Neutral Citation Number: [2010] EWCA Civ 5
Case No: B3/2009/1143
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
RECORDER FLATHER QC
6BZ01626
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/01/2010
Before :

LORD JUSTICE PILL
LADY JUSTICE ARDEN
and
LADY JUSTICE SMITH
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Between :

	Michael Henry	Appellant	
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	Thames Valley Police 	Respondent	

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Mr Simon Taylor QC & Ms Sally Cowen (instructed by Roythornes LLP) for the Appellant
Mr James Todd (instructed by Debenhams Ottaway Solicitors) for the Respondent

Hearing date : 8 December 2009
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Judgment

Lady Justice Smith: 
1.	This is an appeal from the order of Mr Recorder Flather OBE QC made in the Reading County Court on 27 March 2009.  The Recorder dismissed a claim for damages for personal injuries brought by Mr Michael Henry arising out of an incident which occurred on 22 August 2004.  Mr Henry suffered serious injury to his right leg when it became trapped under the offside front wheel of a police vehicle in the grounds of his home at the end of a pursuit by two police officers of the Thames Valley Police.  The judge held that the driver of the police vehicle had not driven negligently.  Mr Henry now appeals against that decision, the Recorder having himself granted permission.  The respondent seeks to uphold the Recorder’s decision and also argues that it should be upheld on different grounds from those expressed in the judgment.   
The facts  
2.	The appellant, Mr Henry, lives at Laurel Lodge, Penn Street, near Amersham.  In the early hours of 22 August 2004, he was returning home from a social event in High Wycombe and was riding his Honda Blackbird motor cycle.  During the journey, two Thames Valley police officers, in a marked police car, saw his vehicle and decided to follow him.  The driver was PC Anthony Griffiths and the support officer in the passenger seat was PC Andrew Brandish.  Both were experienced traffic officers with Advanced Class One Certificates and other qualifications.  The car was fitted at the front with a video camera which was directed slightly to the right so as to record the registration numbers of vehicles passing in the opposite direction.  
3.	The following account is taken from those of the Recorder’s findings which are not now challenged.  As the journey proceeded, the officers formed the view that the appellant was speeding and, at times, driving dangerously. As the appellant turned right off the Amersham Road into the village of Penn Street, with the police car following directly behind, the officers lit up the flashing blue light on their vehicle and flashed the headlights to indicate that the appellant should stop.  He did not do so but accelerated into the village. Soon afterwards, he slowed down and raised his left hand which the officers understood was an indication that he was about to stop. In fact, he did not do so but accelerated to about 50mph and continued along the road out of the village. The officers formed the view that the appellant was trying to evade them.  The chase continued a short distance until, after indicating, the appellant turned right, across the road, onto a gravelled area and pulled up in front of a pair of solid wooden gates. In fact, this was the entrance to his home, Laurel Lodge, although the officers did not know that.  
4.	The appellant then used his motorcycle to nudge open the left gate and drove through.  Beyond the gate was a grassy area with a track across it.  The track appears to have been worn by the regular use of four wheeled vehicles as there are two worn ‘lanes’ with a line of grass in between. The appellant drove his motor cycle about 13.5 metres along the track and stopped, on the left hand lane.  He put down the stand which caused the motorcycle to tilt slightly to the left.  That is a usual preparation for dismounting.    
5.	While that was happening, the police car had pulled up on the gravelled area. The officers wished to speak to the appellant and believed that they had grounds to arrest him.  Accordingly, PC Brandish got out and followed the appellant through the left gate. He called to PC Griffiths to come through. There was insufficient room for the car to pass through the open side of the gateway and PC Griffiths had to force the right gate open, which he did, quite gently, using the vehicle at a slow speed.  PC Brandish walked or ran to the offside of the motorcycle and spoke to the appellant.  It was common ground that he instructed the appellant to switch the engine off and take his helmet off.  PC Brandish also said that he told the appellant to dismount.  The appellant gave no resistance and indicated to the officer that he was ‘giving up’.  He switched the engine off and dismounted although it appears that he did not take his helmet off.     
