Rebecca Ann Smith v The Chief Constable of Nottinghamshire Police

JurisdictionEngland & Wales
JudgeLORD JUSTICE WARD,Lord Justice Lloyd,Lord Justice Kitchin
Judgment Date23 February 2012
Neutral Citation[2012] EWCA Civ 161
Docket NumberCase No: B3/2011/0230
CourtCourt of Appeal (Civil Division)
Date23 February 2012

[2012] EWCA Civ 161

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NOTTINGHAM COUNTY COURT

MR RECORDER HERBERT

8NG06039

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Lloyd

and

Lord Justice Kitchin

Case No: B3/2011/0230

Between:
Rebecca Ann Smith
Appellant
and
The Chief Constable of Nottinghamshire Police
Respondent

Mr John Leighton Williams QC and Mr Richard Burns (instructed by Bhatia Best Solicitors) for the appellant

Mr Mark Turner QC and Mr David Boyle (instructed by Kennedys LLP) for the respondent

Hearing date: 24th October 2011

LORD JUSTICE WARD
1

The centre of Nottingham seems to be quite a lively place on a Friday night. The young – and even the not so young – flock to the bars and restaurants in the Castle Wharf area by the canal and spill onto the pavements in high spirits, some the worse for drink. On 25th February 2005 one of the revellers was 16 year old Rebecca Smith. She had been enjoying a good night out with her friends when disaster struck. While crossing Canal Street at 10 minutes past 10 she was struck by a Volvo police car responding to an emergency call. She may be lucky to be alive but her life is forever blighted by the catastrophic injuries she suffered that night. In the trial of the issue of liability in her claim against the police for substantial damages in excess of £1million, Mr Recorder Herbert, sitting in the Nottingham County Court on 14th January 2011, found her to be three quarters to blame. Was that the right apportionment? Rebecca appeals and says, "No." Was he even right to find the driver of the police car negligent at all? The Chief Constable appeals and he too says the Recorder got it wrong.

2

Canal Street is a main thoroughfare running east to west through the centre of Nottingham. As Canal Street leaves the A60 at its eastern end, it is 5 lanes wide. Traffic flows one way. It passes under the tram viaduct at a junction with Middle Hill controlled by traffic lights. The stop line at this junction was used by the Accident Reconstruction experts as the datum for measurements to the point of the accident. The road passes the Nottingham Crown Court on the left (the southern side) and the Broadmarsh Bus Station and car park on the right. Just before the junction with Carrington Street the nearside bus lane filters left into Carrington Street. There is a parallel bus lane allowing the buses to filter right off Carrington Street in order to cross Canal Street into the bus station to the east of Carrington Street. This crossing is controlled by traffic lights and there is a stop line in Canal Street before the bus lane which crosses it. This stop line is 125 metres to the west of the Middle Hill stop line. Approximately 30 metres beyond this stop line is a pedestrian crossing some 4 or 5 metres wide, then a cycle track, then Carrington Street itself and, to the west of Carrington Street a second pedestrian crossing. One begins to cross Carrington Street itself about 22 metres after the stop line. On the far side of Carrington Street there is a book shop on the north-west corner and fixed to it or near it is a CCTV camera looking to the east and recording the passage of traffic along Canal Street from just before the stop line at the Middle Hill junction and to a point where traffic goes out of view of the camera just before the stop line before the bus lane.

3

On the southern side of Canal Street to the west of Carrington Street is a pine furniture shop, a public house, an open forecourt behind which is a restaurant, the Canal House Restaurant and Bar, and then moving towards Castle Wharf another bar, the Via Fossa, and beyond that a cash machine which is 98 metres from the second pedestrian crossing. There are 3 sets of railings on the southern side of Canal Street which limit access from the footway onto the carriageway. If one stands on the pavement outside the Canal House Restaurant one can see a portion of green traffic light on the south-western corner of the junction controlling traffic in Carrington Street travelling to the north. At night Canal Street is lit by high pressure sodium lighting providing adequate illumination to reveal pedestrians in the road. The road itself is 12.5 metres wide divided into 4 lanes each approximately 3 metres wide. The traffic continues to run one way. The road is subject to a 30 mile per hour speed limit.

