England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(His Honour Judge Bartfield)

		Royal Courts of Justice Strand London WC2 Thursday 25th October 2001

1. LORD JUSTICE MAY:This is an appeal against two decisions made by His Honour Judge Bartfield in the course of a civil jury trial in the Sheffield County Court in an action between Mrs Patricia Kelly and the Chief Constable of South Yorkshire. The main substance of the appeal contends that the judge was wrong to refuse the claimant permission to amend her particulars of claim. It is additionally contended that the judge was wrong to refuse to leave to the jury a question which in substance depended on the amendment being made. The trial resulted in orders made on 4th October 2000. There was judgment for the claimant for £250. She was ordered to pay 80 per cent of the defendant's costs, the order not to be enforced without permission of the court. The judge refused permission to appeal. Permission to appeal was given by Lord Justice Schiemann. He wrote that it seemed arguable that the judge based his decision to refuse permission to amend on impermissible reasoning. He went on to say, however, that he saw force in the defendant's contentions that there were other strong reasons why the judge was right to refuse permission to amend.
2. The facts which gave rise to the litigation are to a considerable extent uncontentious and may be summarised as follows. On 5th August 1995 the claimant went to a party at 56 Slade Road, Winton, Yorkshire, where she became involved in an argument with her sister. At about 8.40 in the evening Police Constables Hamshaw and Evers came to the house following a call from someone in it. Five minutes later they arrested the claimant for an offence under section 5 of the Public Order Act 1986. In the course of her arrest the police officers took hold of the claimant, placed her arms behind her back and handcuffed her. She was then taken to a police car and put in the back of it, so that she was lying in somewhat of a horizontal position across the rear seat. Police Constable Hamshaw got into the car and sat behind the driver's seat, sitting on top of her feet and lower legs. He did this, according to his own account, to restrain her from violence. Police Constable Evers then drove the car to Rotherham Police Station. During the course of the journey the car stopped suddenly in response to something that was happening in the rear seat and the claimant's body rolled forward. The precise circumstances of this were in dispute. But as a result of what happened the claimant sustained an injury to her left knee. At 10.50pm the claimant was charged with an offence under the Public Order Act and with assaulting Police Constable Hamshaw in the execution of his duty contrary to section 51 of the Police Act 1964. She was then released and taken to Rotherham District General Hospital. She subsequently pleaded guilty to the offence under the Public Order Act together with an offence of obstructing Police Constable Hamshaw in the execution of his duty. The charge of assaulting him was not proceeded with.
3. Arising out of this series of events the claimant brought proceedings against the Chief Constable of South Yorkshire. She alleged that her arrest and detention were unlawful until she arrived at Rotherham Police Station at about 9.10pm. This was on the basis that she alleged that she was not informed of the ground of her arrest until she reached the police station. She further alleged that in the course of her arrest she was assaulted and beaten in that her right arm was pushed up behind her back causing her to scream out in pain. She was then further assaulted and beaten by Police Constable Hamshaw. She claimed that the injury to her left knee was caused by this assault. She claimed damages up to £50,000, including aggravated and exemplary damages.
4. Her particulars of claim included these particulars of the alleged assault:

"(i)The Plaintiff was pushed head first and face down into a horizontal position across the back seat of a police car ... ;

(ii)PC Hamshaw then got into the back of the car and sat upon the Plaintiff's lower legs causing the Plaintiff to scream out in pain;

(iii)during the journey to the police station the Plaintiff attempted and eventually managed to pull her legs from underneath PC Hamshaw whereupon PC Evers, who was driving the police car, stopped the police car and said `give her some hammer';

(iv)the back of the Plaintiff's left leg was then struck by PC Hamshaw and at the same time her body twisted on top of her left foot which had become caught;

(v)the Plaintiff was then dragged out of the police car by her arms and manhandled to the charge desk at the police station by PC Hamshaw and PC Evers."

