James Stuart Mulvey Gibson (ap) V. John Orr, The Chief Constable, Strathlclyde Police

CourtCourt of Session
JudgeLord Hamilton
Docket Number01794/5
Date26 February 1999
Published date26 February 1999

01794/5/97

OPINION OF LORD HAMILTON

in the cause

JAMES STUART MULVEY GIBSON (AP)

Pursuer;

against

JOHN ORR, CHIEF CONSTABLE STRATHCLYDE POLICE

Defender:

________________

Pursuer: McEachran Q.C. , Ms Carmichael; Robson McLean W.S.

Defender: C. J. M. Sutherland Q.C., Bowie; Simpson & Marwick W.S.

26 February 1999

On 10 and 11 December 1994 there was heavy rainfall in central Scotland. By the afternoon of 11 December exceptionally high and fast flowing waters were running in the River Kelvin. Between 2.45pm and 2.55pm the Gavell Bridge, which carried a public road across the Kelvin, collapsed as a result of the height and speed of those waters, combined with the effect of cross-flows from surrounding flooded areas. At about 4.20pm a motor car in which the pursuer was a passenger was travelling from the south on the public road towards the Gavell Bridge. Neither the pursuer, the driver of the motor car nor the other passenger was aware that the bridge had collapsed. There were no cones, barriers or other signs in place on the road approaching the bridge from the south. The motor car was driven onto the collapsed bridge and fell into the river. The driver and the other passenger were killed. The pursuer survived but maintains that, as a result of the accident, he has sustained the loss, injury and damage for which he seeks in this action reparation from the defender.

The defender is the Chief Constable of Strathclyde Police. The public road on either side of and passing across the Gavell Bridge lay within the Strathclyde Police area. The defender is sued personally (in respect of an alleged failure to take reasonable care to devise, institute and maintain a system to deal with emergencies) and vicariously (in respect of various alleged failures by a number of police officers under his general direction and for whose wrongful acts or omissions he is liable - Police (Scotland) Act 1967, Section 39(1)). It is unnecessary to rehearse all of those various grounds of alleged fault, since Mr Sutherland, senior counsel for the defender, made it plain at the discussion that the defender's challenge to the relevancy of the pursuer's action was based solely on the fundamental submission that police officers owed no duty of care to a person placed as was the pursuer. Mr Sutherland stated that, if contrary to that submission, any one or more of the officers blamed did owe such a duty, the appropriate course was to sustain the pursuer's and repel the defender's respective pleas to the merits of the action and to allow a proof restricted to quantum. That was because, he explained, the defender did not in any circumstances seek a proof or a proof before answer on the merits of the action, accepting that, if his fundamental submission was ill-founded, there had been a breach of duty which had been a material cause of the accident.

In these circumstances it is sufficient to narrate matters pertinent to one, possibly the strongest, of the cases of fault pled by the pursuer. It is averred that at about 2.57pm on 11 December Fire Service Control informed Strathclyde Police Force Control that the Gavell Bridge had collapsed. At about 3.00pm two constables of Strathclyde Police Force attended at the north side of the bridge, having been directed there by (the occupants of) a fire appliance. They informed their Divisional Control (N Division) of what they had found and suggested that liaison take place with D Division which served the area to the south of the bridge. These constables then proceeded to cone off the north side of the bridge and to position their Land Rover vehicle on that side with its blue light flashing and its headlights illuminated so as to be visible and to give warning to any persons approaching from the south side of the bridge. Those constables remained with their vehicle so positioned until some time between 4.10pm and 4.20pm that afternoon when they withdrew with their vehicle. At the time they did so they had received no information to confirm that any barrier or warning was in place on the south side of the bridge. Within a few minutes of their departure the car in which the pursuer was travelling made its approach from the south side and fell into the river, as earlier narrated. It is also averred that the pursuer, who lived locally and had spent the earlier part of the afternoon driving around the general area assisting drivers who had encountered difficulty as a result of the flooding, had at about 3.00pm seen a police Land Rover in attendance at the Gavell Bridge with its blue light flashing.

