TOYOTA FINANCE AUSTRALIA LTD v DENNIS & ORS; TEKITU PTY LTD v DENNIS & ANOR

Court of Appeal (NSW)|2002-03-14|Before: Meagher JA, Handley JA, Sheller JA

Introduction These two applications for leave to appeal (CA 40807/00 and CA 40809/00) were from a decision given by his Honour Judge Delaney in the District Court on 14 September 2000. Since, in my opinion, leave to appeal should be granted in both applications I shall treat them hereafter as appeals. I refer to them as the Toyota appeal and the Tekitu appeal. The proceedings followed upon an incident which occurred on the morning of 7 February 1996 in the Coles Car Park at Richmond. Noeline Dennis, who was one of the respondents to the first appeal (the Toyota appeal) and the respondent to the second appeal (the Tekitu appeal), was in the driver's seat of a Toyota wagon. Her husband, John Dennis, was sitting beside her in the passenger seat. Mr and Mrs Dennis ran a gourmet pie shop in West Market Street, Richmond. Mr Dennis was sometimes referred to as the "pie man". 96 Paul Toweel, one of the respondents in the Toyota appeal and one of the appellants in the Tekitu appeal, had been engaged to repossess the Toyota wagon. Mr Toweel approached the vehicle on the driver's side. According to Mrs Dennis, before Mr Toweel reached into the vehicle, Mr Dennis had told her to shut the door, which she had started to open, and wind the window up. Mr Toweel indicated to Mrs Dennis, according to her evidence, that he was acting on behalf of Toyota Finance Company, the appellant in the Toyota appeal, Toyota Finance Australia Limited (Toyota) and was there to collect the vehicle. Mrs Dennis knew that there were arrears owing to Toyota in relation to it. He said to Mrs Dennis, "Would you step out of the vehicle?" The driver's side window was open. Mrs Dennis said that she would not step out of the vehicle. Mr Toweel reached inside the vehicle to remove the keys, with his right hand according to Mrs Dennis, with his left hand according to Mr Toweel. According to Mrs Dennis, Mr Toweel grabbed her right upper arm with his left hand "to get my right arm out of the way of the keys". When Mr Toweel grabbed her right upper arm, Mrs Dennis said, "Let go, you're not getting the car." Mr Toweel gave evidence that while he was trying to get the keys out of the vehicle he was being scratched and the window was going up. Mrs Dennis said she did not think she had scratched Mr Toweel significantly. She said: "No I suppose I scratched, I could scratch." 97 At about this time Mr Dennis got out of the passenger side door of the vehicle and came around to where Mr Toweel was standing, pushed him and told him to "let go of my wife". According to Mrs Dennis, Mr Toweel let go of her arm and she then wound the window up. At some point thereafter, Mr Toweel entered the vehicle by the back door on the driver's side and reached across her right shoulder attempting to get the keys. Mr Dennis had gone around and got back into the vehicle in the front passenger seat. Mrs Dennis started the vehicle and began to reverse it. It is not clear whether Mr Toweel, as Mrs Dennis suggested, left the vehicle before she started to reverse or whether he left the vehicle after she started to reverse as he said.

District Court proceedings 98 Mrs Dennis began proceedings in the District Court against Mr Toweel, Toyota, Tekitu Pty Limited (trading as Statewide Process Service) (Tekitu), and Petzat Pty Limited (Petzat), the last two being appellants in the Tekitu appeal and respondents in the Toyota appeal, to recover damages for the assault by Mr Toweel. By her further amended ordinary statement of claim, Mrs Dennis claimed that the other three defendants were vicariously responsible for the assault by Mr Toweel. She also claimed that the second, third and fourth defendants were negligent. That claim failed at the trial. Two notices of defence were filed, one on behalf of Mr Toweel, Tekitu and Petzat and the other on behalf of Toyota. Part of the Toyota defence was that Mr Toweel was entitled to use sufficient and reasonable force to recover possession of the vehicle and that the force and methods used to recover possession of the vehicle on 7 February 1996 were sufficient and reasonable and as such were not an assault. The defence by the other three defendants denied the allegation of assault and the particulars of assault but did not expressly raise a defence of sufficient and reasonable force. Mrs Dennis made various allegations that each of the first, third and fourth defendants were employed or sub-contracted by other defendants to repossess the vehicle and that Mr Toweel or Tekitu was the agent of other defendants for the purpose of the repossession. These allegations were all denied. 99 Judge Delaney found all the defendants liable for assault and assessed general damages at $28,000 and $1,800 for past interest. He said that he had decided "to take into account the allowance that I have made for general damages, interest and out-of-pocket expenses that it is appropriate off [sic] the total damages payable to the plaintiff by the defendants jointly and severally at $30,000." He gave a verdict and judgment against each of the defendants jointly and severally for $30,000. 100 In his reasons for judgment his Honour referred to the hire purchase agreement with Mr Dennis and found that Mr Dennis had fallen into arrears, that despite requests for payment Mr Dennis did not pay and that Toyota decided, pursuant to its agreement with Mr Dennis, that it had the right to repossess the vehicle and gave instructions to Statewide Process Service (Statewide). In outlining the facts of the incident, the trial Judge said that Mr Toweel had with him a tow-truck driver who was not called to give evidence. There was some evidence from Mr Toweel that attempts to locate the tow-truck driver had been unsuccessful. The trial Judge accepted that in whatever form it really took there was some short preliminary conversation between Mr Toweel and the occupants of the vehicle which indicated to them that he was there to repossess the vehicle. His Honour said:

"It was clear from Mr Toweel's evidence that he could not be certain about what had actually happened as far as his touching or grabbing of the plaintiff.

However Mr and Mrs Dennis and an independent witness, Ms Heather Roy, gave evidence about what happened. Ms Roy said that early in the morning of 7 February 1996 she was driving out of the car park. She noticed that there was a problem with some people nearby. She said that she noticed a well dressed man pulling on the plaintiff through the window on her right arm with his left hand pulling it outwards, and then saw him push with both hands. He let go when the pie man she said or did something (sic). He then went back to the car and sought to enter through the passenger's side rear door.

This witness had a clear view several metres away and saw Mr Toweel pulling on the arm of the plaintiff. This is consistent with the evidence which was given by the plaintiff, although not identical with it. I accept that this occurred.

Although it was argued by Mr Reuben that this was an action justified by the terms of the requirement that the vehicle be repossessed under the Finance Contract, I am not satisfied that such actions were justified.

I find that the pulling of the arm of the plaintiff who was not the hirer of the vehicle and who was in lawful control of it at the time was in fact an assault. The plaintiff suffered some bruising to the right upper arm. Photographs were shown of it. She alleged other medical consequences, including the subsequent development of a carpal tunnel syndrome to which I will refer shortly." 101 His Honour gave no other reasons for rejecting the defence that if Toyota was entitled to repossess the vehicle and, as was obviously the case, Mr and Mrs Dennis were not prepared peaceably to hand it over, Mr Toweel, acting on Toyota's behalf to repossess the vehicle, was entitled to use reasonable force to do so. 102 On the question of Toyota's liability for the assault by Mr Toweel, Judge Delaney referred to submissions for Mrs Dennis that the evidence had established agency, the evidence being a conversation that Mrs Dennis said she heard between Mr Toweel and Mr Cunningham, a person employed by Toyota. Reference was made to what was described as an agency agreement between Toyota and Statewide. There was a concession on the pleadings that Mr Toweel traded as Petzat. After referring to the defendants' submissions the trial Judge concluded on liability as follows: "It is obvious in the facts and circumstances of this case that in fact the employment was sanctioned by Toyota Finance, and I find that they are vicariously liable for the actions of Statewide and also Mr Toweel. I find that Statewide is vicariously liable for the actions of Mr Toweel, its agent, performed in the course of instruction given.

In addition I find that the Toyota Finance is vicariously liable for the assault perpetrated by Mr Toweel on Ms Dennis in the course of carrying out the tasks allocated for the purpose of the repossession of the vehicle. This was for the beneficial interest of Toyota Finance, it was a specific request made by Toyota Finance for the purpose of its business. It was totally within the purview of those matters which were considered necessary for that activity.

Mr Stoljar, as I said, had argued to the contrary. He referred to Prior v State of New South Wales, unreported, 23 October 1998, Court of Appeal, and also referred to a case reported in Canada of Devoe v Long which he said was directly in point. This is reported at 1951 Dominion Law Reports. He referred to page 219 of the judgment of Harrison J therein, where his Honour quoted from Clerk and Lindsell on Torts, as follows: 'He who is entitled to the immediate possession of a chattel may commit an assault to recover it when anyone who has it in his actual possession and wrongfully detains it, provided that such possession was wrongful in its inception, as, for example, a party assaulted a stake in the chattel by trespass (sic), but it is submitted that if a person has a chattel bailed to him and unlawfully refuses to give it up on the termination of the bailment, the owner must bring his action and cannot use force to recover his property since the original possession was lawful.' The defendants are therefore liable for committing the assault upon the plaintiff, therefore committing a breach of the peace. Mr Stoljar said that there was no vicarious or direct liability. He said that the general rule that a person is not liable for the torts of an independent contractor was confirmed in the case of CentreLease Equipment Finance Pty Limited v Bullock , unreported NSW Court of Appeal, 29 April 1997.

However as I have already mentioned I have come to the conclusion that this is a case, as referred to both by the Court of Appeal in Bugden v Rogers which is of a different nature from that referred to in Vabu. Mr Stoljar said that CentreLease Equipment case was in point. He said that it was necessary to consider the views which were expressed by the Court of Appeal there and that it was those views which should hold sway in this case.

He referred to the reasons given by Powell JA in which the facts of that case were noted:

'By no later than June 1991 Cordials had fallen into arrears in the payment of instalments in rental. On 12 June 1991, following discussions between a member of CentreLease's staff and a member of the staff of Cordials, CentreLease forwarded to Cordials, by facsimile, a complete statement of payments due and payments made…..' His Honour went on to say that as such payment had not been sought a request was then sent that the full arrears of $728 be obtained. Further on in the judgment his Honour referred to the fact that a Mr Barlow went to the premises of Cordials, and thereafter an incident occurred when an injury was sustained by the plaintiff. His Honour referred to the arguments which were addressed before the District Court in this case, and referred to Vabu v The Commissioner of Taxation in considering the issues which had to be determined.

