization of the mentally incompetent-that 'jostling in public
places and such like' is not actionable, because 'jostling in public
places and such like' is ordinary while sterilizing people is not. This
implies that, on Lord Goff's view, the fact that jostling in public places
and such like' is ordinary has something to do with the reason that it
is not actionable, but he did not claim that it is the reason.

29 Re F (MentalPatient: Sterilisation)[1990] 2 AC 1 at 73, HL (emphasis added).

30 Ibid.

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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

What is the significance, then, of the fact that 'jostling in public

places and such like' is ordinary? In particular, in the language of the
first paragraph from Lord Goff's judgment quoted above, how could
the fact that 'jostling in public places and such like' is ordinary provide
a justification for such behaviour? The answer is that, because the
relevant activities are ordinary, they are covered by an implied licence.
Unfortunately, once again, this doctrine is inappropriately labelled.
The general idea is best explained by considering how the doctrine of
implied licence applies to land.
When I was last employed in New Zealand, the land on which I
lived began roughly 30 metres from the front door of my house. In the
abstract, then, unless I had previously consented, entering this land to
knock on my door would have constituted a trespass. However, if
taken literally, this would imply that anyone who wanted to contact
me would have been forced to yell from the footpath to try to get my
attention so that I could consent for them to come to my front door.
Naturally, this would be very inconvenient.3' Generally, we want
people to be able to come to our front door and knock. 32 The law
acknowledges this. It recognizes a general presumption that people
consent to others entering their land to knock on their front doors. 3 3 It
calls this presumption an implied licence. That presumption also exists
with respect to bodily touching. Given that people generally accept
certain kinds of touching-what we might call ordinary touching-the
presumption applies. (However, naturally, the presumption cannot
apply to sterilization and so, as Lord Goff states, that case raises
distinct issues.)
Accordingly, the reason A and B do not batter each other is be-
cause they touch each other in a way consistent with an implied
licence. In other words, there is a (rebuttable) permission that one
consents to being touched in this way. Crucially, the reason there is no
battery is not that A and B were without fault. This phenomenon,
then, lends no support to the notion that liability for battery is based
on personal fault.
In fact, as Lord Goff made clear in Re F, the existence of a battery
does not rely on any mental element indicating fault on the part of the
defendant: 'any touching of another's body is, in the absence of lawful

31 Importantly, it does not follow that it is the inconvenience itself that justifies the
implied licence.
32 In the United Kingdom, because of subdivision and the like, this must often in
practice be extended to include the back door, which is often the only external
door in general use. For the general principle applicable here, see the cases cited in
n. 33 below.
33 It is only a presumption and can be defeated by placing signs, etc. Also, there is no
presumption that the land owner consent to all entries, only to entries for certain
kinds of reasons. See e.g. Robson v Hallett [1967] 2 QB 939 at 953-4, CA; Shattock v
Devlin [1990] 2 NZLR 88.

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COMMON LAW WORLD REVIEW

excuse, capable of amounting to a battery and a trespass'.3 4 The de-

fendant must intentionally touch the claimant, but the intention need
not have been accompanied by anger, be hostile, or any such thing.
Accordingly, as Lord Goff pointed out, if a surgeon operates on a
patient in the mistaken belief that the patient had consented to the
operation, then the surgeon commits a battery. This conclusion fol-
lows regardless of whether the surgeon was at fault for the mistake.
Now, it must be admitted that the support found in Re F for my
position is not overwhelming. On the contrary, it is buried in the
judgment of a single judge. But, as I now argue, even if my analysis of
the extant law were inaccurate, that law would need to change to
become as I describe it.
There are two main reasons for this. First, we cannot have strict
liability for trespass to property but fault based liability for trespass to
the person. That would reflect an entirely unwarranted preference for
the protection of property over bodily integrity and freedom of move-
ment. In short, there can be no justification for protecting a person's
property more strongly than we protect their body.
Secondly, it must be clear that strict liability for trespass-to the
person or to property-is morally demanded. With respect to battery,
for instance, we surely cannot adopt the view that people are at liberty
to touch each other without consent, as long as that touching be not
angry, hostile, unordinary or even unreasonable. Why should one
have to put up with being intentionally touched just because that form
of touching is ordinary or thought reasonable by a judge, for in-
stance? As Cardozo J said, 'Every human being of adult years and
sound mind has a right to determine what shall be done with his own
body'.3
Now, there may be circumstances in which adherence to that prin-
ciple would appear to generate liability where that result seems un-
warranted, but as with the discussion of the implied licence above, the
appropriate response is to seek justifications for denying liability in
those cases consistent with Cardozo J's principle. It is not appropriate
to abandon or seek to dilute the principle itself. It expresses an abso-
lutely fundamental right.

