Smith v Nottinghamshire Police

Emergency-service drivers remain subject to the civil duty to take reasonable care, despite exemptions from criminal speed-limit and traffic-signal rules. The standard is fact-sensitive and requires consideration of traffic conditions, foreseeable pedestrian behaviour and the limits of warning equipment. A proper lookout is assessed by when a pedestrian ought reasonably to have been seen, not merely when the driver actually noticed her. Contributory negligence under Law Reform (Contributory Negligence) Act 1945, section 1(1), requires consideration of blameworthiness and causative potency. A car’s destructive potential often gives the driver the greater share, although a pedestrian’s disregard of warnings remains relevant.

Rebecca Smith suffered catastrophic injuries after being struck by a police Volvo responding to an emergency call. The Nottingham County Court found the driver negligent for travelling at 45–50 mph through a traffic-light-controlled junction, but held Smith 75% responsible because she crossed in front of the vehicle despite its blue lights and siren.

Both parties appealed. Smith challenged the apportionment and findings concerning the driver’s conduct. The Chief Constable challenged the finding of primary negligence. The central issues were whether the driver was negligent in speed or lookout, and the proper allocation of responsibility.

Disposition. The claimant’s appeal was allowed and the Chief Constable’s cross-appeal was dismissed. The finding of primary negligence was upheld, but the apportionment was altered.

1. Emergency driving. Exemptions affecting emergency vehicles do not authorise negligent driving. The civil duty to take reasonable care remains. The observations in Keyse v Commissioner of Police of the Metropolis and Robert Jeremy Scutts [2001] EWCA Civ 715 were fact-sensitive and did not establish a universal rule that pedestrians would heed warning equipment.
2. Speed and policy. The driver knew that the area contained bars, restaurants and many pedestrians, some potentially affected by alcohol. The Nottinghamshire Police Response and Pursuit Driving Policy was highly relevant. It warned that warning instruments could not be assumed to be heard. Travelling at 45–50 mph through the junction was negligent because travelling at about 40 mph, with heavy braking when the pedestrian became a hazard, would have avoided the collision.
3. Lookout. The Recorder erred by relying on the point at which the driver actually saw the claimant rather than the point at which an attentive driver ought to have seen her. She was visible for an appreciable time on a well-lit carriageway. The driver therefore failed to keep a proper lookout for the speed at which he was travelling.
4. Evidence. The Recorder’s assessment of Mrs Matthews was open to him. However, he erred by treating statements from the claimant’s friends as hearsay evidence without the defendant adducing them. That evidence affected his finding about the speed at which the claimant crossed.
5. Contributory negligence. Under Law Reform (Contributory Negligence) Act 1945, section 1(1), apportionment is a value judgment requiring a just and equitable reduction, having regard to relative blameworthiness and causative potency. The claimant was negligent in crossing despite the warnings, but her conduct did not amount to reckless disregard. The excessive speed and poor lookout were the more causatively potent causes. Responsibility was therefore apportioned two-thirds to the defendant and one-third to the claimant.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 161, the claimant’s appeal was allowed to the extent that responsibility was apportioned two-thirds to the defendant and one-third to the claimant. The Chief Constable’s cross-appeal against primary liability was dismissed.
• Nottingham County Court: On 14 January 2011, Mr Recorder Herbert found the police driver negligent but assessed the claimant as 75% responsible, limiting recovery to 25% of her damages.