How did this accident happen?

4

PC Avann, the driver of the police Volvo, gave evidence. He was a grade 1 advanced police driver with a clean driving record, authorised to drive high-powered police vehicles on response and pursuit duties. He was on mobile patrol accompanied by PC Byrne in a fully liveried police Volvo. When driving in Canal Street about level with the Nottingham Crown Court, or even earlier, he received a call to attend an incident where 3 men were alleged to be dragging another from his vehicle. It being an event where there was a risk of injury to a person, he responded to the urgency and sped away to attend it engaging the blue lights and, according to him, for it was a fact in issue, switching the separate switch to sound the police siren. As it happens there was a police van some 6–7 seconds and approximately 100 metres ahead of him as the CCTV film showed. The police transit was also travelling in the third lane of Canal Street at about the same speed or perhaps slightly slower than the police Volvo. Other witnesses describe that speed as between 40–50 mph as it passed along that section of Canal Street after the Carrington Street junction. The Accident Reconstruction experts did not disagree with that speed bracket.

5

As PC Avann approached the Carrington Street junction, the lights were showing red as they were for the police transit van which drove through the junction against the red signal. He was unable to say at what speed he was travelling on his approach to the Carrington Street junction or, indeed, in the moments immediately prior to the collision. He says he slowed down to "approximately 10 mph", observed the junction openings and pedestrian crossing, considered it was safe to continue as the crossing was clear and he could see into the junction so he began "to accelerate away from the lights gradually". The road ahead was clear and visibility was good and he could see clearly across all four lanes. There were no parked or waiting vehicles on his nearside. He was now in the second of four lanes from the nearside. He was aware of the presence of the public houses to the south side of Canal Street and that was why he was using lane 2 so as to pass through as far away from the southern footway and any pedestrians thereon as reasonably practicable. He knew there were a large number of pedestrians moving about on both sides of the road and he knew some might be the worse for drink.

6

He said, "As I was making my way along Canal Street a group of pedestrians ran out from the nearside footpath diagonally crossing only a matter of feet in front of the patrol car. The group appeared to be completely unaware of my presence and had run out without even looking." He applied his brakes and steered to his offside towards lane 3. He said, "Only a few feet in front of me I saw a lone female running from my nearside directly towards the front of the car. She paused for a moment in front of the car and looked straight at the patrol car. Then for no reason she ran forward again directly into the path of my patrol car. I could not have done anything to avoid colliding with her. I was already braking and steering towards lane 4 having avoided others crossing." In his evidence in chief (p. 724) he said he passed the first three pedestrians on his nearside.

7

In his oral evidence he described slowing down before the junction with Carrington Street and probably moving down into second gear. He found it difficult to indicate where he began to accelerate again but did say he would only have accelerated away once he had confirmed in his own mind that the Carrington Street junction was clear and it was safe for him to proceed. He said he would have commenced to accelerate again before reaching the first pedestrian crossing because by that stage he would have been aware it was safe for him to proceed through the red light. He said (p. 726) that Miss Smith stood on the white line markings between lane 3 and lane 4. "I thought Miss Smith was going to remain where she was … seemingly at the very last second, Miss Smith took another pace forward, the car struck her and the next thing that happened is that she hit the windscreen on the passenger side …". It is common ground that the front nearside headlight struck Rebecca, flinging her up onto the bonnet and into the windscreen in front of PC Byrne and then causing her to rotate upwards to land on the roof of the police car where she lay deeply unconscious with a depressed comminuted skull fracture of the right parietal bone, fractures of the right frontal mastoid through the right orbital roof in a coma with a Glasgow coma score of only 3/15.

8

Cross-examined, PC Avann said (p. 255) "simultaneously all four people ran into the road. … all four, like a line, straight out. I was past the [Carrington Street] junction [when I first saw any one of the Group]." He agreed that he had seen and read the Nottinghamshire Police Response and Pursuit Driving Policy.

9

Despite opposition, the Recorder allowed the defendant's application to put in evidence a statement made by PC Byrne. It had been expected that he would give evidence by video link from abroad. Allowing this hearsay was a permissible exercise of the Recorder's discretion. He...

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