6.	Meanwhile, PC Griffiths had opened the right gate and was driving towards the motorcycle.  In his headlights, he could see PC Brandish and the appellant still on his motorcycle but putting the stand down.  He was of the view that the appellant might try to run away and he had the impression (mistaken as it turned out) that the appellant was waving his arms about and might assault PC Brandish.  It was his intention to use his vehicle as a barrier to impede the appellant’s escape if he should try to make a run for it. Accordingly, he did not drive up the track but veered to the left onto the grassy area so as to go alongside the motorcycle on its near side.  He then steered quite sharply to the right bringing the front of the car slightly past but quite close to the motor cycle.  In so doing, it was his intention to form a ‘V’ so that, when the car door was opened, the car, its door and the motor cycle would provide a three-sided barrier to enclose the appellant and impede his escape.  As the car moved forwards alongside the motorcycle, the time came when the headlights no longer illuminated the scene, which was then in darkness.  PC Griffiths brought the car to a halt 13.5 metres from the gate and 0.5 metre from the edge of the path or track on which the cycle was standing.  The judge held that there was about three feet between the motorcycle and the car.  PC Griffiths brought the car to a halt just as or shortly after the appellant was dismounting.  Exactly what happened then is not clear but the appellant somehow came into contact with the offside front of the vehicle. He fell to the ground and his right lower leg became trapped by the front offside wheel. He was lying on his back and could not move. The car had to be moved back slightly to release his leg.  He had suffered quite severe injuries.  
7.	What I have described in the last three paragraphs took only about 6 seconds to happen.   That is known because the video camera in the front of the police car was running. Unfortunately, it did not capture a visual record of the incident.   
8.	After this incident, the appellant’s wife made a complaint to Thames Valley Police that her husband had been run over by the police car.  A full investigation took place and, as a result, PC Griffiths was subject to disciplinary proceedings.  It was held that his use of the vehicle as a barrier was ‘questionable’ and that he had made an error of judgment in positioning his car.  He was given ‘constructive advice’.
The hearing and judgment
9.	As to the pursuit, the appellant gave evidence which was quite at odds with the account of the police officers.  The judge preferred the evidence of the officers, corroborated as it was by the speed recorder attached to the video camera.  The appellant’s credibility was deeply compromised and, at the hearing of the appeal, it was accepted that the Recorder was entitled to reject or disregard his evidence as unreliable.  
10.	The Recorder accepted the evidence of the officers as to the whole sequence of events including the final incident. Their evidence had changed in some respects from time to time. They had given statements on the night of the incident. They had also given statements for the purpose of the internal investigation and had been interviewed by senior officers.  They both gave oral evidence to the court.  There were some differences between their various accounts. The Recorder acquitted them of the accusation that they had been deliberately ‘improving’ their accounts as time went by but, in general, made it clear which details of their evidence he thought the most accurate. 
11.	The Recorder set out the facts, much as I have summarised them.  It was clear that his findings did not lead to an obvious conclusion as to exactly what had happened at the last moment to result in the injury.  He said that he had come to the conclusion that, because the scene was not illuminated, no one had seen what happened. His conclusions as to exactly what had happened had to be a matter of deduction and inference.  The Recorder observed, correctly, that the appellant did not know exactly what had happened.  PC Brandish, he said, had surmised that the appellant had ‘stepped into the wheel’.  PC Griffiths, he said, had surmised that the appellant had slipped and fallen into the wheel.  The Recorder then reconsidered the evidence and concluded that the appellant had dismounted and ‘stepped into the tyre which was unexpectedly there’.  The Recorder then said that the appellant ought to have realised that the car was approaching at a slow speed.  The headlights would have been visible as it approached.  Even if he was not looking, he would have seen the headlights lighting up the grass.  Then he continued:  
“I expect he was very focused on PC Brandish at the time.  On the other hand the position of the police car was uncomfortably close to the motor cycle in the events as they turned out.  It did not give the Claimant quite enough comfort room as he dismounted from his motor cycle should he step or stumble forward.  Since he did, the police car was in the way and he stumbled into the front right hand tyre and injured himself.”
12.	The Recorder directed himself as to the law by reference to the case of Marshall v Osmond [1983] 3 WLR 13.  In that case, the plaintiff was one of a group of youths in a Ford Cortina which was pursued by a police vehicle.  The Cortina pulled across the road onto a lay by and the youths got out and began to run away, leaving a door open.  The police driver intended to stop close by the Cortina but the wheels skidded on some loose gravel and the police car collided with it.  The plaintiff was caught in some way and was injured.  At first instance, the judge, Milmo J, dismissed the claim.  The Court of Appeal dismissed the appeal.  Sir John Donaldson MR, with whom Dillon LJ and Sir Denis Buckley agreed said at page 15G: 
“I think that the duty owed by a police driver to the suspect is …. the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in the circumstances.  The vital words in that proposition of law are “in all the circumstances”, and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest.”
