Case No: B3/2009/0066

Neutral Citation Number: [2009] EWCA Civ 1128
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(DISTRICT JUDGE TRAYNOR)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 6th October 2009

Before:

THE MASTER OF THE ROLLS
(LORD NEUBERGER)
LORD JUSTICE SEDLEY
and
MR JUSTICE OWEN

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Between:

	CRAGGY	
Respondent/Claimant	
	- and -		
	
CHIEF CONSTABLE OF CLEVELAND POLICE	

Appellant/
Defendant	

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Mr D Edwards (instructed by Cleveland Police Legal Services) appeared on behalf of the Appellant.
Mr A Jackson (instructed by Thompsons) appeared on behalf of the Respondent.
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Judgment
Mr Justice Owen:

1.	At about 5.50 am on 17 February 2006 there was a collision in Borough Road, Middlesbrough between a police car, to which I shall refer as a “PV”, as did the judge below, and a fire engine, a fire brigade appliance, to which I shall refer as an “FBA”.

2.	Both vehicles were responding to emergency calls: the PV to a zero priority, the highest priority, call to attend the scene of a violent incident involving a number of men; the FBA to an emergency call to a unit at the Cleveland Centre.  The driver of the FBA, the respondent to this appeal, was injured in the collision, and sued the appellant, the Chief Constable of Cleveland Police, asserting that the collision was caused by the negligence of the driver of the PV.  The chief constable defended the claim on the basis that the collision was the sole responsibility of the respondent.

3.	The claim came before a district judge sitting in the Middlesbrough County Court.  After a two-day hearing he held that the driver of the PV, PC Price, had been negligent but that the respondent had been contributorily negligent, and apportioned liability for the collision as one third the responsibility of PC Price, two-thirds that of the respondent.  In consequence he gave judgment to the respondent in the sum of £833.33, one third of the quantum of the claim which had been agreed at £2500.  The claim was modest; but there are other claims that will turn on the outcome of this appeal, personal injury claims by the two police officers travelling in the PV and two of the five firefighters travelling on the FBA, and claims arising out of damage to the two vehicles.  Leave to appeal was given by this court on 18 June 2009.

4.	The collision took place at the junction between Borough Road and Linthorpe Road, a junction at the heart of Middlesbrough which is governed by traffic lights.  The PV was travelling from west to east in Borough Road.  Borough Road runs straight both to the west and the east of the junction, giving PC Price a clear view of the road ahead.  The FBA was travelling north in Linthorpe Road.  They collided in the junction, the front offside of the PV hitting the front nearside of the FBA.  The area is subject to a general 30 mph speed limit, but as the PV was responding to an emergency call, its driver was exempted from observing the speed limit by section 87 of the Road Traffic Regulation Act 1984, which provides that a speed limit will not apply to a vehicle being used for police purposes if the observance of the limit would be likely to hinder the use of the vehicle and the purpose for which it is being used.  Similarly the emergency call to which the FBA was responding entitled the respondent to treat the red light against him as a give way signal rather than a halt sign by virtue of Regulation 36(1)(b) of the Traffic Signs Regulation and  General Directions 2002, which is in the following terms: 

“When a vehicle is being used for fire brigade, ambulance…or police purposes and the observance of the prohibition conveyed by the red signal in accordance with sub-paragraph (a) (the prohibition to proceed beyond the stop line) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then sub-paragraph (a) shall not apply to the vehicle, and a red signal should convey the prohibition that that vehicle shall not proceed beyond the stop line in a manner or at a time likely to endanger any person or cause the driver of any vehicle proceeding in accordance with the indications of light signals operating in association with the signals is displaying the red signal to change its speed or course in order to avoid an accident.”

5.	The learned judge made the following findings of fact.  PC Price had a green light in his favour whereas the respondent entered the junction against a red light.  The police car was travelling at about 50 mph immediately before the accident and had accelerated as it approached the junction.  That finding was derived from the analysis of the data recorder fitted to the police car.  It showed that the vehicle had accelerated from 29 mph to 52.4 mph in the 10 seconds immediately prior to the impact.  The FBA was travelling at about 15 mph as it entered the junction.  Both vehicles were displaying blue warning lights and both were sounding their two-tone sirens.  Neither driver had “a true view of the other” until immediately before the collision.  That finding was based on the evidence that the view of both drivers of traffic entering the junction to their respective left and right was restricted by buildings, as can be seen from the photographs taken at the scene.

6.	As the learned district judge put it:
“The junction is very slightly offset so that the driver of the FBA would have a marginally better view to his right on entering the junction but would have an extremely restricted view to his left.  The PV driver would have a similarly extremely restricted view of traffic at the junction on both sides of Linthorpe Road from his direction of approach.”

The judge also found that neither driver heard the other siren because his own was activated.  