The Court concluded that the trial judge determining as he did that Mr Barlow was a servant of CentreLease fell into error. It was on this basis that this decision was made, and I find that it is capable of being distinguished from the facts and circumstances of this case. Accordingly on the findings I have made in relation to the events of the day the 7 February 1996 Mr Toweel assaulted Mrs Dennis, that the second and third defendants were vicariously liable for the effects upon Mrs Dennis occasioned by that assault." 103 After concluding that the negligence claim failed his Honour said: "Accordingly the verdict is only on the basis of the assault which I find was perpetrated by Mr Toweel. This was, I find, a deliberate action on his part in seeking to recover the vehicle. In coming to that conclusion I have considered the various provisions of the contracts which were tendered, both in draft and in actual form, and I have also taken into account the evidence which was given by an employee of Toyota Finance, Ann McLoughlin. This confirmed the matters which were raised by the plaintiff. I accept that a conversation did take place which she heard between Mr Cunningham and Mr Toweel. Ms McLoughlin confirmed the relationship between Toyota Finance and Mr Cunningham and I find that in those circumstances that Mr Toweel was on the day in question an agent of Toyota Finance for which it was vicariously liable." 104 On damages, his Honour quoted from the report of Dr Whitty of 30 June 2000 and the view therein expressed that Mrs Dennis suffered from tenosynovitis and carpal tunnel syndrome causatively related to the injury. His Honour found that she did have the condition referred to and treated by Dr Whitty, "notwithstanding the evidence of Dr Parker tendered on behalf of the defendant". So finding, his Honour reached the conclusion on damages to which I have referred.

Grounds of appeal 105 In the Tekitu appeal the grounds of appeal of Mr Toweel and Petzat were that the trial Judge erred in law in finding Mr Toweel assaulted Mrs Dennis and should have found that Mrs Dennis was unlawfully in possession of the vehicle, the right of possession thereof vesting in the lessor and should have held that Mrs Dennis was a trespasser in the vehicle and liable to be ejected there from as a trespasser. Further, the trial Judge erred in failing to find that Mr Toweel was using no more force than reasonably necessary to obtain possession of the vehicle on behalf of the owner entitled to possession, particularly in circumstances where Mrs Dennis resisted giving up possession of the vehicle to Mr Toweel. 106 Tekitu appealed on grounds that the trial Judge erred in finding that Toyota gave instructions to Statewide to repossess the vehicle, that Tekitu engaged Mr Toweel to recover the vehicle, both being against the weight of the evidence, and should have found that Tekitu had no financial or pecuniary interest in the repossession of the vehicle which would justify a finding that Mr Toweel was the agent of Tekitu. Tekitu also appealed against the trial Judge's error in finding that Mrs Dennis' refusal to hand over possession of the vehicle and/or the keys to the vehicle was wrongful. In the circumstances where Mrs Dennis resisted giving up possession of the vehicle, the trial Judge should have found that Mr Toweel had used no more force than reasonably necessary. 107 Toyota's grounds of appeal were: "1. His Honour erred in law in finding that [Mr Toweel] was the Appellant's sub-servant or agent. 2. His Honour erred in law in finding that the relationship between the Appellant and [Mr Toweel] was such that the Appellant could be vicariously liable for the acts of [Mr Toweel]. 3. His Honour erred in finding that, the actions of [Mr Toweel] were within the scope of any authority given or delegated to [Mr Toweel] by the Appellant."

Cross appeal 108 Mrs Dennis sought leave to cross-appeal on the ground that the trial Judge erred in failing to find that Toyota owed her a duty of care and breached that duty of care.

Further facts 109 The vehicle which Mr Toweel attempted to recover was a Toyota 4 Runner Deluxe registration number TXK 282, the subject of a lease entered into on 7 October 1992 between Toyota as lessor and Mr Dennis as lessee. The lease term was sixty months computed from the commencement date, which was 9 October 1992. The instalment payment was $698.92 - "payable monthly the first instalment herewith and subsequent instalments at monthly intervals thereafter". Clause 2 of the lease acknowledged the lessee's agreement to pay the rent by instalments described in the Schedule at the times and in the manner therein provided for the whole of the lease term at the lessor's office in New South Wales or at such other place as the lessor might direct. Clause 8 provided, so far as presently material, as follows: "(a) If the Lessee shall fail to pay on the due date any payment of rent under clause 2 and such default continues for fourteen days or if the Lessee persistently defaults in paying such payments on the due date ….. then and in any such event at the option of the Lessor there shall become forthwith due and payable by the Lessee to the Lessor an amount ('the Recoverable Amount') being the unpaid balance of the rent for the whole period of this Agreement…. (b) If at any time the Recoverable Amount has become payable by the Lessee and is not paid within fourteen days…. the Lessor may at any time ….. terminate the Lessee's right to possession of the Goods and re-take possession thereof. Retaking possession shall be sufficient evidence of termination of the Lessee's right to possession." 110 At the trial there was no issue that at the relevant time Mr Dennis was in arrears under the lease and Toyota entitled to repossess the vehicle. On 16 January 1996 Mr Dennis was sent a notice of intention to repossess the vehicle unless an amount of $1,131.27 was paid by 31 January 1996. There was evidence that this notice would have been received by Mr Dennis. The payment was not made. Toyota had a written agreement with a company called Nanpay Pty Limited (trading as Combined Investigation Services) (Nanpay) whereunder Nanpay was appointed Toyota's agent to take possession of goods. Nanpay agreed to act pursuant to the agreement "so as not to commit any offence" and "to ensure that each employee and agent of it obtained and at all material times maintained in force any licence required or desirable for performance of its duties under the agreement and to perform and observe all conditions upon which any such licence was granted". 111 By a document faxed on 5 February 1996 Toyota authorised and empowered Nanpay to take possession and retain the motor vehicle. It was noted on the document that the borrower stated "there was 'NO WAY' he would allow the vehicle to be repossessed". On 6 February 1996 Nanpay requested the defendant, Petzat, to collect arrears by way of bank cheque or cash or, if unable to, repossess the vehicle. Petzat, which was independent of Nanpay, carried on business under the name Northwest Mercantile. Mr Toweel was an officer of Petzat. It was conceded at the trial that Petzat was vicariously liable for the assault by Mr Toweel on Mrs Dennis. Mr Toweel was, at the relevant time, licensed under the Commercial Agents and Private Inquiry Agents Act 1963, s6 of which provides that no person shall carry on the business or any of the functions of a commercial agent unless the person is the holder of a commercial agent's licence. Commercial agent is defined to mean any person who exercises or carries on, inter alia, the function of ascertaining the whereabouts of, or repossessing, any goods the subject of a lease or collects or requests or demands payment of a debt on behalf of any other person and for or in consideration of any payment or other remuneration.

Vicarious responsibility 112 In Stoneman v Lyons (1975) 133 CLR 550 the respondents sued the appellant, who had contracted with a builder to erect a supermarket on his land, to recover damages for breach of a building regulation and on a cause of action in trespass. The builder was an independent contractor whose workmen had dug a trench in breach of a building regulation and in a manner which extended in pockets under the footings of the wall of a building on the respondents' land. At 573-4 Mason J, with whose reasons Barwick CJ and Gibbs J, and on this point Stephen J agreed, said: "It follows, then, that the contract did not authorize and direct the builder to do what he in fact did. By proceeding as he did he failed to comply with the requirements in cl 57 and cl E4.01 as they applied to the digging of the pockets. In this circumstance the trespass by the builder cannot be attributed to the appellant. For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass…" 113 In Torette House Pty Limited v Berkman (1939) 39 SR (NSW) 156 at 170 Jordan CJ, with whom the other members of the Court concurred, said: "But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is 'dangerous, 'hazardous', or 'extra hazardous'." 114 Unfortunately, Stoneman v Lyons was not brought to the attention of the trial Judge. 115 At the trial, counsel for Mr Toweel and Tekitu relied upon what was said by this Court in Hollis v Vabu Pty Limited (1999) Aust Torts Rep 81-535. An appeal from that decision was allowed by the High Court: Hollis v Vabu Pty Limited (2001) 207 CLR 21. The majority of the High Court concluded that the relationship between Vabu and the bicycle courier who struck down the appellant was that of employer and employee and that Vabu thus was vicariously liable for the consequences of the courier's negligent performance of his work (para 61). This conclusion was based on the facts of the case. In the course of reasoning their Honours observed (para 35) that a fully satisfactory rationale for the imposition of vicarious liability in the employment relationship had been slow to appear in the case law. In the present case I am unable to see on the evidence how it could be said that any of the first, third and fourth defendants were employees of Toyota. If Tekitu was involved at all, and the facts suggests that it was not, it was involved under a contract with Toyota to perform the function of a commercial agent within the meaning of the relevant Act. The same can be said about both Mr Toweel and Petzat. In contrast to the factors catalogued in paras 48-57 of the majority judgment in Vabu, Mr Toweel, Tekitu and Petzat provided labour which required special qualification, namely statutory licences, they had complete control over the manner in which they performed the work, except that they agreed that Toyota would not countenance the commission by them of any offence, and they were not presented to the public as emanations of Toyota. Toyota did not superintend their finances or the period of leave to be taken by them, nor was Toyota in any way responsible for their tools of trade or equipment. By any test they were independent contractors for whom Toyota was not vicariously liable. 116 Toyota did not authorise any of the first, third and fourth defendants to engage on its behalf in tortious conduct. Mrs Dennis submitted that Tekitu, Petzat and Mr Toweel were agents or sub-agents of Toyota acting within the scope of their authority because, it was said, Toyota delegated the task of collection of arrears, plus costs or repossession to these defendants and left it to them to achieve one of those goals. To my mind there is no basis in the evidence for finding that Toyota authorised any of these defendants to assault Mrs Dennis. The evidence from the written agreement with Nanpay was to the contrary. Counsel for Mrs Dennis referred to Canterbury Bankstown Rugby League Football Club Limited v Rogers (1993) Aust Tort Reports 81-246 where this Court dismissed an appeal from a finding that a professional rugby league club was vicariously liable for the consequences of a assault which was against the rules of the game. The trial Judge based his decision on the players having the club's authority to use force in the course of a legitimate tackle extending to an illegitimate tackle. At 62,551 Giles AJA said that he did not think that the violence employed by the player was so excessive as to "take [his] act out of the class of acts which [he] is authorised or employed to do". In the present case the evidence was not there to support a conclusion that Toyota authorised any of the defendants to use force against Mrs Dennis. It follows from this that Toyota's appeal must succeed. 117 In this context it is useful to refer to what was said by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-49: "Little evidence was given of the relations which in fact subsisted between [the 'agent'] and the appellant in the actual conduct of his agency; and, I think, no sufficient reason appears for supposing that the appellant assumed such a control over the manner in which he executed his work as to constitute him its servant. In my opinion, the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the 'agent' in the course of his attempts to obtain proposals. In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the 'agent' has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the company, which accordingly must be considered as itself conducting the negotiation in his person." 118 In Hollis v Vabu, after referring to part of this quotation from Dixon J's judgment, the majority said at para 40: "This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217. His Honour said that the distinction between an employee and an independent contractor is 'rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'. In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, McHugh J said at 366: 'The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer.' " 119 The principal's liability in Colonial Mutual Life Assurance sprang from the authority of the agent to solicit proposals and the company's confiding in him the choice of inducements and arguments. At 50, Dixon J said: "The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise."

