Stuart Andrew Mcphee V. W.j.m. Wilson, Q.p.m., Chief Constable Of Central Scotland Police
| Jurisdiction | Scotland |
| Judge | Lady Cosgrove,Lord Cameron of Lochbroom,Lord Macfadyen |
| Date | 18 March 2005 |
| Docket Number | XA116/03 |
| Court | Court of Session |
| Published date | 18 March 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Macfadyen Lady Cosgrove Lord Cameron of Lochbroom
| [2005CSIH29] XA116/03 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEAL From the Sheriffdom of Tayside Central and Fife at Stirling by STUART ANDREW McPHEE Pursuer and Respondent; against W.J.M. WILSON, Q.P.M, Chief Constable, Central Scotland Police Defender and Appellant: _______ |
Act: Clancy Q.C.; Hughes Dowdall, Glasgow (Pursuer and Respondent)
Alt: A. Smith Q.C.; Simpson & Marwick, W.S. (Defender and Appellant)
18 March 2005
[1]This appeal concerns an action raised in the Sheriff Court at Stirling. In it the pursuer and respondent, a serving police officer, sued his chief constable, the defender and appellant, for damages for personal injury sustained in the course of an exercise during a training course. The course was an officer safety re-certification course held in the gymnasium at Police Headquarters at Randolphfield, Stirling. The respondent's case before the sheriff was founded on two grounds of fault at common law. The first ground did not survive proof before answer and is not the subject of the present appeal. In it the pursuer had averred that the operation of the course was fundamentally flawed. The second ground was that another police officer, Constable Davidson, also taking part in the course, used excessive force in carrying out a manoeuvre, known as the knee strike technique, against the respondent causing the latter to sustain injury. At the conclusion of the proof before answer the sheriff repelled the respondent's first plea-in-law directed to the first ground of fault but found in fact and law as follows:
"In using force when executing the knee strike on the Pursuer to an extent which prevented him from fulfilling the instructions given on behalf of the Defender not to use full force and to exercise restraint in the amount of force used, and so to an extent which prevented him from fulfilling the instruction to retain hold on the Pursuer's clothing so as to be able to control the Pursuer's fall to the floor resulting from the knee strike, Constable Davidson was in breach of his duties to take reasonable care for the safety of the Pursuer as his fellow employee and for that failure Constable Davidson's employer, the Defender, is vicariously liable".
[2]Before this court the appellant has maintained that there was no proper evidence before the sheriff entitling him to make such a finding in fact and law, as stated in the appellant's fourth ground of appeal. Further, in terms of his fifth ground of appeal, the appellant has maintained that the sheriff failed to take into account to a sufficient extent that it was necessary to include in the operation of such training exercises that there should be an element of realism and that the degree of force used by a police officer cannot be weighed in too fine a balance.
[3]In presenting his submissions and inviting this court to recall the sheriff's interlocutor finding the defender vicariously liable for Constable Davidson's actings, counsel for the appellant intimated that the only findings in fact which he was inviting the court to set aside as unsupported by the evidence, were Finding in Fact 20 and a part of Finding in Fact 28. In doing so, the appellant was complying with the requirements of section 32 of the Court of Session Act 1988 as explained in Marshall v. William Sharp & Sons 1991 SLT 114. No criticism was directed to the remainder of the sheriff's findings in fact.
[4]Before considering further these criticisms, it is convenient to set out the general scope of the sheriff's findings which were not the subject of criticism. Prior to 1997 both the respondent and Constable Davidson had been trained and certified as trained in self-defence and control techniques (finding in fact 3). On 4 December 1997 both officers attended a compulsory refresher course. The course instructors were Inspector Higgins and Constable Paton (findings in fact 4 and 5). Those attending and taking part in the course, having been reminded that safety throughout was of first importance, were required to practice in pairs the techniques that they had been shown. The respondent and Constable Davidson elected to form a pair. Constable Davidson was taller, heavier and of bigger build than the respondent (finding in fact 6). In the knee strike technique a police officer by using his knee to strike an intending assailant's leg would cause that assailant to lose balance and be brought to the ground so that he could be controlled there. The technique was also known as a take-down technique since its intended purpose was to result in the intending assailant ending up on the ground or floor on his back (finding in fact 7). The knee strike technique had been developed by Central Scotland Police as an added tool for defence from and control of an intending assailant. While the knee strike technique so developed differed from the form of knee strike technique used in other police forces (which were cascade and not take-down techniques), there was no harm in or prohibition against Central Scotland Police seeking to devise it and instructing and demonstrating it to their officers and in having them practice it, subject to reasonable care for the safety of their employees being taken in relation to such practice in particular (finding in fact 10). The instruction and demonstration of the knee strike technique by Inspector Higgins and Constable Paton were intended to lead to re-certification of those attending the course. It was of a technique to take down an intending assailant by striking that assailant on the left side or back of his left leg above the knee with the police officer's right knee (finding in fact 11). The probable intended angle of approach of the police officer and intending assailant for employment of the technique was as near as might be face-to-face with the police officer then moving to some extent to his right so as to be able to perform the knee strike (finding in fact 12). Because the knee strike technique when practised, being a take-down technique, involved a higher risk of injury, including head injury, than the other non-take-down techniques, in the instruction and demonstration by Inspector Higgins and Constable Paton the practice of the technique required that those who were acting the part of the police officer should take hold of the upper garments of the other officer acting the part of the intending assailant with both hands and retain hold throughout the practice so as to be able to manage and control the latter's fall and so lower him rather than let him fall to the floor; and having received instruction and demonstration of such taking and retaining hold, participants in the course such as Constable Davidson knew or ought to have known that such taking and retaining hold was necessary to counter that higher risk of injury: and participants on the course such as Constable Davidson knew or ought to have known that less than a full force knee strike was necessary if such a hold by him or her was not only to be taken but retained, having been told that during practice of the Central Scotland Police knee strike...
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