Guernsey Law Reports 2009-10 GLR Note 5
OGIER v. PAINT
MAGISTRATE’S COURT (McMillen, Asst. Magistrate): April 8th, 2009
Tort—trespass to goods—reasonable justification
The plaintiff parked his van (containing a number of tyres and wooden pallets) in public parking adjacent to Cobo Car Park and left it unattended for 10–14 days. The defendant, in his capacity as Junior Constable of the Parish of Castel, had it removed, as he was under instructions from the Senior Constable to move any vehicle he thought constituted a danger to the public. He believed the van to be a fire hazard and knew that threats had been made to set fire to abandoned vehicles in Cobo. It was removed using the services of a friend, who lifted it on the forks of his tractor (the steering lock preventing it from being towed), dragged it along the ground and damaged it. The plaintiff brought proceedings against the defendant personally.
The defendant submitted that (a) the plaintiff should have proceeded against the Constables and Douzaine of the Castel, on whose behalf he had been acting, and not against him personally; alternatively (b) if he were the correct defendant, he should have immunity from liability as he had been acting in his official capacity; and (c) his removal of the van had been reasonable and he had taken all reasonable steps to avoid damaging it.
Held: (1) The plaintiff was entitled to bring his action against the defendant in person, if he chose, and there was nothing to suggest that the defendant enjoyed immunity from suit merely because he had been acting as a public official.
(2) The plaintiff had shown on the balance of probabilities that the defendant had committed a trespass to his van and the burden then shifted to the defendant to show by the same standard that the trespass had been reasonably necessary. He had, however, failed to do so. As a public servant, he had not shown that the van constituted a real and imminent danger to the public or that he had behaved reasonably in removing it to avert such a danger (Cope v. Sharpe (No. 2), [1912] 1 K.B. 496, applied). He had been aware of its presence for several days but had made no attempt to ascertain who owned it, either through the police or by leaving a note on the vehicle. He believed, probably wrongly, that he himself had sufficient experience to make an informed judgment that the vehicle was a fire hazard and therefore did not consider asking the fire brigade to make an assessment in this respect. He had acted in good faith and was genuinely concerned but it was not reasonably necessary to decide to move the vehicle on the day in question. Nor had the manner in which it had been moved been reasonable; he had not attempted to contact a professional vehicle recovery service but had instead taken advantage of the free services offered by a friend.
(3) Judgment would therefore be given for the plaintiff but since he had failed to adduce evidence of the value of the vehicle, which he claimed was now a write-off, it would be for £200 (the price he had paid for it some time before) rather than for £750 as claimed.
2010
Law Report
None
Guernsey Law Reports 2009-10 GLR Note 5