While the majority of the Court in Hollis v Vabu held that the courier was not acting as an independent contractor, only McHugh J concluded that the courier was carrying out the task as Vabu's representative under its general direction and control and acting within the scope of the authority conferred on him and that hence Vabu was responsible for the courier's negligence (para 74). The points of distinction I have already listed dictate against the conclusion that in any sense the other defendants "represented" Toyota in repossessing the vehicle. 120 As Lindgren J pointed out in NMFM Property Pty Ltd v Citibank Limited (No 10) [2000] FCA 1558 at para 520, it is generally recognised that the owner or bailee of a motor vehicle may incur vicarious liability arising out of the negligent driving of a motor vehicle apparently on the basis of agency; see now Scott v Davis (2000) 204 CLR 333. The factual context of such cases enables them to be distinguished from the present.

Assault 121 The acts of Mr Toweel amounted to an actionable assault on Mrs Dennis unless they could be justified because she was wrongfully detaining a vehicle of which his principal Toyota was entitled to immediate possession. In Clerk and Lindsell on Torts, 18th ed (2000) at 31-12 appears the following (a passage which Judge Delaney quoted in part): "He who is entitled to the immediate possession of a chattel may commit an assault to recover it from anyone who has it in his actual possession and wrongfully detains it, provided that such possession was wrongful in its inception, as, for example, if the party assaulted has taken the chattel by trespass or even as an innocent purchaser has acquired it by an act of conversion from someone without title. … No more force must be used, however, than is necessary to effect recaption. But it is submitted that if a person has a chattel bailed to him and unlawfully refuses to give up on the termination of the bailment, the owner must bring his action and cannot use force to recover his property, since the original possession was lawful and the same rule would apply where the vendor of a chattel wrongfully refuses to make delivery to the purchaser. The Law Reform Committee believed that this branch of the law required clarification and recommended that, provided no more force is used than is reasonable, a person should be entitled to use force to recover a chattel of which he has been wrongfully deprived. The criterion would be the reasonableness of the action in retaking, or of entering in order to retake the chattel. … And the criterion of reasonableness would render resort to such self-help a dangerous remedy." 122 This view that the right of recaption is so limited is said to be supported by the decision of the Appeal Division of the New Brunswick Supreme Court in Devoe v Long & Long [1951] 1 DLR 203, an authority Judge Delaney cited. It is not clear from the above paragraph that the learned authors are stating the law in England as distinct from Canada. 123 The Law Reform Committee Report (Report 18 Cmnd 4774, 1971) says under the heading "Recaption of Chattels": "116. Existing law : There is little doubt that, under the existing law, an owner is entitled to retake his chattel peaceably from any person who is unlawfully in possession of it, and it would seem to be immaterial whether that person is a trespassory taker, a former bailee, or someone who has acquired it in good faith without title. The owner may rely upon prior possession of the chattel (as where it has been taken from him by a trespass) or upon an immediate right to possession (as where he seeks to recover the chattel from a bailee whose bailment has come to an end). It would appear that no prior demand is necessary before he exercises his right of peaceable recaption, except where such a demand is required on some other ground, eg to determine an existing bailment. Statutory restrictions have, however, been imposed on the recovery of certain chattels otherwise than by action by such enactments as the Hire-Purchase Act 1965 and the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951. 117. More doubt exists where it is sought to justify the use of force against the person in possession of the chattel. Where a chattel is taken from its owner by a trespass, and by a person who knows that he is not entitled to it, there is clear authority that the owner is entitled to use such force as is reasonably necessary to wrest control of the chattel from the trespasser, and it may be that force could similarly be used against a trespasser who honestly believed that he was entitled to the chattel. It is doubtful, however, whether the owner is entitled to wound or to inflict serious injury in order to regain his property, although he can do so in order to defend himself against violent attack, and it would seem that, in general, a prior demand for delivery up of the goods would be required before it could be said that the use of force was justified. 118. There is less agreement as to the extent to which force may be used to recover a chattel from a person other than a trespasser. In Blades v Higgs (1861) 10 CBNS 713 at 720, Erle CJ stated that there was in this context no distinction between a trespassory taking and one that did not involve trespass; and the text-book writers are agreed that the use of force may be justified, not only against a trespassory taker but even against a third party who as an innocent purchaser has acquired the chattel by an act of conversion from someone without title."

In a footnote to the last paragraph reference is made to the passage in the relevant edition of Clerk and Lindsell. It is noted that this view was followed specifically in Devoe v Long and was the possible basis of the decisions in Dyer v Munday [1895] 1 QB 742 and R v Doucette [1960] 25 DLR (2d) 380 but was not adopted in the New Zealand case of De Lambert v Ongley [1924] NZLR 430 which followed Blades v Higgs (1861) 10 CB NS 713; 142 ER 634. 124 In Blades v Higgs the declaration charged that the defendants assaulted and beat and pushed about the plaintiff and took from him his goods, that is to say, dead rabbits. The defendants' third plea was: "as to the assaulting, beating, and pushing about the plaintiff, that the plaintiff, at the said time …. had wrongfully in his possession certain dead rabbits of and belonging to the Marquis of Exeter; that the said rabbits were then in the possession of the plaintiff without the leave and licence and against the will of the said marquis; and that the plaintiff was about wrongfully and unlawfully to take and carry away the said rabbits and convert the same to his own use; whereupon the defendants, as the servants of the marquis, and by his command, requested the plaintiff to refrain from carrying away and converting the same rabbits, and to quit possession thereof to the defendants as such servants, which the plaintiff refused to do; and that thereupon the defendants, as the servants of the said marquis, and by his command, gently laid their hands upon the plaintiff, and took the said rabbits from him, using no more force than necessary". 125 Erle CJ, giving the judgment of the Court of Common Pleas against the plaintiff's demurrer to this plea, said at 720-721; 637: "If the defendants had actual possession of the chattels, and the plaintiff took them from them against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels: and we think there is no substantial distinction between that case and the present; for, if the defendants were the owners of the chattels, and entitled to the possession of them, and the plaintiff wrongfully detained them from them after request, the defendants in law would have the possession, and the plaintiff's wrongful detention against the request of the defendants would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner. It has been decided that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. In respect of land, as well as chattels, the wrong-doers have argued that they ought to be allowed to keep what they are wrongfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was justified: see Newton v Harland , 1 M & G 644, 1 Scott, NR 474. But, in respect of land, that argument has been overruled in Harvey v Brydges , 14 M & W 442. Parke, B, says: 'Where a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though in so doing a breach of the peace was committed.' In our opinion, all that is so said of the right of property in land, applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it. For these reasons, our judgment is for the defendants." 126 Earlier in his reasons for judgment, Erle CJ said that the plaintiff had adduced no authority to support his demurrer and the defendants likewise had failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendants and became the holder thereof. Neither party referred to Lee v Atkinson (1609) Yelv 172; 80 ER 114 referred to by Palmer in "Title to Goods and Occupation of Land; A Conflict of Interests" (1980) Anglo-American Law Review 279. In that article the author said that the law in this area is confused. "The right to use force, for example, seems properly confined to cases where the possessor commits an originally wrongful appropriation of goods, so that neither a bailor whose bailee has later deviated from the bailment ( Lee v Atkinson) nor an owner who merely mislays goods on another's land is entitled forcibly to recover them." 127 Nevertheless, in the judgment of the Court of Common Pleas in Blades v Higgs, wrongful detention was sufficient for the plea to be good, although no allegation of wrongful appropriation had been made. In Blades v Higgs the original wrongful taking of the dead rabbits was by a poacher, who sold them to the plaintiff. This was irrelevant to the demurrer. On the hearing of the demurrer the facts pleaded in the plea were taken to be true. 128 Zimmler v Manning (1863) 2 SCR (NSW) 235 was a decision of Stephen CJ in which a plaintiff sued in trover for certain goods and in trespass alleging that the defendant had broken and entered the plaintiff's dwelling house and removed and carried away the goods. In the course of giving judgment for the plaintiff on his demurrer to a plea the Chief Justice said at 240: "So, in Blades v Higgs , the owner of a chattel in the anual possession of another may, after demand and refusal, take it from the latter by force. For, in such cases, as explained in the judgment of Erle CJ, the legal possession of the chattel demanded is in its rightful owner; who, therefore, in effect, uses the force in defence of that possession." 129 Wickham v Rice (1887) 4 WN (NSW) 9 arose out of a verbal agreement made by the defendants to lease land to the plaintiff. The plaintiff was allowed to go into possession pending the preparation of the lease. When the lease was prepared the plaintiff refused to execute it. The defendants, without any formal demand of possession, entered upon the land and committed an alleged trespass and assault. One of the defendants committed the assault by shoving the plaintiff with his hands to prevent him removing bricks from the site. The Full Court consisting of Darley CJ and Innes J ordered a verdict to be entered for the defendants although the jury had given £25 damages to the plaintiff for forcible entry and assault. Darley CJ referred to Harvey v Brydges (1845) 14 M & W 442; 153 ER 546, a case cited by Erle CJ in Blades v Higgs. The Chief Justice quoted Parke B who said at 442; 548: "Where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party." 130 The statement of facts does not explain how the alleged assault had anything to do with the defendants' getting possession of their land. No distinction was drawn in the course of the judgments between peaceable and forcible recaption of a chattel from a person who had lawfully obtained possession of it. 131 In Abbott v New South Wales Mont de Piete Company (1904) 4 SR (NSW) 336, a clause in a bill of sale gave leave to the holder, on default in payment by the giver thereof, to enter and, if necessary, break into the latter's premises and take possession of the goods. The Full Court held that the holder of the bill of sale was entitled to enter with force and violence to recover the goods provided that no more violence was used than was necessary. At 339 Darley CJ, with whom the other members of the Court concurred, said that under the circumstances the defendants were justified in entering and seizing their goods, notwithstanding that they may have used "force and violence and a strong hand". "The case of Blades v Higgs seems to me to set this matter completely at rest." 132 In De Lambert v Ongley, Sim J at 431 referred to Blades v Higgs which he said had the tacit approval of the House of Lords, when argued on a different point ((1865) 11 HLC 621; 11 ER 1474), and was treated, in Halsbury's Laws of England Vol 27, page 868 and Salmond on Torts, 5th ed at 179, as a definite authority for the right of recaption by a person entitled to the possession of a chattel by the use of reasonable force from any person who had wrongfully taken or detained it. The defence at 430 was that "the assault was committed while the defendant was taking from the plaintiff a document belonging to the defendant which was wrongfully in the plaintiff's possession and against the will of the defendant". Again, it is not clear to me that the case has any application where the defendant is seeking to recover from a plaintiff a chattel which came lawfully into the plaintiff's possession. 133 In Fitzgerald v Kellion Estates Pty Limited (1977) 2 BPR 9181, a case about the right of the owner of horses to go without the consent of a landowner on to land to collect the horses, Hutley JA, with whose reasons Hope JA agreed, said at 9183: "The owners could not get control of their animals without [the landowner's] consent unless they were entitled to recapture them. No attempt was made to resort to the right of recaption, and it is more than doubtful whether such a right existed. Salmond on Torts , 16th ed at 625, says: 'Any person entitled to possession of a chattel may retake the chattel either peaceably or by the use of reasonable force from any person who has wrongfully taken or detained it from him.' As there had been no wrongful taking by Kellion, it is only if Kellion detained the horses that there was any right of recaption and the argument for Kellion is that it could not be said to have detained the animals which were running wild at all. This case presented by Kellion, if sound, leads to an extraordinary gap in the law. There is no right of recaption and there is no detention of the animals, and therefore there is no remedy available to the owner. If the decision of the Supreme Court of New Brunswick in Devoe v Long is correct, it would appear that there would be no remedy available at all. In that case the Full Court of the Supreme Court of New Brunswick held that where a letter had been left in the plaintiff's house the owner of the letter had no right of entry to recover the letter from house, and Hughes J at 225 quoted from Blackstone's Commentaries , where it is said: 'If for instance my horse is taken away and I find him in a common, a fair or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable or entering the grounds of a third person to take him except he be feloniously stolen; but must have recourse to an action at law."