It is a strange feature of the Recorder’s judgment that he did not cite this passage which was the ratio decidendi of the case.  However, it is clear from an earlier passage of his judgment that the Recorder had in mind the proposition of law as expressed in Marshall.  The Recorder’s interest in the case focussed on the factual aspects and in particular a later passage where, at page 16B, the Master of the Rolls said: 
“As I see it what happened was that this police officer pursued a line in steering his car which would, in the ordinary course of events, have led to his ending up sufficiently far away from the Cortina to clear its open door. He was driving on a gravelly surface at night in what were no doubt stressful circumstances. There is no doubt that he made an error of judgment because, in the absence of an error of judgment, there would have been no contact between the cars. But I am far from satisfied on the evidence that the police officer was negligent.”
13.	The Recorder then considered a submission advanced by Miss Sally Cowen for the appellant, that that case could be distinguished on its facts from the present case.  The argument advanced was that, in this case unlike Marshall, the pursuit had ended.  Also, it was submitted that it was not reasonable for PC Griffiths to think that the appellant was going to run away.  The Recorder rejected that submission, saying that, in his view, it was reasonable for PC Griffiths to anticipate that the appellant might try to escape. He was not privy to the conversation which was taking place between the appellant and PC Brandish from which it was clear that the appellant was surrendering himself.  
14.	The Recorder then set out his conclusions. He said that the claim would fail for two reasons and, he said, ‘either one will do’.  The first was that if the appellant had stopped and surrendered himself on the gravelled area outside the gates, the incident and injury would not have happened.  Pausing there, if the Recorder was there saying that that was a complete answer to the claim, he must have fallen into error.  The appellant’s failure to surrender himself to the police outside the gates set the scene for what later occurred but it could not be said that it caused the injuries.  
15.	However, the Recorder’s second conclusion dealt with events inside the gates and the allegation that PC Griffiths had driven negligently.  He said:  
“Alternatively, given that the Claimant inflamed the suspicions of the police and showed his determination to evade them, he made it look as if he had something to hide. If these police officers were to do their duty they had no option but to follow him. It involved following him off road into a dark area which was unknown to them.  In my opinion the police officers acted reasonably in seeking to stop and arrest the claimant in the difficult conditions the claimant forced them to endure beyond the gate.  I do not think that a police vehicle should be used as a way of herding suspects except in extreme circumstances but that was what PC Griffiths, in the six seconds available to him, attempted to do. I consider that it was a bona fide attempt by him to do his duty to apprehend the Claimant and to assist his colleague.  Nobody says that he deliberately drove at the Claimant and there can be no question of that.  He drove close to him to trap him so that he could not run away when in my view it was reasonable for him to think that likely in the time he had available to him.  The accident happened because he arrived in his position when the claimant had just dismounted. That was sheer bad luck.  He only had three seconds to realise that the claimant was dismounting and to change his course.  I do not blame him for not appreciating that.  Three seconds is far too short a time in those very difficult conditions as well. On the other hand it can be said against him that he ought to have foreseen that the Claimant might dismount, in which case the space he left him to do so was uncomfortably small. I can see though that if he had left him much more space the purpose of him driving there to obstruct him would be defeated.  He made an error of judgment by driving too close. It was a difficult decision to take in the six seconds travelling over rough ground in the dark believing his colleague was struggling with an uncooperative suspect.  It was a stressful situation. But I think the course he drove took him just a bit too close to the motor cycle. I’m only talking about a difference of two to three feet or so. His was in my view an error of judgment of the kind that arose in the case of Marshall v Osmond.  Each case of course must turn on its own facts and the facts of the current case are distinguishable from Marshall’s case.
In the further alternative - but in the same vein - I see this case as one where it is entirely the Claimant’s own fault if things go wrong.  He inflamed their suspicions during the pursuit and continued to do so by going through the gate. He took them off road onto ground they were unfamiliar with and where it was dark.  He put the police officers into a very tricky situation in which they had to make judgments in seconds about what he was going to do. In such situations mistakes are possible and in this situation PC Griffiths drove a little too close to achieve his objective.  If he had driven say two or three feet further away then that positioning would have been acceptable. But I am not going to say that this unfortunate error of judgment was negligence.”
The Appeal
16.	Mr Simon Taylor QC (leading Ms Cowen) for the appellant wished to argue only one ground of appeal, namely that the Recorder’s conclusion that PC Griffiths had not driven negligently was not open to him on the evidence.  In carefully analysed submissions, he took the Court to the evidence relating to each aspect of the Recorder’s decision. 
17.	His first target was the Recorder’s conclusion, which I have set out above, that the appellant had ‘stumbled into the offside tyre and injured himself’.  Mr Taylor demonstrated that there was no evidential basis for that conclusion.  First, the Recorder’s observation that PC Griffiths had surmised that the appellant had slipped and fallen under the wheel was not based in evidence. PC Griffiths had not said anything of the kind.  In his written statement he had said that, when the police vehicle was almost at a stop, the appellant had stepped back colliding with the vehicle’s offside wing. When questioned during the police investigation, he did not proffer any explanation as to exactly what had happened.  In oral evidence, when his written statement was put to him, he said that what he was saying was that the appellant had moved his right leg in such a way that it came into contact with the vehicle.  
