England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT SITTING AT
NEWCASTLE ON TYNE
(MR. RECORDER S. SPENCER Q.C.)

		Royal Courts of Justice Strand London WC2 Friday, 12th October 2001

Friday, 12th October 2001

1. LORD JUSTICE PILL:This is an appeal against the judgment of Mr. Recorder Sean Spencer Q.C, sitting as a Deputy High Court Judge at Newcastle upon Tyne on 14th November 2000. The judge had tried the issue of liability in a claim by John David Robinson and Michael Mohon, the claimants, against the Chief Constable of Northumbria Police, the defendant. At the material time, the claimants were police constables in the Road Traffic Division of the Northumbrian Police Force.
2. The claimants were injured on 17th February 1993 while driving a marked Rover saloon police patrol car on the A183 road in Sunderland. They were pursuing a stolen vehicle. Near a junction on the road, the patrol car was bombarded with missiles by youths who had been lying in wait for the purpose of throwing them. A half-brick penetrated the windscreen of the patrol car and struck Constable Robinson on the head. He sustained very severe head injuries. Constable Mohon's claim arises from a post-traumatic stress disorder.
3. Attacks on police patrol cars had become commonplace in the northeast of England in the early 1990s. The attacks took two forms. The first was that stolen vehicles were loaded with missiles and, when pursued by the police, missiles were thrown from the sunroofs of the vehicle. The other form of attack was by way of the type of ambush which occurred in this case.
4. There is no doubt that senior police officers were aware of the problem and of their duty to take reasonable measures to protect police officers in patrol cars. Chief Superintendent McLoughlin had responsibility for the police force's fleet of vehicles with particular reference to operational requirements. The day-to-day administration and management of the fleet was with Mr. E. Thornton and he and Mr. McLoughlin were in daily contact.
5. In his statement Mr. McLoughlin described the problems faced by the force and recalled speaking to Mr. Thornton on numerous occasions about the protection of vehicles. That is not surprising because, following a disclosure order requiring disclosure of relevant incidents during the 12 months before the accident, a schedule (Schedule C) was disclosed setting out 85 incidents involving police cars and missiles. In his judgment the judge gave particulars of some of them, which involved eye injuries following a missile striking the windscreen of a moving police vehicle. The schedule also shows two incidents of eye injury which occurred well before the accident - before the 12-month period to which I have referred.
6. In January 1991, Acting Inspector Mathieson had written a memorandum to his superior officer headed "GLASS FRAGMENTS - PROTECTION TO POLICE OFFICERS". He referred to incidents which had occurred as long before the accident as that. He stated:

"In light of this, I see the need to protect Officers from the glass fragments from broken windscreens. Officers have received glass fragments in their eyes and cuts to their body from the glass. .......

In my opinion, I feel that steps have to be taken to ensure the safety of Officers in these situations and I would recommend some action be taken as soon as possible."

7. Chief Inspector Barella responded to the memorandum, stating that Mr. Mathieson had made a valid point. He stated:

"Bearing in mind the problem raised has implications for every driver of police vehicles, the issue is one which ought to be researched properly to determine the validity of the options proposed or the alternatives."

8. The reference to the options is to two suggestions made by Mr. Mathieson, as a layman, and without reference to experts in this field.
9. During 1991, enquiries were made by Mr. Thornton as to protective measures which could be taken, the perceived risk being that from flying glass. In his statement Mr. Thornton refers to visits he made to exhibitions and conferences and to enquiries he made on that subject. There can be little doubt that there was a foreseeable risk of injury to officers on duty travelling in patrol cars by reason of the throwing of missiles. The risk was well known to senior officers in the force. The submission made on behalf of the defendant is that none of the pre-accident injuries involved penetration or rupture of a windscreen by a missile, as distinct from the windscreen being shattered and injury resulting from flying glass. The defendant's submission is that, there having been no previous rupture, It was not reasonably foreseeable that rupture might occur or that appropriate tests as to that possibility should be undertaken.
10. Immediately after the accident, with commendable promptness, a test report was commissioned to consider:
11. "the effectiveness of alternative windscreen assemblies at resisting attack by half brick". The tests were conducted by specialist glass suppliers and they reported on 2nd March 1993 (that is within about a fortnight of the accident) that that when a half brick hit the laminated windscreen in use at the time at 50 miles per hour the result was complete penetration.
12. Immediate steps were then taken to provide stronger windscreens. The specification required was that the windscreen should withstand an impact from a house brick at 80 miles an hour. By 27th August 1993, 28 vehicles were fitted with protective windscreens and 60 more were on order. The cost of the windscreens, including the cost of fitting, was £740 per vehicle and there was no difficulty in obtaining money from police funds. It is accepted on behalf of the defendant that the windscreens fitted after the accident would not have ruptured and the injury to the first claimant would not have occurred.
13. In his judgment the judge stated at page 24C: "We should look, it is said, at the whole history. That the whole history should be looked at rather than the confines of Schedule C, it seems to me is an unanswerable submission, and it follows that when one does look at the entire history, quite plainly questions ought to have been asked in spring or summer of 1991 at the latest as to whether risks were present and what was to be done to resolve them.

