DAVID PAUL KEYSE v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2001] EWCA Civ 715

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
[2001] EWCA Civ 715Case No Case No: B3/2000/2523Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 18th May 2001
Between
DAVID PAUL KEYSERespondentTHE COMMISSIONER OF POLICE OF THE METROPOLISROBERT JEREMY SCUTTSAppellants
Before
Lord Justice JudgeLord Justice LathamMr Justice LloydWilliam Norris QC & Mr James Todd instructed by Kennedy's, London (for the Appellant)Mr Richard Methuen QC & Mr Stephen Worthington(instructed by Prince Evans, Ealing for the Respondent)Date 18 May 2001

LORD JUSTICE JUDGE:

This

[1]is an appeal by the defendants from the decision dated 28 June 2000 of His Honour Judge Hutton sitting as a Deputy Judge of the High Court.[2]The litigation before him arose from a collision on 21 March 1995 between the claimant, Robert Scutts, (referred to in the proceedings below as "Robert") a pedestrian, and a police car on emergency duty, driven by PC David Keyse.[3]Judge Hutton was concerned with liability only. He found that the car had been driven negligently but that liability should be reduced by 25% to allow for contributory negligence by Robert. The defendant's appeal against the finding of primary liability, and, further if necessary, against the apportionment on the basis that it was over favourable to Robert.[4]We cannot of course decide this case on the basis of sympathy for a young man who has suffered injuries of great magnitude, as Robert did, or for his parents and family who have witnessed the dissipation of much promise. But it would be wrong not to acknowledge that for them all the consequences of this particular road traffic accident were catastrophic, and that whoever was to blame, and in whatever proportions, the accident has been and will continue to be the source of much anguish.[5]Robert was born in June 1977. At the date of the accident he was seventeen years nine months old, in his last months at Dulwich College. He was already the holder of a driving licence. He was able to fly aeroplanes, and on his way to obtaining a pilot's licence. He had been made an offer by Oxford University, subject to A level grades which it was anticipated he would achieve with ease, and his intention was to join and establish a career with the Royal Air Force, certainly at the outset, as a pilot.[6]David Keyse was a police constable. He joined the Metropolitan Police in 1982. He passed his police advanced driving course in 1989. Thereafter he had driven police cars in the course of his duties, on many occasions, no doubt, driving to emergencies.[7]On the evening of 21 March 1995 Robert had spent the evening at school, at a function organised by the CCF. He was wearing his Royal Air Force uniform. He left the premises at about 10.15 pm to catch his bus home. He was wearing fairly dark clothes, including his RAF trousers and an anorak or camouflage jacket, which was variously described, but agreed on all sides to have been dark coloured. He was carrying a rucksack on his back. It weighed 21lbs. He was due to catch the 10.27 bus, from the far side of College Road. He set off on foot, but was not readily visible, at any rate against a dark background.[8]PC Keyse was driving a marked police rapid response car, a Ford Sierra. He was accompanied by PC Dall. A radio message was received that they should attend the scene of a burglary in Peckham. The response required was classified as "immediate", the highest rate of priority. Suspects from a burglary some three miles away were being chased on foot. The police car was to "arrive at the scene in the shortest possible time". Mr Richard Methuen QC, on Robert's behalf, emphasised "arrive": if the car was driven so fast that it became involved in an accident, there would be no police presence at the scene at all, or none without some major delay.[9]The emergency blue lights and the two tone siren on the top of the police car were switched on. PC Keyse immediately drove to the scene of the burglary. His headlights were on full beam, his blue lights flashing and the siren in working order. They must have been apparent from some distance.[10]His route took him along College Road, Dulwich, which runs more or less north – south, and relatively straight, from Dulwich towards Peckham or Herne Hill. It is bisected at an important junction with what is called Dulwich Common, but is more familiarly known as the South Circular Road, running, again more or less, east – west from Tulse Hill to Lewisham. The junction is governed by traffic lights. At the material time, the lights were in working order and a 30 mph speed limit was in force. College Road itself is part of a residential area, but it is attractively laid out, and immediately off College Road itself there are green verges and lines of trees. No houses abut the pavement itself, and there were no parked cars in the road.[11]Road conditions were reasonable. Obviously there was no natural light. College Road and the junction were lit, but not very well lit, by a number of sodium vapour street lights, some low pressure, but the light shed on the junction was reduced by a number of tall trees in the vicinity, and the trees themselves provided a dark backdrop, heightening the difficulties of identifying pedestrians wearing dark clothing.