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See also Trespass to Land, and Capturing my face is a billing event.

Ubi jus ibi remedium — where there is a right, there is a remedy: the principle that gave rise not just to trespass to land, but to its sibling actions in the same family of intentional torts.

Trespass Beyond Land: The Man, Goods, and the Limits of Emotional Harm

The Trespass Family, Properly Understood

Trespass to land is one member of a broader family of intentional torts, all sharing the same essential structure: a direct and intentional interference with another’s body, person or property, actionable without needing to prove any actual loss, actionable per se, with the burden falling on the defendant to justify the interference, exactly the Entick v Carrington formula already covered. The other members of that family are trespass to the person, in its three recognised forms, and trespass to goods. A related but doctrinally distinct action, the tort from Wilkinson v Downton, addresses intentionally inflicted emotional and psychiatric harm, and it’s important to understand precisely how it differs from true trespass, because the difference matters for what can actually be recovered.

Trespass to the Person: Battery

Battery is the direct and intentional (or reckless) application of physical force to another man or woman, without their consent and without lawful justification. It requires no injury and no malicious intent, only the unwanted physical contact itself; the classic formulation, from Collins v Wilcock [1984] 1 WLR 1172, is that any intentional touching of another person, however slight, is prima facie a battery unless it falls within the ordinary exceptions of everyday life, a jostle in a crowd, a tap on the shoulder to attract attention. Once that direct contact is established, exactly as with trespass to land, the burden shifts to the defendant to show lawful justification, consent, self-defence, or some other recognised excuse.

Trespass to the Person: Assault

Assault, in its civil sense, is distinct from battery and does not require any physical contact at all. It is a direct and intentional act that causes another man or woman reasonably to apprehend an imminent, unwanted application of force. Raising a fist, or advancing on someone in a threatening manner, can constitute an assault even where no blow ever lands; what matters is the victim’s reasonable apprehension of imminent contact, created directly and intentionally by the defendant’s conduct.

Trespass to the Person: False Imprisonment

False imprisonment is the direct and intentional total restraint of another’s liberty, without lawful justification, whether by physical confinement, the threat of force, or the assertion of an unlawful authority to detain. The High Court’s decision in Watson v Marshall (1971) 124 CLR 621 confirms the restraint must be total, if the person has a genuine, reasonable means of escape, the tort is not made out, but where restraint is complete, the tort, like the others in this family, is actionable without proof of actual harm.

Trespass to Goods

The same underlying structure extends to personal property. Direct and intentional interference with goods in another’s possession, without lawful justification, whether by damaging them, moving them, or simply handling them without permission, constitutes trespass to goods. Where the interference goes further, permanently depriving the owner of the goods, or dealing with them in a manner inconsistent with the owner’s rights, the related but distinct torts of conversion and detinue may also arise; these sit alongside trespass to goods in the same broader family but have their own separate elements and are not, strictly, trespass actions themselves.

The Emotional Dimension, and Where the Law Actually Draws the Line

This is the area worth the most care, because Australian law does not extend the trespass family, in the strict sense, to cover emotional harm generally, and it’s important to be precise about why.

The relevant authority is Wilkinson v Downton [1897] 2 QB 57, an English case in which the defendant, as a practical joke, falsely told a woman her husband had been badly injured in an accident, causing her genuine psychiatric harm. The court held the deliberate, false statement, calculated to produce that effect, gave rise to liability. But Wilkinson v Downton is not itself a trespass action; it is what’s called an “action on the case,” and unlike battery, assault, false imprisonment, or trespass to land, it is not actionable per se. It requires proof of actual damage, specifically, a recognised psychiatric illness, not merely distress, hurt feelings, or humiliation, however genuine.

The leading modern Australian treatment is Giller v Procopets (2008) 24 VR 1, in the Victorian Court of Appeal, where a woman sought damages after her former partner threatened to, and did, distribute intimate video recordings of them without her consent. The majority, Neave and Ashley JJA, held that Australian law does not recognise a freestanding tort for emotional distress falling short of a diagnosed psychiatric condition; Maxwell P dissented on this specific point, arguing there was no principled reason to impose that threshold given trespass to the person itself requires no equivalent showing. That dissent has not, to date, become the law. The same threshold was applied in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417, a workplace bullying case in which the plaintiff succeeded only because he had, in fact, suffered a recognised psychiatric injury as a result of the deliberate conduct against him. The House of Lords reached the equivalent position in England in Wainwright v Home Office [2004] 2 AC 406, confirming there is no general tort of intentionally causing distress alone, and no general common law right to privacy either.

Where genuine emotional harm is recognised, in practice, it is usually through aggravated damages attached to an established trespass, rather than as a freestanding claim. This is precisely what happened in Romani v State of New South Wales [2023] NSWSC 49, covered in the companion article on land trespass: once the trespass to land itself was established, the Court awarded $5,000 in aggravated damages specifically reflecting the distress and manner of the intrusion, alongside compensatory and exemplary damages, without needing to prove a separate, diagnosed psychiatric condition at all. That is the practical, working route to compensation for genuine distress in most cases: not a standalone emotional harm tort, which Australian law still declines to recognise below the threshold of psychiatric injury, but aggravated damages layered onto an already-established trespass to land, to the person, or to goods.

Summary

The trespass family, land, person, and goods, shares a common structure: direct, intentional interference, actionable without proof of loss, with the defendant carrying the burden of justification. Emotional and psychiatric harm sits in related but separate territory: intentionally inflicted psychiatric injury is recoverable under Wilkinson v Downton, but only on proof of an actual, recognised condition, and mere distress or humiliation, without more, remains, as the law currently stands in Australia and England alike, not independently actionable. Where distress genuinely accompanies a proven trespass, the law’s answer is aggravated damages within that claim, not a separate cause of action for the distress itself. See also article with links to teeshirts, caps, hoodies with no trespass messages.

Sources

• Collins v Wilcock [1984] 1 WLR 1172.
• Watson v Marshall (1971) 124 CLR 621.
• Wilkinson v Downton [1897] 2 QB 57.
• Giller v Procopets (2008) 24 VR 1.
• Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417.
• Wainwright v Home Office [2004] 2 AC 406.
• Romani v State of New South Wales [2023] NSWSC 49.

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