V. Negligent Trespass
So far, I have argued that the English law of trespass is strict and that
it ought to be so. The latter claim applies to all legal systems. But it

34 Re F, above n. 29.
35 Schloendorff v Society of New York Hospital, 105 NE 92 at 93 (NY 1914). It is worth
noting that Lord Goff describes this principle as libertarian.That is not correct. It is
a principle shared by all (genuine) liberals and by many others. Why, then, did
Lord Goff so describe it? Is it because what passes as liberalism in the law today is
in fact a betrayal of that idea? If Lord Goff is right to think that many 'legal liberals'
would disown the principle under discussion, the answer can only be 'yes'.

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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

does not imply that the law of trespass could not additionally consist
of fault based elements. On the face of it, that possibility is presented
by Australian-and perhaps Canadian-law, which recognizes both
intentional and negligent trespass. 37 What is to be said about the latter
action?
My answer is that the action for negligent trespass is in principle
entirely redundant. It results in no recovery that would not occur
under other actions, were those actions properly understood. The
importance of that rider, examined in subsections ii and iii below, is
that not all actions are properly understood. Because of this, the ac-
tion for negligent trespass has a role to play in practice, by allowing
the law to reach results that ought to be reached, but currently cannot
be reached, by other actions.
My conclusion will be that the role of negligent trespass is solely to
correct the consequences of misunderstandings concerning the law of
negligence. Consequently, though the action exists in Australia as a
matter of positive law, it is wrong to think of it as an alternative to the
law of negligence. Or to put this another way, from the perspective of
practical reason as opposed to legal history, negligent trespass is not
a fault based form of trespass but is rather a minor suburb of the law
of negligence, to be incorporated into that law the minute it is prop-
erly understood.
I develop this argument by exploring the alternative view presented
by Francis Trindade, who sets out to demonstrate 'why a plaintiff
today would want to resort to an action in negligent trespass'. 38 In a
nutshell, the issue is whether there are any circumstances in which a
case in negligent trespass would succeed where it would fail in inten-
tional trespass and in the law of negligence. Trindade's aim is to show
that there are such circumstances. He presents three arguments in
this regard. I examine them in turn.
i. No Duty of Care
First, it is claimed that an action in negligent trespass may be available
for a negligently caused injury where no duty of care would be owed
in the law of negligence. 39 On the face of it, this is a promising sugges-
tion. However, for reasons we are about to see, it cannot be taken at
face value but must instead be limited. But, as we will also see, those
limitations are precisely the ones found in the law of negligence.

36 See e.g. Cook v Lewis [1951] SCR 830; Lloyd's, London, Non-Marine Underwritersv
Scalera [2000] 1 SCR 551; S (JA) v Gross [2002] 5 WWR 54, Alberta CA. Despite
these cases, Canadian law is far from straightforward on this issue. For discussion,
see L. Klar, 'Intentional and Negligent Trespass: It Is Time To Clarify The Law'
(2004) The Advocates Quarterly410. For this reason, I focus only on Australian law.
37 For a very helpful discussion of this matter, see Trindade, Cane and Lunney, above
n. 1 at 68-77, 149-50.
38 Ibid. at 71.
39 Ibid. at 71-2.

