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According to this article:

Trespass to land occurs where a person directly enters upon another's land without permission, or remains upon the land, or places or projects. This tort is actionable per se without the need to prove damage.

By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable.

What determines what actions can be brought per se, and which ones require actual damages to be actionable? And what is the law’s rationale for this distinction?

TylerDurden
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1 Answers1

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“The harm is inherent in the wrong”

This nice phrase was used by the Australian Law Reform Council in their report on a proposed new tort of Serious Invasions of Privacy in the Digital Era.

They go on to say:

The authors of Markesinis and Deakin’s Tort Law state that ‘the function of the interference torts is not to engage in loss-spreading in the same way [as the tort of negligence], but to affirm the fundamental importance of certain constitutional interests, such as personal bodily integrity and freedom of movement, in their own right’. Further, they write, in the torts of trespass to the person and interference with land and with chattels,

the emphasis is less on the nature of the damage suffered and on whether the defendant’s conduct can be characterised as ‘fault’, as on the nature of the interference with the claimant’s rights, in particular on whether it was direct or indirect and on whether, in the context of various defences, it can be characterised as justified or not.

So, that’s why.

Dale M
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