The perennial clamper issue

johnfás

Right, so the girlfriend got clamped when parked in the designated parking space of her friend with that friend's permission. Private apartment complex. Her alloy was slightly damaged when they removed the clamp.

Been through the appeals process and no refund of the €120 so considering next steps. The small claims won't entertain debt recovery claims (more like extortion in these instances but anyway) but they will hear tort actions by consumers which is interesting. Considering lodging small claims court proceedings to recover the cost of repair to the alloy. I wonder will the small claims hear this in the context of it being related to clamping. I think they should do so. Only one way to find out.

Pkiernan

johnfás wrote: »

Right, so the girlfriend got clamped when parked in the designated parking space of her friend with that friend's permission. Private apartment complex. Her alloy was slightly damaged when they removed the clamp.

Been through the appeals process and no refund of the €120 so considering next steps. The small claims won't entertain debt recovery claims (more like extortion in these instances but anyway) but they will hear tort actions by consumers which is interesting. Considering lodging small claims court proceedings to recover the cost of repair to the alloy. I wonder will the small claims hear this in the context of it being related to clamping. I think they should do so. Only one way to find out.

Why not call the Guards, and file a criminal damage complaint against whomever damaged the car in question?

dermot_sheehan

If you agreed to go through an appeals system there is a risk you could have been considered to agree to arbitrate any potential claim and you are bound by the arbitral decision against you.

Our man in Havana

With private clampers there is no real appeals process as all it will be is the clamper saying they are right, no refund. There is no independent appeal apart to the courts.

BrianD

johnfás wrote: »

Her alloy was slightly damaged when they removed the clamp. .

Firstly, I don't see how a clamp can damage an allow other than some light scratching.

Secondly, I don't know how your claim would proceed. The allows should be fit for purpose which would include everything that you would normally expect from driving including clamping.

johnfás

BrianD wrote: »

johnfás wrote: »

Her alloy was slightly damaged when they removed the clamp. .

Firstly, I don't see how a clamp can damage an allow other than some light scratching.

Secondly, I don't know how your claim would proceed. The allows should be fit for purpose which would include everything that you would normally expect from driving including clamping.

They don't have to be fit for negligent and inadequate removal of the clamp. It's tortious damage.

jblack

BrianD wrote: »

. The allows should be fit for purpose which would include everything that you would normally expect from driving including clamping.

What am I missing here because that makes no sense. So an expected result from clamping is property damage?

BrianD

jblack wrote: »

What am I missing here because that makes no sense. So an expected result from clamping is property damage?

It's a set of wheels what would you expect? Goes with the territory. Like bumpers. OP would be best to get on with their life.

johnfás

BrianD wrote: »

jblack wrote: »

What am I missing here because that makes no sense. So an expected result from clamping is property damage?

It's a set of wheels what would you expect? Goes with the territory. Like bumpers. OP would be best to get on with their life.

Depends on whether the clamper had lawful authority to clamp in the first instance.

jblack

johnfás wrote: »

Depends on whether the clamper had lawful authority to clamp in the first instance.

No it doesn't, no clamper DCC or otherwise has the right to damage property.

Peregrinus

jblack wrote: »

No it doesn't, no clamper DCC or otherwise has the right to damage property.

The point is that hubcaps on a car should be constructed to cope with the kind of thing that hubcaps on a car have to cope with, which includes getting clamped now and then.

I this case the hubcaps were damaged. This is becuse either (a) the hubcaps weren't fit for purpose - they couldn't stand up to clamping - or (b) the clamping was done negligently, in a way that it shouldn't have been; the equipment was not used properly. If your girlfriend is suing over the damage to her hubcaps, the onus is on her to produce evidence that (b) is the case, not (a).

jblack

Peregrinus wrote: »

The point is that hubcaps on a car should be constructed to cope with the kind of thing that hubcaps on a car have to cope with, which includes getting clamped now and then.

(a).

Again strongly disagree - if someone scratches your bumper then this is still damage regardless of their intent or the purpose for which the bumper was intended.