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COMMON LAW WORLD REVIEW

In that area of the law, at least one role of the duty of care is to
determine whether the defendant was negligent in respect of the
claimant. In Donoghue v Stevenson,40 the defendant owed the claim-
ant a duty of care because, as a reasonable person, he could foresee
that his failure to check that his products were safe would result in
injury to a class of persons that included the claimant. In Palsgrafv
Long Island Railroad Co4 1 on the other hand, the defendant did not
owe the claimant a duty of care because, though he was negligent, he
was not negligent for posing a risk to the claimant. In other words, he
was negligent but not to the claimant. 42 This position was adopted by
the House of Lords in Bourhill v Young.43
At first glance, this suggests that negligent trespass can play a
meaningful role. Because the action for negligent trespass contains no
duty of care, it does not limit liability as does the law of negligence.
So, for instance, if a case resembling Palsgraf or Bourhill v Young
were to occur in Australia, the claimant would be able to recover in
negligent trespass if their injury was a direct result of the defendant's
action.
But, though I am unaware of any case law detailing precisely this,
that simply cannot be right. If it were so, then the basic restriction on
liability imposed by the duty of care would be largely pointless. In any
case in which the claimant suffered a direct injury, the restriction
under examination would come to nothing as an alternative action
would be available to the claimant in negligent trespass. That is clearly
not the case, however.
No doubt for these kinds of reasons, Trindade does not attempt to
rely on an argument of this kind. Rather, his position rests on the role
that concerns such as statutory authority and policy have played in
determining the duty of care. In that regard, he makes special refer-
ence to the decision of the English Court of Appeal in W v Home
Office,"4 in which the claimant sued in negligence but was denied
recovery on the ground that he was owed no duty of care. Trindade
suggests that the claimant may have succeeded had an action for
negligent trespass been available.
The claimant in W v Home Office was an asylum seeker who had
been detained due to the negligence of the Immigration Service. He
attempted to sue the Home Office for his detention. The Court of
Appeal rejected the claim, arguing that the claimant was not owed a
duty of care. The judgment of the court is not particularly transparent.
However, it appears that the main reason for the decision was that the

40 M'Alister (or Donoghue) (Pauper)v Stevenson [1932] AC 562, HL Sc.

41 162 NE 99 (NY 1928).
42 I have ignored the complication that the defendant was vicariously liable in this
case. For discussion of the application of the duty of care in these cases, see
Beever, above n. 2 at 118-28.
43 [1943] AC 92, HL.
44 W v Home Office [1997] EWCA Civ 1052; [1997] Imm AR 302.

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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

Immigration Service was acting within the scope of a discretion pro-

vided by statute (the Immigration Act 1971 (UK)). In effect, this meant
that the actions of the Immigration Service could not be wrongful
unless they fell outside the scope of its discretion. As that was not the
case, the claimant failed.
Because of this, it is hard to see how W v Home Office could
support Trindade's position. The claimant failed in W v Home Office
because the Immigration Service was acting within the scope of a
statutory authorization and hence committed no wrong. Conse-
quently, there can be no action whatsoever. It makes no difference
whether the alleged wrong is negligence or negligent trespass. In
other words, the court's reason for denying liability is a reason that
applies to the law in general; it is not specific to the law of
negligence.
The Court of Appeal also suggested that a duty of care must not
exist, because the alternative could produce undesirable defensive-
ness on the part of Immigration Service officials inconsistent with
their public duties and because it would lead to a floodgate of claims
that would distract the Service from its core business (the usual policy
pretexts).
As noted, the court applied these arguments as reasons to deny the
existence of a duty of care. On the face of it, then, they appear to be
reasons specific to the law of negligence. That, however, is wrong. On
reflection, it can be seen that the reasons are reasons for denying
liability tout court rather than for denying liability in the tort of negli-
gence alone. Hence, if the arguments were valid, they would apply
equally to the law of negligent trespass.
I conclude that this first argument fails.

ii. Legally Recognized Damage

A second argument is that a claimant may be able to sue in the law of
negligent trespass when he or she has suffered injury of a kind that
would not be actionable in the law of negligence." Again, if this
argument succeeds, it shows that the law of negligent trespass is not
redundant.
Here, though no actual case is provided, the following hypothetical
is suggested.
D (a library attendant) negligently imprisons P (a student) for twenty
minutes in the Law Library but instead of acknowledging his fault D
heaps insult upon injury by telling P, at the time of P's release, that he
suspects that P had deliberately hidden himself in the Law Library to
carry out various nefarious activities. In these circumstances, an action
by P in negligent trespass (negligent false imprisonment) should yield a
substantial sum in damages. As P has suffered a technical false impris-
onment (albeit for twenty minutes) he can be awarded damages not only

45 Trindade, Cane and Lunney, above n. 1 at 72-4.

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in respect of that minor interference with his liberty but also for the
insult that has arisen from the interference and the injury to his
feelings-that is, the indignity, mental suffering, disgrace and humili-
ation that may be caused by D's conduct. P would, however, be unlikely
to succeed in an action in negligence, despite D's insulting behaviour, as
it is very doubtful if he has suffered anything that might be described as
legally recognisable 'damage' for the purposes of the tort of negligence
and would not, therefore, have the initial 'damage' on which to base his
action in negligence.46

