Jonathan Boyle v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 28 February 2013 |
| Neutral Citation | [2013] EWHC 395 (QB) |
| Court | Queen's Bench Division |
| Date | 28 February 2013 |
| Docket Number | Case No: HQ11X00238 |
[2013] EWHC 395 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case No: HQ11X00238
Miss Gumbel QC (instructed by Bindmans) for the Claimant
Mr Edward Bishop QC & Miss Laura Johnson (instructed by Met Police) for the Defendant
Hearing dates: 26 th and 27 th February 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 25 January 2008, at 9pm or shortly afterwards, the claimant, 17 year old Jonathan Boyle, accompanied his friend and neighbour Joseph Berner to the Lord Morpeth public house.
Just after 2am on the following morning they were involved in an accident in which the claimant suffered catastrophic injuries.
Certain facts surrounding the circumstances of the accident are not in dispute. The claimant and his friend had both been drinking alcohol during the course of the evening. Later they found themselves on Grove Road in the vicinity of a bus stop to the south of the Victoria public house.
Travelling south along this road was Acting Police Sergeant Currey (to whom, for ease of reference, I will refer as "Mr Currey") driving a marked Vauxhall Vectra police car. He was on duty but not responding to an emergency. The road was subject to a speed limit of 30 mph. Mr Currey was travelling between 33 and 35 mph and positioned in the road equidistantly between the kerb and the central white lines.
As Mr Currey was approaching the bus stop, the claimant fell into the road ahead of him. Mr Currey applied full emergency braking but he slowed up by no more than about 1mph before the impact.
The claimant's case
The claimant alleges that Mr Currey's driving fell below the standards to be expected of a reasonable and prudent driver. It is said on his behalf that if Mr Currey had been driving with the requisite degree of care then the claimant's injuries would have been avoided or, at least, have been less severe.
The central criticisms raised against Mr Currey are that he:
i) drove too fast;
ii) drove too close to the kerb; and
iii) was not keeping a proper lookout.
I propose to deal with each in turn.
Speed
There is no dispute that Mr Currey was exceeding the speed limit. The defendant raises two distinct points with respect to the forensic consequences of this.
Firstly, it was argued that Mr Currey only owed a duty of care to the claimant from the moment when he saw or should have seen him or "perhaps anticipated his presence for some reason".
I do not accept this approach.
As Lord Greene MR held in Farrugia v Great Western Railway Co [1947] 2 All E.R. 565:
"It was said that the driver and the defendants (his employers) had no reason to suppose that the plaintiff would be running behind the lorry, trying to get on it, at that particular moment. That appears to me not to be the question. The duty, as it appears to me, is a duty to anybody who happened to be at the crucial moment in the neighbourhood of this dangerous thing, and the fact that the plaintiff was not in the mind of the driver appears to me beside the point. It might have been somebody else. The duty on the defendants, as it seems to me, is a duty to take care in loading and sending out their vehicles, and a duty to drive them in such a way that anybody who happens to be on the highway nearby will not be endangered."
Accordingly, I find that the duty of care upon Mr Currey extended to the claimant because he was within the class of those people in "the neighbourhood" of his vehicle at the time. As Lord Greene went on to comment in Farrugia:
"There was somebody who, at the moment, was in the neighbourhood, and he was struck. It appears to me that to confine the duty in the way counsel for the defendants would confine it would be really to re-write the law of negligence."
Secondly, the defendant contends that, as a matter of law, exceeding the speed limit does not automatically connote a lack of care on the part of the driver. I have been referred to Grealis v Opuni [2004] R.T.R. 7, a decision of the Court of Appeal in which Mantell L.J. held at para 8:
"8 Although it does not necessarily follow that negligence is to be imputed to a driver who breaks the speed limit, there is no doubt that evidence the speed limit was being broken as with breaches of the Highway Code may provide evidence of negligence."
This passage would tend to suggest that exceeding the speed limit should be treated as being analogous to acting in breach of the Highway Code but this overlooks that fact that exceeding the speed limit is, of itself, in breach of the Code.
Section 38(7) of the Road Traffic Act 1988 provides:
"A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal…) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."
The Highway Code fifteenth edition 2007 provides:
"Speed limits
124
You MUST NOT exceed the maximum speed limits for the road and for your vehicle …
125
The speed limit is the absolute maximum and does not mean it is safe to drive at that speed irrespective of conditions. Driving at speeds too fast for the road and traffic conditions is dangerous. You should always reduce your speed when
the road layout or condition presents hazards, such as bends
sharing the road with pedestrians, cyclists and horse riders, particularly children, and motorcyclists
weather conditions make it safer to do so
driving at night as it is more difficult to see other road users."
[Emphasis not added.]
The defendant contends that a number of features in the case equip me to find that there was no breach of duty involved in driving above the speed limit. It was 2am, there were no crowds of people about, nothing (such as an open pub or club) likely to attract crowds, traffic could be expected to be light and Mr Currey "had a job to do".
In my view these factors are not sufficient to exonerate Mr Currey. Had he been on the way to an emergency, the situation would have been very different but the fact that he had a job to do which did not require him to arrive at his destination with any particular promptness puts him in no different position to any other driver with a legitimate purpose to be using the highway. Once it is conceded that the time of arrival is not a relevant factor then it is not for the court to start making value judgments as to the utility of the journey when deciding whether any given driver was going too fast.
I accept the evidence of Mr Currey that he would be more likely to be travelling at the lower end of the agreed narrow range of speeds. There is a danger in cases such as this to attempt a level of analysis on limited evidence that leads to a spurious level of accuracy. Doing the best I can, I conclude that Mr Currey was probably travelling at about 33 mph and that a reasonably prudent driver would have driven about 5mph more slowly, taking into account that he was driving at night in an area in which it was, at least, foreseeable that the occasional intoxicated pedestrian or pedestrians might still be at large.
In this regard, therefore, I find that Mr Currey acted in breach of the duty of care owed to the claimant.
Position in the road
The Highway Code is silent on the topic of where a driver should position his vehicle between the kerb and the central white lines.
The claimant, however, relies upon "Roadcraft", the Police Driver's Handbook, as a volume which provides relevant guidance. Mr Currey conceded that he would have referred to this document for the purposes of equipping him to pass his police driving examinations.
The claimant placed reliance upon the diagram at page 108 which illustrates a car assuming a position at the extreme offside of the lane in which it is travelling so that the offside wheels follow the line of the central white lines. I reject the suggestion that this diagram implies that such a position should, all other considerations being equal, be regarded as the ideal. The illustration clearly shows parked vehicles to the nearside which were absent in the vicinity of this accident. Furthermore, where the Highway Code uses pictures to illustrate various scenarios the vehicles depicted are located roughly equidistant between the kerb and the white lines (see pp. 41, 62, 72, 75 and 98 by way of example).
Ultimately, this issue is one of experience and common sense. The text of "Roadcraft" advocates, quite literally, a via media:
"Between the two extremes is a zone that is relatively free of hazards but always adapt your position and speed to the actual circumstances."
The circumstances prevailing in the vicinity of this accident were not such as to require a reasonably prudent driver to adopt a different course than that chosen by Mr Currey when travelling along Grove Road. Whether he ought at some stage to have changed this course in response to the location and activities of the claimant and Mr Berner is a matter to which I will return later in this judgment.
Lookout
On the day of the accident, Mr Currey provided a formal signed witness statement which, in compliance with the terms of section 9(2)(b) of the Criminal Justice Act 1967, contained his declaration to the effect that it was true to the best of his knowledge and belief and that he made the statement...
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