18.	Next Mr Taylor took us to the evidence of PC Brandish and demonstrated that there was no basis for the Recorder’s observation that PC Brandish had surmised that the appellant had ‘stepped into the wheel’.  In his initial statement, PC Brandish said that the appellant put the side stand down and ‘moved’ to get off.  He himself moved to the front of the motorcycle to intercept the appellant as he dismounted. He could see the car approaching and was temporarily blinded by the headlights. The next thing was that the appellant cried out as he fell to the ground. In the police investigation he said that he thought that the appellant was stepping off the bike, swinging his right leg towards the rear of the bike and stepping away from the bike as PC Griffiths drove the vehicle up.  He repeated that the appellant stepped away from the bike into the path of the police vehicle.  However, in oral evidence he asserted that the appellant had not at any stage fully got off the machine or let go of it.  A little later he repeated that, almost immediately as he stepped off the machine, he disappeared from view, having fallen to the ground.  
19.	Mr Taylor submitted that, on the basis of that evidence, it was not open to the Recorder to hold that the appellant had ‘stumbled into the right hand tyre and injured himself’.  As the Recorder had accepted PC Brandish’s evidence, the only conclusions available were either that the appellant’s right leg came into contact with the police car as he swung it over while dismounting or that he was struck by the car just after he had dismounted but while he was still holding on to his motor cycle.  I would accept that submission.  There is no evidential basis for the finding that the appellant stumbled into the tyre and injured himself. 
20.	Mr Taylor submitted that, given that all that the appellant had done was to dismount in a normal way, on the instructions of PC Brandish, and was still in contact with his motor cycle when he came in contact with the car, it was obvious that the car must have come too close and negligently so.  I shall return to that submission later, as it is at the heart of this appeal.  But in support of that submission, Mr Taylor sought to argue that, although the judge found that the distance between the car and the motor cycle was about 3 feet, in fact, when the motor cycle was on its side stand, it was tilting to the left and the space between the two would be even more limited.  I accept that the motorcycle would be tilted to the left as the appellant dismounted. One can see that from the photographs before the Court. However, I do not think that one can properly say that the actual distance between the two vehicles was less than 3 feet on that account.  The Recorder could only make an estimate of the distance between the two vehicles. There were no measurements by which this could be established.  The gap might have been a little more or a little less than 3 feet.  All that can be said is that the gap was such that, as the appellant dismounted or within a split second afterwards and while he was still holding his motorcycle, he was in contact with the police car.      
21.	Mr Taylor’s next attack related to the Recorder’s approach to the lighting. It was common ground that the area inside the gates was unlit. The only available lighting was from the car headlights.  No one seems to have mentioned any light from the motorcycle headlight.  Mr Taylor drew our attention to the Recorder’s different approach to the difficult lighting conditions when considering the actions of the appellant and PC Griffiths.  When considering the appellant’s actions, the Recorder thought that the Appellant should have realised from the headlights that the car was approaching.  In contrast, the Recorder stressed on several occasions how difficult it was for PC Griffiths having to drive his car in the dark and make a judgment about where to steer it and stop it.  
22.	In my view, the Recorder’s remark that the appellant should have realised that the police car was approaching was irrelevant. I cannot see what the appellant was supposed to do about the approach of the car.  He was under the instruction of PC Brandish, preparing to dismount and then dismounting.  It can hardly be suggested that he should have paused in his movements until he saw where the police car was going to stop.  He could hardly be expected to think that the police car would drive so close as to leave no room for him to dismount in safety.  If the Recorder’s observation carried any implied criticism of the appellant, it was, in my view, unwarranted.  But I am not sure that it did.    
23.	Mr Taylor submitted that the Recorder ‘made much’ (in effect too much) of the difficult lighting conditions.  There are indeed several references to them in the judgment.  Yet, there is really no dispute about the conditions.  The area was dark but not completely so; PC Brandish said that there was some ambient light.  PC Griffiths’ car had its headlights on. It is not clear whether they were dipped or on full beam. In either event, they must have shed a good light on the scene ahead of PC Griffiths until the car came sufficiently close alongside the motorcycle that the beam no longer covered it. By that time, the motorcycle would be in darkness so far as PC Griffiths was concerned.  Exactly when that happened is not clear. However, in evidence PC Griffiths described what he could see. Putting together what he said at various times, the effect of his evidence was that, as he came through the gate he could see the motorcycle and the appellant and he could see the appellant putting the side stand down. He said that he could see the appellant waving his arms about.  He said that at all times he was aware of where the appellant was and that he did not believe that he ever lost sight of him.      
