Mullaney v Chief Constable of the West Midlands
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CLARKE,LORD JUSTICE POTTER,MR JUSTICE BODEY |
| Judgment Date | 15 May 2001 |
| Neutral Citation | [2001] EWCA Civ 700 |
| Docket Number | Case No: 1998 M 02615 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 May 2001 |
[2001] EWCA Civ 700
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT BIRMINGHAM
Mr Recorder R Mitting QC sitting as a Deputy Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter
Lord Justice Clarke and
Mr Justice Bodey
Case No: 1998 M 02615
A2/2000/0434/0566/6202
Mr Richard Perks, (instructed by Sharpe Pritchard, as agents for J M Kilby represented the appellant)
Mr Ralph Lewis QC, (instructed by Russell Jones & Walker, represented the respondent)
Introduction
This is an appeal by the defendant, the Chief Constable of the West Midlands Police, from an order of Mr Recorder Mitting QC, sitting as a Deputy Judge of the High Court, which was made on 18 th February 2000 and amended on 27 th March 2000, in which he entered judgment for the claimant on his claim for personal injuries and directed that damages be assessed. The judge also ordered the defendant to pay the claimant's costs on an indemnity basis. The appeal is brought in part pursuant to permission granted by the judge and in part pursuant to permission granted by Laws LJ.
The Injuries
As the judge put it, on 27 th March 1994 at about 8.00 pm a tragedy occurred. The claimant, David Mullaney, a probationary police constable, than aged 29, attempted to arrest a 45 year old man of good character, Peter Corlett, for importuning in the public lavatories at Greyfriars Green in the centre of Coventry. Mr Corlett resisted arrest with growing and, eventually, extreme violence which included repeated kicking to the head of the claimant while he lay on the ground. The claimant sustained a serious head injury. Not long after the incident he suffered a grand mal fit in hospital. Eventually, his injuries led to his retirement from the police service on medical grounds. Mr Corlett committed suicide either the following day or very soon afterwards. The claimant's case was that the injuries he sustained in the later stages of the incident were caused by the failure of other police officers to come to his aid and so to stop the attack on him.
The Decision
The judge held that the plaintiff sustained serious injury as a result either of a breach of duty owed to the claimant by the defendant as his quasi-employer or of a breach of duty by a fellow officer or officers for which the defendant was vicariously responsible, that the claimant was not guilty of contributory negligence and that the defendant was accordingly liable to the claimant for damages.
The Appeal
Mr Perks challenges the decision of the judge on a number of grounds. In order to give proper consideration to the grounds of appeal it is necessary to consider what, if any, duties were owed to the claimant, whether there was a breach of duty for which the defendant was responsible, if so whether that breach caused the claimant's injuries and, if so, whether the claimant was guilty of contributory negligence. The defendant also challenges the judge's decision to order him to pay the costs on an indemnity basis. In order to consider the issues raised on the appeal it is convenient first to summarise the facts found by the judge.
The Facts
The crucial events took place over a very short period on the evening of 27 th March 1994. The circumstances which led up to those events may be summarised in this way. The claimant had joined the police comparatively late, in July 1993, after obtaining a 2.1 degree and working as a commercial property surveyor until the bottom fell out of the market in 1991. After joining the police he received a certain amount of training in the law relating to sexual offences but unfortunately it did not include formal instruction as to the powers of arrest for importuning.
The claimant was first allowed to patrol independently as and from 20 th February 1994. On 27 th February he voluntarily took part in an operation to deal with importuning in two public lavatories in Coventry city centre, namely those at Greyfriars Green and those at New Union Street. He was part of a small team which had been formed for the operation. In addition to himself it comprised PC Cox and PC Gainer, who were both probationary officers, and PC McKirdy. Sergeant McNaney was in overall charge as acting inspector. He briefed the team but the briefing did not include instructions as to the powers of arrest for importuning. The claimant asked PC Cox and PC Gainer (who had more experience than him) what those powers were and PC Gainer told him that there was a power of arrest for persistent importuning. The claimant and PC Gainer both gave evidence and the judge found them both to be truthful and generally reliable witnesses. He further held that there had been no collusion between them before they gave their evidence.
