Armsden v Kent Police [2009] EWCA Civ 631

[2009] EWCA Civ 631Case No B3/2008/2433
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
His Honour Judge Simpkiss
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/06/2009
Before
LADY JUSTICE ARDENLORD JUSTICE STANLEY BURNTONMR JUSTICE DAVID RICHARDS
Between
ALAN ARMSDEN (as Executor of the Estate of RACHAEL CHEESEWRIGHT deceased)Claimant/ RespondentKENT POLICEDefendant / Appellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Jacqueline Perry QC and Edward Hutchin (instructed by Berrymans Lace Mawer) for AppellantsEdward Faulks QC and Julian Waters (instructed by Harman & Harman) for RespondentHearing Hearing date: 26 March 2009
Judgment

Introduction

[1]This appeal arises out of a tragic accident on 22 October 2005, at about 11 pm, when at the junction between the A28 and Brissenden Green Lane near Ashford in Kent a Skoda police car driven by PC Purse responding to an emergency call collided with a Ford Fiesta car driven by Rachel Cheesewright. She was killed. He and his passenger, PC Wade, survived.[2]In these proceedings Ms Cheesewright’s estate claims damages against the Kent Police on the basis that the accident was caused by the negligence of PC Purse. On the trial of liability, the judge found that he was negligent, and that his negligence was the sole cause of the accident. The Kent Police appeal against those findings.

