Breach of duty of care – Contributory negligence – Driving – Police officers
Michael H v Thames Valley Police: CA (Civ Div) (Lord Justice Pill, Lady Justice Arden, Lady Justice Smith): 14 January 2010
The appellant (H) appealed against a decision dismissing his claim for damages for personal injury. Two policemen in a marked police car had followed H’s motorcycle when he was returning home from a social event in the early hours of the morning.
The officers formed the view that H was speeding and, at times, driving dangerously. They lit up the flashing blue light on their vehicle and flashed the headlights to indicate that H should stop. He did not do so but continued to his home. He drove into the grounds of his home through a gate and stopped. One police officer got out and spoke to H, instructing him to switch the motorcycle’s engine off and dismount. The officer driving the police car brought it close to the motorcycle to impede H’s escape if he tried to run away. As the car moved forwards alongside the motorcycle, H dismounted. Exactly what happened was not clear but H somehow came into contact with the offside front of the vehicle. He fell to the ground and his right lower leg became trapped by the front offside wheel and he suffered quite severe injuries.
The judge held that H had stumbled into the front right-hand tyre of the police car and injured himself; the officer driving went too close to the motorcycle but that error of judgement was not negligent. H submitted that there was no evidential basis for the judge’s conclusion that H had stumbled into the offside tyre and injured himself; given that all that H had done was to dismount in a normal way, the police car must have come too close and negligently so; there were no exceptional circumstances which justified using the car as a means of trapping H; the officer driving should have appreciated that H was about to dismount.
Held: (Pill LJ dissenting) (1) There was no evidential basis for the judge’s finding that H stumbled into the tyre and injured himself. The only conclusions available on the evidence were that H’s right leg came into contact with the police car as he swung it over while dismounting, or that he was struck by the car just after he had dismounted but while he was still holding on to his motorcycle.
(2) The police officer was entitled to bring the car into a position where it would impede an escape if one was attempted, but not to do so in such a manner or to such an extent as would create any foreseeable risk of injury to H. In some circumstances, such as where a dangerous suspect was at large, an officer might be justified in using a car as a trap or barrier even though that might create a risk of injuring the suspect. But those circumstances were not present in the instant case.
(3) The judge’s finding that the officer driving did not realise that H was going to dismount was not open to him on the evidence. He clearly did realise that. Furthermore, having realised that, it was incumbent on him to allow H sufficient room to dismount in safety.
(4) Thus the judge had made at least two errors as to the evidence: first, H did not stumble into the wheel of the car, he simply dismounted. He had not moved away from his motorcycle; he was still in contact with it. Second, the finding that the officer driving did not realise that H would dismount was untenable; the officer actually expected him to do so. Those errors were of such significance that the judge’s decision was undermined and had to be reconsidered.
(5) It was entirely reasonable for the officer to use the vehicle as a means of hindering H’s escape, provided that that did not create a risk of injury. Bearing in mind that the circumstances were not such as could justify the taking of any risk as to H’s safety, and bearing in mind that it was foreseeable and foreseen that H would dismount, the car was not driven with reasonable skill and care. The car was so close to the motorcycle that some part of it, either the front wing or the front offside wheel, came into contact with H. The officer misjudged the amount of space that he needed to leave for H to dismount in safety. That driving, when objectively considered, fell below the standard to be expected of a reasonably skilful and careful driver.
(6) H behaved culpably and foolishly in seeking to evade the police once he knew that they wished him to stop, and, in particular, in failing to surrender to them outside the gate leading into his property. He was 60% to blame and his damages should be reduced accordingly.
Simon Taylor QC, Sally Cowen (instructed by Roythornes) for the appellant; James Todd (instructed by Debenhams Ottaway) for the respondent.