Keyse v Commissioner of Police for Metropolis and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE JUDGE,LORD JUSTICE LATHAM,MR JUSTICE LLOYD
Judgment Date18 May 2001
Neutral Citation[2001] EWCA Civ 715
Docket NumberCase No: B3/2000/2523

[2001] EWCA Civ 715

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Judge

Lord Justice Latham And

Mr Justice Lloyd

Case No: B3/2000/2523

David Paul Keyse
Respondent
and
The Commissioner Of Police Of The Metropolis and
Appellants
Robert Jeremy Scutts

William Norris QC & Mr James Todd instructed by Kennedy's, London (for the Appellant)

Mr Richard Methuen QC & Mr Stephen Worthington

(instructed by Prince Evans, Ealing for the Respondent)

LORD JUSTICE JUDGE
1

This is an appeal by the defendants from the decision dated 28 June 2000 of His Honour Judge Hutton sitting as a Deputy Judge of the High Court.

2

The litigation before him arose from a collision on 21 March 1995 between the claimant, Robert Scutts, (referred to in the proceedings below as "Robert") a pedestrian, and a police car on emergency duty, driven by PC David Keyse.

3

Judge Hutton was concerned with liability only. He found that the car had been driven negligently but that liability should be reduced by 25% to allow for contributory negligence by Robert. The defendant's appeal against the finding of primary liability, and, further if necessary, against the apportionment on the basis that it was over favourable to Robert.

4

We cannot of course decide this case on the basis of sympathy for a young man who has suffered injuries of great magnitude, as Robert did, or for his parents and family who have witnessed the dissipation of much promise. But it would be wrong not to acknowledge that for them all the consequences of this particular road traffic accident were catastrophic, and that whoever was to blame, and in whatever proportions, the accident has been and will continue to be the source of much anguish.

5

Robert was born in June 1977. At the date of the accident he was seventeen years nine months old, in his last months at Dulwich College. He was already the holder of a driving licence. He was able to fly aeroplanes, and on his way to obtaining a pilot's licence. He had been made an offer by Oxford University, subject to A level grades which it was anticipated he would achieve with ease, and his intention was to join and establish a career with the Royal Air Force, certainly at the outset, as a pilot.

6

David Keyse was a police constable. He joined the Metropolitan Police in 1982. He passed his police advanced driving course in 1989. Thereafter he had driven police cars in the course of his duties, on many occasions, no doubt, driving to emergencies.

7

On the evening of 21 March 1995 Robert had spent the evening at school, at a function organised by the CCF. He was wearing his Royal Air Force uniform. He left the premises at about 10.15 pm to catch his bus home. He was wearing fairly dark clothes, including his RAF trousers and an anorak or camouflage jacket, which was variously described, but agreed on all sides to have been dark coloured. He was carrying a rucksack on his back. It weighed 21lbs. He was due to catch the 10.27 bus, from the far side of College Road. He set off on foot, but was not readily visible, at any rate against a dark background.

8

PC Keyse was driving a marked police rapid response car, a Ford Sierra. He was accompanied by PC Dall. A radio message was received that they should attend the scene of a burglary in Peckham. The response required was classified as "immediate", the highest rate of priority. Suspects from a burglary some three miles away were being chased on foot. The police car was to "arrive at the scene in the shortest possible time". Mr Richard Methuen QC, on Robert's behalf, emphasised "arrive": if the car was driven so fast that it became involved in an accident, there would be no police presence at the scene at all, or none without some major delay.

9

The emergency blue lights and the two tone siren on the top of the police car were switched on. PC Keyse immediately drove to the scene of the burglary. His headlights were on full beam, his blue lights flashing and the siren in working order. They must have been apparent from some distance.

10

His route took him along College Road, Dulwich, which runs more or less north – south, and relatively straight, from Dulwich towards Peckham or Herne Hill. It is bisected at an important junction with what is called Dulwich Common, but is more familiarly known as the South Circular Road, running, again more or less, east – west from Tulse Hill to Lewisham. The junction is governed by traffic lights. At the material time, the lights were in working order and a 30 mph speed limit was in force. College Road itself is part of a residential area, but it is attractively laid out, and immediately off College Road itself there are green verges and lines of trees. No houses abut the pavement itself, and there were no parked cars in the road.

11

Road conditions were reasonable. Obviously there was no natural light. College Road and the junction were lit, but not very well lit, by a number of sodium vapour street lights, some low pressure, but the light shed on the junction was reduced by a number of tall trees in the vicinity, and the trees themselves provided a dark backdrop, heightening the difficulties of identifying pedestrians wearing dark clothing.

12

As the police car drove along College Road at a speed, as the judge found, of about 50 mph, the traffic lights were green in its favour, but the route ahead was obstructed by a car at the junction, indicating to turn to its right in an easterly direction on the South Circular Road. The police car slowed down to about 20 mph, and the car ahead turned to its right, apparently at the invitation of a car travelling in the opposite direction, which was aware of the oncoming police car. Be that as it may, the road ahead of PC Keyse was clear of traffic, the lights were green, and he accelerated "hard".

13

In the meantime Robert had been walking from the school buildings to catch his bus home. He crossed the South Circular Road just to the west of the traffic lights at the junction. In order to catch the bus he then had to cross College Road itself. His bus was travelling in the opposite direction to the police car, intending at the junction with the South Circular to turn left, again in an easterly direction. It was a hail and stop bus, moving slowly at about 10 mph. If Robert missed the bus, he would have another half hour or so to wait, and that might ruin all his subsequent connections. He was certainly in a hurry to get across College Road, onto the nearside of the bus, so that he could hail it. Having crossed the South Circular road to its north side, he set off across College Road at just the time when PC Keyse was driving through the junction. There was a collision, and Robert suffered very serious head injuries.

14

I must now analyse this accident in closer detail, on the basis of the judge's findings of fact. The police car which had accelerated "hard", or as fast as it could, starting approximately fifty metres before the stop line at the junction, was travelling at "something like 50 mph" by the time it reached the middle of the junction.

15

Robert set off across College Road, at an angle of 45 degrees towards his left, his presumed focus of attention, being the bus on the other side of the road. He was found by the judge to have been "aware" of the police car. In reality, on the evidence, the flashing blue lights and the noisy siren made it unmistakable. The judge found that he "must" have looked to his right down College Road before setting off across it. The finding was inferred from the primary, and undisputed fact, that the two tone siren and blue lights must respectively been heard and seen by Robert, who probably also saw the police car headlights. However he was understandably keen to catch his bus and did not look again before crossing the road. The judge inferred that the time when Robert "must" have looked to his right coincided with the time when the police car had slowed down before the obstructing car had moved away to its right.

16

Robert left the pavement at the junction itself, from the north side of the South Circular Road, just south of the shards of glass shown in the post accident police plan. The glass came from the nearside headlamp of the car, beginning 17 1/2 metres beyond the stop light of the junction going north, that is the stop line for the police car if the traffic lights had been red against it. The shards covered an area extending 7 metres towards the north, and 4.3 metres out from the kerb.

17

At impact the speed of the car was found to have been 42–45 mph. The judge found that Robert would not have shown up "particularly...

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