24.	I would accept that the Recorder laid rather more emphasis on the difficult lighting conditions (as they affected PC Griffiths) than the evidence warranted.  However, I do not think the point is of great significance. In any event, there is another point to be made about lighting conditions.  If they really were very difficult for PC Griffiths, so difficult that he could not see properly where the motor cycle and appellant were, it behoved him to take particular care when driving up close to the motor cycle, as, on his own evidence, he intended to do.  
25.	Mr Taylor’s next point concerned the evidence about ‘herding’ or ‘trapping’ the appellant.  In the passage from the judgment quoted in paragraph 15 above, the Recorder says that he does not think that a police officer should use a vehicle as a way of herding suspects except in extreme circumstances.  Mr Taylor agrees with that. His complaint is that the judge did not consider whether these were extreme circumstances. Had he done so, he would have been bound to conclude that they were not.  PC Griffiths had no reason to think that the appellant was a dangerous criminal.  He had good reason to want to arrest him; he was entitled to suspect him of a number of traffic offences.  A number of other possibilities might have run through the officers’ minds as to the reason why the appellant appeared determined to evade them during the pursuit.  However, none of them was of the most serious nature.  Mr Taylor accepted that, although the appellant had not at any stage offered violence to PC Brandish, PC Griffiths had genuinely believed that he was waving his arms about and feared that he might assault PC Brandish.  Mr Taylor submitted that none of those possibilities could amount to extreme circumstances such as would justify using the car as a means of trapping the appellant.  
26.	I would accept the submission that these were not extreme circumstances.  Whether the Recorder thought they were is not clear.  All that the Recorder said was that PC Griffiths made a bona fide attempt to apprehend the appellant and assist his colleague.  But that is not in dispute and Mr Taylor conceded that it was not unreasonable for PC Griffiths to believe that the appellant might try to escape. Moreover, Mr Taylor conceded that PC Griffiths was entitled to use the car as a partial barricade to impede the appellant’s possible escape, provided that he did not do so in such a way as to create a foreseeable risk of injury.  
27.	In my view that is correct. I consider that PC Griffiths was entitled to bring the car into a position where it would impede an escape if one were attempted but not do so in such a manner or to such an extent as would create any foreseeable risk of injury to the appellant.  I would accept that, in some circumstances, such as where a dangerous suspect is at large, an officer may be justified in using a car as a trap or barrier even though that may create a risk of injuring the suspect.  But I do not accept that those circumstances were present in the instant case.  
28.	The use of the car to impede escape without giving rise to the risk of injury required an element of judgment on the part of PC Griffiths which it was appropriate for him, as an experienced traffic officer, to exercise.   It required a judgment as to at what speed and how close to the cycle it was safe to bring the car. There were several elements in the exercise of that judgment.  One was the lighting conditions; if PC Griffiths could not see clearly, he should have allowed an extra margin.  Another was the likely actions of the appellant. If he was likely to get off the motorcycle, PC Griffiths should allow him the space to do so in safety.  Of course, I accept that the judgment as to exactly where to steer and stop the car had to be made quickly.  But car drivers often have to make judgments quickly and with a reasonable degree of skill.  A police officer who decides to use his car as a barricade has to exercise a reasonable degree of skill and care in making the judgment as to where to position the car.   Mr Taylor’s complaint was that PC Griffiths took the car too close to the motor cycle, in effect creating a trap and, in the process, creating a foreseeable risk of injury.  
29.	Mr Taylor’s final point was that the Recorder had failed to realise that PC Griffiths had in fact foreseen that the appellant would get off his motorcycle. He appears to have thought that the officer had not foreseen that and said that he did not blame him for not appreciating that the appellant would dismount. He said that then the officer had only three seconds in which to change course and that was not long enough in the difficult conditions.  Mr Taylor submitted that the Recorder had forgotten the officer’s evidence, which was that, as he came through the gate, he had seen the appellant put the side stand down. That would be a usual and indeed necessary preparation for dismounting; he must have realised then that the appellant would dismount.  In addition, PC Griffiths’ concern about the possibility of escape presupposed that the appellant was going to dismount.   The Recorder appeared to acknowledge that, if the officer had foreseen that the appellant might dismount, it could be said that the space he had left him was uncomfortably small.  