The circumstances of the accident

[3]The junction between the A28 and Brissenden Green Lane is notoriously difficult. It is a T-junction. The A28 is the main road, with priority; Brissenden Green Lane leads into it, as the pillar of the T. Ms Cheesewright was proceeding along Brissenden Green Lane, intending to turn right onto the A28. At this point, visibility to the right, and conversely visibility from the A28 travelling towards Brissenden Green Lane on the left is restricted by a bend in the A28. She was preceded by Mrs Haywood, an independent witness who was driving another car.[4]PC Purse is a highly qualified and experienced police driver, well qualified to drive a high powered vehicle in emergency response. That is what he was doing at the time of the accident. There had been a violent domestic incident in Biddenden which had led to an immediate response call. The incident record shows that the incident disclosed potential for an immediate risk of injury or further injury to the caller, and that an offence had taken place. When an incident is given an “immediate” status, officers are expected to attend it “in the most timely way”, and this will usually involve “urgent driving”, which usually involves the use of the blue warning lights and driving in contravention of road traffic restrictions.[5]PC Purse proceeded along the A28 with the blue warning lights of his car switched on, but not sounding his siren. At this location, the A28 is subject to a national speed limit, i.e., 60 mph. PC Purse had accelerated to 100 to 110 mph on the straight, a speed he did not feel to be excessive on the straight road before the bend.[6]Mrs Haywood drove up to the junction with the A28 and stopped. She noticed a small car had stopped behind her, and it is common ground that this must have been Ms Cheesewright. She told the judge that the visibility to the right “wasn’t that good because you cannot see cars until they are very close to the junction”. She described how it was easier to get out of the junction at night because you could see the headlights of the oncoming vehicles, but that the view of the lights was still better from the left than the right “because the trees and hedges block your view”. Having decided that the road was clear, and that there were no headlights from oncoming cars in either direction, she moved out from Brissenden Green Lane onto the A 28. In his judgment, the judge set out her description of what then happened:
“I didn’t see any headlights or flashing lights until I straightened the vehicle up and had changed into second gear when I got the fright of my life. A police car seemed to come out of nowhere from the Ashford direction. It was travelling frighteningly fast, probably over 90-100 mph. It was going very, very fast and straddling the white line down the middle of the road. It had a wheel either side of the white line. Not quite halfway, but a fair bit. It was slightly on my side of the road because I had to slow down and pull over. It frightened the life out of me.”
The judge rejected Mrs Haywood’s evidence that the interior lights of the police car were switched on. However, he accepted her evidence as set out in paragraph 33 of his judgment: 33. When Mrs Haywood saw the police car she slowed down but said that the police car looked “jittery and almost out of control”. “It looked like its wheels weren’t touching the ground”. She said that she thought about the car coming out of the junction behind her and had a vision that the police car would hit it. She had previously noted that it was indicating to turn right and she was worried that it would not have seen the police car. She didn’t see Ms Cheesewright’s car pull out but she heard a “short loud squeal of brakes before a loud bang”. She looked in the wing mirror and saw debris flying about. She stopped her car at the side of the road and got out.[7]The judge found that she had stopped her car about 120 metres past the junction. On the basis of her evidence, he found as facts:(i) Mrs Haywood was completely surprised by seeing the police car and was not expecting it.(ii) She did not see any headlights or blue emergency lights from the police car before she turned right.(iii) She did not see any headlights or blue emergency lights either directly or reflected in the hedges and trees until the police car was nearly onto her, as it came round the bend.(iv) She had to pull over to the verge on her left in order to get out of the way of the police car the wheels of which were straddling the central white line.(v) She first saw a police car when she was about 80 metres from the mid-point of the junction.(vi) She genuinely felt that the police car was travelling exceptionally fast.[8]PC Purse described the traffic on the A28 as “light”. As mentioned above, he had accelerated to reach a maximum speed on the straights of 100 to 110 miles per hour. As he approached the left-hand bend before Brissenden Green Lane he could see headlights around the bend through the hedgerows. He said that at the approach to the bend he was “positioned towards the centre of the road for best visibility and also to maintain the balance of my vehicle around the bend”. The judge set out his evidence as to what then occurred: I eased off the speed whilst the bend was still some distance away as I could see the lights and vehicles ahead. I travelled around the bend and further reduced my speed as I saw one vehicle had come out and turned towards Ashford clearing the junction. I could see another vehicle pull up to the junction on Brissenden Green Lane and I saw the nose of the car dip which I recognised as the weight of the vehicle going onto the front of it, indicating braking which suggested to me it was stopping. I then started to look ahead up the road as well as looking at the vehicle at the mouth of the junction. As we got closer I saw it pull out of the junction directly into my path ... I had a split second to decide what to do and I decided to turn slightly left then hold the steering wheel straight and brace while applying full emergency braking force ... It was my hope that the other vehicle would continue its manoeuvre and turn towards Ashford and be out of my path by the time I got to it. It did not and the front of our vehicle collided with the offside of the other vehicle.[9]PC Purse said that his car did not skid because it was fitted with anti-locking brakes. He denied that he had crossed the central line, although he accepted that his offside wheels would have been “towards the centre line” as he approached the bend. The judge said that his clear evidence was that he saw Ms Cheesewright actually stop at the junction. It was for this reason that he had not braked immediately on seeing her.[10]PC Wade gave evidence essentially consistent with that of PC Purse. He saw Mrs Haywood pull out of the junction when they were 60 or 70 metres away, and thought “it was a bit dodgy as we had all our lights on and the person obviously, when they came past, realised it”. He described how he saw Ms Cheesewright’s car draw up and stop at the junction, and the driver looked to her left and not towards the police car. He also remembered seeing the front of Ms Cheesewright’s car dipping down. He then said:
“She then just pulled straight out in front of us when we were about 30 metres from her. PC Purse then braked very heavily and we didn’t skid, the ABS was working.”
He too said that he clearly saw Ms Cheesewright stop.[11]There was expert evidence on both sides. For present purposes, it is unnecessary to summarise it.[12]The judge rejected the police evidence that they saw Ms Cheesewright stop. However, he did find that she was stationary when they first saw her. In my judgment, this was a crucial finding, which has not been challenged. In paragraph 75 of his judgment, the judge said: … I think it is probable that [Ms Cheesewright] would have been aware of the [police] vehicle’s presence as soon as she stopped. It is also improbable that she would not have [made] some assessment of whether the vehicle was far enough away for her to turn in front of it. I think that the fifth word from that citation should read “improbable” rather than “probable”, since otherwise the sentence is inconsistent with other findings of the judge and the following sentence. This does not however detract from the finding that the police saw Ms Cheesewright’s car stationary.[13]The principal findings of the judge are contained in paragraphs 77 to 93 of his judgment. He found that Ms Cheesewright had stopped at the give way line, at the latest, when she first came into the view of PC Purse. He thought it improbable that she stopped and pulled out without looking to her right and left. He rejected PC Wade’s evidence that she had pulled out when the police car was some 30 metres away, on the basis that there would not have been enough time for her car to have reached the impact point. The judge found that the police car came round the bend much faster than the 74 mph suggested by Mr. Clayton, the expert witness called by the Defendant. The judge considered a speed of 93 mph before braking was a reasonable assumption for the police car. At that speed, the police car would have reached the impact point in 2.82 seconds but Ms Cheesewright would have had only 2.57 seconds of direct view before the collision. The judge referred to the evidence of Mr. Hance, the expert witness called by the Claimant. In paragraphs 84 and following of the judgment, the judge said: 84. Mr. Hance’s unchallenged evidence was that he would usually look right, then left and if it was clear then turn. If Ms Cheesewright had looked to her right before the [police car] appeared around the bend then she would have been looking left as it appeared. It would only have been necessary for her to have been looking left for one second after the Skoda came round the bend for her to have had enough time to reach the impact point. 85. In my judgment, this is probably what happened. I have already indicated that it is highly unlikely that Ms Cheesewright would have started to turn once she had seen the Skoda and certainly not at the distance which the police say they were from her. 86. The significance of the figures and their analysis is that they show that even at a speed of 78 mph around the bend, a combination of perfectly reasonable actions by Ms Cheesewright would have led to the accident. I find that the Skoda was in fact coming out of the bend at a speed significantly greater than 70 mph and probably over 90 mph. ... 88. The consequence is that PC Purse should have approached the bend and then negotiated it bearing in mind the following:a. the presence of the junction at about 100 metres after the bend;b. the possibility of a driver waiting at the junction to turn right across his path;c. the possibility that a driver would not see that he was coming until he was directly in view of the stopping distance of 100 metres or thereabouts;d. the possibility that a driver might see the reflection of his lights in the bushes but may or may not see the colour of the lights reflected or relate them to an emergency vehicle on an emergency call;e. the driver would not assume that an approaching vehicle was exceeding the speed limit, at least not so significantly, although a driver ought not to assume that a car approaching in the dark was within the speed limit. 89. Taking all the above into account, the principle (sic) concern of an emergency call driver ought, in my judgment, to be that other road users should have clear warning that he was on an emergency call and that he was therefore travelling faster than normal. 90. I find that PC Purse was negligent for the following reasons: a. He should have had his siren on when he approached the bend so as to give warning to any vehicles in the junction of his imminent arrival; b. The speed at which he negotiated the bend meant that the Skoda went across the central white line, forcing Mrs Haywood to take evasive action and scaring her; c. The speed at which he came out of the bend was excessive and put any driver waiting in the junction at significant risk that she might be involved in a collision if she pulled out to turn right having looked right before the police vehicle rounded the bend; d. Assumed that the Fiesta had seen him while it was stopped at the junction. Unless he had seen the Fiesta stop, which he hadn’t, he could not have known what stage the driver of the Fiesta was in the execution of the right turn and therefore risked that she might turn without seeing him. 91. If the siren had been switched on, as it had been earlier, then it is likely that Ms Cheesewright would have heard it and would have remained stationary until she had assessed what the emergency vehicle was doing. a. the presence of the junction at about 100 metres after the bend; b. the possibility of a driver waiting at the junction to turn right across his path; c. the possibility that a driver would not see that he was coming until he was directly in view of the stopping distance of 100 metres or thereabouts; d. the possibility that a driver might see the reflection of his lights in the bushes but may or may not see the colour of the lights reflected or relate them to an emergency vehicle on an emergency call; e. the driver would not assume that an approaching vehicle was exceeding the speed limit, at least not so significantly, although a driver ought not to assume that a car approaching in the dark was within the speed limit. a. He should have had his siren on when he approached the bend so as to give warning to any vehicles in the junction of his imminent arrival; b. The speed at which he negotiated the bend meant that the Skoda went across the central white line, forcing Mrs Haywood to take evasive action and scaring her; c. The speed at which he came out of the bend was excessive and put any driver waiting in the junction at significant risk that she might be involved in a collision if she pulled out to turn right having looked right before the police vehicle rounded the bend; d. Assumed that the Fiesta had seen him while it was stopped at the junction. Unless he had seen the Fiesta stop, which he hadn’t, he could not have known what stage the driver of the Fiesta was in the execution of the right turn and therefore risked that she might turn without seeing him.