The Court was concerned only with whether the owner of the horses had a right of action which enabled him to recover the horses from the landowner. 134 In Fleming, The Law of Torts, 9th ed (1998) at 100, the author dealt with what he described as the privilege of recapturing a chattel instead of resorting to judicial process and said: "The scope of the privilege widened steadily since medieval times with increasing confidence in the ability of law to regulate extra judicial redress; but this trend, which reached its zenith during the last century, is likely to be reversed rather than followed today. Still, owing to the dearth of modern authority and some conflict among the older decisions, the present position cannot be stated in all respects with a high degree of confidence. … According to the better opinion, force is not justified unless the plaintiff's adverse possession was wrongful from its inception. Against a bailee, for example, the owner must resort to law, at any rate if repossession cannot be accomplished peacefully." 135 Professor Fleming acknowledged there was some authority for a wider privilege based on the view expressed in Blades v Higgs that the plaintiff's wrongful detention against the request of the defendant would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner. He observed at 101: "Yet this dictum really begs the question, because it assumes that the privilege inheres to all persons with an immediate right to possession, thereby ignoring the distinction between violation of actual possession and a mere right to possession, which determines whether the conduct amounts to trespass or conversion. It is contrary to the early common law and even went beyond the facts of the case whence it originated."

Professor Fleming observed that no force was justified until there had been first a demand to yield up possession peaceably, unless perhaps such a request would be futile or dangerous. 136 In Pollock on Torts, 14th ed (1939) at 309 (see also 15th ed (1951) at 293) it was said that the reasons given in Blades v Higgs at 720; 637 seemed wrong and that the decision itself was contrary to the common law as understood in the 13th century. 137 Devoe v Long is not a persuasive authority. The defendant had forcibly entered the plaintiff's premises and violently assaulted the plaintiff in order to recover a letter belonging to the defendant. The trial Judge had held that since the defendant had the right to possession of the letter and had demanded its return he was justified in using such force as was reasonable in order to retake it. Part of the force used by the defendants was threatening to hit the plaintiff over the head with a metal implement if he did not deliver the letter, pursuing the plaintiff through different rooms in the house and seizing the plaintiff by the arms and wrists and holding him. Blades v Higgs was cited as authority to justify the defendant's otherwise tortious conduct which included trying to break through a door into the plaintiff's premises. 138 Two of the appeal judges, Harrison and Hughes JJ, gave separate reasons for upholding the appeal. Richards CJ said no more than that he concurred. Harrison J at 217 thought that the language of the judgment of the Court of Common Pleas was broad enough to cover the case. If so, it covered the threat of extreme violence. Harrison J was of the opinion that Clerk and Lindsell correctly stated the law. Regarding the "second question", namely the defendant forcibly entering the plaintiff's house in order to retake his chattels, Harrison J referred to Salmond's Law of Torts, 10th ed (1945) at 191, where it was said: "As the authorities stand the position seems to be as follows. A man may enter another man's land to retake his own chattels if they came there (1) by accident, eg, if a fruit tree grow in a hedge and the fruit fall on to another's land; (2) by the felonious act of a third party ….But in order to justify his entry he must show that the goods came upon the occupier's land in one of these ways or by the occupier's own act: it is not enough to prove that his property was on the land without proving the circumstances in which it came there; still less does it suffice to justify the entry if the property came there by his own act. " 139 At 222 Harrison J said: "Under the authorities in our Court it appears that the owner of a chattel may make a peaceable entry on the plaintiff's close where the chattel has been deposited if the plaintiff took the chattel from the defendant; also if the plaintiff's possession was originally lawful but has been terminated by a request from the defendant who is entitled to the possession of the chattel. In such cases the defendant may make an entry on the plaintiff's close to retake, but only if such entry can be made peaceably and not by committing a breach of the peace. In the case before the Court the entry of the defendants was not justified because the plaintiff's original possession was lawful, and the entry was not peaceable, the plaintiff being present and having refused entry to the defendants, who then broke the door of the plaintiff's house, thus endangering the peace. I therefore consider the defendants were liable in trespass for breaking into the plaintiff's house." 140 Hughes J embraced the rule as stated in Blackstone's Commentaries, 18th ed, Book 3 (1829), pp 4-5 that the "natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society." Blackstone justified this conclusion by saying that the public peace is a superior consideration to any one man's private property and, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak and every man would revert to a state of nature. 141 For the reasons advanced by Professor Fleming, I do not think we should follow Blades v Higgs despite the Full Court decision in Abbott. With due respect Blades v Higgs is not a convincing decision. It is not based on precedent and for no satisfactory reason encourages forcible, perhaps violent, redress where none is required: s93 of the Supreme Court Act 1970; s83 of the District Court Act 1973. It is quite different in kind from the case where a person takes from its owner by a trespass a chattel that that person knows he or she is not entitled to. 142 In Hyde v Graham (1862) 1 H & C 593; 158 ER 1020 Sir Frederick Pollock's grandfather, Pollock CB, in a different context, said at 598; 1022: "No doubt, in Blackstone's Commentaries (Vol 3 p4), some instances are given where a person is allowed to obtain redress by his own act as well as by operation of law, but the occasions are very few; and they might constantly lead to breaches of the peace, for if a man has a right to remove a gate placed across the land of another, he would have a right to do it even though the owner was there and forbad him. The law of England appears to me, both in spirit and on principle, to prevent persons from redressing their grievances by their own act." 143 I have referred to the force described in Devoe. Judge Delaney acting on expert medical evidence concluded that Mrs Dennis suffered tenosynovitis and carpal tunnel syndrome as a result of the assault. The second was alleviated by surgery. The tenosynovitis remained symptomatic four years after the incident and was likely to be permanent and cause her continuing problems. I come in due course to deal with the submissions about the medical evidence. But it is undesirable that the law should contemplate that where the hirer of a motor vehicle wrongly refuses to hand it back, a person seeking to repossess it may inflict such injuries on a woman, in this case over 53 years of age, and justify it by saying in the words of Erle CJ that the force was no more than "sufficient to defend their right and retake the chattels". Furthermore, what at first may be a slight assault may easily be exacerbated by resistance or retaliation from the other party confused about his rights or outraged by the force used against him. 144 In my opinion, Mr Toweel had no right to seek forcibly to seize the vehicle and in the course of doing so, to assault Mrs Dennis. It is to be observed, as Fleming points out, that in three States - Queensland, Western Australia and Tasmania - it is lawful for any person entitled by law to the possession of moveable property to take it from an adverse possessor who does not hold it under a claim of right, and to use such force to overcome resistance as is necessary to obtain possession, provided it is not likely to cause death or grievous bodily harm (see s45 Tasmanian Criminal Code; s276 Queensland Criminal Code; s253 Western Australian Criminal Code). There is no equivalent legislation in New South Wales.