Similarly how would a clamper raise the defence of fit for purpose for alloys to which the have no contractual relationship with the manufacturer? That aside normal wear and tear is one issue, causing damage that affects aesthetic value os another.

Peregrinus

jblack wrote: »

Again strongly disagree - if someone scratches your bumper then this is still damage regardless of their intent or the purpose for which the bumper was intended.

Yes, it's damage. But there's no remedy unless it can be shown that the damage was negligently inflicted (or inflicted in the commission of some other tort).

jblack wrote: »

Similarly how would a clamper raise the defence of fit for purpose for alloys to which the have no contractual relationship with the manufacturer? That aside normal wear and tear is one issue, causing damage that affects aesthetic value os another.

He doesn't have to raise any defence unless the plaintiff makes out a case that he was negligent. The mere fact that the damage was incurred does not show that it was negligently inflicted.

jblack

Peregrinus wrote: »

Yes, it's damage. But there's no remedy unless it can be shown that the damage was negligently inflicted (or inflicted in the commission of some other tort).


He doesn't have to raise any defence unless the plaintiff makes out a case that he was negligent. The mere fact that the damage was incurred does not show that it was negligently inflicted.

Assuming we're proceeding with this then res ipsa loquitur would be pleaded, so the plaintiff need only show the damage and that they were not in some way contributory etc.

Obviously proving the actual damage is a different matter, and one that in this scenario is extremely difficult to prove.

BrianD

jblack wrote: »

Again strongly disagree - if someone scratches your bumper then this is still damage regardless of their intent or the purpose for which the bumper was intended.

Well interesting experience of mine where I was in minor collision with a car in NI. RUC (at the time arrived) and woman pointed out the damage. When she pointed out the scuffing to the bumper he said that's what bumpers were for, ignored it and asked her to point out any other relevant damage.

Similarly how would a clamper raise the defence of fit for purpose for alloys to which the have no contractual relationship with the manufacturer? That aside normal wear and tear is one issue, causing damage that affects aesthetic value os another.

Doubt they would. Getting clamped is the rough and tumble of everyday living in Dublin.

Victor

jblack wrote: »

Assuming we're proceeding with this then res ipsa loquitur would be pleaded, so the plaintiff need only show the damage and that they were not in some way contributory etc.

Obviously proving the actual damage is a different matter, and one that in this scenario is extremely difficult to prove.

Just reading the wiki on res ipsa loquitur and it doesn't mention one important thing, proof that the defendant caused the damage - it isn't always clear that damage to a wheel is cause by a clamp - it could have been caused by a pothole or other road user.

Many clamping organisations take before and after photos.

jblack

BrianD wrote: »

Well interesting experience of mine where I was in minor collision with a car in NI. RUC (at the time arrived) and woman pointed out the damage. When she pointed out the scuffing to the bumper he said that's what bumpers were for, ignored it and asked her to point out any other relevant damage.



Doubt they would. Getting clamped is the rough and tumble of everyday living in Dublin.

Sorry Brian I cannot multiquote.

The RUC officer is not a judge, he (I'm unsure of RUC powers) is probably entitled to make a judgment of whether the damage arose from a criminal act and whether make an arrest, but he most certainly has no power for civil damage and nor should he be advising you.

2nd part:

Getting clamped does not mean any person should accept damage to their property.

What I am saying is theoretical, it would be unlikely in the real world that there would be any claim worth pursuing unless there is strong evidence that the damage arose as a result of the clamper's activity.

pistonsvox

Apologies for going slightly off topic here and bumping an oldish thread, but i've something i've been itching to ask for ages in regard to public clamping while this threads here.

I've been searching through in detail through citizens information and the statute (RTA) ... and haven't found a single law on removing the clamp (City Council) yourself.

It takes a great deal of effort as you can imagine to remove the clamp without damaging it (Removing nuts, taking wheel out through chains and unbolting various suspension arms to fully release chain...)