The contentions of the parties on the appeal

[14]The principal submissions of Miss Perry QC, for the Defendant, were that the judge had not been entitled to make the findings of negligence that he did. The allegation that PC Purse had been negligent in failing to sound his siren had not been pleaded, and he had not been cross-examined on the basis that he should have sounded it. Whether to sound the siren was a decision to be made by the driver in the exercise of his judgment. As the judge himself accepted: The decision whether to use the warning lights and siren remains with the driver who must take into account the circumstances, conditions and perceived urgency of the incident. This accident occurred in a rural area, late at night, when the traffic was light. There was no evidence that the siren would have been heard by Ms Cheesewright. However, Miss Perry accepted that the fact that the siren was not sounding would have been relevant to the manner in which PC Purse should have driven, and in answer to a question from Mr Justice Richards she said she was not taking a point on the failure of the Claimant to plead the failure of PC Purse to use his siren as a particular of negligence, and was not submitting that we should not take it into account.[15]Secondly, and perhaps more importantly, Miss Perry submitted that PC Purse was entitled to assume that other drivers would not ignore his approach. She relied on the statement of Judge LJ in Scutts v Keyse and the Commissioner of Police of the Metropolis [2001] EWCA Civ 715: 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.[16]Miss Perry also challenged the judge’s finding that PC Purse drove over the white line. In any event, she submitted, if he did so this was not causative of the accident. She also challenged the judge’s reliance on the expert evidence of Mr Hance where it conflicted with that of Mr Clayton, and the judge’s acceptance of the evidence of the former referred to in paragraph 84 of his judgment.[17]For the Respondent Claimant, Mr Faulks QC rightly stressed that the judge had had the great advantage of seeing and hearing the witnesses. His judgment was reserved, detailed and careful. The fact that the siren was not sounded increased the need for a degree of caution on the part of PC Purse, who was negligent in failing to appreciate that Ms Cheesewright might be unaware of his presence.