5. The case proceeded and the evidence was called over the first three days and part of the fourth of the trial. At the end of the evidence there was an extended discussion between the judge and counsel as to a number of matters, including the questions to be put to the jury. The state of the evidence was that the claimant had given evidence in support of her particulars. Her evidence included that she had been assaulted by Police Constable Hamshaw when she was in the car at a time after she had managed to pull her legs from underneath him. Police Constable Hamshaw's evidence was that he did not assault her by hitting her. He was not sure whether one or both of her legs were trapped beneath him at the time when the police car stopped. She may at that time have got both legs free (day 4, p.45G). He did not know whether she had one or two legs free. He may still have been sitting on one (day 4, p.48G). In these circumstances counsel for the claimant wanted to advance in the alternative a case based, not upon the claimant's evidence, but upon the case that Police Constable Hamshaw was sitting on her legs throughout. The medical evidence was consistent with this, but equally consistent with her leg having been caught by some other means after she had got free, which was her evidential case. The proposed alternative case essentially was that the claimant's knee was injured when the police car stopped suddenly at a time when Police Constable Hamshaw was sitting on her legs and when, as a result of the sudden stop, her body twisted forward. The contention, as I understand it, would have been that, since it was alleged that sitting on her legs constituted excessive force and was therefore an assault, that was a cause of the postulated injury to her knee. Wishing to advance this alternative case, the claimant's counsel wanted the jury to be asked the question:

"Has Mrs Kelly satisfied you that Police Constable Hamshaw was sitting on her left foot when she sustained injury to her left foot?"

6. Counsel for the defendant objected to this question being asked on the basis that it was nowhere part of the claimant's pleaded case and that it was a case that was clean contrary to her own evidence.
7. In the course of discussion with the judge on the fourth day of the trial the claimant's counsel accepted that, for the pleaded claim to succeed, the jury had to accept that Mrs Kelly was struck (p.26A). Counsel for the defendant, and indeed the judge, suggested that the alternative case was more a case of negligence, which was not pleaded, than assault (p.27). The claimant's counsel accepted in terms that this was a pure assault case (p.28). Other matters were discussed that afternoon, which was a Friday, and the case was adjourned until Monday 2nd October 2000. There was then further extended discussion. At one point the judge pointed out to the claimant's counsel that essentially what was being said against her was that the proposed alternative case was not the claimant's case. What was proposed was to swerve round the difficulties in the evidence, as the judge put it, and put it on an alternative basis. The judge suggested to the defendant's counsel (p.8) that there were occasions when it was permissible for a party to adopt an alternative case to be derived from the evidence as a whole. Mr Shannon, who appeared for the Chief Constable on that occasion, agreed that this might sometimes be possible but, as he said, there are limits. It would not, he submitted, in the present case have been just for the claimant to invite the jury in effect to disbelieve an important part of her case but to find in her favour on the basis of the evidence of a police constable whom she had called a liar. She had not been cross-examined or tested on that alternative case at all and that, submitted Mr Shannon, must be unfair. Mr Shannon submitted that the alternative case simply was not pleaded and was a complete reversal of the case which was. He submitted that it would be wrong, when all the evidence had been called, to leave him to address the jury simply on the basis that the case now relied on was not that which had been advanced in evidence.
8. In the result, the judge came to the conclusion (p.13) that the proposed alternative case was a different case from that which was pleaded. The pleaded case was, he said, a straightforward assault and battery case. If the claimant's counsel wanted to change it, she would have to apply to amend and the judge wanted to see the amendment because he wanted to be clear about it. Accordingly, after lunch Miss Middleton, who appeared for the claimant, applied for permission to amend and presented a draft amendment. Mr Shannon objected. He emphasised, without restating it, the prejudice which he had mentioned on the previous afternoon. He said that the situation would become unreal without him being able to cross-examine the claimant on the case which her counsel now wanted to present. He said that the amendment was too late and too radical. He said that the proposed amended case would not sustain liability. Injury to the claimant's knee resulting from the police car being stopped suddenly might possibly sustain a claim in negligence (for which there would be insurance considerations) but would not as a matter of causation sustain a case of assault. In the result, the judge refused permission to amend and declined to leave the consequential question to the jury. He gave his reasons later, on day 7, just before he began his summing up to the jury.
9. On that occasion the judge first restated his view that the alternative case could not be found in the original pleading. He then recited the proposed amendment in these terms:

"Paragraph (iii): during the journey to the police station Police Constable Evers who was driving the car braked suddenly, stopped the police car and said `Give her some hammer'.

