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Date: Wed, 22 Feb 2006 17:41:27 +1100

From: Neil Foster

Subject: Can Trespass to land be committed without fault (other than in Canada)?


Dear Colleagues;

Can 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 [1891] 1 QB 86, which held that you need to show either negligence or actual intention for trespass to the person to be made out.

The 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 [1945] 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?


Neil Foster

Neil Foster
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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