Though ingenious, this example does not establish what must be es-
tablished. Crucial to an understanding of the example is that when D
tells P that he locked P in the library to prevent P's 'various nefarious
activities', D is lying. If he were telling the truth, then D would have
committed an intentional trespass and hence the example could not be
used to show that negligent trespass is not redundant. And this ob-
servation defeats the example, as it means that the insult is made only
after the imprisonment has ended. This means that P cannot sue in
false imprisonment for the insult, even if an action for negligent false
imprisonment were available.
Consider also this variation of the facts. D negligently but uninten-
tionally locks P in the library. D then sees P through a window and
insults him. Here, it is possible for P to recover for the insult in false
imprisonment. But that is because, after noticing that P is locked in
the library, D commits an intentional false imprisonment by failing
immediately to release P. In that light, it can be seen that the argument
relies on the idea that one can negligently insult someone, but that is
impossible.
A more interesting point can be generated by this example, how-
ever. If P had been intentionally imprisoned, then he could have re-
covered for the imprisonment per se in addition to any loss that he
suffered as a result of it. It is not clear, however, that such is actionable
damage for the purposes of the law of negligence. But the correct way
to deal with this problem is simply to allow recovery in the law of
negligence. The law recognizes that people have a right to freedom of
movement. There seems no good reason to hold that this right can be
infringed by intentional action only. W. V. H. Rogers has claimed that
'it is arguable that one could include within that concept [of harm
actionable in negligence] the loss of liberty for a substantial time'."
That argument ought to be taken seriously. If it is, then the result will
be a change to the law of negligence that will render the current law
of negligent false imprisonment redundant.

46 Ibid. at 73 (citations omitted).

47 W. V. H. Rogers, Winfield and Jolowicz on Tort, 17th edn (Sweet & Maxwell:
London, 2006) at 123. The claim does not appear in the 18th edition of this work.

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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

iii. The Burden of Proof

In the law of negligence, it generally falls to the claimant to prove that
the defendant was negligent. In the Australian law of negligent tres-
pass, however, if the claimant establishes directness, then it falls to the
defendant to prove that he was not negligent. This, it is alleged, estab-
lishes the significance of negligent trespass, because a claimant who
has been directly injured gains a procedural advantage by bringing
the case in trespass rather than in negligence.4 8
The first thing to say about this is that the distinction here is purely
a result of history. No principled defence of Australian law in this
regard is offered. In fact, Australian law is not even consistent in this
respect, as it maintains that the burden remains with the claimant in
'highway cases'.4 ' Even if the procedural advantage exists, then we
are faced with the following two possibilities. First, if the burden
should be on the defendant in negligent trespass, then it should surely
also be on the defendant in negligence. Alternatively, if the burden
should be on the claimant in negligence, then it should also be on the
claimant in negligent trespass. Either way, the law of negligent tres-
pass would be redundant. It is at best a stop gap of use until the
positive law has been properly revised.
Moreover, the importance of the point is significantly overstated.
Consider the following example:
A and B were riding on a hay cart when A was suddenly shot in the back
by a bullet from B's gun. A was unable to say how the accident hap-
pened. B's explanation was that he was holding the gun when his dog
jumped on the trigger setting off the loaded gun. As A can only prove
that he was shot in the back by a bullet from B's gun, A would be in a
much better position if he sued in negligent trespass rather than negli-
gence, for, once he had proved that he had been directly injured by a
bullet from B's gun, B would have to prove that the injury was done
without intention or negligence on his part.s0
This passage exhibits the two classic mistakes made concerning proof
in the law of tort.
In order to see this, it is necessary to understand both the standard
and what I will call the object of proof. In tort law, as in the private law
in general, the standard of proof is the balance of probabilities. This
means that in order to prove a proposition, a party must show merely
that it is more likely to be true than it is to be false. Lawyers sometimes
express this idea by saying that the standard calls for 50 per cent + 1,
i.e. 50 per cent plus at least an infinitesimal amount. The object of
proof, i.e. the thing that requires proof, is in this context that the
defendant committed a negligent act.

