England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE CENTRAL LONDON COURT
(His Honour Judge Crawford Lindsay QC)

		The Royal Courts of Justice The Strand London Friday 5 October 2001

Friday 5 October 2001

1. LORD JUSTICE SIMON BROWN: This is the claimant's appeal, brought with the permission of Tuckey LJ against the order of Judge Crawford Lindsay QC at the Central London County Court on 10 January 2001, dismissing his claim for damages for personal injury in respect of an accident sustained on 8 October 1996.
2. The appellant was then a detective constable with 15 years' service in the Metropolitan Police. His claim was against the Commissioner in respect of a disabling injury (which ultimately led to his compulsory medical retirement from the force in 1998) to his left knee, sustained during a refresher course of arrest and restraint training which he and other officers were undergoing at Picketts Lock Sports Centre.
3. The training was originally intended to take place in the dojo room at the Centre (that is, a room with a judo matted floor) but in the event it was moved to a hall with a concrete floor. The officers were training in pairs, and at the time of the appellant's accident they were practising an exercise called the sweep kick. A judo mat was provided for each pair, a mat measuring some 8-10 ft in length by some 3-4 ft in width, and an inch to one and a half inches in thickness. In the course of the exercise the appellant fell to the floor, the side of his left knee landing not on the mat but on the adjacent concrete floor.
4. The central allegation of negligence made by the appellant against his employers is that they provided each pair with only one mat, rather than two. Had two been provided, then the probability is that this injury would have been avoided. The judge below rejected that allegation as one which involved "a counsel of perfection." Mr Millar QC submits to us that this was an erroneous view to take and that, on the contrary, basic good practice and the duty to provide a reasonably safe place and system of work clearly required wider protection, literally as well as metaphorically, than was provided.
5. It will readily be seen that the case falls into the narrowest of compasses and, there being now no issue as the primary facts found by the trial judge, these can be briefly told.
6. The sweep kick technique is one which involves a police officer kicking the back of a suspect's leg so as the more effectively to control him. It is described in the training manual as follows:

"Sweep kicking can be developed from a standing or a ground position. It is important that officers maintain their guard throughout the execution of the sweep kick. The lead foot must rotate first to allow hip torsion to develop in order to enable the kick to be executed. The shin and top of the foot are used for making contact with the target. The target will generally be the lower limbs.

This technique can be used as a distractionary strike or as a means of creating dysfunction in a subject. Striking the correct target area is necessary if dysfunction is the aim of using the strike."

7. On the training exercise in question the appellant was playing the part of the suspect, Sergeant Scales (against whom no criticism is made) the part of the arresting officer. The appellant's role was to face away from the sergeant and, reaching behind himself, to hold a pad down the back of his leg which the sergeant would then kick. The aim of the technique is not to bring the suspect to the floor but rather to unbalance him. The appellant was to put no weight on the leg being kicked and instead to let it react freely. The sergeant was to kick with only 50 per cent of his full force.
8. The appellant fell on the second or third kick. As to that, the judge said:

"I find the accident occurred when Sergeant Scales kicked Mr Cockram, and it was as a result of Sergeant Scales either using more than fifty percent force and/or Mr Cockram not letting his leg move freely as had occurred certainly on the earlier occasions and/or Mr Cockram not using the available space on the mat so as to ensure that if he fell he fell on to the mat. And he in fact for one or other or perhaps a combination of those reasons fell off the mat in the circumstances he described and injured himself."

9. The main witness as to the provision of safety mats was Police Sergeant Clyne, who was called by the defendant Commissioner. The judge summarised his evidence, which he later accepted, as follows:

" .... he said that it was his experience that there was a foreseeable risk that someone undertaking this, and indeed some of the other exercises, could fall to the ground, and mats were a safeguard. He said it would be prudent to provide mats to ensure that trainees fell on to the mats. He said they were provided on the off chance that the officer slipped and fell and went to the ground."