But let's say one did do this, since the €80 fine is just the release fee, shouldn't the effort alone of removing and returning the clamp to the council be enough and saving yourself the €80?

Thought popped into my head after I was clamped 2 mins into the 7am start time outside my friends house, nice start to the morning as you can imagine.:rolleyes:

Paulw

pistonsvox wrote: »

I've been searching through in detail through citizens information and the statute (RTA) ... and haven't found a single law on removing the clamp (City Council) yourself.

But let's say one did do this, since the €80 fine is just the release fee, shouldn't the effort alone of removing and returning the clamp to the council be enough and saving yourself the €80?

Removing a City clamp is an offence, and would be covered under the council by-laws. You will find yourself in a lot more trouble than just an €80 fine.

http://www.dublincity.ie/RoadsandTraffic/Parking/Clamping/Pages/Clamping.aspx

BrianD

Paulw wrote: »

Removing a City clamp is an offence, and would be covered under the council by-laws. You will find yourself in a lot more trouble than just an €80 fine.

http://www.dublincity.ie/RoadsandTraffic/Parking/Clamping/Pages/Clamping.aspx

I have been hard pressed to find where the offence and punishment is detailed. I presume that the damage would be "standard" criminal damage but the offence of removal is detailed where? I'm referring to street clamping here as opposed to off street.

Paulw

I've looked through some of the bye-laws and can't find it either, but, did find this - http://www.transport.ie/upload/general/7424-1.pdf

And also -

Any contravention of local authority parking bye laws carries a fixed-charge fine. See the list of offenses and charges here (pdf). Details of where you can pay your parking fine should be written on your parking ticket. You can pay by cash, cheque, credit card or Laser card. If you fail to pay your parking fine or to make a formal appeal against the fine, you can be prosecuted in a District Court for your alleged offence.

If your car has been clamped, you may have to pay fines ranging from €25 to €90, depending on the local authority or private company involved. The clamping company will have left a sticker on your car window giving you details of who to contact to get your car de-clamped. Fines can be paid by cash, cheque, credit card and Laser card. Further details are available from your local authority.

If your car has been towed away and impounded, you can expect to pay up to €160 to get it released. If you suspect your car has been towed away, contact the local Garda station to find out the location of the car pound. Again, fines can be paid by cash, cheque, credit card and Laser card.

If you remove the clamp, you will most likely be taken to court by the local authority, for the same amount the declamping fee would have been, plus costs.

BrianD

I think the main areas of concern still refer to clamping on private property where there are no rules or regulations.

Clamping in Dublin has actually benefitted the city and means that there is availability of on street parking so that people can go about their business.

Victor

The green bit below is what you are interested in.

Note the red bits are amendments.

The regulations: http://www.irishstatutebook.ie/1998/en/si/0247.html

The act: http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0005.html#zza24y1961s5

General provisions with respect to regulations.

5.—(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

(2) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

http://www.irishstatutebook.ie/1987/en/act/pub/0034/print.html

Amendment of Part VIII of Road Traffic Act, 1961.

9.—The Act of 1961 is hereby amended by the insertion in Part VIII of the following sections after section 101:

Immobilisation, removal etc. of unlawfully parked vehicles.
101B.—(1) In this section—

‘authorised person’ means a person, or a member of a class of persons, prescribed for the purposes of this section;
‘immobilisation device’ means any device or appliance designed or adapted for fixing to a vehicle for the purpose of preventing it from being driven or otherwise put in motion;
‘vehicle’ means a mechanically propelled vehicle.


(2) Where an authorised person finds on a public road a vehicle that is parked in contravention of any prohibition or restriction imposed under section 90 of this Act, he or a person acting under his direction may—
(a) fix an immobilisation device to the vehicle while it remains in the place where he finds it, or
(b) move it from the place where he finds it (whether or not he has fixed an immobilisation device to it) to another place and fix an immobilisation device to it in that other place.