30.	I would accept Mr Taylor’s submission that the Recorder’s finding that PC Griffiths did not realise that the appellant was going to dismount was not open to him on the evidence.  He clearly did realise that.  Further, having realised that, it was incumbent on him to allow the appellant sufficient room to dismount in safety.  The Recorder spoke of the space being uncomfortably small if the appellant were to dismount.  I do not suppose that the Recorder meant that expression to be taken literally. However, it is important to recognise that we are not concerned with comfort; we are concerned with safety. The question should have been whether, bearing in mind that the circumstances were not such as could justify the taking of any risk as to the appellant’s safety and bearing in mind that it was foreseeable (and foreseen) that the appellant would dismount, the car was driven with reasonable skill and care.   
31.	I am persuaded that the Recorder made at least two errors as to the evidence.  First, the appellant did not stumble into the wheel of the car; he simply dismounted. He had not moved away from his motorcycle; he was still in contact with it. Second, the finding that PC Griffiths did not realise that the appellant would dismount is untenable; the officer actually expected him to do so.   Those errors are of such significance that the Recorder’s decision is undermined and must be reconsidered either by this Court or on remission. Neither party wishes this Court to remit the case for re-hearing.  In any event I do not think that is necessary. We have all the material available to the Recorder and are in a position to make a decision. I must of course be true to the Recorder’s findings as to which witnesses were reliable.
32.	I summarise the essential facts as I find them to be.  When PC Griffiths drove through the gate, he honestly believed that the appellant had committed criminal offences and should be arrested.  He honestly believed that the appellant was set on evading arrest and was likely to try to escape on foot.  He also thought that the appellant might assault PC Brandish, because he thought he saw the appellant waving his arms about. In my judgment, neither the offences suspected nor the risk of injury to PC Brandish were of such seriousness as to justify in the mind of any reasonable police officer the use of the vehicle as a trap if such use were to give rise to any foreseeable risk of injury to the appellant.  It was, however, entirely reasonable for the officer to use the vehicle as a means of hindering the appellant’s escape provided that this did not create a risk of injury.  
33.	PC Griffiths drove through the gates and across the grassy area at an appropriate speed.  He had not lost control of his emotions, as was at one time alleged.   As he came through the gate he saw the appellant on the motor cycle, putting down his side stand.  As an experienced traffic officer and motorcyclist, PC Griffiths realised that that movement was in preparation for dismounting. Indeed, he expected the appellant to dismount.  
34.	The lighting conditions were good as the car drove through the gateway in that the headlights shone on the motorcycle, the appellant and PC Brandish.  As the car progressed, the time came when the headlights were focussed beyond the motorcycle and PC Griffiths did not then have a good clear view of it. However, he was by then close to it and he could still see the appellant and never lost sight of him. He always knew where the appellant was. PC Griffiths drove the car to the spot that he intended to drive to. The car did not skid or slide.    
35.	As for the appellant, I am satisfied that, when he stopped his motorcycle, he put the side stand down intending to dismount.  PC Brandish instructed him to dismount.  He dismounted in a perfectly normal way, putting his left foot to the ground and swinging his right leg over the saddle.  He did not move away from the motor cycle and was still in contact with it.  He did not stumble or slip or make any unexpected movement.  By the time he was dismounting, PC Griffiths was driving his car into close proximity with the motor cycle. I cannot of course depart from the Recorder’s estimate of the distance which was left between the car and the motor cycle. He estimated it at 3 feet. However, I stress that this was an estimate. What must be accepted is that the car was so close to the motor cycle that some part of it, either the front wing or the front offside wheel probably the front wing, came into contact with the appellant.  I am driven to the conclusion that the officer misjudged the amount of space that he needed to leave for the appellant to dismount in safety.    
36.	I pose the essential question.  In all the circumstances as I have summarised, did PC Griffiths’ standard of driving, when objectively considered, fall below the standards to be expected of a reasonably skilful and careful driver?  I have come to the conclusion that it did.  In my judgment, it cannot be acceptable for a driver to bring his car so close to a person who he knows is dismounting from a motor cycle as to allow insufficient space for him to dismount normally. I am satisfied that the appellant did dismount normally. I cannot say whether he was struck as he brought his right leg over the saddle and down to the ground or whether he had completely dismounted and had both feet on the ground.  But I am satisfied that he still had hold of his machine and could not have moved back from it appreciably.  He did not make any unexpected movement such as slipping or stumbling.  The point is that he was occupying only the space adjacent to his machine that it was foreseeable that he would need to occupy.  The car drove into that space and it should not have done. It came too close for safety.  For that reason, I would allow the appeal and hold the respondent primarily liable to the appellant. 
