Vellino v Chief Constable of the Greater Manchester Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice SCHIEMANN,Sir Murray Stuart-Smith,LORD JUSTICE SEDLEY,SIR MURRAY STUART-SMITH |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1249 |
| Docket Number | Case No: B3/2000/2771 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2001 |
[2001] EWCA Civ 1249
Lord Justice Schiemann
Lord Justice Sedley and
Sir Murray Stuart-smith
Case No: B3/2000/2771
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR. JUSTICE ELIAS
Royal Courts of Justice
Strand, London, WC2A 2LL
David STOCKDALE Q.C. and Hugh DAVIES (instructed by Davies & Co.,Stockport for the Appellant)
Andrew EDIS Q.C. and David MERCER (instructed by Weightmans, Liverpool for the Respondent)
The issue in this case is whether the police owe to an arrested person a duty to take care that he is not injured in a foreseeable attempt by him to escape from police custody. Elias J concluded that the police owed no such duty. He found against the claimant on liability and the claimant appeals to this court.
The judge started his careful judgment as follows.
"The claimant, Carlo Vellino, was something of a folk hero in his local community. He was frequently in trouble with the police and had a string of convictions for such offences as burglary and theft, drugs and motoring offences, occasional violence, and also for failing on numerous occasions to appear at court or surrender to bail. Given that record, he was inevitably very well known to the police. He lived at 159, Grange Avenue, which was a flat on the second floor, together with his girlfriend, Tracy Peel, and two children, the younger of whom was his own child. The claimant was frequently arrested at his flat but often, when the police came to arrest him, he would seek to evade arrest by jumping from the windows of his flat to the ground floor below. This was obviously a foolhardy and potentially highly dangerous activity. Generally it seems that he would descend by lowering himself from a balcony which adjoined the kitchen in the flat and, once by hanging from the balcony. He would drop to the ground below. Exceptionally it seems that he had even been known to jump from the second floor window without having the benefit of first being able to reduce the risk by hanging from the balcony. It is plain from the evidence that I have heard that his propensity for escaping by this method was very well known both to neighbours and friends within the community, and to the local police.
On the evening of 17 September 1994 at about ten-thirty p.m. the claimant was arrested pursuant to a warrant issued by the Magistrates at Stockport on 12 September 1994 for failure to appear in court on that day. Almost immediately thereafter the claimant jumped from a second floor bedroom window of the flat, which was adjacent to the kitchen, and suffered an extremely tragic accident. Amongst other injuries, the claimant fractured his skull, suffered severe brain damage and tetraplegia. He is now totally dependent upon others for all his needs.
He alleges that the defendant, who is the Chief Constable of Greater Manchester, is vicariously liable for negligent acts of certain police officers, namely Constable Illidge and Proudlove who, it is said, stood idly by as he was making his escape and let him jump from the flat to the ground below."
It seems that at about 9.30 p.m. Sgt Roberts was informed that the claimant was wanted on a warrant. He resolved to attempt to arrest him the following morning. At 10.20 p.m. a complaint was received by the police about a noisy party being held at the claimant's flat. Sgt Roberts went there with other officers. When Sgt Roberts saw the situation in the flat and saw the claimant he resolved to arrest him then and there. 2 officers took hold of the claimant who struggled and they arrested him. Someone else at the party then punched Sgt Roberts who let go of the claimant and tried to defend himself. However the other officer, PC Illidge, retained hold of the claimant. This was in a sitting room. Opposite the sitting room was a bedroom.
The evidence as to what happened thereafter was conflicting and the judge had little confidence in any of it. However he found that in due course the claimant leaped out of a window in a bedroom. Both Illidge and PC Proudlove were at that time in the bedroom.
The Judge said this: -
"I am satisfied on the evidence that I have heard that the two officers were in the room with the claimant when he jumped from the window. Police Constable Proudlove in his evidence accepted that were he in the room, which he strongly denied, then he clearly would have been able to prevent the claimant from jumping from the window. This is plainly right. I can only infer, therefore, that they did permit the claimant to leap from the window for whatever reason, with the tragic consequences that ensued. Accordingly, in my judgment, if there is a duty of care on these policemen to prevent this kind of injury occurring to the claimant, then there is a breach of that duty by their failure to stop him from taking action which was so obviously and inherently dangerous to him."