48 Trindade, Cane and Lunney, above n. 1 at 74-7.

49 For discussion, see ibid. at 76-7.
50 Ibid. at 75. The case is based on Wilson v The Queen (1970) ALJR 221.

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In order to establish liability in negligence, the claimant must prove

that he or she was injured as the result of a negligent act committed
by the defendant. The passage assumes that this means that the claim-
ant must be able to prove that the defendant performed some particu-
lar negligent act that caused their injury. But that is wrong. The
claimant must prove only that the defendant committed a negligent
act-any negligent act-on the balance of probabilities (that caused
their injury). To put this another way, the claimant need not prove on
the balance of probabilities that the defendant committed some action
x that caused their injury; the claimant need only prove on the balance
of probabilities that the defendant committed some negligent action
that caused their injury.
It may help to imagine that there were only four possibilities: (1)
that the gun was set off by the dog, (2) that the gun was set off
because of a faulty bullet, (3) that the defendant was cleaning the gun
carelessly, and (4) that the defendant was carelessly playing with the
gun. Assume also that situations (1) and (2) indicate that the defendant
was not negligent and situations (3) and (4) indicate the reverse. Here,
the claimant need not show either that (3) or that (4) occurred on the
balance of probabilities. He need show only that it was more likely
that either (3) or (4) happened than that (1) or (2) happened. That is, he
must show that the probability of (3) plus the probability of (4) is
greater than the probability of (1) plus the probability of (2); that
P(1)+P(2) < P(3)+P(4).
The second mistake committed by the passage is that it misunder-
stands the consequences of the law's standard of proof. What is the
significance of reversing the burden of proof? What is the difference
between requiring the claimant to prove that P(1)+P(2) <P(3)+P(4) and
requiring the defendant to prove that P(1)+P(2) > P(3)+P(4)? The an-
swer is that the difference is infinitely small. If the standard of proof is
50 per cent plus an infinitesimal amount, then reversing the burden
makes an infinitesimal difference.
This point also undercuts the notion that reversing the burden
makes an important difference because it means that the defendant,
rather than the claimant, must assemble the relevant evidence. Take
the case under discussion. Normally, it will be apparent where the
balance of probabilities lies. For instance, it may be quite clear that
P(1)+P(2)<P(3)+P(4). In such circumstances, if the onus of proof lies on
the claimant, then the burden of assembling the relevant evidence
comes to nothing. There, despite the burden of proof being on the
claimant, it is the defendant who must actually assemble evidence if
he or she wishes to escape liability. In this situation, reversing the
burden of proof makes no practical difference.
But, one might respond, when the proof seems more evenly bal-
anced, things are not so simple. In fact, despite what has been sug-
gested in the previous three paragraphs, courts treat proof in such a
way that real burdens are placed on the party who bears the onus of
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 THE FORM OF LIABILITY IN THE TORTS OF TRESPASS

proof. In itself, the response is perfectly justified. The courts certainly

do treat proof in this way. But that is why they end up tangled in
knots, having to invent special doctrines such as res ipsa loquiturand
the rules in cases such as Fairchildv Glenhaven FuneralServices Ltd"
and Barker v Corus (UK) plc" in order to get to the position that they
would get to had they applied the law's standard in the first place. 3
I conclude that, on reflection, the action for negligent trespass is
redundant in principle. The best that can be said for it is that it serves
to correct the mistakes made in other areas of the law. It therefore
does not constitute a counter example to the idea that, properly
understood, the torts of trespass are and ought to be forms of strict
liability.

VI. Conclusion
At first glance, liability in trespass can appear to be fault based. It
contains an intention requirement and other doctrines that call to
mind notions of fault. But on the other hand, liability in trespass also
seems clearly to be strict. Reflection reveals that the intention require-
ment is not a fault requirement and it is not too difficult to imagine
scenarios in which defendants not at fault would be liable. The prob-
lem is that the law has not openly declared its hand. This paper has
argued that it is nevertheless committed to strict liability.
That leads to a further set of questions, the most important two
being: 'Why are the torts of trespass strict?' and 'If the intention
requirement is not a fault standard, then what is its role?' I have
hinted at answers to these questions above, but a proper analysis
must await another occasion.

51 [2002] UKHL 22; [2003] 1 AC 32.

52 [2006] UKHL 20; [2006] 2 AC 572.
53 For analysis, see Beever, above n. 2 at ch. 13. The Supreme Court of the United
Kingdom appears already to be retreating from the jurisprudence of the House of
Lords in this regard. See Sienkiewicz v Greif (UK) Limited [2011] UKSC 10; [2011] 2
WLR 523.

399