Trespass or Negligence?


  • G. H. L. Fridman



The author examines the validity of distinguishing between trespass to the person and negligence, according to whether the injury was directly inflicted by or merely consequential to negligently performed act. Whereas recent English decisions have tended to merge the two forms of action, in other Commonwealth jurisdictions, including Canada, the historical distinction has largely been retained, despite certain amount of equivocation in the case law. One significant problem arising from any "progressive" union would be the extent to which the concepts of foreseeability, causation and other sinuosities of negligence law would be incorporated into the action. Another consideration would be whether the plaintiff would be required to satisfy uniform burden of proof regardless of whether the injury were direct or indirect. Recognizing that "forms of action must not rule us from their graves", Dean Fridman points out that there may be good reason for not burying distinctions before their usefulness and purpose have died.