The judge held that it was foreseeable that the claimant would suffer physical injury in the circumstances of the present case and that the police knew that the claimant had a tendency to jump from a window in a manner which inevitably risked serious injury.
The Judge said this in relation to the legal issues:
"Analytically there are two different questions, was there a duty of care and, if so, is the defendant prevented from recovering damages by the application of the principle ex turpi causa non oritur actio. In fact, however, in my judgment the two questions inter-relate, but I will begin by considering them independently. There is no doubt that the police owe a duty of care to an arrested person. They must take reasonable care to ensure that he does not suffer physical injury as a consequence of their own acts, such as if they are driving carelessly or the acts of a third party, but the question here is whether they owed any duty to protect him from himself, in circumstances where the conduct of the claimant involves the commission of a criminal offence at common law, i.e. whether they must take reasonable care to ensure he does not injure himself, as a consequence of his own deliberate decision to escape from custody."
After considering Caparo v Dickman [1990] 2 A.C.605 at page 617 and 633, Stovin v Wise [1996] A.C.923 at 932 and Reeves v Police of the Metropolis [2000] 1 A.C.360, the judge concluded that the mere fact that the claimant suffered injury as a result of his own deliberate act did not automatically inhibit the imposition of a duty of care on the police. He concluded that the considerations which determine whether it is fair just and reasonable to impose a duty of care were essentially the same as those which determine whether the ex turpi causa defence is applicable.
He then considered Clunis v Camden and Islington Health Authority [1998] Q.B.978, Kirkham v Chief Constable of greater Manchester Police [1990] 2 Q.B. 283, and Sacco v Chief Constable of South Wales Constabulary (unreported 15 May 1998 Beldam, Schiemann and Thorpe LJJ) and came to the conclusion that the existing authorities strongly support the view that escaping from custody was a sufficiently serious criminal offence to attract the operation of the ex turpi causa principle and that in those circumstances the police owed to an arrested person no duty to take care that he was not injured in a foreseeable attempt by him to escape from police custody. He accepted that the police were under a public law duty not negligently to permit a person to escape from custody but held that this was not a duty owed to the escaper.
The defence had however also pleaded contributory negligence on the part of the claimant. The judge held that if, contrary to his view, the police were under a duty owed to the claimant to take care that he did not hurt himself while trying to escape and if, contrary to his view, the principle of ex turpi causa could not avail the police, then the police were in breach of such a duty but he assessed the claimant as being two thirds to blame for his own misfortune.
A number of submissions which appeared in the skeleton argument for the claimant were not persisted in. The most important was a submission that the conduct of the officers went beyond negligent omission and amounted to active encouragement of the Claimant to take life threatening risks. The judge's findings do not justify the former assertion and there is no appeal against them. Nothing in this judgment is intended to contain any expression of view as to what rights a claimant might have in such circumstances. I record that the submissions based on an alleged breach of the claimant's rights under Article 2 of the European Convention on Human Rights were not pursued.
The essence of the claimant's case was that the officers were under a duty not negligently to let him escape. They were in clear breach of that duty. What followed was foreseeable. While the claimant accepted that he was two thirds to blame for what had happened, the judge had found that the officers were one third to blame. The claimant had suffered horrendous injuries and it was disproportionate to absolve the officers entirely in circumstances where their conduct had been in breach of their duty and where they had been negligent. In this context the following cases were drawn to our attention: Burrows v Rhodes [1899] 1 Q.B. 816, at p.822, Lane v Holloway [1968] 1 Q.B. 379 at pp 386 and 389, Shelley v Paddock [1980] 348 at 357, Saunders v Edwards [1987] 1 W.L.R. 1116 at 1127,1132H-1133A, Revill v Newbery [1996] QB 567 and Cross v Kirkby (unreported 18 February 2000 Beldam, Otton and Judge...
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