(iv) as the car braked and came to a stop the plaintiff's body rolled forward and her body twisted on top of her left foot which was trapped under Police Constable Hamshaw who was sitting upon it thereby causing her to sustain injury to her left knee.

(v) further, as the car braked and came to a stop the back of the plaintiff's leg was struck by Police Constable Hamshaw and at the same time her body was twisted on top of her left foot which was trapped by Police Constable Hamshaw who was sitting on it thereby causing her to sustain injury to her left knee."

10. The judge then said:

"There, at least, the pleading would conform to the version of evidence which the claimant would now ask the jury to consider, but an objection was taken to (iv) on the basis it was contended by the defendants that if the injuries were caused by the motion of the car braking whilst Police Constable Hamshaw was sat on the claimant's leg that was not really an assault at all because nobody contended that the braking by Police Constable Evers was a deliberate use of force on the claimant. That braking occurred in circumstances where - and this much is not contested - there was a shout from the back of the car by, or a noise from the back of the car from Police Constable Hamshaw which occasioned Police Constable Evers to stop the car very suddenly. That sudden stopping of the car was the effective cause of the twisting, it was an unforeseen and unexpected event, it was unanticipated and unrelated to the sitting on of the claimant's leg by Police constable Hamshaw and was on the basis of the evidence substantially an accident rather than an assault and so I came to the view that the application to amend by virtue of (iv) should be refused as I decided. I did however leave (v). Before I depart with that it was on the basis of my refusal of the amendment at (iv) that I re-affirmed my decision not to allow the question to which I made reference earlier to go before the jury."

