Trespass is an intentional tort with several aspects. The theory of intentional tort was originally proposed by Frederick Pollock and Oliver Wendell Holmes in the 19th century and was eventually recognized as "the prima facie doctrine of tort liability", which, if summarized in simple terms, is that if the Harm is intentional and without justification, it is exploitable. Modern intentional torts also include new causes of action, such as intentional infliction of emotional distress, intentional interference with a contract, and intentional interference with a prospective advantage. Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”?Get the original essayThis research paper seeks to demonstrate that although negligence is often considered the dominant or overshadowing offense in legal and academic circles, the crime of trespass has stood the test of time. Due to its valuable characteristics and landmark judgments, trespass, in the face of the growing field of negligence, is still widely used, applicable and appreciated. First, this article examines what exactly the tort of trespass entails – to person, property and personal property. It will then define negligence and show how it became a crime of domination by describing the evolution of negligence to the realm of intrusion. This is demonstrated by detailing the cases of Cusack v Stayt 2000 and Wilson v Horne 1999. After which it will be argued that certain features of trespass – its strict definition of intent, the fact that it is "susceptible to action in itself”, and in terms of burden of proof – illustrated the validity of the offense of trespass and its critical nature. Before that, it will briefly define trespass and provide an overview of its jurisprudence, highlighting its origins and history. What is intrusion? These functions were considered so important that the action for trespass was actionable per se and prima facie wrongful. In early England, the King's Court issued a trespass summons to any litigant who could demonstrate that they had suffered physical contact on their person or property, as a result of the activity of another. If that litigant could then convince the court that the defendant had intent, he or she could seek relief for trespass, unless the defendant could justify his or her action. But if the litigant could not establish intent, then, to obtain compensation, he had to demonstrate that he had suffered real damage to his person or property. “Prior to the 19th century, tort did not include a category known as intentional tort. A system designed 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 is at the origin of the concept of intentional tort. » Below, trespass to person, property and personal property is detailed. First, intrusion into the person requires direct interference with a body or liberty. Second, for an act to constitute an attack on the person's property, intent must be proven. The accused must have acted to cause harm. Generally speaking, personal injury can be divided into assault and battery, assault and false imprisonment. Battery is committed by an act in which direct, hostile contact is made with another. This contact is not consented to by the applicant. Battery becomes clearin Fagan v Metropolitan Police Commissioner 1969. Assault, however, does not require physical contact between the plaintiff and the defendant. “Assault is an attempt…with violence to cause bodily harm to another, such as someone raising a fist in a threatening manner…within striking distance.” What matters is the behavior of the defendant, which causes the plaintiff to fear the use of force. Stephens v. Myers 1830 is a primary example. Third, wrongful detention results in the inhibition of one person's freedom of movement by another. The detention is voluntary, without consent, and illegal. Similarly, trespassing on land is the act of entering another's private property without consent, while in possession. The intruder will be liable even if he or she did not cause any damage. The interference must be direct. The right to sue belongs only to the person with exclusive possession of the property. The following conditions must be met to bring an action against the trespasser: first, there must be unjustifiable 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 escaped and polluted the banks of the river flowing downstream, causing damage to the plaintiff's field. The court held that this was a trespass and is of the opinion that such interference amounts to direct interference by reason of the natural flow of the river. An action that involves direct and unauthorized physical harm to personal property or property belonging to another constitutes the offense of trespass to property or trespass to movable property. For example, removing a tire from an automobile. Trespass to personal property is also actionable in its own right - without any proof of actual damage. This is essentially an attack on the right to possession and not that of property. It can only be brought at the request of a person who is in possession of the property at the time of the act committed. To prove trespass to movable property, the following elements are required. There must be intention, as well as the absence of consent of the owner; the person interfered with or dispossessed the property without authorization. Additionally, there may be “interference” of movable property; A person commits trespass into movable property either by dispossessing the movable property from another, or by using or interfering with movable property in the possession of another, or finally by damaging the movable property. This appears clearly in the case of Vincent v. Lake Erie (1910), where the plaintiff sued the defendant for damage to the plaintiff's dock. Considering that trespass has been thoroughly elucidated, this article will now detail how the definition and growth of negligence in the area of ​​trespass. The Predominance of Negligence Traditionally, the act of negligence in tort law relies largely on reckless rather than willful conduct. The definitions focus on the factor of breach of duty of care and failure to meet the standards of a reasonable person. The negligent act therefore does not meet the requirements of trespass in its definition: the failure to comply with the degree of care that would be followed by a reasonable person to avoid foreseeable harm. The idea of ​​negligence as the 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 