Discussion

[18]In my judgment, the judge made a basic error in accepting Mr Hance’s evidence of his practice, referred to at paragraph 84 of his judgment, that he would usually look right, then left and if it was clear then turn. This was not expert evidence, but a statement of what was Mr Hance’s practice. The judge referred to it as unchallenged, but if it was evidence of what Mr Hance was in the practice of doing there was no basis or need for it to be challenged. More importantly, it was wrong, particularly in circumstances in which, as here, visibility at the junction of Brissenden Green Lane and the A28 for a car intending to emerge from the Lane into the main road was relatively unrestricted to the left but, because of the bend in the A28, restricted to the right. In Heaton v Herzog (unreported, 13 November 2008), the Court of Appeal considered an accident caused when a motorcyclist, travelling at excessive speed along a main road, collided with a car that emerged from a side road. The driver of the car had not looked right as she moved out of the side road. Sir William Aldous, giving a judgment with which the other members of the Court agreed, cited the statement of Russell LJ in Dolby v Milner [1996] 2 CLY 4430, Court of Appeal: It is to be observed that at no stage in the judgment does the judge refer to and emphasise, as in my judgment he should have done, the fact that the plaintiff here was emerging from a minor road onto a major road, and was consequently under a continuing obligation to give way to traffic on the major road. Sir William Aldous continued: If she had done that which Russell LJ said that she should have done, she would have continued to look right before moving off and during the manoeuvre. She would then have seen the motorcycle and could have taken action to stop her car before an accident became unavoidable.[19]That comment applies equally in the present case. Ms Cheesewright should not, in the circumstances, have looked right, then left, then moved off. She should have looked again right, to see whether any car had come round the bend, before moving off, and maintained a lookout to the right. The judge found that PC Purse and PC Wade saw her stationary at the junction. It seems to me to follow that had she been looking right before moving off, and when she had just decided to move off, she would have seen the police car approaching with its blue flashing lights on, and would not have moved off unless she miscalculated its speed and the time she required to clear the junction. Contrary to what the judge said at subparagraph c of paragraph 90 of his judgment, PC Purse was entitled to assume that a person driving a car at the junction with Brissenden Green Lane would not emerge into the junction without keeping a lookout to the right. In my judgment, therefore, she was negligent. Similarly, contrary to what the judge said at subparagraph d, when, as he found, PC Purse saw the Fiesta at the junction, he was entitled to assume that the driver of the Fiesta would not move out without seeing him.[20]I also do not consider that the position of the police car over the white line of the A28 was indicative of negligence. Not only would that position have enabled PC Purse to take the bend more quickly and (subject to any car emerging from Brissenden Green Lane) safely, it also improved his ability to see ahead and increased his visibility to someone at the junction of Brissenden Green Lane and the A28.[21]I would accept the submission of Mr Faulks that if Ms Cheesewright had begun her manoeuvre before the police car came round the bend, she could not be blamed for the accident. But that scenario is inconsistent with the judge’s finding that the officers saw her car stopped at the junction, and his explanation of the accident as resulting from her not looking to the right when she emerged into the A28.[22]The judge did find that PC Purse drove at an excessive speed. He was entitled to do so. The speed of about 93 mph at which the judge found that PC Purse was driving as he came round the bend in the A28, with a junction only about 100 metres from the bend, was indeed clearly excessive. The driver would have found it very difficult, if not impossible, to avoid colliding with a car that had already begun to enter the junction. Since it was not put to PC Purse that he should have used his siren, quite apart from the fact that that allegation was not pleaded, I do not think that the judge should have found the failure to use the siren was of itself negligent. However, the fact that he was not using his siren affected the speed at which it was safe for the police car to travel: the siren would have given greater and earlier warning of its approach. Thus the fact that the siren was not being used exacerbated the danger that there might be a car in or about to enter the junction. I think that the judge was entitled to find that the siren would have been heard by Ms Cheesewright, who was only about 100 metres from the bend.[23]The judge rejected the police evidence that Ms Cheesewright had pulled out when the police car was only some 30 metres away, and gave a cogent reason for doing so. It seems to me to follow that the excessive speed of the police car was a contributory cause of the accident and of its gravity.[24]I would hold that PC Purse’s negligence in driving at the speed found by the judge without his siren sounding was a contributory cause of the accident. I bear in mind that it was important that he proceed as fast as he safely could, and that delay on his part could have had tragic consequences in the incident to which he and PC Wade had been directed. But excessive speed can and did have immediate tragic consequences. I consider that the greater responsibility, on the judge’s findings of fact, was that of Ms Cheesewright, who failed as she decided to emerge into the major road to keep a lookout to the right towards a known hazard. I would attribute the responsibility for the accident as to 40 per cent to the negligence of the Appellant and 60 per cent to Ms Cheesewright.[25]I would therefore allow the appeal and substitute the judgment indicated in the previous paragraph of my judgment for that of the judge.[26]I agree.[27]I agree.