In fact the power of a police constable to arrest for persistent importuning is limited in a way which the power of a member of the public is not. It is not necessary to set out the reasons here, but it is not in dispute that in the events which happened the arrests which were effected on both 27 th February and 27 th March 1994 were unlawful. The claimant made two such arrests on 27 th February. However, both arrests passed off peacefully, as did the whole operation on that day.
A second operation took place on 27 th March. On that occasion the team comprised PC Gaston and PC Burn, who were not probationary but full police officers, in addition to the claimant, PC Gainer, PC Cox and PC McKirdy. They were all in plain clothes except PC McKirdy who was in uniform. Sergeant McNaney was still in charge. He again briefed the team but again gave no instructions as to the officers' powers of arrest.
All the officers formed part of a single team, their individual roles being shortly as follows. PC Gaston was instructed to observe and enter the lavatories at New Union Street. PC Burn was instructed to work with PC Gaston. PC Gainer was instructed to observe and enter the lavatories at Greyfriars Green. PC Cox was instructed to work with PC Gainer. So was the claimant. PC McKirdy was to work in the enquiry office at Little Park Street police station. In addition to his role in the operation his duties included assisting Mrs Linda King and Mrs Jennifer Caddick who were civilian staff in the enquiry office. His allotted role in the operation was to co-ordinate the operation and to monitor radio calls concerning the New Union Street lavatory; it was also his duty to respond to any call for help from another officer engaged in the operation. Sergeant Heap was the central radio controller.
The New Union Street lavatories were about one hundred yards from the police station. The entrance could be seen from the inquiry office. The Greyfriars Green lavatories, on the other hand, were underground and were about 400 yards from the police station. The entrance was not visible from the police station.
The briefing given by Sergeant McNaney included the following. All officers were to tune their personal radios to channel seven, which was a discrete channel for the operation and which enabled them to communicate securely with one another. Each officer knew that he would enter lavatories alone with his personal radio silenced. The officers were, however, instructed to work in pairs, both for safety and in order that one officer might corroborate the evidence of the other.
PC Gainer made two arrests at Greyfriars Green. The first was made in conjunction with PC Cox while the claimant was keeping watch from the eighth floor of a nearby office block called Friars House. The second was made on his own at about 6.45 pm. While he kept watch from the office block the claimant kept a log which shows that he handed over to PC Cox at 6.30 pm so that he could take a refreshment break at the police station. It was while he was away that PC Gainer made his solo arrest. I should note that, in addition to the overall co-ordinating role of MC McKirdy, it was also the duty of the person keeping watch in Friars House to monitor radio calls from officers attending the Greyfriars Green lavatories.
While the claimant was away he heard PC Cox call for assistance on his radio. No-one responded. So the claimant voluntarily decided to cut short his break and return to the scene. Mrs King asked him why he was leaving and he said "I have got to get a prisoner". The judge found Mrs King to be a truthful and reliable witness. The claimant returned in order to help PC Cox and, if possible, to make an arrest. PC Cox said in a statement that he recalls the claimant saying to him that everybody else was in the station so he thought he had better come out.
The critical events took place after about 7.40 pm. At about that time PC Cox spoke to the claimant and said that he was having difficulty in making observations because of increasing darkness. The claimant said that he thought that PC Cox would take most of the observation equipment back to the police station and return soon afterwards to continue observations at ground level. He assumed that the same would happen as had happened on 27 th February when observations had continued well after dark. The judge accepted the evidence of the claimant as to the conversation between him and PC Cox. That evidence was somewhat different from that in PC Cox's statement, although the judge said that there might have been a genuine misunderstanding between them. PC Cox did not give evidence because he could not be found.
The judge set out the crucial events in this way:
"[The claimant's] account is that at...
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