Gladwyn Simmons v Commissioner of Police

• Jurisdiction: Bermuda
• Judgment Date: 14 March 2008
• Docket Number: Civil Jurisdiction 2007 No. 260
• Date: 14 March 2008
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Bell, J

Civil Jurisdiction 2007 No. 260

BETWEEN:

Gladwyn Simmons

Plaintiff

and

The Commissioner of Police

Defendant

Mr G Howard for the Applicant/Defendant

Mr M Smith for the Respondent/Plaintiff

The following cases were referred to in the judgment:

Akinstall v Commissioner of Police (unreported)

Enever v RUNK [1906] 3 CLR 969

Smith v Attorney GeneralBDLR [1992] Bda LR 69

Hill v Chief Constable of West YorkshireELR [1989] AC 53

Dorset Yacht Co Ltd v Home OfficeELR [1970] AC 1004

Elguzouli-Daf v Commissioner of PoliceELR [1995] QB 335 20

Sutcliffe v Chief Constable of West YorkshireUNK [1996] RTR 86

Spartan Steel & Alloys v Martin & CoELR [1973] QB 27

Crown Proceedings Act 1966, s. 3

Misuse of Drugs Act 192

Criminal Code Act 1907

Damage to yacht while seized by police for drugs trial — Dismissal of charges — Loss of hire and refit — Bailment — Liability of the crown — Remoteness of damage — Duty of care — Application for strike out — Vicarious liability

RULING of Bell, J

The Proceedings

1. These proceedings concern damage said to have been caused to a yacht known as the Regulus, owned by the plaintiff (‘Mr Simmons’), which vessel was detained pursuant to an investigation under the provisions of the Misuse of Drugs Act 1972, on or about 13 March 2004. Following its detention, the Regulus was not released to Mr Simmons until or about 25 May 2007. During the intervening period there was a criminal trial in which Mr Simmons and others were charged with conspiracy to import a controlled substance into Bermuda. The Court ruled that there was no case for Mr Simmons to answer, and although application was made for the Regulus to be returned to Mr Simmons shortly following the dismissal of the charges against him, on 1 June 2006, another year or so passed before the vessel was in fact returned to Mr Simmons. When it was returned, there were complaints as to its condition, which resulted in the issue of these proceedings on 18 September 2007. The generally endorsed writ claimed damages in the sum of $674,740, and the statement of claim broke down this sum, of which $498,000 was claimed in respect of loss of hire during the vessel's detention, and $154,740 in respect of the cost of a refit, presumably to restore the vessel to its pre-seizure condition. The cost of the refit compared with an amount of $82,000 which had been paid for the purchase of the vessel.

2. The application which I heard on 25 January 2008 was for an order that the writ of summons and the statement of claim should be struck out pursuant to the provisions of Order 18 rule 19(1)(a), (b) and (d) of the Rules of the Supreme Court 1985, or alternatively pursuant to the inherent jurisdiction of the Court

3. The application was supported by an affidavit sworn by DC Severin, a serving police officer, and this affidavit referred extensively to the underlying criminal investigation. Not surprisingly, these underlying factual allegations were hotly disputed, and it is of course no part of the Court's task on the hearing of a strike out summons to resolve disputed questions of fact. I made it clear to the parties that the Court would have no regard to the disputed matters, but would make a determination on the basis of those parts of the skeleton argument put forward on behalf of the defendant (‘the Commissioner’), where none of the underlying facts is in dispute.

The Grounds of the Application

4. The first ground on which Mr Howard, counsel for the Commissioner, relies is that the Commissioner is not a proper party. The basis for this ground is that police officers are not the servants or agents of the Commissioner, and he has no vicarious liability for the actions of such officers as may give rise to liability on their part. There is a further complaint as part of this first ground that the pleadings are deficient, insofar as they fail to name the individual tortfeasor/s. In relation to the issue of vicarious liability, complaint is made that this was not properly pleaded, and that there is no equivalent in the Police Act 1974 to that found in the comparable English legislation (section 88 of the UK Police Act 1996), which provides in terms that the chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable is respect of torts committed by his servants in the course of their employment.

5. The second ground relied upon by Mr Howard is that the facts pleaded do not disclose a duty of care (the statement of claim having pleaded a failure on the part of the Commissioner to comply with his common law duty of care), on the basis that there is authority under the applicable legislation to effect seizure, and that any duty owed by police officers in relation to the vessel was not owed to Mr Simmons, but to the Court and the public at large. Specifically, Mr Howard maintained that the duties pleaded in paragraph 3 of the statement of claim could not properly be described as police duties. At its highest, he submitted, the duty of the police was that of a bailee, but the statement of claim did not plead the case in bailment. Neither, submitted Mr Howard, did the alleged duty of care exist in negligence...