Date: Thu, 4 Dec 2003 15:17:21 -0700

From: Lewis Klar

Subject: Negligent trespass

Colleagues:

I am writing a brief note on "negligent trespasses" as it applies within Canadian law.

In Winfield and Goodhart's 1933 L.Q.R. classic article on Trespass and Negligence the authors distinguish between the "nominate torts of assault, battery and false imprisonment" and the "residual forms of trespass to the person". The difference between the two categories however is not explained. For example, the old case of Weaver v Ward which involved a firearm discharging and injuring the plaintiff is classified by the authors as a trespass for assault and battery. Underwood v Hewson (1723) however which also involved a firearm discharging and injuring the plaintiff as an example of the residual form of trespass. It appears to me that there is no distinction between the two cases and I would describe both as batteries.

Can anyone explain to me what the distinction between the nominate torts and residual torts is and if anything results from this distinction, especially as it relates to the issue of "negligent trespass"?

I appreciate whatever you can offer.

Lewis Klar
Professor of Law
University of Alberta

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