The Chief Constable of Essex Police v Transport Arendonk BVBA
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 23 January 2020 |
| Neutral Citation | [2020] EWHC 212 (QB) |
| Court | Queen's Bench Division |
| Docket Number | No. QA-2019-000267 |
| Date | 23 January 2020 |
[2020] EWHC 212 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mrs Justice Elisabeth Laing
No. QA-2019-000267
Ms L. Johnson (instructed by DAC Beachcroft) appeared on behalf of the Claimant/Appellant.
Mr R. Barraclough QC (instructed by Smith Bowyer Clarke) appeared on behalf of the Defendant/Respondent.
This is an appeal from a decision of Recorder Riza QC dismissing the appellant's application to strike out the respondent's claim. Leave to appeal was given by Jay J on the papers by an order stamped on 30 October 2019. Ms Johnson has represented the appellant on this appeal and Mr Barraclough QC has represented the respondent. I thank both counsel for their helpful oral and written submissions. I will refer to the parties as they are on this appeal rather than to them as they were below.
The pleaded claim
The respondent claimed damages for negligence and for breach of statutory duty against the appellant. The respondent was carrying a cargo of sportswear belonging to Neon. The respondent was liable to Neon for the consignment, which was to be carried from Belgium to Sheffield in a curtain-sided lorry. The sides of the lorry were made from heavy duty plastic reinforced by steel. The lorry was driven by a Romanian citizen, Mr Luca.
The lorry arrived in England on the evening of 8 September. The lorry was involved in a collision in the village of Coggeshall in Essex. The lorry did not stop. It drove on for about a quarter of a mile and then stopped in a layby which was surrounded by farmland. At about 10 in the evening, the police were called. According to para.12 of the particulars of claim, they did not arrive until about 22.43. When they arrived they gave Mr Luca a breath test. That test was positive. They then arrested and handcuffed him and took him to the police station.
When they were in the layby, according to para.13 of the particulars of claim, Mr Luca told the police that he was not allowed to leave the lorry. Paragraph 14 alleges that Mr Luca was not able to telephone his employers, because he was under arrest, on either of his two mobile phones. It is further pleaded that he had expressly asked “for this to be done and was refused.” The appellant neither admits nor denies this allegation.
Either in the layby or at the police station, according to para.15 of the particulars of claim, the officers confiscated the keys of the lorry. According to para.16 of the particulars of claim, one of the officers noticed that the lorry's curtain had a slight rip in it. The officers recorded nonetheless that the lorry was “all secure” and that it could stay in the layby for the night (see para.17 of the particulars of claim).
The respondent then claims that the matters pleaded in paras.12 to 17 of the particulars of claim amounted to an assumption of responsibility by the appellant for securing the respondent's lorry and for the security of the consignment of sportswear owned by Neon, that the officers took possession and control of the lorry, and of the consignment, and were its custodians with a view to keeping the lorry and its contents safe.
It is also pleaded that, by reason of the matters alleged in paras.13 and 14 of the particulars of claim, the officers knew or reasonably ought to have known that Mr Luca was responsible for the security of the lorry and of the consignment, that Mr Luca's duty was to be with the lorry and that, if the lorry was left unattended, the lorry would be exposed to the risk of damage and theft, especially given the damage to the lorry which the officers had seen.
Knowing all that, it is said, the officers took Mr Luca to the police station without (1) having made sure that Mr Luca got in touch with his employers or having got in touch with them themselves to enable in each case the employer to make arrangements for the safety of the lorry and of the consignment, (2) without having arranged for the police to go to the layby to deter thieves or to make regular patrols or (3) asking Mr Luca while they were in the layby whether he wanted to contact his employer to say what was going on so that the employer could take steps to make the lorry and the consignment secure or (4) asking him whether he wanted them to contact his employer or (5) allowing him to contact his employer.
For all those reasons, it is said, the appellant owed the respondent and Neon a duty of care to take all reasonable steps to ensure that the lorry was safe and secure from damage and attack and that the consignment was not exposed to a risk of theft by being unattended in the layby. Further or alternatively, it is pleaded that the appellant was negligent in failing to ensure that the lorry was safe and secure and that Neon's consignment was secure.
In para.23, 13 particulars of negligence are pleaded. Two of those are identical to one another. The appellant relies, among other things, on Mr Luca's responsibility for the safety and security of the lorry and its consignment, his duty to be present, the fact that the curtain of the lorry was vulnerable to entry, the fact that the layby was remote, unlit and insecure, that the lorry was exposed to a risk of theft, that Mr Luca had said he was not allowed to leave the lorry, that Mr Luca had not managed to make contact with his employers in the layby, and that there had been many thefts from unattended lorries which the police were currently investigating.
It is claimed that, while he was in the police station, Mr Luca was asked if he wanted anyone to be told of his arrest and that he replied “his boss,” but that he did not have the number, which was in the truck. The custody officer is then said to have told Mr Luca that his colleague would go to the truck and get that.
A claim for breach of statutory is based on an alleged breach of s.56(1) of the Police and Criminal Evidence Act 1984 (“PACE”). It is pleaded that Mr Luca was trying to exercise his statutory right to inform somebody of his arrest and that the appellant breached a statutory duty by not getting the employer's contact details from the lorry so that Mr Luca or the police could tell Mr Luca's employer what had happened. The final allegation is that the officer was in breach of a duty of care of negligent or in breach of statutory duty by not returning to the lorry until 7.50am the next day.
The respondent's case, in short, is that the police created an avoidable situation in which the respondent's property was left vulnerable to attack (see, for example, the skeleton argument for the hearing below, para.6) (see also para.8 of that document). It is said that the layby was not chosen by Mr Luca knowing that the lorry would be there all night. The police log notes suggest that the police thought that the layby was secure and that the lorry could safely stay there all night.
The pleaded defence
The appellant denied that it owed the respondent a duty of care in respect of the lorry when it was left by the roadside after the driver's arrest. The appellant's case was that, first, it was immune from a suit in negligence arising from the investigation or suppression of crime, second, that it owed no duty of care to protect potential victims of crime, third, it owed no duty to prevent a third party from causing damage to the respondent, fourth, it owed no duty of care to take steps to prevent criminal acts of third parties and/or, fifth, that the damage was too remote.
The appellant's case in more detail included the following points. First, the sole cause of the lorry being unattended was the driver leaving the scene of an accident and then being found in a condition which gave rise to a reasonable suspicion that he had been driving under the influence of alcohol. Second, the sole and proximate cause of loss was the criminal act of a third party. Third, the lorry was broken into because it was an insecure curtain-sided lorry, not a secure container. Fourth, the only person who can be criticised for not telling the respondent that the lorry was being left unattended was the driver, who had had an ample opportunity to tell the respondent while he was waiting for the police to arrive. On the respondent's own pleaded case, once the driver was in custody, the reason the driver could not tell the respondent was because the driver did not have the respondent's contact details.
Other points are made on the facts. The appellant's case was that the police were called because the driver of the lorry would not provide his contact details at the scene. It is further suggested that the driver was seen on his phone for 20 minutes calling someone in a foreign language while he was waiting for the police to arrive. The respondent was required to prove that that was not a call to the respondent or to an agent of Mr...
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