10. That is page 7 of the transcript of judgment. At page 9 appears this:

"I .... accept Sergeant Clyne's evidence that the mats were provided, and that they were provided as a safeguard in case anyone should fall, though it was not expected that anyone would fall during this exercise, the intention only being to put the officer playing the role of suspect off balance. That officer was in any event to use the pad provided for protection, was to put no weight on the leg that was being kicked, and the kicker was to kick using fifty per cent less effort.

Insofar as the mats generally are concerned, given the terms of the manual to which I have referred, there is an argument they were not necessary. But in the light of Sergeant Clyne's evidence they clearly were used for the reasons that he has given and I consider that was entirely appropriate. It was a proper precaution to take for the safety of the officers being trained in case of an accident occurring."

11. The appellant's argument in the case throughout has been a simple one. Even though falls were neither intended nor expected but were merely an "off chance", clearly they were foreseeable, perhaps unsurprisingly given that the object of the exercise is to unbalance the suspect. If it was "a proper precaution to take for the safety of the officers being trained" to provide matting against the risk of an officer falling, why did not that require sufficient matting so as to provide a sufficient area of protection?
12. That point was dealt with by the judge at the conclusion of his judgment as follows:

"Mr Miller .... says that a safe system demanded a mat of sufficient size so that if an officer fell he would fall on to a mat. I reject that submission. That does seem to me a counsel of perfection.

Now I am satisfied that the provision of the mats of the size and type used for this particular exercise for the officers being trained adequately and properly discharged the defendant's obligations to exercise reasonable care for the safety of the claimant and the other officers being trained on this particular occasion in relation to this particular exercise."

13. As stated, Mr Millar quarrels with the view that his argument involves "a counsel of perfection".
14. Mr Nussey, for the respondent Commissioner, understandably stresses the great expertise of the judge below, "a highly experienced judge steeped in this area of the law," and reminds us of the advantages enjoyed by a trial judge in determining issues of this nature. He points out that real suspects in the streets are uncooperative and potentially violent and that an officer needs to be able to practice his techniques in as realistic a manner as possible. There was here, argues Mr Nussey, a balance to be struck between realism and safety. If the exercise is made too anodyne then it will be valueless to the officers practising it. The judge, he says, was required "to make a qualitative decision on the realism-safety balance".
15. The central difficulty with this argument, as it seems to me, is that it was not on this basis that the case appears to have been decided against the appellant. The trial judge did not say (and indeed could hardly have said considering that originally the exercise was to have taken place in the padded dojo room) that realism allowed for one mat but not for two. On the contrary, his description of two mats as "a counsel of perfection" implies rather that two mats would certainly have been better than one, but that that was to ask for too much. Perfection was not something to which the appellant was entitled. All he was entitled to was a reasonably safe place and system of work and that, decided the judge, was what he got.
16. The point is a short one and I can state my own conclusion upon it really very briefly. It is that the appellant's argument here is to be preferred. Given the foreseeable risk of an officer falling on to the concrete floor, and the need to protect against that risk by the provision of matting, it seems to me that two mats rather than one should have been provided. That would have given, in effect, some eight feet square of protection rather than protection as limited as that provided by a mat of only 3-4 ft width. There is no suggestion that the provision of a second mat would have occasioned the least difficulty or that there was any shortage of such mats. To my mind it was plainly desirable and two mats should have been provided.
17. Inevitably one hesitates before differing in one's conclusion on such an issue as this from that arrived at by the trial judge, and in particular a trial judge as expert as Judge Crawford Lindsay. Nevertheless, in this particular case I feel obliged to do so. I would allow the appeal.
18. LORD JUSTICE LATHAM:With the same hesitation expressed by my Lord, Lord Justice Simon Brown arising out of the experience of this particular judge, I agree and would also allow this appeal.
ORDER: Appeal allowed. The order below was set aside and judgment entered for the claimant. Minute of order prepared by counsel. (Order not part of approved judgment)