7.	There was another vehicle at the junction at the material time.  Its driver, Mr Reeve, gave evidence.  He was travelling westward along the Borough Road, but when the collision occurred was stationary at the lights albeit that they were green in his favour.  He had come to a halt having seen the approaching PV, and thinking that it might turn right across his bows.  

8.	I turn then to the judge’s findings as to liability.  As for the respondent he found that:

“By his own admission [made by counsel on his behalf] the Claimant was negligent in not ‘giving way’ at the red traffic signal on Linthorpe Road.  He failed to stop or slow down sufficiently to take into consideration the traffic on Borough Road as he entered it.  He entered Borough Road when he was aware his views to his left were obscured by buildings and further compromised by the presence of Station Officer Waggott in the front passenger seat.  He made a mistaken assumption that the white vehicle driven by Mr Keene had stopped for his benefit or because the lights on Borough Road were also showing red to the traffic. This results in the Claimant being primarily liable for the consequence of this collision”

9.	As for PC Price he held that:

“The PV driver was obliged to drive in such a manner that he could stop in the event that another emergency vehicle emerging from Linthorpe Road.  His speed at or immediately before impact was approximately 50 mph, a speed which was both too fast on approach to a busy junction with limited visibility both to his left and right.  He was entitled to exceed the speed limit attending a zero priority incident but taking all the circumstances into consideration he had not had sufficient regard to the hazard that the junction presented and had clearly not given any thought to the possibility there was another emergency vehicle approaching the junction at the same time.”

A little later:

“PC Price could and should have anticipated the possibility of the presence of another vehicle whether or not it was an emergency vehicle and he could and should have been in a position to stop to avoid a collision.”

10.	The judge was therefore satisfied that the driver of the PV departed from the standard of care of the reasonable and prudent driver in the circumstances; but that the liability of the two drivers for the collision was not equal as the driver of the PV was on the major road with a green light in his favour, and the greater burden was therefore on the respondent, as he put it, “emerging through a red light”.

11.	The issue raised by this appeal is simply whether it was open to the judge on the evidence to find that PC Price was negligent.  A police officer driving a police vehicle in response to an emergency call may be exempt from observing a speed limit; but that does not relieve him of the duty that any driver owes to other road users, the duty to take such care as is reasonable in all the circumstances to avoid causing injury or damage.

12.	In this context Mr Jackson, who appeared for the Respondent, invited our attention to the decision of this court in Griffin v Mersey Regional Ambulance [1998] PIQR 34 (CA), in which the plaintiff was driving across a junction controlled by traffic lights which were green in his favour, when he was involved in a collision with an ambulance on an emergency call which had entered the junction against a red light.  The trial judge held the plaintiff to have been contributorily negligent and apportioned liability 60/40 in his favour.  He appealed the finding of contributory negligence.  The judgment of this court was given by Simon Brown LJ, who addressed the nature of the duty of care owed by drivers crossing a junction on a green light and encountering an emergency vehicle entering the junction against a red light.  Having referred to the regulations enabling the ambulance driver to treat the red light as a give way sign, he referred to rule 76 of the Highway Code which provided so far as was material that: 

“Look and listen for ambulances…or other emergency vehicles with flashing blue lights or sirens.  Make room for them to pass (if necessary by moving to the side of the road and stopping) but do not endanger other road users…”

13.	In endorsing the general approach of the judge below, Simon Brown LJ said that the judge had rightly recognised the duty of care on the plaintiff beyond that of merely taking reasonable steps to avoid colliding with any vehicle crossing on red which he happened to see or otherwise be aware of, and he therefore rejected, in his words, “the absolute rule in favour of traffic crossing a junction on green established in Joseph Eva Ltd v Reeve”, a case dating from the 1930s.  

14.	But all will turn on the facts of the case, and it is to be noted that in Griffin, in marked contrast to the facts of this case, the trial judge made express findings that the plaintiff could and should have both seen and heard the ambulance, and that another vehicle travelling in the same direction as the plaintiff in a lane to his offside had stopped to permit the ambulance to cross in front of him.

15.	What then was the situation with which PC Price was faced?  The accident happened at about 5.50 am on a February morning, and it was therefore dark, but according to the independent witness, Mr Keen, visibility was good and visibility along Borough Road was unobstructed.  Entrance to and exit from the junction were clear, but both the visibility to both left and right into Linthorpe Road was very limited.  The lights were green in PC Price’s favour.  The judge described the junction as busy, but there was no evidence of any traffic in the vicinity at that time in the morning other than the PV, a second police car travelling behind it, the FBA and Mr Keen’s car.  

16.	How did PC Price respond?  He had already activated his blue light and his siren to alert others to his approach.  Given the road conditions and the time of day, he could reasonably expect other road users to be aware of his approach to the junction, as indeed was Mr Keen.  PC Price neither heard the siren in the FBA nor saw its flashing light, but that, as the judge accepted, was not the result of any want of care on his part.  He did, however, accelerate as he approached the junction.

