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Tort Law - Trespass

Trespass to Goods

The owner of any chattel – a physical item which is owned by someone – has a right not to have their chattels interfered with. Like other trespasses, trespass to goods includes even the slightest unwelcome touch of someone else’s goods, not just recognisable damage. Conversion is another tort which involves the wrongful use of another’s property – converting it to one’s own possession. A suit in conversion is appropriate where either theft or borrowing without consent has occurred. A suit in trespass to goods, on the other hand, is more appropriate to vandalism, and other forms of interference.


Immediate Right of Possession

To determine whether a trespass to goods occurred against one person or another, you first need to understand the property rights held by different interested parties. This is because ownership can mean different things. A person without any current right to control the goods in question cannot sue for a trespass. Some rights to possession may arise from contracts and qualify as personal rights only and not a proprietary right. The latter is a right of ownership or of possession over something tangible. To sue for trespass on any kind you need not a personal right to the thing, but a proprietary right. For more detail refer to the chapter on Property Law.


Having established a proprietary right, the plaintiff then must establish that they have a right to take possession immediately. In Wilson v Lombank[1] the plaintiff was able to establish their lawful right of possession in spite of not being in physical possession at the time when the trespass occurred. The plaintiff, a car dealer named Wilson, bought a car from a vendor who had no legal title to it due to a chattel mortgage over it – and therefore could not pass the title on. The car needed repair, and the plaintiff left it at a garage, where he had monthly credit terms. The repairs were completed and the car was left in front of the garage. Meanwhile there had been a purported – though invalid – sale to the defendants, Lombank Ltd. While the car was in front of the garage a representative of the defendants, thinking incorrectly that they had legal title to the car, took it away. The defendants subsequently discovered who held true legal title and delivered the car to the true owner, Mercantile Credit Co Ltd who held the mortgage. Wilson sued for trespass to goods.

Ordinarily the fact that the plaintiff had not yet paid for repairs would defeat his claim to a immediate right of possession. This is due to a feature of property law in which a repairer (just as a mortgagee or similar does) acquires a property right called a lien over the item being repaired so that they can withhold it until the agreed payment is made. However, the ongoing credit relationship that he had with the garage meant that he did not need to pay to pick up his car. Thus there was no condition upon re-taking the car back from the mechanic and Wilson never surrendered his immediate right of possession. The plaintiff’s claim was not defeated by the fact that the Defendants had subsequently returned the car to the legal title holder (Mercantile Credit). The Defendant was found to have trespassed by taking the car, and the existence of a third party with superior rights was found to be irrelevant.

If the plaintiff had surrendered their right to possession, such as if they were to pay not on account, but for the whole repair prior to pickup, then their immediate right of possession would be in limbo until payment was received. With it also, the right to sue in trespass would be unavailable.

[1] Wilson v Lombank Ltd (1963) 1 All ER 740.


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