Damages 145 Mrs Dennis gave evidence about pain in her right arm following the incident. She said "my arm was throbbing at the time …it was really sore." Asked for greater detail she said the top part of her arm was throbbing and it continued to throb during the night. The next day the arm was still sore on the inside but she went back to work. On 9 February she went to see her local doctor, Dr Wu. He prescribed Panadeine Forte tablets. Photographs were tendered showing bruising. The pain continued and Mrs Dennis went back to see Dr Wu from time to time. On 10 April Dr Wu referred her to Dr Presgrave for tests. She was able to perform her usual duties in the pie shop but with pain. She said the pain had started to travel down to her wrist from the upper arm. In April 1997 she saw Dr Wu to obtain a referral to a specialist and was referred to Dr Whitty. She saw him on 16 July 1997. He told her she had to have a carpal tunnel operation. On 15 October 1997 Dr Whitty carried out an operation under general anaesthetic. After the operation she said she did not get the "tinglings" in the fingers any longer but still had a bit of pain in the right arm. She said this travelled from her lower arm down. She did not have the strength that she used to have in the arm. She could not lift things like she used to. She did not have the strength to unscrew a jar. At the time of the trial she still had a little bit of tingling all the time. She still took Panadeine Forte. She could not undertake heavy lifting any more. 146 There was little cross-examination of Mrs Dennis about her physical condition. As seems to be an almost universal practice, medical reports were tendered by the parties on both sides of the record. On 15 December 1998 the original treating doctor, Dr Wu, reported that he first attended Mrs Dennis on 9 February 1996 for pain in right upper arm. He referred to her history of the assault and reported that subsequently the pain had spread to the forearm and wrist in the form of tenosynovitis. She denied any problem in the right upper arm in the past. She was not cross-examined to suggest that she had any. Dr Wu reported that on 30 April 1996 Mrs Dennis developed carpal tunnel syndrome "proven by nerve conduction tests which was operated on the 15/10/97". Dr Wu reported she had slight symptomatic improvement but her condition had deteriorated by 1 May 1998. Dr Wu said: "This lady has tenosynovitis in right upper arm possibly related to the assault as stated. The carpal tunnel syndrome unlikely related to the injury - her symptoms of pain remain the same after decompression." 147 On 13 April 2000 Dr Wu reported that he had been observing Mrs Dennis until 22 February 1999 for tenosynovitis. He said her situation remained the same. She returned on 2 March 2000 and Dr Wu referred her to Dr Whitty for further opinion. Dr Wu reported: "Her carpal tunnel syndrome right wrists and Dupuytren's contracture has no connection with the assault she sustained whereas the tenosynovitis has. Her symptoms of tenosynovitis in the right forearm persists and remains unchanged, unlikely to improve." 148 The reports of Dr Whitty begin with one of 18 July 1997 in the form of a letter addressed to Dr Wu. I should set out the substantive part of the letter in full. "Thank you for asking me to see this fifty five year old lady who has symptoms of median nerve compression in the carpal tunnel in the right wrist. This wakes her at night with painful paresthesia and numbness in the median nerve distribution. She finds she has to sleep with her arm up or she is awoken. This also stops her doing things much in the day as well. She does have a degree of tenosynovitis with tender forearm musculature present on the right side. I note that her EMG reports she has a bilateral median nerve conduction hold-up in the carpal tunnels; more on the right than the left. She feels her left hand is not troubling her at all. What is in fact troubling her most of all is some form of dermatitis affecting the palms of both hands. I have discussed this all with her. She would like a permanent cure as this has been troubling her on and off for many years. I have arranged for her admission to Hawkesbury Hospital, Windsor, to have a release of her right carpal tunnel carried out." 149 The remarks in the last part of the doctor's report call for some explanation as to what was meant. In the course of cross-examination of Mrs Dennis, the transcript reads as follows: "STOLJAR: Q. Mrs Dennis, I was asking you about a visit that you made, or a consultation which took place with Dr Whitty on or about 18 July 1997, do you recollect that visit with Dr Whitty? A. Yes. Q. And you had a discussion with Dr Whitty about the symptoms which you said you were experiencing in your right arm at about that time? A. That is right. Q. [STRIKEOUT BEGINS] You said to Dr Whitty words to the effect, 'You would like a permanent cure as this has been troubling yourself on and off for many years', did you say those words to Dr Whitty? A. No, wouldn't say for many years - I haven't had any problems with my arm until after the attack, and I wanted to know whether it was related or not. [STRIKEOUT ENDS] HIS HONOUR: I have read that report now and I strike out the question and the answer as under section 135 of the Evidence Act, as not only totally misleading but quite frankly when you look at what you asked, you ought to be withdrawing it yourself and apologizing to the witness. STOLJAR: It was certainly not my intention to mislead the witness in any way. HIS HONOUR: Clearly she is referring to the dermatitis. STOLJAR: Well your Honour that was not my reading of this report. HIS HONOUR: You must be reading a different report to me. STOLJAR: Your Honour, if I could just draw your Honour's attention to the words, 'I have discussed this all with her' suggesting all of the matters in the previous paragraph. HIS HONOUR: I reject what you asked. While you are looking at the rest of your material that you expect to ask of the plaintiff now, I ask Mr Boyd - Mr Boyd are your instructions to pursue any claim for diminished earning capacity in this case? BOYD: Well I don't have any further instructions other than what I indicated. HIS HONOUR: Do you anticipate making any relevant submissions about that matter in the light of the evidence that I have now read? BOYD: I don't think so, your Honour, I will take some instructions." 150 With due respect, the attempted cross-examination was inept. A cross-examination introduced by asking Mrs Dennis whether at 18 July 1997 she was having trouble with some form of dermatitis or skin condition affecting the palms of both hands and whether in fact that was troubling her "most of all" would have been appropriate. Depending on the answers she could then have been asked whether she was seeking a permanent cure of this skin condition or of something else and if so, what, and whether that had been troubling her on and off for many years. This may or may not have led to evidence relevant to damages. Of course Dr Whitty was the primary person to be cross-examined about what his report meant. In the event there was nothing to explain it. 151 In a report to the plaintiff's solicitor dated 21 November 1997 Dr Whitty said: "I first saw her at the request of her local medical officer Dr Wu of Richmond on 16.7.97. She had symptoms of median nerve compression in the carpal tunnel of the right wrist. This woke her at night with painful paresthesia and numbness in the median nerve distribution. She found that she had to sleep with her arm up or she woke up. She also found that it stopped her doing things in the day. On examination she had tenderness in the forearm musculature on the right side consistent with a tenosynovitis. She had an EMG report showing a bilateral median nerve conduction defect in the carpal tunnels, more on the right than the left. At that time her left hand was not troubling her at all. In view of that I arranged for her admission and she had a release of a right carpal tunnel carried out at Hawkesbury Hospital, Windsor, under general anaesthetic on 15.10.97. With a tourniquet a release of the right carpal tunnel was carried out. The wound was closed primarily. This was supported with a heavy padded dressing and a crepe bandage. She was given a sling and instruction to elevate the arm as much as possible to try and prevent bruising and swelling. She was discharged home that same day. Everything is progressing well. The wound has healed and the sutures have been removed. I have seen her most recently on 14.11.97. Everything is well healed and settling. Her main problem is stiff fingers especially the proximal interphalangeal joint of her right ring finger where she had sustained an injury shortly before her carpal tunnel release when her hand was numb and she did not notice this. Her median nerve symptoms have been eliminated. I have arranged for her to have physiotherapy to try and mobilise her hand. I think her prognosis is good in terms of relief of her carpal tunnel syndrome. It is still in a fairly early stage following surgical release and it is too early to give any firm prognosis beyond that." 152 In a later report of 28 January 1998 Dr Whitty said that he had told Mrs Dennis that the carpal tunnel release had only stopped her median nerve compression and had no effect on her tenosynovitis. On 8 April 2000 Dr Whitty reported: "Mrs Dennis told me that she was grabbed by the upper arm through her car window when she was sitting with the seat belt done up. A man was trying to stop her from reaching the car ignition key. She had a sore arm at the time with bruising. Since that time she has suffered with pain in the right arm. She is quite certain that prior to this injury she had no similar problems or pain in the arm. She tells me that since her surgery her median nerve symptoms of pain and numbness in the hand have not been troubling her. She has however persisted with pain in the forearm muscles. This can be sudden and severe. She notices this especially with twisting. Because of this she is very limited in her activities. She has to restrict what would otherwise be normal housework etc. When I examined her she had full movements in the right shoulder but there is tenderness associated with rotator cuff degeneration in the bicipital groove. She has full movements in the right elbow. There is however quite marked local tenderness overlying the right lateral and medial epicondyles and there is tenderness in the muscle bodies of the forearm musculature. In the right hand she has virtually full movements of all joints apart from some minor osteoarthritic changes with some Heberden's nodes especially in the right, index and middle finger terminal interphalangeal joints. She has incidentally a small nodule of Dupuytren's contracture in the right palm on the ray to the 5th finger. She has a tenosynovitis affecting the forearm musculature. This was causing median nerve compression with the carpal tunnel syndrome. This has been relieved by surgery with a good result. The tenosynovitis is still persisting and is a definite disability to her. Historically there is a clear cause in the injury she received in February 1996. The prognosis is guarded. I think it is fair to say that since she is still symptomatic four years following the incident that it is unlikely she will experience any significant improvement in her condition, which is likely to be permanent." 153 There was tendered a report from Dr Brian Parker, a medico-legal consultant, dated 18 April 2000. Dr Parker set out the history as follows: "On February 7, 1996 Mrs Dennis was seated in the driver's seat of a Toyota car in the Coles Car Park, Richmond. Her husband was in the passenger seat. Her window was open and a man grabbed her right upper arm through the open window and tried to remove the ignition keys from the car. Mr Dennis left the car through the passenger door and walked around and the man let go of Mrs Dennis' right upper arm and then opened the off-side rear passenger door and tried to remove the keys by leaning over her shoulder. Mrs Dennis then left the car park and drove to her son's house and the man followed her in his own car. She then left and went to a friend's house and was again confronted by the man who apparently wanted to repossess the vehicle. Mrs Dennis told me that later that day she noticed red finger marks on the inner aspect of the right upper arm above the right elbow and over the next two or three days the right upper arm on the medial aspect above the right elbow became swollen and bruised. Mrs Dennis saw her GP, Dr K Wu, in Richmond who suggested Panadeine Forte. Because of pain in the right arm radiating to the right forearm and tingling began two months after the incident in the right hand, Dr Wu referred Mrs Dennis to Neurologist, Dr Craig Presgrave, and an EMG was carried out on the upper limbs by Dr Presgrave on April 15, 1996. I read the report with interest and noted that Dr Presgrave commented, 'There is evidence of median nerve entrapment at both wrists moderately severe on the right and mild on the left'. Dr Wu then referred Mrs Dennis to Orthopaedic Surgeon, Dr J Whitty in Windsor, and in Dr Whitty's report dated November 21, 1997 he stated, 'I first saw her at the request of Medical Officer, Dr Wu, on July 16, 1997. She had symptoms of median nerve compression in the carpal tunnel of the right wrist. This woke her at night with painful paraesthesiae and numbness in the nerve distribution… On examination she had tenderness in the forearm musculature on the right side consistent with a tenosynovitis. She had an EMG report showing a bilateral median nerve conduction defect in the carpal tunnel more on the right than the left. At that time her left hand was not troubling her at all. In view of that I arranged for admission and she had a release of the right carpal tunnel at Hawkesbury Hospital, Windsor, under general anaesthetic on October 15, 1997'. Dr Whitty went on in his report to state that when he reviewed Mrs Dennis in late 1997 'her median nerve symptoms have been eliminated. I have arranged for her to have physiotherapy…'. Prior to the operation on October 15, 1997 Mrs Dennis had an x-ray of the right hand at the request of Dr Wu because she had slipped and fallen in the bath room and the report by Dr Michael Reeves, is as follows: 'RIGHT HAND: conclusion: Fracture of the shaft of the first metacarpal with slight shortening and anterior angulation'. (X-rays viewed). Comment: I do not feel that the fall in the bath room is related to the incident on February 7, 1996." 154 Dr Parker's opinion was as follows: "Mrs Dennis was involved in an incident on February 7, 1996 in which her right upper arm was grabbed by a man trying to remove the ignition keys from her car. Bruising occurred in this area and later Mrs Dennis complained of pain in the right inner upper arm radiating to the right forearm with tingling in the fingers 2, 3, 4 and 5. An EMG revealed bilateral carpal tunnel compression but the compression appeared to be more on the right wrist than the left. Orthopaedic Surgeon, Dr Whitty, carried out a right carpal tunnel release operation at Hawkesbury Hospital, Windsor, in October 1997 with relief of the median nerve symptoms. It is my view that the carpal tunnel in the right wrist is not related to the incident on February 7, 1996. It is interesting that the EMG revealed bilateral carpal tunnel syndrome. It is my view that the symptoms affecting the right carpal tunnel were coincidental. No further surgery or investigations will be required as far as the incident on February 7, 1996 is concerned and there is no loss of efficient function of the right upper limb relating to that incident. Mrs Dennis is now on a mature age pension and does not intend working. She would be fit to work as a shop assistant if she so wished. The area of hyperkeratotic affecting the right palm in the region of the fourth metacarpal is not related to the incident on February 7, 1996." 155 Following that report there was a further report from Dr Whitty dated 30 June 2000 referring to Dr Parker's report. Dr Whitty said: "I stand by my diagnosis of tenosynovitis affecting the forearm muscles. This was associated with median nerve compression due to the carpal tunnel syndrome which has been alleviated by surgery for this. Despite what Dr Parker says, she tells me that she is still getting symptoms associated with tenosynovitis of the forearm musculature. She tells me that she is still getting pain in the forearm muscles which can be sudden and severe and associated with movements such as twisting. Again, she told me that she has to restrict her housework activities. I also note that she still has tenderness relating to the lateral and medial epicondyles on the right elbow and tenderness in the forearm musculature. Once more she tells me that she did not have any of these symptoms prior to the incident on the 7th February 1996. In view of all this I feel that the tenosynovitis and the carpal tunnel syndrome were both caused by the incident. As I said previously her carpal tunnel syndrome has been effectively alleviated by surgery but she still has this tenosynovitis. As I said previously, since this is still symptomatic some four years after the incident, it is likely to be permanent and remain causing her similar sort of problems to those she is experiencing at present." 156 Judge Delaney in his judgment quoted from Dr Whitty's report of 30 June 2000 and said: "When she gave her evidence about her condition the plaintiff, I find, spoke of it, in a non-demonstrative way which indicated, I find, the true extent of her problems. I find that she did have the condition referred to and treated by Dr Whitty notwithstanding the evidence of Dr Parker tendered on behalf of the defendant. The out of pocket expenses claimed by the plaintiff of $1060.75 including the carpel tunnel treatment I find that that treatment was causatively connected with the injuries suffered by the plaintiff on the day referred to when Mr Toweel sought to repossess the vehicle and assaulted the plaintiff. I find that this has caused the plaintiff to have some interference with her everyday life. Dr Whitty said that the plaintiff had slightly stiff fingers, particularly the proximal interfangeal joint of her ring finger, which she had injured. Putting all that aside fortunately for the plaintiff she has made an excellent recovery. The incident was only of short duration and although the plaintiff had significant bruising which was referred to in the exhibits, particularly exhibits B and C, she had, because she had made such a good recovery generally, been left with quite a good result, even though she remains symptomatic four years [after] the event. In all the circumstances I consider that the plaintiff is entitled to general damages but I do not find that the claim that was made by the plaintiff for exemplary damages is made out, see Lee v Kennedy and Adams v Kennedy , unreported, July 2000 Court of Appeal. I assess general damages for the plaintiff as a consequence of the assault in the sum of $28,000. I assess past general damages of that figure at $20,000, and I allow interest on that figure at 2% for 4.5 years, pursuant to the principles in Gojics case, $1800. I have decided in this case to take into account the allowance that I have made for general damages, interest and out of pocket expenses that it is appropriate off the total damages payable to the plaintiff by the defendants jointly and severally at $30,000." 157 With due respect, the case that Mrs Dennis should be compensated for both tenosynovitis and the carpal tunnel syndrome is not compelling. But the parties were content to leave it to the judge to make what he could of the reports tendered; see generally Ziade v NSW Ministerial Insurance Corporation (Court of Appeal, 26 March 1993, unreported) where Kirby P observed: "However (as we see in virtually every running list of this kind) cases are increasingly being determined in the way this case had to be determined, namely, by the evaluation of the oral evidence of the plaintiff alone and the attempt by the trial Judge to decide where the truth and justice lay as between the series of conflicting medical reports seen from the perspective of the impression which the plaintiff makes. On the face of things this is an odd way to resolve the differences of conflicting expert opinions. …. [O]n the cases presented, I agree that the Judge was cast very much back upon his impression of the appellant. Unfortunately for the appellant that impression was adverse. The adverse impression became fatal to the appellant's aspirations. It sustains his Honour's conclusion." 158 It was open to the trial Judge to accept Dr Whitty's opinion. I do not see that this Court can interfere with his conclusion nor with the amount of damages awarded although they are, in the circumstances, generous.