[12]As the police car drove along College Road at a speed, as the judge found, of about 50 mph, the traffic lights were green in its favour, but the route ahead was obstructed by a car at the junction, indicating to turn to its right in an easterly direction on the South Circular Road. The police car slowed down to about 20 mph, and the car ahead turned to its right, apparently at the invitation of a car travelling in the opposite direction, which was aware of the oncoming police car. Be that as it may, the road ahead of PC Keyse was clear of traffic, the lights were green, and he accelerated "hard".[13]In the meantime Robert had been walking from the school buildings to catch his bus home. He crossed the South Circular Road just to the west of the traffic lights at the junction. In order to catch the bus he then had to cross College Road itself. His bus was travelling in the opposite direction to the police car, intending at the junction with the South Circular to turn left, again in an easterly direction. It was a hail and stop bus, moving slowly at about 10 mph. If Robert missed the bus, he would have another half hour or so to wait, and that might ruin all his subsequent connections. He was certainly in a hurry to get across College Road, onto the nearside of the bus, so that he could hail it. Having crossed the South Circular road to its north side, he set off across College Road at just the time when PC Keyse was driving through the junction. There was a collision, and Robert suffered very serious head injuries.[14]I must now analyse this accident in closer detail, on the basis of the judge's findings of fact. The police car which had accelerated "hard", or as fast as it could, starting approximately fifty metres before the stop line at the junction, was travelling at "something like 50 mph" by the time it reached the middle of the junction.[15]Robert set off across College Road, at an angle of 45 degrees towards his left, his presumed focus of attention, being the bus on the other side of the road. He was found by the judge to have been "aware" of the police car. In reality, on the evidence, the flashing blue lights and the noisy siren made it unmistakable. The judge found that he "must" have looked to his right down College Road before setting off across it. The finding was inferred from the primary, and undisputed fact, that the two tone siren and blue lights must respectively been heard and seen by Robert, who probably also saw the police car headlights. However he was understandably keen to catch his bus and did not look again before crossing the road. The judge inferred that the time when Robert "must" have looked to his right coincided with the time when the police car had slowed down before the obstructing car had moved away to its right.[16]Robert left the pavement at the junction itself, from the north side of the South Circular Road, just south of the shards of glass shown in the post accident police plan. The glass came from the nearside headlamp of the car, beginning 17 ½ metres beyond the stop light of the junction going north, that is the stop line for the police car if the traffic lights had been red against it. The shards covered an area extending 7 metres towards the north, and 4.3 metres out from the kerb.[17]At impact the speed of the car was found to have been 42-45 mph. The judge found that Robert would not have shown up "particularly well". Although the lights were green for the car, Robert was not "keeping his eye" on the "oncoming police car". He was in a "quite obvious hurry" to get across the road. It is an inevitable inference from the judge's findings that Robert ignored the advice in the Highway Code that if ambulances, fire engines, police or other emergency vehicles with their blue lights flashing or their sirens sounding were seen or heard, he should "keep off the road".[18]PC Keyse did not see Robert until after he had stepped off the kerb. He immediately followed all correct braking procedures, braking, releasing the brakes, and braking again, and trying to take avoiding action "as quickly as possible". Allowing for reaction time, and the braking process, PC Keyse probably first saw Robert about 28 metres before the impact, that is some 10 metres before the stop line across his path. Robert was struck ½ metre in from the nearside of the car, which was 1.7 metres wide. The judge understood it to have been agreed that the impact took place 2 ½ metres out into the road. That was a misunderstanding, there was no such agreement. The best analysis to be made now is that Robert was between 3 and 3 ½ metres into the road. At the moment of impact, Robert was running, but of itself that does not prove that he had started by running across the road (although given his undoubted hurry he may well have run which is what PC Keyse, but not PC Dall thought) or whether he started to run when, too late, he appreciated that the car was on top of him. From a skid mark, made as the judge found by the offside front wheel of the car, he inferred that the car was substantially on the offside of its own lane, 5.75 metres wide. So the impact happened approximately half way across the car's lane.[19]The judge found that if the car had been driving at 30 mph across the junction, that is, if PC Keyse had not exceeded the speed limit, the accident would not have occurred because he would then have had enough time to stop before the impact.[20]The judge's criticisms of PC Keyse were directed at his speed. He drove too fast across the junction, a consequence of hard acceleration from 20 mph up to 50 mph. He did not find that PC Keyse had been negligent in failing to see Robert any earlier than he did. Although Mr Methuen sought to argue that this, too, represented a constituent of negligent driving on this occasion, given the judge's finding relating to the background against which Robert's figure, in dark clothing, had emerged into the road, it would not be right to draw the inference that PC Keyse was not keeping a proper lookout when the judge was not prepared to do so.