The victim had trespassed by placing his hand on the defendant’s fence. However, because his action was unintentional and momentary, it was merely a technical trespass and not sufficient to remove the liability of the defendant to provide compensation for his dog’s attack.
The victim did not trespass because she was in the presence of the defendant, who must have given her implied permission to wave her hand over the defendant’s property. The plaintiff therefore had not entered the property without permission.
Simpson’s case was a civil action against the dog owner for damages. Johnson’s case was a criminal prosecution of the dog owner for a statutory offence. In both cases, the victim had committed a trespass. While in Simpson’s case the trespass was considered to be merely technical, in Johnson’s case the fact of the victim’s trespass was more significant as the statute provides a complete defence against the charge of owning a dog that attacks where the victim was trespassing.