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Reporter: Gordon Harcourt
You've been at the movies or out to dinner. You come back to your
car and - oh no! - you're being hooked up by a towie! You tell him
he can't tow you now you're back, but he ignores you. You are
right, he is wrong, and here's why.
Towing and a medieval cow paddock
It all goes back to a medieval cow paddock. Firstly it goes back to
an incident in Wellington, 26 years ago. One day in 1983 Mr Murray
parked in an inviting empty lot on the Terrace. He wandered off,
and when he returned he found his car being hooked up by a towie.
Stop he cried, but the towie wouldn't.
So Mr Murray hopped in his car, and put on the brakes.
So the towie bled the brake fluid, and towed Mr Murray's car, with
Mr Murray in it!
So Mr Murray sued the towing firm, Jamieson's Tow & Salvage,
for vehicle conversion and trespass.
And he won!
Distress Damage Feasant
That court ruling is now the main legal precedent across the
Commonwealth, for cases about towing. It established that towing
(and clamping) is legally justified by a medieval common law
concept known as Distress Damage Feasant. Basically, that means
that if a cow wandered into a field and chomped some crops, the
owner of those chomped crops had the right to distrain (or hold)
the cow, till he got some money for the chomped crops.
So if you get towed or clamped, the law sees you as a wayward cow,
and the parking space you were taking up as some chomped or
trampled crops. Of course, you haven't chomped or damaged anything,
but the law sees the cost of removing you as being the damage
done.
When you CAN'T be towed, and why
But there is a situation where the towie CANNOT tow you - if you're
in it like Mr Murray, or even near it.
That same 1983 ruling established that if you are in or near the
car, there is a risk of a Breach of the Peace. Distress Damage
Feasant is legally trumped by that risk, so the towie no longer has
a legal right to drag you away.
What about "release fees"?
We've asked around, and it's pretty common for towies to demand a
"release fee" before they'll unhook your car. It might be a
discount from the full rate you'd pay if you went to the yard to
get your car.
Lawyer (and former MP, briefly) Murray Smith fought and won that
1983 case. He says not only can you not be towed, but the towie
legally can't charge that fee. Once you turn up, your car is
yours.
However, if it's late at night, raining and cold, and the towie is
a big ugly bloke in a hurry, well maybe the smart thing is to pay
the money and sort it out later!
Take it to the Disputes Tribunal, print out the file we've
attached, and good luck!