Conclusion 159 I do not understand any basis upon which it could be successfully argued that Toyota or Tekitu was negligent. Accordingly, the application for leave to cross-appeal against them should be dismissed with costs. 160 Toyota's appeal should be allowed and the judgment and order in the court below set aside and the plaintiff ordered to pay Toyota's costs both of the hearing and of this appeal. For like reason I am of opinion that it was not open to the trial Judge to find that Tekitu was vicariously responsible for the assault by Mr Toweel. Mr Toweel was not its employee even assuming, contrary to what appears to be the evidence, that Tekitu was involved at all in the repossession. 161 According to Mr Toweel, he had an interest in and was a director of Petzat. Mr Toweel admitted that he traded in the name of Petzat and conceded Petzat's vicarious liability for the assault. In my opinion, the appeals by Mr Toweel and Petzat should be dismissed with costs.

Orders 162 I propose the following orders: 1. Leave granted to Toyota, Tekitu, Mr Toweel and Petzat to appeal subject to the filing of notices of appeal within 14 days; 2. Leave to Mrs Dennis to cross-appeal refused with costs; 3. Appeals by Toyota and Tekitu allowed with costs; 4. Set aside the judgments in the District Court against Toyota and Tekitu and in lieu thereof order that judgments be entered in their favour with costs; 5. Appeals by Mr Toweel and Petzat dismissed with costs; 6. Mrs Dennis to have certificates under the Suitors' Fund Act 1951 in respect of the costs of the appeals by Toyota and Tekitu.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Hire Purchase Act 1960(NSW)

CITATION : TOYOTA FINANCE AUSTRALIA LTD v DENNIS & ORS; TEKITU PTY LTD v DENNIS & ANOR [2002] NSWCA 369 FILE NUMBER(S) : CA 40807/00; 40809/00 HEARING DATE(S) : 14 March 2002 JUDGMENT DATE : 19 November 2002

J T Gleeson SC/J Stoljar (Toyota) COUNSEL : M L D Einfeld QC/S Rouben (Tekitu) C J Stevens QC/A Porthouse (Dennis) Clayton Utz (Toyota) SOLICITORS : Neil O'Connor & Associates (Tekitu) Herbert Weller (Dennis) CATCHWORDS : TORT - recaption of chattel - hire purchase agreement - repossession of vehicle - assault - reasonable force - VICARIOUS LIABILITY - collection of arrears - recaption of chattel - independent contractors - no authorisation to assault Consumer Credit (NSW) Act 1995 Consumer Credit Code Commercial Agents and Private Inquiry Agents Act 1963 LEGISLATION CITED : Hire Purchase Act 1960 (NSW) Tasmanian Criminal Code Queensland Criminal Code Western Australia Criminal Code Abbott v New South Wales Mont de Piete Company (1904) 4 SR (NSW) 336 Blades v Higgs (1861) 10 CB (NS) 713; 142 ER 634 Cantberbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Tort Reports 81-246 Chambers v Miller (1862) 13 CB NS 125; 143 ER 50 Clement v Jones (1909) 8 CLR 133 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 De Lambert v Ongley [1924] NZLR 430 Devoe v Long & Long [1951] 1 DLR 203 Dyer v Munday [1895] 1 QB 742 Fitzgerald v Kellion Estates Pty Ltd (1977) 2 BPR 9181 Harvey v Brydges (1845) 14 M&W 442; 153 ER 546 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 Hollis v Vabu Pty Ltd (1999) Aust Torts Rep 81-535 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Housing Commission of NSW v Allen (1967) 69 SR (NSW) 190 Hyde v Graham (1862) 1 H&C 593; 158 ER 1020 Jones v Chapman (1849) 2 Ex 803; 154 ER 717 CASES CITED: Lee v Atkinson (1609) Yelverton 172; 80 ER 114 Lows v Telford (1876) 1 App Cas 414 Macintosh v Lobel (1993) 30 NSWLR 441 Mackay v Dick (1881) 6 App Cas 251 Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793 Newton v Harland (1840) 1 Man & G 644; 133 ER 490 NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558 O'Connor v Isaacs [1956] 2 QB 288 Ramsay v Margrett [1894] 2 QB 18 R v Doucette [1960 25 DLR (2d) 380 R v Mitton (1827) 3 C&P 30; 172 ER 309 Scott v Davis (2000) 204 CLR 333 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Stoneman v Lyons (1975) 133 CLR 550 Swan v Rawsthorne (1908) 5 CLR 765 Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 Wickham v Rice (1887) 4 WN (NSW) 9 Ziade v NSW Ministerial Insurance Corp (CA 25 March 1993, unreported) Zimmler v Manning (1863) 2 SCR (NSW) 235 DECISION : 1 Leave granted to Toyota, Tekitu, Mr Toweel and Petzat to appeal subject to the filing of notices of appeal within 14 days; 2 Leave to Mrs Dennis to cross-appeal refused with costs; 3 Appeals by Toyota and Tekitu allowed with costs; 4 Set aside the judgments in the District Court against Toyota and Tekitu and in lieu thereof order that judgments be entered in their favour with costs; 5 Appeals by Mr Toweel and Petzat dismissed with costs; 6 Mrs Dennis to have certificates under the Suitors' Fund Act 1951 in respect of the costs of the appeals by Toyota and Tekitu.