Contributory Negligence
37.	There was no dispute at the bar as to the approach this court should take to the assessment of contributory negligence.  The principles are well established.  We must assess the blameworthiness of the respective parties and the causative effect of their wrongful actions.  Then we should balance those factors against each other so as to make a fair apportionment of responsibility.  Mr Taylor submitted that, if he succeeded on primary liability, there should be only a modest finding of contribution; he suggested 10%. Mr Todd for the respondent submitted that, even if the appeal were allowed, the appellant was very substantially to blame for what had occurred and the finding against him should be at least 75%.  I cannot accept either of those submissions. 
38.	I deal first with the appellant. In my view, once he had gone through the gates, he did nothing that was either negligent or culpable.  However, in my opinion and as the Recorder plainly thought, he behaved culpably and very foolishly in seeking to evade the police once he knew that they wished him to stop and in particular in failing to surrender to them outside the gate leading into his property.  His conduct set the scene and led to the events which followed. As the Recorder observed, if he had given himself up outside, there would have been no need for the police car to follow him through the gate into the dark area beyond.  There would have been no accident.  His culpable conduct was a cause of the accident, although, of course, not the only cause or even the direct cause.  
39.	I have held that PC Griffiths was negligent. His driving fell below the standard of skill and care expected of the reasonably skilful and prudent driver. I have already described in some detail what I consider his fault to have been; it was one of misjudgement. It was not of a serious degree. However, a moving car is a dangerous thing and the effect of misjudging his placement is potentially very dangerous.  His negligence was the direct and immediate cause of the appellant’s injury. 
40.	Balancing these factors against each other, it seems to me that the appellant should bear the greater share of responsibility for what occurred.  I consider that it would be fair to apportion responsibility as to 60% on the appellant and 40% on the respondent.  That means that the appellant should recover 40% of the damages.   
 Postscript 
41.	As the appeal has been allowed, it is not necessary for me to deal with a submission which was advanced by Mr Todd on the respondent’s behalf.  However, I wish to mention it.  The point was raised by way of a respondent’s notice or cross-appeal, I am not sure which.  It will be recalled that the Recorder had found that PC Griffiths had made an error of judgment but had not been negligent.  There was a good deal of argument at the trial as to whether he had made an error of judgement, as if this was an important issue separate from the issue of negligence.  Mr Todd objected to the finding that there had been any error of judgment. This point was raised in his skeleton argument, although not pursued orally.  It should not, in my view, have been raised because it could never have been material to the issue of liability.  
42.	The reason that I wish to mention this point is that it seems to me that the expression ‘error of judgment’ is capable of giving rise to confusion.  It may connote a culpable mistake; it may not.  In Marshall v Osmond, from which I quoted above, Lord Donaldson used the expression to describe non-negligent driving.  He seems to have thought there must have been an error of judgment simply because the two cars came into contact, even though the cause of the collision was the unforeseen skidding of the police car on loose gravel.  In other circumstances, the term might well be used to describe a negligent misjudgement.  In Simpson v Peat [1952] 2 QB 24 at page 27, Lord Goddard said, in the context of a criminal case of driving without due care and attention: 
“The expression “error of judgment” is not a term of art; it is in fact one of the vaguest possible description: it can be used colloquially to describe either a negligent act or one which, though mistaken, is not negligent.”
43.	It seems to me that the importance that was attached to this expression in the course of the hearing of the present action was quite inappropriate.  What matters in a civil action is whether the defendant’s actions were negligent in that they fell below the expected standard of reasonable skill or care. It may be wise to avoid any argument about whether there has been an error of judgment.    
Lady Justice Arden :
44.	I agree with the judgment of Lady Justice Smith for the reasons that she has given.  On the facts summarised by Lady Justice Smith, PC Griffiths foresaw that Mr Henry would dismount, and the way in which Mr Henry actually proceeded to dismount was a perfectly normal one.  In those circumstances, I have concluded that the performance of the duty to take reasonable care required PC Griffiths to give greater weight to the safety of Mr Henry as he dismounted than he would otherwise have been required to do.  He had to make very quick judgments, but that did not mean that he could not take into account the circumstances as he saw them unfolding in front of him as he drove towards Mr Henry in his vehicle at a low speed.  Had he given greater weight to Mr Henry's safety he would have driven further away from Mr Henry so as to allow him reasonable room to dismount. 
Lord Justice Pill: 
45.	I regret that I disagree in the result but I agree with Smith LJ’s observation, at paragraph 38, that it was the appellant’s conduct which “set the scene and led to the events which followed”.  That conduct is summarised in the Recorder’s judgment by reference to the evidence of the two police officers, PC Griffiths and PC Brandish, which on those matters was accepted and that of the appellant rejected.  