(3) When fixing an immobilisation device to a vehicle, there shall also be affixed to the vehicle a notice in the prescribed form—
(a) indicating that the device has been fixed to the vehicle and warning that an attempt should not be made to drive it or otherwise put it in motion until the device is removed,
(b) specifying the steps to be taken to secure such removal, and
(c) giving such other information (if any) as may be prescribed.


(4) Subject to subsection (5), an immobilisation device that has been fixed to a vehicle under this section may be removed only by an authorised person or a person acting under his direction.


(5) (a) An immobilisation device fixed to a vehicle under this section shall be removed only—
(i) if the person seeking its removal shows to the satisfaction of any authorised person that he is the owner of the vehicle or is authorised by its owner to seek such removal and pays the prescribed charge,
(ii) for the purpose of the removal of the vehicle under section 97 of this Act, or
(iii) for the purpose of moving the vehicle under subsection (2) of this section.
(b) Where the owner of a vehicle that is parked and to which an immobilisation device has been fixed under this section shows to the satisfaction of any authorised person that the vehicle was so parked while being used by a person other than the owner and that such use was not authorised by the owner, the authorised person shall waive the prescribed charge and he or a person acting under his direction shall remove the immobilisation device from the vehicle.
(c) An immobilisation device fixed to a vehicle under this section shall be removed therefrom as soon as is reasonably practicable after the payment of the prescribed charge or after the waiver of such charge, as the case may be.

(6) A notice affixed to a vehicle under this section shall not be removed or interfered with by a person other than the owner of the vehicle or a person authorised by such owner to use the vehicle and a person who contravenes this subsection shall be guilty of an offence.


(7) A person who—
(a) obstructs or impedes an authorised person, or a person acting under his direction, in the performance of his functions under this section, or
(b) without being authorised to do so under this section, removes or attempts to remove from a vehicle an immobilisation device fixed to it under this section,

shall be guilty of an offence.


(8) (a) An immobilisation device shall not be fixed under this section to an ambulance, a fire brigade vehicle or any vehicle used by a member of the Garda Síochána in the performance of his duties as such member.
(b) This section shall not apply to a vehicle on which there is prominently displayed a valid permit for a disabled driver under bye-laws or temporary rules under section 90 of this Act.

(9) The Minister may, after consultation with the Minister for Justice, make regulations for the purpose of enabling full effect to be given to this section and such regulations may, in particular, but without prejudice to the generality of the foregoing, specify requirements in relation to:
(a) the type of immobilisation device to be used,
(b) the form of a notice under subsection (3) of this section,
(c) the amount of the charge under subsection (5) of this section and the manner in which and the person to whom such charge shall be paid.

(10) Any regulations under section 34 of the Dublin Transport Authority Act, 1986 , that are in force immediately before the commencement of the Dublin Transport Authority (Dissolution) Act, 1987, shall continue in force after such commencement, and may be amended or revoked, as if they had been made under this section.

http://www.irishstatutebook.ie/1994/en/act/pub/0007/sec0049.html#zza7y1994s49

(j) in section 101B (as inserted by the Act of 1987)—
(i) by the substitution in subsection (2) for “90 of this Act” of “35 or 36 of the Road Traffic Act, 1994”, and
(ii) by the substitution in paragraph (b) of subsection (8) for “bye-laws or temporary rules under section 90 of this Act” of “regulations or bye-laws under section 35 or 36 of the Road Traffic Act, 1994”

Carawaystick

Paulw wrote: »

If you remove the clamp, you will most likely be taken to court by the local authority, for the same amount the declamping fee would have been, plus costs.

Have you any link to a law that specifies this? the dublin city council bye laws
don't mention anything about removing a wheel that has been clamped.

In fact section 15 (1) seems to imply it's illegal for corpo staff to collect money from a ticket machine.


sloppy stuff.

Victor

Carawaystick wrote: »

Have you any link to a law that specifies this? the dublin city council bye laws
don't mention anything about removing a wheel that has been clamped.

They don't need to. Read the green bit above.

In fact section 15 (1) seems to imply it's illegal for corpo staff to collect money from a ticket machine.

No, they would be using it as intended, not interfering with it.