MEAGHER JA HANDLEY JA SHELLER JA TOYOTA FINANCE AUSTRALIA LIMITED v DENNIS and TEKITU PTY LIMITED v DENNIS The two appeals were from a decision given by Judge Delaney in the District Court on 14 September 2000. The proceedings followed an incident in 1997 where the plaintiff, the driver of the Toyota wagon, was approached by Mr Toweel (first defendant), who had been engaged to repossess the vehicle. When attempting to seize the keys to the vehicle, Mr Toweel was found to have assaulted the plaintiff. The vehicle was the subject of a hire purchase agreement between the plaintiff's husband and Toyota Finance Australia Ltd (Toyota), the second defendant. It was accepted that the plaintiff's husband was in default on his loan repayments and Toyota was entitled to repossess the vehicle. Toyota authorised and empowered Nanpay Pty Ltd (Nanpay) to take possession of the vehicle. Nanpay requested Petzat Pty Ltd (Petzat) (the fourth defendant), a company controlled by Mr Toweel, to collect arrears or repossess the vehicle. The evidence suggested that Tekitu Pty Ltd (Tekitu), the third defendant in the proceedings, was not involved in the repossession. At first instance it was found that Mr Toweel had assaulted the plaintiff. It was held that as he was an agent of the second, third and fourth defendants, these companies were vicariously liable for the tortious conduct. A verdict and judgment was given against each defendant jointly and severally for $30,000. On damages, the trial Judge found that the plaintiff suffered from tenosynovitis and carpal tunnel syndrome causatively related to the assault. The trial Judge preferred the plaintiff's medical expert to the defendant's medical expert. One of the primary issues on appeal was that the trial Judge had erred in failing to find that Mr Toweel had used no more force than reasonably necessary to obtain possession of the vehicle. Further, the vicarious liability of Toyota and Tekitu was also challenged. The plaintiff cross-appealed on the ground that the trial Judge had erred in failing to find that Toyota owed her a duty of care and breached that duty of care. HELD Vicarious Responsibility (per Sheller JA, Meagher JA and Handley JA concurring):

The trial Judge's findings that Toyota was vicariously liable for the conduct of Toweel were erroneous. The relationship between Toyota and the other defendants could not be characterised as one of employment. The factors identified in Hollis v Vabu (2001) 207 CLR 21 which indicate the existence of an employment relationship were not present here. This was evidenced from the fact that the other defendants had complete control over the manner in which they performed their work and they were not presented to the public as emanations of Toyota.
Given that the other defendants were independent contractors and not employees, it followed that Toyota could not be vicariously liable for their tortious conduct unless it authorised or directed that conduct to be undertaken: Stoneman v Lyons (1975) 133 CLR 550. There was no basis in the evidence for finding that Toyota authorised the assault on the plaintiff; contrast with Canterbury Bankstown Rugby League Football Club Limited v Rogers (1993) Aust Torts Reports 81-246.