Against that narrative of fact (which, in respect of the actings of the police constables, is admitted by the defender) the pursuer makes the following averments of fault:

"It was their duty to take reasonable care for the safety of road users such as the pursuer. Further and in any event, it was their duty to take reasonable care for the safety of road users who had the opportunity to witness police attendance at the bridge and who might proceed in reliance on police officers having exercised reasonable care for the safety of road users. In the exercise of said reasonable care it was their duty to remain at the Gavell Bridge until it had been confirmed to them that cones or other warning markers had been put in place at the south side of the Gavell Bridge. In the exercise of reasonable care it was their duty to stay in position with blue light and headlamps at the north side of (the) river in order to warn drivers coming from (the) south until such time as it was confirmed to them that the coning off of the south side had been completed or that other suitable warning markers were in place. They knew or ought to have known that road users such as the pursuer would be exposed to risk of severe or fatal injury in the event that the south side of the bridge was not closed off and that no warning of the collapsed bridge was visible to drivers approaching from the south side of the bridge. In each and all of the said duties [those constables] failed and so caused the accident. Had they fulfilled the said duties, the accident would not have occurred."

In response the defender avers:

"Explained and averred that the said duties were not owed by [the named constables] to individuals such as the pursuer."

The pursuer avers that he was initially trapped in the car but ultimately succeeded in getting out when it was underwater. He avers that he sustained certain physical injuries, which were relatively minor and have resolved. He also avers that he has developed severe post-traumatic stress disorder with serious psychological consequences. No argument was presented to me that any speciality arose from the circumstance that the consequences of the accident to the pursuer were largely psychological in character. The argument proceeded on the basis that the same legal result would have followed if the pursuer had sustained grave physical injuries.

Mr Bowie, junior counsel for the defender, moved me to sustain the defender's plea to the relevancy of the pursuer's averments, to repel the pursuer's pleas and to dismiss the action. His fundamental submission was that no duty of care was owed to the pursuer by the defender or by any of the individual police officers referred to, including those mentioned above. He advanced three general propositions - (1) where a party has not created a danger which has resulted in harm to a person, that party will generally not be liable for failing to protect that person from that harm (that proposition being derived from the principle that no duty of care is owed in respect of pure omissions), (2) where the original danger has not been created by the party but he has negligently made matters worse by increasing the resultant harm, the person suffering that harm may be able to recover from that party and (3) where a party negligently creates the danger in the first place, the person suffering the harm as a result of that negligence may be able to recover. The law, he argued, was less ready to impose liability for omissions than for commissions. The present case fell within proposition (1). In any case in which a duty of care was asserted, three tests required to be satisfied, namely, (i) that harm was reasonably foreseeable, (ii) that there was a relationship of proximity between the pursuer and the defender and (iii) that in all the circumstances it was just, fair and reasonable that such a duty be imposed (Forbes v City of Dundee District Council 1997 S.L.T. 1330; British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 S.C. 59). For the purposes of the present proceedings, the defender accepted that test (i) was satisfied. He maintained, however, that neither of tests (ii) or (iii) was satisfied.

As regards proximity, the decided cases could for present purposes be divided into three categories (a) cases concerning police officers in which it had been held that there was no sufficient proximity, (b) cases concerning police officers in which it had been held that there was sufficient proximity and (c) cases not concerning police officers but concerning analogous persons. In category (a) were Hill v Chief Constable of West Yorkshire [1989] A.C. 53, Clough v Bussan [1990] 1 All E.R. 431, Ancell v McDermott [1993] 4 All E.R. 355 and Alexandrou v Oxford [1993] 4 All E.R. 328. Those cases were indistinguishable from the present case. In England the common law duty which the police owed to the general public was to protect life and property (Halsbury's Laws of England (4th Ed., Vol. 36, para. 320; Haynes v Harwood [1935] 1 K.B. 146). A like duty in Scotland was to be found in statutory form in Section 17(1)(a)(iii) of the Police (Scotland) Act 1967. Reference was also made to Stair Encyclopaedia, Vol. 16, para. 1784. In Hill v Chief Constable of West Yorkshire Lord Keith (at p. 62) had emphasised that Dorset Yacht Co. v Home Office [1970] A.C. 1004 was...

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