It’s A Fair Cop But Now I’ll Sue You!

I am grateful to Douglas Brodie of Strathclyde University for highlighting the otherwise unreported recent case of Wyatt v Chief Constable of Nottinghamshire.  The claim arose when the Mr. Wyatt riding a bicycle sought to flee an approaching police car "at least in part to avoid the detection of cannabis”. As he rode down the pavement PS Craig drove alongside him with parked cars between them and repeatedly asked Wyatt to stop but he did not. PS Craig pulled onto the pavement ahead of the claimant outside 106 Dalestorth Road in order to stop him. The officer stopped his car a little way from the wall and started to get out to confront the claimant on foot. In the heat of the moment he forgot to put his vehicle, an automatic, into park or neutral. It seems he probably also failed to apply the handbrake because the car moved forward a short distance fairly slowly and struck the claimant’s bicycle. The car then pushed through the wall, dislodging part of it, and the claimant fell off his bicycle, Both the claimant and his bike ended up in the front garden of number 106.

As a result of the accident the claimant suffered some minor injuries and his bicycle was damaged. In advance of the trial, quantum was agreed in the sum of £4,068.96. The trial judge "rejected a defence based on the illegality of the claimant’s conduct”. There was no challenge to that ruling. He also ruled that if the claimant succeeded there would be a deduction of 50% for contributory negligence. There was also no challenge to that ruling.

The Legal Framework

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 provided the legal framework: "Lord Reed, at paragraph 55, said that the police do not enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. The key principle can be summarised by saying that a police car driver owes the same duty to third parties as any other driver, namely to take such care as is reasonable in the circumstances. “However, the nature of police work is such that the circumstances of an accident involving a police car may be significantly different from those of an accident involving a typical motorist. For that reason, unrealistically demanding standards of care should not be imposed on  officers, especially in situations where they must make critical decisions with little or no time for considered thought."

The Outcome

It was found that "the officer’s relevant act or omission was not an ‘error of judgment’. In that regard it was different from, for example, the act of braking too hard and causing a skid in the case of Marshall v Osmond …. It was instead a pure omission to do what any driver would be bound to do when parking and leaving the car. And it makes no difference to describe it as ‘momentary’. If exactly the same accident happened in ordinary circumstances, for example if the officer had pulled over to look at a map or make a telephone call but then allowed his car to roll into a pedestrian, liability would be wholly inevitable".

As a result, the claim was successful: "the Judge’s reference to difficult circumstances and to the ‘heat of the moment’ was, no doubt, a factually correct explanation for how that very basic driving error came about, it is not a sufficient legal reason to deny liability for it. If it were, it would suggest that officers when attempting to effect an arrest, even in these relatively mundane circumstances, can be excused from the duty to take even the simplest precautions. That would sit very uneasily with the outcome of Robinson, where the undoubted ‘heat of the moment’ of an attempt by multiple officers to arrest a violent suspect did not excuse a failure to spot the elderly pedestrian at the key moment."

Analysis

The case law is somewhat divided on the duty owed (if any) to a fleeing suspect. Ward v Chief Constable of Greater Manchester [2024] EWHC 1297 (KB) did "not accept that Vellino goes so far as to say any positive action, or failure to stop that positive action does not give rise to a duty of care where a person is fleeing arrest". A claim in negligence in Ward itself was based on the activity of an overzealous police dog and was not struck out.

A different approach had been taken in Davis v Commissioner of Police of the Metropolis [2016] EWHC 38 (QB) which held that a suspect who was injured in the course of an arrest could not sue. There, the claimant, who was suspected of having a gun, was shot by the police. He raised an action in negligence relating to the planning and briefing of firearms officers and the relaying of intelligence in the course of a police operation. It was held, given the decision in Hill v Chief Constable of West Yorkshire [1989] A.C. 53, that the police did not owe him a duty of care.

Forbes Comment

I would agree with the view expressed by Douglas Brodie that, post Robinson, it is likely that a duty of care would now be owed to a fleeing suspect. Not an outcome, I imagine, that will sit well with most of the general public and certainly not with the police. Indeed, as Brodie notes, the outcome in the Wyatt case is likely to lead to lawyers who are called upon to defend police officers in such circumstances, invoking policy arguments of the sort that Lord Reed sought to banish in the Robinson case.