kind of wrong that provides a basis for tort liability in a system thatemphasizes that liability must be fault-oriented, and second, negligence is a rather elaborate set of concepts based on broad ideas such as reasonableness. Negligence “rests on a standard of reasonableness based on risk and convenience.” There are other factors that contribute to this expansion and are specific to each case. In Wilson v Horne 1999, discussed below, it was the Limitations Act[footnoteRef:28] which prompted the claimant to sue for negligence. Therefore, the rise in neglect, it is argued, is an ongoing trend. While negligence began as a cause of action for consequential damages, it expanded into the realm of direct damages in 1833, as long as the defendant's conduct was unintentional. However, neglect has slowly begun to erode this boundary and has recently escalated to intentional neglect. This development has been openly recognized by the Australian courts. The development of intentional wrongs shows an overlap of negligence and trespass, because our definition of trespass depends on whether it is "intentional." As Lord Denning held: “If he does not intentionally inflict harm, the plaintiff has no cause of action… for trespass.” Its only cause of action is negligence. However, this definition is being challenged with the rise of intentional negligence, a relationship that 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 a car. Cusack smashed the rear window, whereupon Stayt lost control of the car and hit a wall. She then walked towards Cusack, while he shouted insults at her. Cusack failed to get out of the way, causing a collision. Afterwards, Cusack taunted Stayt into hitting him with the car. She then drove the car towards him and caused him serious injuries. Cusack sued Stayt for negligence. It was found that the act was certainly intentional, following abuse and assault by the complainant. This fits our definition of intrusion because it focuses on intent. However, the court ultimately upheld the trial judge's decision that there had been a breach of the duty of care. Justice Heydon clearly accepted that there had been battery, but neither party questioned the fact that negligence had been pleaded. “What is interesting…is the fact that all parties automatically assumed that this intentional conduct…on the part of the defendant gave rise to a claim for negligence.” » 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 came back to her when her sister encouraged her to see a counselor. Once the memories returned, the complainant began to suffer from post-traumatic stress disorder. “The entry on the summons alleged negligence, assault, battery and breach of duty” – both battery and battery fall under trespassing on the person's property. However, “the declaration limited the claim to negligence.” The judge recognized that the circumstances in which the complainant found himself fell into more than one category of offense and could even be “more appropriately described as trespass rather than negligence”. However, this fact, the court asserts, does not prevent it from hearing an action for negligence and granting relief. This couldbe due to many reasons, such as the fact that the Limitations Act 1974 imposes a six-year limitation period on trespass. The last act of sexual assault against the accused was in 1980 and the case was litigated in 1999. The overlap and infiltration of negligence in the area of ​​trespass is clear in the above cases. The judge literally applies negligence instead of trespass due to logistical limitations. Although several judgments move in the same direction – blurring the distinction between negligence and trespass, and often using them as one in place of the other, this would be a mistake. argue that negligence made the trespass less valid under tort law. The claim that negligence is the primary tort indicates that important aspects of trespass are ignored or completely forgotten in legal and academic circles. Certainly, there are aspects of trespass that make it not only essential to tort law, but also rigidly different and unique from negligence. The Value of Intrusion First, there is no denying the importance of the airtight definition given to intrusion as it relates to “intent.” Before 1965, trespass could be committed through negligence, as in the case of Fowler v Lanning 1959, where Justice Diplock equated the burden of proof in cases of "unintentional trespass" to that of those guilty of negligence. However, as mentioned above, Lord Denning, in the landmark case of Letang v Cooper 1965, proposed that a clear line should be drawn between trespass and negligence. He made the argument that if someone directly and intentionally causes harm to another, the plaintiff can sue for intrusion, however "if he...inflicts harm only unintentionally, the plaintiff has no cause of action for trespass. Its only path is negligence. He said unintentional intrusion has absolutely no practical value. Lord Denning points out that the key word behind intrusion on the person is intention and without intention it seems almost impossible to prove. Thus, this highlights the fact that a negligent act is insufficient in some cases because it lacks intent and is not deliberate. ​​The courts of England and Wales have used the landmark Letang v Cooper 1965 decision extensively over the years. The usefulness and importance of “intent” can be seen in many 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 over the plaintiff's foot, which constituted a negligent act, because not intentional, for which he be responsible in case of negligence. However, once defendant became aware of the car's position on the officer's foot and refused to move the car, defendant committed battery. This was because he did not intentionally move the vehicle away from the officer's foot. Therefore, this case highlights the importance and centrality of the tort of trespass, as the claim of negligence was simply inadequate. Even if Australian courts would deny the importance of the intent discussed above, the critical nature of the intrusion being "actionable in itself" cannot be rendered frivolous – as Handford argues, that is when that the intrusion “takes on its full meaning”. Damage is not a necessary element of trespass, whereas in cases of negligence, it is the plaintiff who must prove the damage. Therefore, there are many cases of tortious misconduct in.