Armsden v Kent Police

Emergency-service drivers responding to urgent calls must still drive with reasonable care. They may ordinarily assume that road users will respond to unmistakable warnings and maintain a proper lookout, but that assumption does not permit excessive speed. A driver emerging from a minor road onto a major road has a continuing obligation to give way and to look towards a known hazard before moving off and during the manoeuvre. Failure to sound a siren may not itself be negligence where it was neither pleaded nor put to the driver, but its absence is relevant to the safe speed. An emergency vehicle’s position over the centre line is not necessarily negligent if it improves visibility and safe negotiation of a bend. Where both drivers contribute, responsibility may be apportioned.

The estate of Rachael Cheesewright claimed damages from Kent Police after she was killed in a collision at a T-junction with a police car responding to an immediate emergency call. The Canterbury County Court, before His Honour Judge Simpkiss, found PC Purse negligent and held that his negligence was the sole cause of the accident. Kent Police appealed, challenging findings concerning speed, the vehicle’s position on the road, the absence of a siren, causation and Ms Cheesewright’s failure to maintain a lookout to the right. The central issue was whether the police driver’s conduct caused the accident and, if so, how responsibility should be apportioned.

Appeal allowed. Lord Justice Stanley Burnton gave the judgment, with Mr Justice David Richards and Lady Justice Arden agreeing. The Court of Appeal substituted an apportionment of responsibility of 40 per cent to Kent Police and 60 per cent to Ms Cheesewright.

1. The trial judge had made a basic error in relying on Mr Hance’s account of his own driving practice. That was not expert evidence and was inappropriate for a junction where visibility to the right was restricted. Applying the reasoning considered in Heaton v Herzog (unreported, 13 November 2008), and the statement of Russell LJ in Dolby v Milner [1996] 2 CLY 4430, a driver emerging onto a major road has a continuing obligation to give way and to keep looking towards the relevant hazard before moving off and during the manoeuvre. On the findings, Ms Cheesewright was negligent in failing to maintain that lookout.
2. An emergency-service driver must still drive reasonably carefully, but may assume that road users will not ignore unmistakable evidence of the vehicle’s approach. On these facts, PC Purse was entitled to assume that a stationary driver at the junction would not move out without seeing him. The contrary findings in paragraph 90(c) and (d) of the trial judgment were wrong. A different result might have followed if the manoeuvre had begun before the police car came round the bend, but that scenario was inconsistent with the finding that the Fiesta was stationary when first seen.
3. The police car’s position over the central white line was not, in itself, negligent. It enabled PC Purse to negotiate the bend more quickly and safely, subject to vehicles emerging from the side road, and improved visibility.
4. The failure to sound the siren was not itself negligent because the allegation had neither been pleaded nor put to PC Purse. Nevertheless, the absence of the siren affected the speed at which it was safe to travel, since it reduced the warning given to other road users. The judge was entitled to find that the siren would probably have been heard.
5. The speed of about 93 mph around the bend, with the junction approximately 100 metres away, was clearly excessive. The urgency of the emergency justified proceeding quickly but did not justify unsafe speed. The excessive speed without the siren was a contributory cause of the accident and its gravity. Responsibility was therefore apportioned 40 per cent to Kent Police and 60 per cent to Ms Cheesewright.

• Court of Appeal (Civil Division): [2009] EWCA Civ 631. Kent Police’s appeal was allowed and the liability judgment was substituted with a 40/60 apportionment.
• Canterbury County Court: His Honour Judge Simpkiss found PC Purse negligent and held that his negligence was the sole cause of the accident. No citation for that judgment was stated.