"I find that the reasonableness requirements dictate that those enquiries and tests should have been done at that time, that reasonable enquiries would have involved Romag and Tyneside Safety Glass, or firms with equivalent expertise, and that reasonable conduct would have resulted in the protection being supplied to windscreens by some time, say, mid-1992, which we know was supplied by August or a little thereafter in 1993."

14. The judge went on to deal with a further point taken on behalf of the defendant which is also pursued in this court. Reliance is placed upon the judge's use of the expression "the whole history". It is submitted that there is clear evidence of technical and other difficulties which arose by reason of the installation of the new type of windscreen. Attention is drawn to the fact that eventually the force have decided not to proceed with the use of the strengthened windscreen. They have decided to rely upon the type of windscreen used in ordinary road vehicles. What is more, evidence from two other forces (Cleveland and Merseyside) shows that they too are not using the strengthened windscreen. It is submitted that, on the information now available, the failure to install strengthened windscreens by the time of the accident was not a negligent failure.
15. I deal first with the question as to whether there was a breach of duty, on the information then available, in not fitting patrol vehicles such as that involved in the accident with a stronger windscreen. On behalf of the defendant Mr. Robertson Q.C. submits (and it is accepted) that there had been no incident involving the rupture of a windscreen before the relevant accident. The risk which was perceived was the risk of flying glass. It was not negligent, it is submitted, to fail to appreciate and take action upon the risk of penetration of the windscreen.
16. Mr. Robertson also referred to the fact that the windscreens in use at the time of the accident complied with the then current British Standard, as required in the Construction and Use regulations. He does not seek to place reliance on that point when it has to be accepted that police vehicles may be subject to a greater risk of peril than ordinary vehicles on the road. It is for those conducting the particular operation - the operation of police patrol vehicles - to assess the risk to police officers and to take appropriate action in the light of the risk which exists.
17. I am not able to accept the submissions of Mr. Robinson. In my judgment, the judge reached the correct conclusion upon his assessment of risk. There were very many incidents in which missiles were thrown at windscreens and damage resulted. The submission is that the defendant was not in breach of duty in failing to consider the possibility of a rupture of a windscreen. In my judgment, any thought given to this problem in the light of the evidence available would have found it necessary to consider that risk. Plainly there comes a point when a missile is going to rupture a windscreen in view of the type of missiles which hit windscreens. Given the extent of the problem with missiles in the early 1990's, it was the duty of the force to consider, by way of obtaining an expert report of the kind obtained immediately after the accident, the possibility of rupture and the circumstances in which it would occur. The risk could not properly be limited to that of flying glass. Had that test been conducted and had it been realised that a rupture would occur with the windscreens then in use at a speed of 50 miles an hour, it was a foreseeable risk that such a rupture would occur, and that risk should have been assessed accordingly with the result found by the judge.
18. I turn to the submissions made in relation to post-accident events. The first (though pursued by Mr. Robertson only faintly) relates to a question of fact, whether, had the risk been appreciated when it should have been appreciated (a considerable time before the accident), a new windscreen would have been fitted to this patrol vehicle. In my judgment, given the speed with which action was taken after the accident, on the balance of probabilities the patrol vehicle driven by the claimants would have been fitted with a new type of windscreen before the accident occurred.
19. The second question is whether the windscreen should have been fitted. That relates to an issue which I have already considered. The argument is that it was because of the emotional outburst following the very serious accident to the claimants that action was taken on behalf of the Chief Constable. The submission is that it was only because of the accident that the action was taken, and, had the appropriate report and risk assessment been available before the accident but in the absence of the accident, no precautions would have been taken.
20. In my judgment, that submission does scant justice to the responsible attitude which I believe the officers of this force would have taken, had they appreciated the risk. Had it been known to police officers at a time when very many incidents involving moving vehicles were occurring that their windscreens could be ruptured by a missile if they were going at 50 miles an hour, I have no doubt that their views would have been placed before senior officers. Had those views been placed before them, then on the balance of probabilities senior officers would have taken precisely the same action as they took following the accident. The risks involved in the circumstances then existing were such that I do not accept the submission that it took the spur of the accident for precautions to be taken. These precautions would have been taken before the accident, had the risk been appreciated. I add that no evidence was called before the judge to support the submission that the Chief Constable or his senior officers only acted as they did because of the emotional outburst resulting from the injury to the claimants. The post-accident decisions were sound decisions.
21. The third submission is a repeat of the earlier submissions that the Chief Constable was going beyond what it was reasonably necessary for him to do when he ordered the installation of strengthened windscreens. For the reasons I have given that is not a submission I accept.
22. The fourth submission is that subsequent events have shown that the use of the strengthened windscreens was not, in the event, a success. Had the information now available been available to the defendant in 1991, he could properly have made a decision not to install the strengthened windscreens. Subsequent circumstances have demonstrated, it is submitted, that taking an over-all view, the strengthened windscreens were not appropriate. Evidence was before the judge of the problems which arose - problems in relation to visibility and demisting. Evidence was indeed called of police officers stating that in 1997, several years after the accident, they would prefer to face the risk of missiles rather than the limitation of visibility which came with the strengthened windscreens. In the event, the police force decided to abandon the strengthened windscreens and to revert to the conventional type of windscreen; and other police forces, it is said, have taken the same course. So the strengthened windscreens which, on the finding of the judge, should have been installed on the information available in 1991, with the benefit of the present information, should not have been installed.
23. Reference has been made to the decisions as a result of which strengthened windscreens were phased out of use in May 1997. The issue of protective glass was considered by the police authority:

"The Chairman introduced this subject, outlining the issue of the current Force Policy regarding the provision of protective windscreens. The policy is becoming progressively more difficult to maintain due to technological difficulties in bending the windscreen material in three dimensions to fit upgrades of existing models of vehicles in the fleet, as well as new designs of car".

24. Reference has also been made to a more detailed and reasoned decision taken in July 2000.
25. I am unable to accept the submission that the defendant is entitled to rely upon subsequent events to justify the absence of an appropriate decision in 1991 or 1992. When claims such as the present one, based on negligence, are made, there will very often be changes of circumstances between the date of the accident and the date of the trial. These may occur, for example, because of technical advances and improvements in safety equipment. There may be a greater appreciation of the consequences of the adoption of a particular design and of different and other dangers which its introduction involves. There may be a change in the nature and extent of the risk which is presented to police patrol vehicles. On that subject, such evidence as there is shows a much-diminished threat from missiles in later years than that which existed in the years from 1990 to 1993.
26. The change in technology in this case appears from the minute of 1997 to which I have referred. The difficulty which arose was in relation to "upgrades of existing models of vehicles in the fleet, as well as new designs of car." The difficulty of implementing safety measures of course is a factor to be considered when deciding whether the risks involved justify the taking of certain actions. Moreover, it is readily understandable that, with a diminished threat from missiles, officers using the vehicles will consider the difficulties in visibility which may be involved to be greater in relation to the risk which might result from a less strong windscreen.
27. In my judgment, the decisions taken in 1991 and 1992 must be considered in the light of the circumstances existing at that time. It is in the light of those circumstances that the court must form a judgment as to what was the appropriate course of action and whether the course of action (or the lack of action which occurred in this case) amounted to negligence at law. In my judgment, the judge was correct in the conclusions which he reached on all issues, and I would reach the same conclusions. As has been pointed out, this court is in as good a position to assess the issues involved as was the judge.
28. The point is made on behalf of the defendants that the decision is harsh, in that what in 2001 may be a good decision is held by the court to have been a bad decision in 1992. The submission is also made that the present judgment might appear to be a direction to police authorities that additionally strengthened windscreens must be provided. It is no such thing. As I have said, the risks must be assessed in accordance with circumstances prevailing at a particular time. The risks in 2001 must be considered on the basis of circumstances existing in 2001, and it by no means follows that the extent of the risk, taken together with the technical issues involved and with consequential risks which may arise from action being taken, is the same now as it was in 1992. Just as a claimant cannot rely on hindsight to make good a claim by saying that, because accidents happened after his, it follows that the defendant was in breach of duty in permitting his accident, so the defendant cannot rely upon hindsight, in circumstances which may be quite different, to establish that he was not in breach of duty in the circumstances as they existed from 1991 to 1993. Cases have to be determined on the basis of circumstances existing when the relevant events occur.
29. For those reasons I would dismiss this appeal.
30. LORD JUSTICE JONATHAN PARKER: I agree.
31. MR. JUSTICE STEELE: I also agree.
ORDER: Appeal dismissed; costs in the appeal to the respondent, subject to detailed assessment if not agreed; leave to appeal refused. (ORDER NOT PART OF APPROVED JUDGMENT)