Everitt v Martin [1953] NZLR 298

Tort - Trespass - Accidental touching - Injury - Entitlement to Damages


Everitt parked his car beside Martin on the side of a highway. While walking between the two cars, he tore his coat on a piece of metal that was protruding from the mudguard of Martin’s car. Martin knew about the protruding mudguard, but negated to have it fixed.


Whether Everitt was entitled to damages for damage to his coat caused by negligence, in circumstances where he could have been held liable for trespass to personal property.


Everitt was entitled to damages as Martin’s knowledge of the potentially dangerous state of his car amounted to the tortious act of negligence. He was shown to have owed a duty of care to fellow road users, on the road and when parked. It was held to be reasonably foreseeable that a piece of protruding metal from a car was likely to cause injury of some kind. Although Martin argued that Everitt’s contact with the vehicle was unauthorised and amounted to trespass, Martin’s failure to fix the car had caused the tort of trespass to occur. But for the protruding metal on the car, the coat would not have ordinarily made contact with the car and consequently, would not have been torn. The court considered the case of Slater v Swann 93 E.R. 906, where the touching of goods, including animals privately owned, amount to trespass of personal property. This was distinguished on the basis that mere accidental touching was held not to be trespass.