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Henry v Thames Valley Police, Court of Appeal, 14 January 2010

22 January 2010
The issues

Pursuit – police – motorcyclist – duty of care owed to motorcyclist stopped for speeding by police.

The facts

Michael Henry brought a claim for personal injuries against the Thames Valley Police following an accident which occurred on the 22nd August 2004. In the early hours of the 22nd August 2004 he was coming home to High Wickham after a social event on his Honda motorcycle. Two Thames Valley policemen in a marked car saw his the Claimant and decided to follow him. Both were experienced officers with Advanced Class 1 certificates. The car was fitted in the front with a video camera. The officers formed the view that the Claimant was speeding and at times driving dangerously. They lit up their flashing blue light and flashed headlights to indicate that he should stop. He accelerated away but afterwards slowed down and raised his left hand, which was understood by the officers as a sign that he was about to stop. He did not stop in fact but accelerated again and at that point the officers decided that the Claimant was trying to evade them. There was a short chase, until the Claimant turned right across the road onto a gravelled area and pulled up in front of a pair of solid wooden gates, which was the entrance to his home. He used his motorcycle to nudge open the gate and drove through. He drove about 13 meters along a track and stopped again, putting down the stand of his bike which caused it to tilt slightly to the left in preparation for dismounting. Meanwhile, the police car had pulled up, one officer had got out and followed the Claimant through the gate. He called for the other police officer to come through. The police driver forced the right gate open using the vehicle at low speed to do so. The area beyond the gate was unlit and dark. The other officer went to the off side of the motorcycle and spoke to the Claimant. He told the Claimant to switch his engine off and take off his helmet. The Claimant switched the engine off and dismounted. The police driver meanwhile was driving towards the motorcycle. Before the motorcyclist dismounted, the police driver formed the view that he might try to run away and he also formed the view, since the Claimant was waving his arms around, that he might assault his fellow officer. He decided to use his car to form a barrier to prevent the Claimant from escaping if he should try to make a run for it. He therefore drove to the nearside of the motorcycle. He steered quite sharply to the right, his intention being to form a ‘V’ so that when the car door was open, the car, its door and the motorcycle would provide a three sided barrier enclosing the Claimant. The Judge found that there was about 3 feet between the motorcycle and the car. He brought the car to a stop just as or shortly after the Claimant was getting off his bike. In some way that was not clear, the Claimant came into contact with the off-side front of the vehicle, fell to the ground, and his right lower leg became trapped by the front off-side wheel. The car had to be moved back slightly to release his leg. The Claimant suffered quite serious injuries.

The Recorder found for the Defendant.

The Claimant Appealed on the grounds that the Recorder’s finding that the police driver had not driven negligently was not open to him on the evidence.

The decision

The Judge had found that the Claimant had stumbled into the tyre and injured himself. There was no evidential basis for this finding. The only conclusion available in the evidence was that the Claimant’s right leg came into contact with the police car as he swung it over whilst dismounting or that he was struck by the car just after he had dismounted but while he was still holding on to his motorcycle.

The police driver was entitled to bring the car into a position where it would impede an escape if one were attempted, however he was not entitled to do so in such a manner or to such an extent as would create any foreseeable risk of injury to the Claimant. There might be some circumstances such as where a dangerous suspect was at large where an officer might be justified in using a car as a trap or barrier, even though that might create a risk of injury to the suspect. Those circumstances were not present in this case however.

A police officer who decides to use his car as a barricade has to exercise a reasonable degree of skill and care in making the judgment as to where the position the car. The Recorder had also found that the police driver did not realise that the Claimant would dismount. That was an untenable finding as well.

The two errors of the Recorder as to the facts were so significant as to undermine his decision. Accordingly, the Court had to either reconsider the decision itself or remit it for a re-hearing. All of the material facts were available to the Court and accordingly it would make a decision itself.

It was not acceptable for the driver to bring his car so close to the Claimant, who he knew was dismounting from the motorcycle, as to allow insufficient space for him to dismount normally. The evidence was that this was what the Claimant had done. Precisely what he was doing was not clear on the evidence, save that the Court was satisfied that the Claimant still had hold of his machine and could not have moved back from it appreciably and that he made no unexpected movements. He was occupying the space adjacent to his machine that it was foreseeable that he would need to occupy. The car had driven into that space and it should not have done so.

The police driver had been negligent but his fault was one of misjudgement and not of a serious degree. Nonetheless, a moving car was a dangerous thing and the effect of misjudging his placement was potentially very dangerous. His negligence was the direct and immediate cause of the injury. On the other hand, the Claimant had behaved culpably and foolishly in seeking to evade the police. His conduct had set the scene and led to the events which followed. If the Claimant had given himself up outside there would have been no reason for the police car to follow him through the gate into the dark area beyond and there would have been no accident. The Claimant would be assessed as 60% contributorily negligent.

Appeal allowed.

Claimant 60% contributorily negligent.

Comments

Lord Justice Pill dissented from the majority in the Court of Appeal taking the view that the Recorder had got it right in describing the accident as “sheer bad luck”. He took the view that the police officer had not been negligent and that the Recorder was right when he had said in his Judgment that the Claimant had “put the police officers into a very tricky situation in which they had to make judgment in seconds about what he was going to do”.

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