46.	The appellant, having left a party at about 2.45 am wearing black leathers and a black helmet, began a journey on his powerful 1100 cc motorcycle.  His driving attracted the attention of the two officers in their police car.  He rode at speeds of up to 95 mph.  The Recorder found that it was probable that the appellant became aware that there was a police car pursing him.  The appellant accelerated to 95 mph and came very close to colliding with a vehicle on which he was closing.  He then accelerated to a speed in excess of 100 mph and negotiated a bend at over 90 mph.  During the chase, the record of the speed of the police car showed speeds of 103 mph and 98 mph.  The blue lights on the police vehicle were lit and PC Griffiths flashed the headlights as an indication to the appellant to stop.  Passing through the small village of Penn Street the pursing police car attained speeds of up to 64 mph.  The appellant knew of the blue flashing lights.  PC Brandish radioed control seeking to identify the owner of the motorcycle.  
47.	At one stage, the appellant raised his left arm and moved it up and down which PC Griffiths took to mean that he was slowing down and going to stop.  However, he accelerated reaching speeds in excess of 50 mph.  The Recorder found that the police officers legitimately thought that the appellant was playing a trick on them.  
48.	The appellant slowed down, put on his right hand indicator and turned right into a gravel drive area shaped like a horseshoe.  The appellant approached a set of solid wooden gates at the far end.  PC Brandish left the police vehicle but before he could get to the appellant, the appellant nudged the left hand gate open with the motorcycle and accelerated beyond the gate.  The Recorder found that such conduct reinforced the impression of the police officers that the appellant was trying to flee from them and it was not unreasonable for PC Griffiths to think that the appellant would continue to do so.  
49.	The appellant revved his motor and went through into what appeared to be open countryside leaving the officers on the other side of the gate.  The appellant had driven onto his own land but the officers were not and could not have been aware that it was his land.     
50.	Smith LJ has, at paragraph 15, set out the Recorder’s findings as to what happened beyond the gate.  PC Griffiths drove the police car slowly.  As found on subsequent examination, the vehicle’s tyre marks ended about 0.8 metres from the edge of the driveway on which the motorcycle had stopped.  The Recorder found that the distance between the car and the motorcycle was about 3 feet.  
51.	I agree with Smith LJ, at paragraph 35, that the probability is that the appellant dismounted in what is a conventional way, though not the only way.  He put his left foot to the ground and swung his right leg over the saddle and the rear of the motor cycle, pivoting on his left leg.  I agree with Smith LJ’s finding at paragraph 19 as to how, on the evidence, the impact between the car and the appellant probably occurred.  The front offside wheel of the police car did not pass over the appellant’s foot or leg but, as the police car was coming to a halt, his foot was trapped by the front offside tyre.  
52.	I agree with Smith LJ’s findings, at paragraph 26, that it was not unreasonable for PC Griffiths to believe that the appellant might still try to escape and her finding, at paragraph 32, that it was entirely reasonable for the officer to use the vehicle as a means of hindering the appellant’s escape.  PC Griffiths also thought that the appellant might assault PC Brandish.  The officers had not had an opportunity to confer once PC Brandish left the police car.  
53.	That leaves the sole issue in the case, whether PC Griffiths was negligent, when approaching the motorcycle, in failing to leave a gap of more than 3 feet between the vehicle and the motorcycle.  As the Recorder found, the situation was a stressful one.  The officer perceived the appellant to have driven at grossly excessive speeds and to have made determined attempts to evade the police officers.  He had driven onto land the ownership of which was unknown to the officers and gone through a gate into what appeared to be open countryside.  The officer reasonably believed that the appellant was persisting in his attempts to evade the police and believed that PC Brandish was in danger of attack.  Those factors were in his mind and reasonably so.   
54.	PC Griffiths had only a very few seconds in which to make decisions.  In my judgment, his decision to approach very slowly and come to a halt 3 feet away from the motorcycle did not amount to negligence.  Whether or not he knew that the appellant intended to dismount, to leave a gap of 3 feet between the motorcar and motorcycle, though “uncomfortably small”, as the Recorder found, if a swinging dismount were to be attempted, did not amount to such want of care and skill as to render it negligent.  It was the unfortunate coincidence in time between the approach and the swinging dismount which led the Recorder to say that the accident was “sheer bad luck”.  The Recorder’s further remark is apt: 
“[The appellant] put the police officers into a very tricky situation in which they had to make judgments in seconds about what he was going to do.”
55.	I agree with the Recorder that the conduct of PC Griffiths did not amount to negligence.  I would dismiss this appeal. 
56.	I agree with Smith LJ that introduction of the concept “error of judgment” in this context does not assist clarity of thought.  It first appeared in the police investigation report, I suspect to indicate that, with the benefit of hindsight, the officer might have made different decisions.  His conduct is however to be judged in the situation as it reasonably appeared at the time to be.