In the agony of the moment
(pedestrians, emergency vehicles and apportionment of liability)
Smith v Chief Constable of Nottinghamshire Police, [2012] EWCA Civ 161
Introduction
A mobile patrol police officer was responding to an emergency call in a vibrant
Nottingham city centre busy with revellers on a boozy Friday night, when he struck a
young girl who was crossing the road in front of him.
The Court of Appeal, in
allowing the Claimant’s appeal against the decision of the Recorder below, said the
police officer was driving too fast in the circumstances, had failed to keep a proper
look out and was therefore primarily responsible for the accident which left the
Claimant with permanent brain damage.
This is a decision that undermines the potency of a previous Appeal Court ruling
involving an emergency response vehicle in the case of Keyse v Commissioner of
Police of the Metropolis and Robert Jeremy Scutts1. The Court on that occasion did
the opposite and overturned the original finding of primary liability against the police
driver, acquitting him of all responsibility for a similar accident.
Despite a certain amount of accommodation afforded to emergency services, they
are still bound by the ordinary laws of negligence and the duty to drive with
reasonable care and skill like everyone else2. However they are not, for example,
required to obey speed limits or traffic lights in the normal way3 and more
significantly, following the decision of Keyse, drivers of emergency vehicles can also
expect that people, pedestrians, will not ignore the passage of a police car or
ambulance with its sirens blaring and lights flashing and will try to get out of the way.
1
2
[2001] EWCA Civ 715
See, Gaynor v Allen [1959] 2 All ER 644
3
s 87 of the Road Traffic Regulations Act 1984 and reg 15(2) and 33(2) of the Traffic Signs Regulations and
General Directions 1994
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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. (per Judge LJ at [32] )
This current volte-face by the Court of Appeal arguably swings the pendulum back
toward, or in favour of, the pedestrian Claimant and weakens the potential for
Defendant emergency services to think or believe that they may escape significant
liability in similar situations. And, in relation to apportionment of liability, their
Lordships re-affirm the principle that car drivers should in general be held more
responsible than pedestrians owing to the greater destructive potential of cars.
The case itself...
In this case the Claimant was out partying with friends and was in a drunken state as
she attempted to cross the road on Canal Street in a busy part of Nottingham town
centre. Although the police car had its siren and lights on, she failed to notice it
approaching until she was half way across the four lane road and the car was only
several metres away.
The evidence suggested that they both seemed to notice each other at the same
time and that in ‘the agony of the moment’ the police car tried to avoid hitting her by
steering to the right so that it veered from lane 2 to lane 4, where it ended up.
Tragically the Claimant, who had to that point been walking across the road, reacted
to the crisis by running forward in a moment of panic and headed directly into the
car’s path.
The Recorder giving the first rung decision, had found that the police officer had
seen the Claimant crossing from about 45 metres away as he progressed along
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Canal Street and that the Claimant had shown a ‘reckless disregard for her own
safety’ by failing to notice the police car as she stepped out into the road and ran into
its path. He found her 75% responsible.
However the Recorder also found that the police car was going too fast for the
circumstances, the expert evidence disclosing that the car had slowed on braking
from a speed of about 45-50mph to around 40mph on impact.
On appeal, the Claimant’s contribution was reduced from three quarters to one third,
with the police officer being held two third’s responsible. In reaching this conclusion
the Court of Appeal highlighted various errors, which in their view the Recorder had
made.
The most significant error was that the Recorder had made a finding as to where or
at what point the police driver had first observed the Claimant crossing the road as
he proceeded along Canal Street (i.e. 45 metres away), from which he deduced that
the Defendant had been keeping a proper look out. However, he had earlier in his
judgement also found that a driver on Canal Street had a visibility toward the
accident point of ‘not less than 150 yards’. Accordingly the Court of Appeal said that
the question the Recorder should have answered was, - at what point the attentive
driver ought to have seen her if he had been keeping a proper look out. In their view
the police officer should have seen her much earlier and should have been more
attentive given the speed he was doing.
The evidence was that this was a ‘well illuminated’ roadway and the Claimant had
been in the road for ‘an appreciable time’ (several seconds) before the collision, yet
the driver had not seen her step off the pavement or start to cross the road. There
was therefore ‘no justification’ for a finding that the Claimant had shown a ‘reckless
disregard’ for her safety. But, her failure to notice the flashing lights and police siren
made her more to blame than if it had been an ordinary car.
A second failure was that the Recorder had not made any reference to the policy
document Nottinghamshire Police Response and Pursuit Driving Policy, which had
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been produced and which gave explicit guidance to police drivers on safety issues.
The court indicated that this was potentially of greater value and bearing than the
more generalised guidance derived from the case of Keyse (above).
Thirdly, on the issue of apportionment/contribution, the Recorder was wrong to
distinguish the case of Eagle v Chambers4 on the basis that the Claimant had
suddenly run into the path of the police car.
"15. ... A car can do so much more damage to a person than a person can
usually do to a car. ... The potential 'destructive disparity' between the parties
can readily be taken into account as an aspect of blameworthiness. ...
16... It is rare indeed for a pedestrian to be found more responsible than a
driver unless the pedestrian has suddenly moved into the path of an
oncoming vehicle."
The approach Judges should take when deciding issues of contribution between
Claimant and Defendant is well known5, and involves looking at two aspects. Firstly,
what share of blame should be allotted to each of the parties based on their actions
and, secondly, what adjustment if any should be made on account of the ‘causative
potency’ of what they have done. In the latter case it is an accepted legal tenet that
cars are potentially more lethal than pedestrians and that greater responsibility will
therefore normally follow.
The Recorder’s error, said the Court of Appeal, was in not recognising that the
Claimant’s reaction of suddenly moving or running into the path of the police car,
when she noticed it at the last minute, was just as much done in ‘the agony of the
moment’ as the police officer’s attempt to avoid her by steering to the right. However
whilst the Recorder had accordingly excused the police officer’s actions, he had
failed to treat her in the same way. There was no difference in blame and no reason
not to apply the principle in Eagle v Chambers.
4
[2003] EWCA Civ 1107
5
See amongst others Baker v Willoughby [1970] 2 W.L.R. 50, Lunt v Khelifa [2002] EWCA Civ
801.
4
Some further conclusions:
(i) Despite sounding a note of caution at para.52 ‘not get too influenced or led astray
by mathematical calculations in reconstructing this accident’, this case
demonstrates the extent of detailed analysis of the cause of road traffic accidents
that Courts will go to in order to apportion liability.
(ii) Whilst remembering that cases like this will inevitably be fact sensitive, this case
shows that there is limit to how much blame (if any) can be attached to a persons
actions in the midst of the trauma of the moment and that Judges should therefore
be slow to depart from established principles.
(iii) The emphasis on referring to the Police policy document for guidance in this case,
lends support to the use of such documents in other similar cases. The disclosure
of such information or conversely an apparent lack of official guidance or policy
being made available to drivers by the relevant emergency service, may be used
to enhance one party’s position in negotiation or at trial.
JULIAN ABENGOWE
Zenith Chambers
March 2012
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