This chapter deals with defences to the trespass actions discussed in Chapters 6 and 7. As a general rule, the defendant bears the burden of proving the facts necessary to constitute a defence. Where the defence is established, the defendant will be relieved of liability.
It should be noted that some statutory defences, which are similar to common law defences, are provided by the civil liability legislation and/or Criminal Code in most of the Australian states and territories. Therefore, when considering such defences, the relevant legislation in a particular jurisdiction must be consulted. This chapter will discuss some of the most important defences available for trespass to the person, trespass to land and trespass to personal property.
The defences fall within three roughly divided categories:
(1) Self-help based defences
(2) Justification-based defences
(3) Fault-based defences
We also consider a number of factors that are not defences to trespass at the end of this chapter.
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