THE RIGHT OF RECAPTION UNDER THE GENERAL LAW 11 The decision of the Court of Common Pleas in Blades v Higgs (1861) 10 CB NS 713 [142 ER 634] (Blades v Higgs), relied upon by the appellants, establishes that the right of recaption extends to any case where the owner has an immediate right to possession of the goods and its exercise does not involve a trespass on private land. My brethren have decided that Blades v Higgs should not be followed. I respectfully dissent. In my opinion the case was correctly decided, and is sound in principle. 12 The text writers are lined up on both sides of this issue. Clerk & Lindsell on Torts 18th Ed (2000) at p 1674 and Fleming 9th ed (1998) at pp 100-1 favour a right of recaption restricted to cases where possession of the chattel was obtained wrongfully. The contrary view is supported by Salmond & Heuston 21st Ed (1996) at pp 573-4, Trindade & Cane 3rd Ed (1999) p 130, Balkin & Davis 2nd Ed (1996) pp 158-9 and Turner "Hire Purchase and Repossession" (1973) 7 Syd LR 1, 15-17. It is also supported by Pollock & Wright "Possession in the Common Law" and by Branston (1912) 28 LQR 262. 13 The Law Reform Committee (Eng) in its 18th report "Conversion and Detinue" (1971 Cmnd 4774) par 117, cited by Sheller JA [par 123], accepted that where the chattel was taken by a trespass "there is clear authority that the owner is entitled to use such force as is reasonably necessary to wrest control of the chattel from the trespasser …", but added "It is doubtful … whether the owner is entitled to wound or inflict serious injury in order to regain his property". As will appear he is not so entitled. 14 The Committee continued (para 118): "There is less agreement as to the extent to which force may be used to recover a chattel from a person other than a trespasser . In Blades v Higgs … Erle CJ stated that there was in this context no distinction between a trespassory taking and one that did not involve a trespass, and the text book writers are agreed that the use of force may be justified, not only against a trespassory taker but even against a third party who as an innocent purchaser has acquired the chattel by an act of conversion from someone without title". (emphasis supplied) 15 The Committee does not suggest that Blades v Higgs was wrongly decided, but they were not correct in stating that the text book writers were agreed. They were not likely to have consulted Fleming, but they were aware of Clerk & Lindsell, which they cite in a footnote. 16 Dyer v Munday [1895] 1 QB 742 CA cited by the Committee in a footnote to para 118 is not in point because the defendants had forcibly entered the plaintiff 's land to repossess a hired bed although the chattel owner had no right of entry. 17 The Committee said in para 121 that the law was "far from clear as to the circumstances in which force may be used" and "should be clarified". They examined the policy issues in paras 121-4 and concluded in para 125 that with exceptions in hire purchase and conditional sale cases, which are not relevant in this case, "in all other cases the rule should be that neither the use of force nor entry upon another's premises should be permitted unless the person seeking to recover the chattel has acted reasonably. In this connection it would be very relevant that he had … taken steps reasonably open to him to determine a bailment …". The references to bailments make it clear that they were not recommending that the right of recaption be limited to cases where there had been a trespassory taking, but they were endorsing the wider principle in Blades v Higgs. 18 In para 126 they dealt with the degree of force which could be justified: "… we do not contemplate that, wherever the use of some degree of force would be reasonable, it would be lawful to use unlimited force, irrespective of the circumstances. In other situations in which the common law permits a man to use force to defend his rights … the degree of force that may be lawfully used depends upon what is reasonable in all the circumstances … While we would not suggest that recovery of a man's goods is on a par with the defence of his life, the same principle appears to us to be equally applicable when one is considering the recaption of chattels and we think that the rule should be that, where force may be used to recover a chattel, it should be such force as is reasonable in all the circumstances. It would not be either practicable or desirable to attempt to set out an exhaustive list of the relevant circumstances … we are confident that the courts would not have any difficulty in deciding, in the circumstances of each case, whether the amount of force actually used went beyond what was reasonable". 19 Blades v Higgs was decided on a demurrer to a plea. The plaintiff 's declaration charged the defendants with assault and the forcible taking of some dead rabbits. The defendants pleaded that at the time of the assault the plaintiff was in possession of rabbits belonging to their employer, that they asked the plaintiff to deliver up the rabbits but he refused, whereupon they gently laid their hands upon him and took the rabbits using no more force than necessary. The plaintiff 's demurrer asserted that this plea did not answer the cause of action pleaded in the declaration. The Court of Common Pleas sustained the plea. Erle CJ, who delivered the judgment of the Court, said (1861) 10 CB NS 713 [142 ER 634] at 720-1 [636-7]: "[The plaintiff] contends that the defendants are not justified in using necessary force, on account of the danger to the public peace: but he adduces no authority to support his contention. The defendants likewise have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof. But the principles of law are in our judgment decisive to show that the plea is good, although that allegation is not made. If the defendants had actual possession of the chattels, and the plaintiff took them … against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels; and we think there is no substantial distinction between that case and the present; for if the defendants were the owners of the chattels, and entitled to the possession of them, and the plaintiff wrongfully detained them … after request, the defendants in law would have the possession , and the plaintiff 's wrongful detention against the request of the defendants would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner. It has been decided that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. In respect of land, as well as chattels, the wrong-doers have argued that they ought to be allowed to keep what they are wrongfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was justified see Newton v Harland … But in respect of land, that argument has been overruled in Harvey v Brydges … In our opinion all that is so said of the right of property in land, applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it". (emphasis supplied) 20 The case went to trial on the issues of fact. The subsequent proceedings in the Court of Common Pleas, the Court of Exchequer Chamber, and the House of Lords are reported in (1862) 12 CB NS 501 [142 ER 1238], (1863) 13 CB NS 843 [143 ER 333] and (1865) 11 HLC 621 [11 ER 1474], but the only issue was the right of a land owner to the ownership of wild game killed on his property without his authority. 21 It has been suggested that the statements of Erle CJ were unnecessary for the decision because the plaintiff obtained the rabbits from a poacher whose possession was wrongful at the outset. However those facts were not pleaded in the declaration or the plea, and this very point was made by Erle CJ when he said (720) [637]: "The defendants … have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof. But the principles of law are in our judgment decisive to show that the plea is good, although that allegation is not made". 22 The facts relating to the acquisition of the rabbits which only emerged at the trial were irrelevant to the question of law decided in Blades v Higgs. This was whether proof of the facts alleged in the plea, without any additional facts, would, as a matter of law, answer the cause of action pleaded in the declaration. See Bullen & Leake "Precedents of Pleadings" 3rd Ed (1868) pp 437, 820 and Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793, 801. 23 Blades v Higgs was treated at the time as settling the question. The plea is set out in the Third Edition of Bullen & Leake 1868 at pp 793-4 which cites the decision and Chambers v Miller (para 25). As Diplock J said in O'Connor v Isaacs [1956] 2 QB 288, 308: "When one is considering the common law position it is always a good rule to fly first to the Third Edition of Bullen & Leake on Precedents of Pleadings". 24 It was also cited with approval in Smith's Leading Cases 9th Ed 1887 at pp 151-2, and in Pollock & Wright "Possession in the Common Law" 1888 (see paras 45-7). 25 Blades v Higgs is supported by R v Mitton (1827) 3 C & P 30, 31 [172 ER 309, 310] which was cited by counsel. Excise officers handed their warrant to the defendant and when he refused to return it, they used force to get it back. Lord Tenterden CJ directed the jury: "… the defendant had no right to keep the warrant; and that being so, the officers had a right to take it from him, and even to coerce his person to obtain the possession of it, provided that, in so doing, they use no more violence than was necessary". 26 In Chambers v Miller (1862) 13 CB NS 125 [143 ER 50] a bank teller who had cashed a customer's cheque for a third party in ignorance of the state of the customer's account, discovered his mistake, and immediately demanded the money back. When this was refused he recovered it by force. It was common ground that the assault would have been justified if the property was in the bank. See at 137 [54]. 27 Blades v Higgs has twice been followed by the Full Court of our Supreme Court. In Zimmler v Manning (1863) 2 SCR 235, 240 Stephen CJ, delivering the judgment of the Court, said: "So, in Blades v Higgs, the owner of a chattel in the manual possession of another may, after demand and refusal, take it from the latter by force. For, in such cases, as explained in the judgment of Erle CJ, the legal possession of the chattel demanded is in its rightful owner; who, therefore, in effect, uses the force in defence of that possession ". (emphasis supplied) 28 Stephen CJ is not to be taken as endorsing the use of any more force than was reasonably necessary and proportionate to the wrong addressed by the party with the right of possession. 29 In Abbott v New South Wales Monte de Piete Company (1904) 4 SR (NSW) 336 (Abbott), the grantor of a bill of sale sued the holder for trespass to land and the seizure and conversion of the subject goods. The holder justified under the bill of sale which gave it leave, on default by the grantor, to enter the latter's premises and take possession of the goods. Darley CJ, delivering the judgment of the Court, said at 339-40: "… it appears to me that the defendants were justified in entering and seizing their goods, notwithstanding that they may have used 'force and violence and a strong hand'. The case of Blades v Higgs … seems to me to set this matter completely at rest. There it was held that the owner of goods that are wrongfully in the possession of another may justify an assault or a breach of the peace in order to repossess himself of them … Here the defendants have the leave and licence of the plaintiff to enter and take their goods, using no more violence than is necessary. If more violence than was necessary has been used the plaintiff must new assign for it". 30 New assignment is explained in Bullen & Leake at 653-4. Because of the generality permitted in declarations a plea could treat the cause of action relied on as narrower than the plaintiff intended. The proper course in that situation was for the plaintiff to new assign or restate his cause of action. 31 In Wickham v Rice (1887) 4 W.N. (NSW) 9, a case of forcible entry to recover possession of land, Darley CJ referred during argument to Harvey v Brydges and Blades v Higgs, and said in his judgment (10): "It is clear from the case of Harvey v Brydges … that a man has a right to enter upon his own land and to use force necessary to thrust out any person in wrongful possession. That case overruled, on this point, Newton v Harland … and was followed in Blades v Higgs". 32 These decisions, which have stood for a very long time, have never been overruled or previously criticised. 33 Blades v Higgs was followed in New Zealand in De Lambert v Ongley [1924] NZLR 430, where Sim J noted some criticisms, but preferred the views of Sir John Salmond who supported the decision. Sheller JA states [par 132] that it is not clear that this case has any application where the defendant sought to recover a chattel which came lawfully into the plaintiff 's possession. However that was the situation in that case because the defendant was attempting to recover a receipt he had given the plaintiff who then refused to hand over the relevant cheque. 34 Devoe v Long [1951] 1 DLR 203, which Sheller JA accepts [par 137] is not a persuasive authority, was relied upon by counsel for the respondent. It was a decision of the Appeal Division of the Supreme Court of New Brunswick comprising Richards CJ, Harrison and Hughes JJ. It was correctly decided on its facts, because the defendants had no right to forcibly enter the plaintiff 's house to recover their chattel. Blades v Higgs does not support such a right and there was no occasion for the Court to consider it. 35 Harrison J, who was the only Judge to refer to Blades v Higgs, said (217) that the decision was "cited as an authority to justify the defendant" and that "the language of the … Court of Common Pleas is broad enough to cover the case" without apparently realising that the decision did not cover the case or justify the actions of the defendants. He said mistakenly (218), that the plaintiff in Blades v Higgs was a poacher who killed the rabbits on the land of the defendants' employer, but he was a licensed dealer in game who purchased them from the poacher. See (1862) 12 CB NS at 502-3 [142 ER at 1239]. 36 Harrison J distinguished R v Mitton on the ground that "this was a case of original wrongful possession by the defendant. It was also a fresh pursuit" (218) but was again mistaken. The excise officers handed their warrant to the defendant at his request, and asked him to return it (par 24). There was no fresh pursuit. 37 When he came to deal with the defendants' trespass to the plaintiff 's land, Harrison J said (219): "the reasons given by the Court of Common Pleas in Blades v Higgs … go far beyond what was necessary for the decision of that case" making it clear that he did not understand the case or the principles of common law pleading. Erle CJ said expressly that the validity of the plea did not depend on the circumstances in which the rabbits came to be in the plaintiff 's possession (see para 18). 38 Hughes J held that the defendants' trespass on the plaintiff 's land was not justified. 39 Sheller JA refers to the citation by Hughes J (225) from the 18th Edition of Blackstone's Commentaries that "the natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society", but it is now settled that there are a number of situations, apart from that covered by Blades v Higgs, where the use of reasonable force is justified in defending or recovering possession of land or chattels. 40 All Richards CJ said was "I concur" (217), and since the other judgments conflict this presumably means that he merely agreed with the orders. 41 Thus only one Judge in Devoe v Long considered Blades v Higgs, his remarks were dicta, and his reasoning seriously flawed. Devoe v Long was mentioned by this Court in passing in Fitzgerald v Kellion Estates Pty Ltd (1977) 2 BPR 9181 at 9183. The case concerned the rights of an owner of horses to recover damages from a landowner who refused to allow him to enter and round them up. Blades v Higgs was not referred to, but at 9183 Hutley JA, who wrote the principal judgment, cited but distinguished the following statement from Salmond on Torts 16th Ed at 625: "Any person entitled to possession of a chattel may retake the chattel either peaceably or by the use of reasonable force from any person who has wrongfully taken or detained it from him ". (emphasis supplied) Blades v Higgs was cited on the same page of Salmond in the discussion that followed. 42 Clerk & Lindsell on Torts (18th Ed 2000) at p 164 cites Devoe v Long as authority for the proposition that the right of recaption only exists where the possession against the true owner was wrongful in its inception. Blades v Higgs is referred to, but not the New South Wales and New Zealand decisions which have followed it. Fleming (9th Ed 1998) pp 100-1 cites Devoe v Long as authority for "the better opinion", and claims, incorrectly, that the contrary decision in De Lambert v Ongley is not supported by authority (see para 32). He does not cite the New South Wales' decisions which have followed Blades v Higgs, and he repeats the mistakes (101) of Harrison J in Devoe v Long that Blades v Higgs "went beyond the facts of the case whence it originated" (see paras 18, 19), and that the statements of Erle CJ were dicta. As Sheller JA records [par 135], he states that force is not normally justified until there had been a demand to yield up possession peaceably, but there were such demands in Blades v Higgs and here. 43 Thus the limited textbook authority which rejects Blades v Higgs is itself flawed and is based substantially on the erroneous dicta of one Judge in Devoe v Long. 44 Branston "Forcible Recaption of Chattels" (1912) 28 LQR 262 cited Blades v Higgs with apparent approval (267, 271, 272-3, 275) although he noted the comment by Sir Frederick Pollock that Blades v Higgs was contrary to the common law of the 13th century (273), not, one would think, a particularly cogent criticism. The author reviewed the right of entry to recover chattels (273) and stated that there was no such right where possession had been obtained lawfully (274). Some commentators have read this as a statement that Blades v Higgs should be limited in the same way but the context and the rest of the article make it clear that the author was referring to the right of entry on the land of another to recover chattels. He cited Coke on Littleton (1628) and Brooke's Abridgement (1576) as the English authority for this proposition but these dealt with rights of entry. 45 In his concluding paragraph the author stated (275): "There remains the necessity of reconciling, if possible, the decisions of the 19th century [footnote "R v Mitton and more especially Blades v Higgs"] with the common law of the 13th … When recaption finally made its appearance in the course of the 19th century, it did so released from all the restrictions of former times". 46 Although, as Branston noted (273), Sir Frederick Pollock commented in his book on Torts that Blades v Higgs was contrary to 13th century authority, in Pollock & Wright "Possession in the Common Law" 1888 he referred to the decision without criticism. He wrote (81) citing Blades v Higgs: "There does not appear to be any rule of law, statutory or otherwise, to prevent the true owner of goods from using whatever amount of force is reasonably necessary for their recapture, even as against a third person who has acquired them innocently with colour of title". 47 He wrote (115) again citing Blades v Higgs: "… the use of force could be justified only after demand of the goods and refusal to deliver them". 48 This is the work which Meagher JA said in his foreword to the 1990 reprint contained "magisterial analysis", and was "pure scholarship, it has unqualified excellence". 49 Sheller JA refers [par 126] to the views of Professor Palmer in "Title to Goods and Occupation of Land: A Conflict of Interests" in the 1980 Anglo-American Law Review 279, 298. The author cited Fleming, Branston (1912) 28 LQR 262 and Lee v Atkinson (1609) Yelverton 172 [80 ER 114] for the view that Blades v Higgs should be confined to cases where possession of the chattels was obtained wrongfully in the first instance. The author misread Branston who accepted Blades v Higgs (pars 43-4), the passage in Fleming is flawed (par 41), and Lee v Atkinson is not relevant and was not referred to by Branston, or Pollock & Wright. The defendant failed in that case because he was not entitled to immediate possession of the horse, and the Court did not consider the right of recaption. The report states (172, 115): "… and it was adjudg'd for the plaintiff, for the battery is confessed, and to arise on ill usage from the defendants, for by their own bar it appears that the plaintiff had hired the gelding for two days, and that they within the two days disturbed him in the possession of the gelding, and thrust him off his back, which is not lawful, for the plaintiff had a good special property for the two days against all the world; and although the defendants pretend that the plaintiff misbehaved himself in riding to another place than was intended: yet that is to be punished by an action on the case, but not to seize the gelding". 50 Thus although, as Sheller JA points out [para 126], this decision was not cited by counsel in Blades v Higgs there was no occasion for them to do so. 51 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 (Hemmings) is important because the Court of Appeal held that a land owner entitled to possession was not liable for the forcible dispossession of the occupiers and the Judges considered the degree of force which was justified in such a case. The Court overruled Newton v Harland (1840) 1 Man & G 644 [133 ER 490] and approved Harvey v Brydges (1845) 14 M & W 442 [153 ER 546] which had been applied by Erle CJ in Blades v Higgs. Hemmings was applied by this Court in Housing Commission of NSW v Allen (1967) 69 SR (NSW) 190 and MacIntosh v Lobel (1993) 30 NSWLR 441, 461-4. 52 Bankes LJ referred to Blades v Higgs with approval at 736 and at 737 said: "Assuming … that the entry by the defendants was a forcible entry, the right to possession was in the defendants, and the acts which are alleged as giving the plaintiffs a right of action were done in defence of their right of possession: Blades v Higgs; and of the possession which they acquired by the alleged forcible entry . I have no fear that the present decision will encourage lawlessness as was suggested for the respondent. A person who makes a forcible entry on land … exposes himself … to the civil liability to pay damages in the event of more force being used than was necessary to remove the occupant … . If the view of the law expressed in Newton v Harland is correct it must follow that the law confers upon the lawless trespasser a right of occupancy the length of which is determined only by the law's delay. For the reasons I have stated I do not believe that this is a true view of the law". (emphasis supplied) 53 Scrutton LJ referred to Blades v Higgs with approval at 739, and added at 747: "It will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the reply that he used more force than was necessary if the jury can be induced to find it. The risk of paying damages and costs on this finding … may well deter people from exercising this remedy … But I see no reason to add to the existing privileges of trespassers on property which does not belong to them by allowing them to recover damages against the true owner entitled to possession who uses a reasonable amount of force to turn them out". 54 Toyota had an immediate right to possession and when Mr Toweel, with its authority, requested delivery up, the result, as Erle CJ held in Blades v Higgs, was that Toyota "in law would have the possession" (passages emphasised in paras 18, 26 and 51), so that, as Pollock & Wright accepted (par 46): "The use of force could be justified".

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Judgment (26 paragraphs)

Legislation Cited (1)

Cases Cited (14)

Cited By (2)