[21]The criticisms of Robert were that he crossed the road when the lights were green and favourable to the oncoming police car, and that he did not keep a proper look out, or even glance to his right "from time to time" to see how fast it was approaching. The judge further directed himself that it was "particularly important to bear in mind the youth and relative inexperience of Robert, a young man, ….. not yet eighteen, with the considerable experience and much greater age of the police driver". That said, Robert was certainly not too young to be about in Dulwich at 10.30 at night, and no one suggested that he did not know exactly what emergency blue lights and sirens meant.[22]The essential criticism of the judge's decision advanced by Mr William Norris QC on behalf of the defendants is that the judge proceeded on an incorrect premise, that the reason why PC Keyse exceeded the speed limit was irrelevant to the decision whether his driving was negligent. He suggested that it was wrong in principle to focus on speed alone, and exclusively, without reference to road conditions, including the undisputed facts, that the siren and blue lights, and headlights, meant that the car was exceptionally conspicuous. Mr Methuen suggested that the argument for the defendants involved the proposition that the emergency justified an increased risk to other users of the road, and he submitted that negligent driving was not justified by the fact that the car was being driven to an emergency. The police officer owed the same duty and standard of care as any other motorist, and was not entitled to increase the risk to others. Mr Norris suggested that this was an inaccurate summary of his argument. What he was saying was that in an emergency a driver was sometimes justified in driving faster, taking the attendant risks of increased speed, but in considering whether the driving was negligent, it was important to bear in mind, and the judge did not, that on its own speed, or driving in excess of the speed limit, did not prove negligence, particularly where the speeding car was making itself especially conspicuous, and providing ample warning of its impending, urgent approach.[23]In the skeleton arguments, and briefly at the oral hearing, our attention was drawn to a number of authorities. If I may say so, in the end, provided the distinction between the duty of care and the standard of care were not elided, or treated as if they were synonymous, the relevant principles of law are not obscure.[24]When judged in relation to speed restrictions, speed alone is not decisive of the question of negligence. It is sometimes plainly dangerous to drive at the permitted maximum, and equally, driving in excess of the limit, even if liable to result in prosecution for speeding, is not necessarily, and invariably, negligent. Emergency services vehicles on duty are expressly exempted from the criminal process arising from contravention of the statutory provisions relating to speed limits, keep left signs, and traffic lights. (s87 of the Road Traffic Regulations Act 1984 and Regulation 15(2) and 33(2) of the Traffic Signs Regulations and General Directions 1994) None of these provisions sanctions negligent driving, or indemnifies the negligent driver of a vehicle on emergency duty against civil liability. The duty of the driver to take care remains undiminished.[25]Mr Methuen submitted that the standard remained that of the experienced skilled and careful driver. Before us he relied, as he did before the judge, on Gaynor v Allen [1959] 2 QB 403, where McNair J, considering the submission:
"that if the motor-cyclist had been a civilian he would undoubtedly have been guilty of some negligence in driving at 60mph, though not necessarily entirely to blame for the accident. To show that a police officer was driving at that speed on a restricted road does not prima facie show negligence", concluded, at 407: "
The driver of this police motor-cycle on this occasion must be judged, as regards civil liability, in exactly the same way as any other driver of a motor-cycle in similar circumstances. He, like any other driver, owed a duty to the public to drive with due care and attention and without exposing the members of the public to unnecessary danger."[26]That defined the duty. He then went on to ask himself whether it was "clear that the police motor-cyclist, judged by the standard of an ordinary driver of a motor vehicle on his private occasions, is to be held guilty of negligence causing the accident". To that he held that the answer must be "yes". There, of course, he was dealing with the standard of care, and whether in the particular circumstances of the case the police motor-cyclist had fallen below it.[27]Mr Norris argued that this decision was no longer to be regarded as authoritative. He suggested that it had been over-ruled, at least by implication in Marshall v Osmond [1983] QB 1034. In that case the plaintiff was injured when the police car chasing him skidded and collided with him. Sir John Donaldson MR thought that "the duty owed by a police driver to the suspect is …… the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are 'in all the circumstances' ……. "[28]Significantly, although Gaynor v Allen was cited, and increasingly strangely to contemporary eyes, but still welcome, the judgment of Sir John Donaldson is bereft of a single reference to authority. The motorist's duty to take reasonable care is too obvious to require authority: whether the driving in any particular case fell short of the requisite standard is a question of fact.