Introduction to Trespass Actions

How old is the tort of trespas?

Trespass to the person is one of the older torts, with the writ of trespass common after 1250.

Trespass quare classum fregit

A wrong “because he broke the close”. This is now the modern trespass to land.

Trespass de bonis asportais

A wrong “concerning goods carried away”. Related to trespass to goods, but closer to the tort of conversion

Trespass vi et armis

A wrong “by force and arms”. This means trespass to the person, but had to be carried out with force and a weapon

In the past an act of trespass had to:

1. Had to be direct

2. Had to be intentional

3. Did not require injury

What is trespass “on the case”?

Later other actions developed, called trespass actions ‘on the case’, each action argued on the basis of the facts of that ‘case’. These later developed to what we now recognise as actions in the tort of negligence.

What are the modern torts of trespass?

Trespass to the person, trespass to land and trespass to chattels (goods)

What is the modern trespass to the person tort?

The modern tort no longer requires violence or weapons to be recognized as a tort. This is in response to evolved understandings of the importance of bodily integrity. It is made up of the trespass torts of assault, battery and false imprisonment.

What makes trespass torts different?

1. Actionable per se (no injury required

2. Direct result/impact

3. Burden of proof (once you can show trespass, the burden shifts to the defendant to prove that he did not intend it)

4. Voluntary act

What if it wasn’t intended

You will be guilty of a result you did not desire, if you can be shown to have intended the act which brought that result about, and that you believed the result was ‘substantially certain’. (Similar to criminal law, that one intends the ‘natural and probable consequences of ones actions.’)
On the other hand if you can be shown to have intended the result then of course you are also liable, regardless of how likely the result was.

When is there a right to a jury?

Section 1(1) of the Courts Act 1988 removed the right to a jury in the vast majority of negligence actions. However, in false imprisonment cases and cases of intentional trespass to the person, a jury is allowed (section 1(3)).

Do trespasses have to go to PIRB first?

In the Supreme Court case of Gwen Clarke v John O'Gorman [2014] 3 IR 340 it
was confirmed that trespass cases did have to go to the PIAB in the first instance where the plaintiff sought damages for personal injuries.