Wed, 22 Feb 2006 17:41:27 +1100
Can Trespass to land be committed without fault (other than in Canada)?
trespass to land be committed without fault? The answer should be
obvious but I have found it surprisingly difficult to track down.
I am referring, not to cases of involuntary entry onto
land (there are clear cases saying no liability if you get pushed
or fall unconscious), but to the sort of case where you (without
carelessness) cross over someone's boundary in the bush (maybe more
likely in Australia than the UK!) without knowing it. A number of
the usually excellent texts assert that there is liability for trespass
to land in such cases (although one imagines damages would be nominal),
but usually the only authority cited is Basely v Clarkson
(1681) 3 Lev 37, where there was said to be liability for trespass
where the defendant mowed some grass on the plaintiff’s land,
thinking he was mowing grass on his own land. I would have thought
there was at least a question as to whether that decision is still
good law since Stanley v Powell  1 QB 86, which held
that you need to show either negligence or actual intention for
trespass to the person to be made out.
reason for the geographical limitation in the title of this message
is that halfway through composing it I found the precise passage
I needed on the issue for Canadian law in Klar Tort Law
3rd ed at pp 98-99. East Crest Oil Co v R  SCR 191
at 195, and Turner v Thorne (1959) 21 DLR (2d) 29 seem
to meet the point and say that there can indeed be "innocent"
trespass to land in Canada. But can I ask whether colleagues are
aware of any more recent cases, or ones in other common law jurisdictions?
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931
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