[29]In my judgment, even in an emergency, a driver is required to drive reasonably carefully in all the circumstances. One significant feature of such cases where the vehicle in question is deployed by one of the emergency services, is that the driver is normally entitled to assume that other road users will not ignore the unmistakable evidence of its approach, and where appropriate, temporarily at any rate, will use the road accordingly. Pedestrians can usually be expected to follow the relevant advice in the Highway Code. To that extent, the comment by McNair J in Gaynor v Allen in relation to the requisite standard of care is, perhaps simply because of the passage of time and the advancement of technology, no longer to be regarded as accurate, certainly so far as the driving of emergency service vehicles giving conspicuous warning of their presence or approach. Depending on all the circumstances, the speed at which such a vehicle may reasonably be driven is likely to be faster either than that of a vehicle not being deployed in an emergency, or a vehicle, in an emergency, which does not or cannot highlight that it is being used for such a purpose. For example, the driver of a civilian vehicle, taking a child to hospital in an emergency knows that however dire the emergency, that fact cannot be apparent to any other road user. Accordingly, in relation to civil liability, and if a prosecution should follow, ignoring defences of necessity or rescue which may be available, he should not drive on the basis that it is.[30]In my judgment the issue in the present case is not concerned with PC Keyse' duty to take reasonable care, (which is undeniable) but with the question whether he did so. Liability is not established, as the judge appears to have directed himself, perhaps by focusing too literally on McNair J's observation in Gaynor v Allen , simply because he exceeded the speed limit, and so deprived himself of the opportunity to take action which would have avoided the collision with Robert when he hurried across the road in front of the police car. Equally, if the lights at the junction had been red against PC Keyse, rather than green, with traffic travelling east – west, and west – east at the material time, PC Keyse should not have accelerated "hard", or at all, without reference to the red light and checking and waiting for traffic on the South Circular road to give way to him notwithstanding the lights in its favour. And, no doubt too, if he had been driving up the same section of College Road during daylight, driving past the entrance to a primary school, he might well have travelled rather more slowly because of the risk of the sudden emergence of small children in his path.[31]All that said, whatever the conclusion to be drawn from the circumstances of a different accident, in the present case PC Keyse had driven along a fairly straight stretch of road at night, when children are in bed, or at home. No one on foot could have been unaware of his imminent arrival at the junction, or that he was driving in an emergency. The lights at the junction were green in his favour. Having slowed down to allow the car in front to move out of the way, the road ahead was clear, and by accelerating "hard" he was able to cross the junction while the lights were still at green in his favour. In my judgment it was not unreasonable for him to accelerate through the junction when it appeared to be wholly unobstructed. It would not have been realistic to expect him to anticipate that a pedestrian in dark clothing would hurry across the road, directly across his path, at an angle away from him, without a second glance, when the traffic lights were showing green to the vehicle on its well advertised emergency journey, and to have driven at a speed at which he could have avoided this unanticipated risk. In my judgment, although drivers should allow for the unexpected when they are at the wheel of a car, it would inhibit the valuable work done for the community as a whole, if drivers in the emergency services were not allowed to drive their vehicles on the basis that pedestrians would recognise their warning lights and sirens and give them proper priority by keeping out of their paths.[32]Despite my sympathy for Robert, and his family, I have been driven to the conclusion that the judge below was wrong in the conclusion that he reached, and that liability was not established against PC Keyse. Accordingly the appeal must be allowed. LORD JUSTICE LATHAM:[33]I entirely agree. I do so with very real regret. I have the utmost sympathy for Robert and his family who have had to deal with the results of this tragic accident. But that sympathy cannot, I am afraid, justify holding Police Constable Keyse to blame even in part, when, for the reasons given by Judge LJ, to do so would involve imposing an inappropriate standard of care in the circumstances of this case. MR JUSTICE LLOYD:[34]I agree.

ORDER

Appeal allowed; no order for the appellant's costs, either here or below; the Claimant's costs will be assessed under Regulation 107 of the Civil Legal Aid Regulations; the application for leave to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 4 later judgments