Henry v Thames Valley Police

A police driver owes a suspect the same duty as any other driver: to exercise reasonable skill and care in all the circumstances. An officer may use a vehicle to hinder escape, but must not position it so as to create a foreseeable risk of injury, unless exceptional circumstances justify taking that risk. Difficult conditions, operational objectives and the need to decide quickly do not remove the duty. Where an officer knows or expects that a motorcyclist will dismount, sufficient room must be left for a normal dismount. Driving into that foreseeable space is negligent. Contributory negligence is assessed by balancing blameworthiness and causative effect. Responsibility was apportioned 60% to the claimant and 40% to the police.

Michael Henry was seriously injured when his leg became trapped under the front wheel of a police vehicle following a pursuit. He had entered the grounds of his home on a motorcycle and was dismounting when the police driver positioned the vehicle close to the motorcycle to hinder a possible escape.

The Reading County Court dismissed the claim, holding that the driver had made an error of judgment but had not driven negligently. On appeal, the principal issue was whether the driver’s conduct fell below the standard of reasonable skill and care, having regard to the pursuit, the darkness, the suspected offences and the foreseeable dismount. The court also had to determine any contributory negligence.

1. Majority disposition. Smith LJ, with whom Arden LJ agreed, allowed the appeal. The Recorder’s findings that Mr Henry had stumbled into the wheel and that PC Griffiths had not realised he would dismount were unsupported by the evidence. Those errors materially undermined the negligence decision, and the Court of Appeal reassessed the case without remission.
2. Applicable duty. The ratio in Marshall v Osmond [1983] 3 WLR 13 established that a police driver owes the suspect the same duty as anyone else, namely reasonable skill and care in all the circumstances. The suspect’s apparent criminal conduct is one circumstance, but it does not displace the ordinary objective standard.
3. Use of a police vehicle. PC Griffiths was entitled to use the vehicle to hinder escape. He was not entitled to position it so closely as to create a foreseeable risk of injury. The court accepted that exceptional circumstances, such as a dangerous suspect at large, might justify using a vehicle as a trap or barrier despite such a risk. The suspected traffic offences and perceived risk to the other officer did not amount to such circumstances.
4. Negligence. The driver knew, or ought to have known, that Mr Henry would dismount. The relevant assessment required consideration of speed, proximity, lighting and the likely movement of the motorcyclist. The need to decide within seconds did not remove the obligation to leave sufficient room for a safe, normal dismount. The vehicle entered the foreseeable space which Mr Henry needed and therefore came too close for safety. That was negligent driving.
5. Contributory negligence and orders. The court balanced the parties’ blameworthiness and the causative effect of their conduct. Mr Henry’s culpable evasion set the scene and was a cause of the accident, while the police driver’s negligence was the direct and immediate cause. Responsibility was apportioned 60% to Mr Henry and 40% to the respondent, so he recovered 40% of his damages. Pill LJ dissented and would have dismissed the appeal. The court also observed, obiter, that “error of judgment” is not a term of art: it may describe negligent or non-negligent conduct. The civil question is whether the conduct fell below the required standard.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 5, the majority allowed the appeal, held the respondent primarily liable, and apportioned responsibility 60% to the appellant and 40% to the respondent. Pill LJ dissented.
• Reading County Court: Recorder Flather OBE QC dismissed the claim on 27 March 2009, holding that the police driver had made an error of judgment but had not been negligent.