Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
Erskine and Hovell [for the plaintiff-appellant] in support of the rule. The distinction
which was taken in Reynolds v. Clarke has been adopted in all the subsequent cases that where
the immediate act itself occasions a prejudice or is an injury to the plaintiff’s person &c. there
trespass vi et armis will lie: but where the act itself is not an injury, but a consequence from that
act is prejudicial to the plaintiff’s person, &c., there trespass vi et armis will not lie, but the proper
remedy is by an action on the case. . . . In none of the cases is it laid down as a branch of the
distinction that the act done must be either wilful, or illegal, or violent, in order to maintain
trespass: the only question is, whether the injury from it be immediate.
LORD ELLENBOROUGH, C.J. The true criterion seems to be according to what Lord C.J. de
Grey says in Scott v. Shepherd, whether the plaintiff received an injury by force from the
defendant. If the injurious act be the immediate result of the force originally applied by the
defendant, and the plaintiff by injured by it, it is the subject of an action of trespass vi et armis by
all the cases both ancient and modern. It is immaterial whether the injury be wilful or not. As is
in the case alluded to by my brother Grose, where on shooting at butts for a trial of skill with the
bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view;
yet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury
from an act of force by another. Such also was the case of Weaver v. Ward, in Hob. 134, where a
like unfortunate accident happened whilst persons were lawfully exercising themselves in arms.
So in none of the cases mentioned in Scott v. Shepherd did willfulness make any difference. . . .
LE BLANC, J. In many of the cases the question has come before the Court upon a motion
in arrest of judgment, where the Court in determining whether trespass or case were the proper
remedy, have observed on the particular language of the declaration. But in all the books the
invariable principle to be collected is, that where the injury is immediate on the act done, there
trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is
in case. And the distinction is well instanced by the example put out of a man’s throwing a log
into the highway: if at the time of its being thrown it hit any person, it is trespass, but if after it be
thrown, any person going along the road receive an injury by falling over it as it lies there, it is
case. Neither does the degree of violence with which the act is done make any difference: for if
the log were put down in the most quiet way upon a man’s foot, it would be trespass; but if
thrown into the road with whatever violence, and one afterwards fall over it, it is case and not
trespass. So here, if the defendant had simply placed his chaise in the road, and the plaintiff had
run against it in the dark, the injury would not have been direct, but in consequence only of the
defendant’s previous improper act. Here however the defendant was driving the carriage at the
time with the force necessary to move it along, and the injury to the plaintiff happened from that
immediate act: therefore the remedy must be trespass: and all the cases will support that
principle.
Note
1. The problem of surprise. In Leame, the trial judge saw the writ of trespass as
inappropriate for non-willful carriage accidents arising out of mere negligence, because there was
no willful injury. The defendant here, after all, did not intend to be on the wrong side of the road.
But the trial court was reversed on appeal. Why the reversal? One consideration might have been
that requiring plaintiffs to use the writ of trespass on the case in highway cases would put them at
risk of being surprised at trial by testimony that the defendant actually intended to strike them. In
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