17.	What then was the basis of the judge’s finding that PC Price was negligent? He found that he was at fault in four respects albeit that they are closely related.  First he found that PC Price was travelling at too fast a speed on approach to a “busy junction”, secondly that he did not have sufficient regard for the hazard the junction presented, thirdly that he had not given any thought to the possibility of another emergency vehicle approaching the junction at the same time, fourthly he found that he could and should have anticipated the possibility of the presence of another vehicle, whether or not it was an emergency vehicle, and could and should have been in a position to stop to avoid a collision.  

18.	It is convenient first to address the second, third and fourth criticisms.  The second adds nothing to the third and the fourth, as the hazard presented by the junction was the risk of another vehicle entering it as PC Price drove across it.  As to the third, the possibility that another emergency vehicle might drive into the junction against a red light at the very moment that PC Price drove into it was remote in the extreme.  I consider that in imposing a duty on him to drive in such a manner that he could stop in the event of another emergency vehicle emerging from Linthorpe Road, the judge placed an unreasonably high burden upon him.  That was in my judgment a counsel of perfection going well beyond what could be expected of a reasonable and prudent driver in the circumstances.  

19.	The fourth criticism is a modification of the third.  Ought PC Price to have anticipated the possible presence of another vehicle entering the junction against a red light, whether or not it was an emergency vehicle?  In my judgment he could not reasonably have been expected to do so given the prevailing traffic conditions and – critically -- the fact that he was giving warning to others of his approach by his flashing lights and his siren.  

20.	That leaves the question of whether the judge was justified in his conclusion that PC Price was travelling too fast on his approach to a busy junction.  I have already addressed the question of whether the junction could, on the evidence, fairly be described as busy at that time of the morning.  But if PC Price could not reasonably have foreseen the possibility of another emergency vehicle or other traffic entering the junction against a red light, then to have accelerated to about 50 mph as he approached the junction could not in my judgment be said to have been negligent, again bearing in mind -- critically -- the fact that he had taken the appropriate steps to alert others to his approach.

21.	This accident was caused by the admitted negligence on the part of the Claimant in entering the junction at a not insubstantial speed, at a time when it was unsafe to do so, and when he did not have any or any adequate view of traffic approaching the junction with a green light in its favour.  In my judgment the learned judge erred in setting an unreasonably high standard against which to judge PC Price’s driving.  I do not consider that it was open to him on the evidence to find a culpable want of care on his part.  It follows that I would allow his appeal.

Lord Justice Sedley:  

22.	It was five to six on a wet February morning.  The streets of Middlesbrough were dark and deserted but for a solitary baker driving to work and, it appears, four men stripped to the waist and fighting.  For reasons we have mercifully not had to go into, a police car had been dispatched to the scene with top priority.  Meanwhile someone else had dialled 999 to report a fire, and a fire engine had been dispatched to deal with it.  The police car went at speed through the green traffic light on Borough Road governing the junction with Linthorpe Road.  Simultaneously the fire engine, approaching the junction along Linthorpe Road and, like the police car with its two-tone siren going, slowed and went through the red light at about 15 mph.  The two vehicles collided.  The occupants of both were hurt, but mercifully none seriously.  

23.	The accident, as the judge remarked, was a chance in a million either driver could readily see the other vehicle.  Nor could he hear it, since each siren eclipsed the sound of the other.  Each knew the roads to be all but deserted.  Each was entitled by law to take calculated risks.  If the police driver, as Mr Edwards submits, cannot be criticised for speeding through the green light, neither, one would have thought, can the fire engine driver be criticised for driving tentatively through the red light.  I would have thought that this was a pure accident without fault on either side but for the considered decision of counsel for the claimant fire engine driver to accept some degree of blame.  He did so in the responsible exercise of his professional judgment because he did not consider that he could bring himself within the protection of regulation 36(1)(b), which Owen J has read out.  I do not for a moment criticise Mr Jackson for this.  I simply note that it had the effect of forfeiting the possibility of a finding of a pure accident and left only the question whether the police driver had also been at fault.

24.	For the reasons given by Owen J, I agree that he was not; but it is a relief to know that neither driver has been either prosecuted or disciplined.  This was, on any view, a marginal case.

Lord Neuberger MR:

25.	The fact that the District Judge gave a full and careful judgment and made what can be characterised as a finding of fact, albeit an inferential finding involving an assessment of what PC Price should have done in the circumstances of the case, gives one considerable pause for thought before deciding to allow this appeal.  Nonetheless for the reasons given by Owen J I too would allow the Chief Constable’s appeal.  

26.	I should like to express our appreciation for the clear, concise and engaging way in which both counsel deployed their arguments both orally and in writing. 

Order: Appeal Allowed