11. The effect of the jury's decisions, once the judge had summed up, was that they were satisfied that Police Constable Hamshaw told Mrs Kelly in Slade Road that he was arresting her for an offence under section 5 of the Public Order Act. Accordingly, her case for unlawful arrest and detention failed. The jury were not satisfied that Police Constable Hamshaw forcefully pushed Mrs Kelly's right arm up the back of her neck. Accordingly, that part of the assault case failed. They were not satisfied that Police Constable Hamshaw deliberately struck a blow at Mrs Kelly's left leg thereby unlawfully assaulting her. Accordingly, that part of her assault case failed. They were, however, not satisfied that the police constables used no more force than was reasonably necessary in placing her across the rear seat of the police car, nor that Police Constable Hamshaw used no more force than was reasonable by sitting on Mrs Kelly's legs. On this much reduced basis the assault case succeeded. Her damages were agreed thereafter at £250. In the main, the claim failed. The main part of it - that is, that the alleged assault caused the injury to her left knee - failed entirely.
12. The claimant's essential ground of appeal is that the judge's stated reason for refusing permission to amend was wrong in law. The submission is that, if the claimant was injured when the police car stopped suddenly at a time when Police Constable Hamshaw was sitting on the claimant's legs, the judge was wrong to say that the sitting on her legs was not a cause of the injury. Since, on the jury's finding, the sitting on her legs constituted unreasonable use of force, that was capable of sustaining her claim. Miss Middleton submits that the judge applied the wrong test to the issue of causation. It was only necessary for the claimant to establish that the assault - that is, the sitting on the claimant's legs - was a cause of her injury. It was not necessary for her to establish that it was the cause. Miss Middleton refers to Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360 and Thomas Chapman v Tangmere Airfield Nurseries Ltd (9th November 1998, unreported). She further submits that the judge, having applied the wrong test, ignored medical evidence which supported the claimant's contention that the trapping of her left foot was one of the causes of her injury. She submits that, although the alternative case did not accord with the claimant's evidence, it was a possible version of the facts if the police constables' evidence was accepted. She should have been entitled to rely on this possibility in the alternative.
13. In written submissions Mr Shannon submitted that the judge was right not to allow the question to be put to the jury and right not to permit the claimant to amend the particulars of claim. It was not, and never had been, the claimant's case that the officer had been sitting on her left foot when she sustained injury to her left knee. Her case had been that the injury had been caused by being struck a heavy blow behind the knee deliberately by the police officer, which she had variously described as being struck with a truncheon, another hard object or a kick. Mr Shannon said that she never came remotely close to suggesting that her injury had been caused by the officer sitting on her leg or that the officer was sitting on it at the time of the injury. Although the defendant explored with her and her medical witness the possibility that she had sustained the injury when rolling forward when the car braked, she continued to insist throughout that her injury was caused by a deliberate blow. It would not have been appropriate to invite the jury to make a finding of fact completely contrary to the case which had been run and which could only be arrived at by disbelieving the claimant and finding her to be dishonest. Mr Shannon submitted that it was unclear how a statement of truth could have been appended to the amended pleading when the claimant was adamant that the proposed amendment was not the true version. It would have been unfair to allow the amendment at the time at which it was applied for - that is, after all the evidence had been called. The claimant had not been cross-examined in circumstances where that was her alternative pleaded case. She untruthfully brought a case based on deliberate assault and chose to bring an action claiming aggravated and exemplary damages. Mr Shannon further submitted that the judge was right to conclude that the proposed pleading would not have sustained the pleaded cause of action. The jury's finding that the police inflicted more than lawful force related to putting her on the back seat and sitting on her feet. No injury was claimed for either of these. The much greater force of being thrown forward and rotated by the car's deceleration was an entirely independent application of force, was not intentional and had a character and quality different from sitting upon her feet. In any event, this issue had not been explored at all in the evidence since it was not the claimant's case and it would have been wrong to ask the jury to make conclusions on a case which had never been run and where the witnesses had not been asked the relevant questions.
14. Mr Powell has appeared before us today in place of Mr Shannon. He made realistically brief submissions in support of the judge's supervening "cause" reason for refusing permission to amend. Mr Powell accepted that, if the assault occasioned by sitting on the claimant's legs was a cause of the injury, this would be sufficient in law for her alternative case to succeed, if the facts were established. But he submitted that the necessary supervening event breaking the chain of causation was made out and that the judge was right so to decide. I disagree. It is obvious that an unrestrained passenger in the back of a car may be thrown forward if the car suddenly brakes hard. Passengers often have findings of contributory negligence made against them if they are not wearing seat belts. The postulated case here is, in a sense, the converse of that. It is, in my view, equally obvious that the throwing forward may occur and cause twisting if the passenger is restrained by their legs. For my part, I would have thought that the braking of the car would not, on these facts, have broken the chain of causation. But however that may be, I am sure that the judge was wrong to decide this question summarily in the way that he did.
15. Since this was the only stated reason for exercising his discretion as he did, it is open to this court to review the exercise of discretion afresh.
16. On the question of discretion, Mr Powell relied on the matters in Mr Shannon's written submissions, which he helpfully boils down to three essential points. First, he submits that, if the alternative case had been pleaded from the outset, a submission of no case could, and probably would, have been made at the close of the claimant's evidence. At the time she closed her case there would have been no evidence to support the case, so the alternative claim would, submits Mr Powell, have been struck out. I am quite unpersuaded by this. The alternative claim could have been put on the basis that, if, contrary to the claimant's case, the defendant's case as to Police Constable Hamshaw sitting on her legs was correct, the alternative case arose from the assault constituted by the sitting on her legs. That would not have been struck out. It would have been left to await the factual outcome.
17. Mr Powell's second summary submission depends on the defendant's insurers for the assault, on the one hand, and for Police Constable Evers' driving, on the other, being different. He submits that it may have been possible to join Police Constable Evers in the proceedings to determine where the insurance risk should lie and, if necessary, in what proportions. I am quite unpersuaded by this. The defendant in each case was the Chief Constable and, granted that insurance problems might arise, I consider it quite unrealistic to suppose that any court would have permitted this essentially internal matter to have been brought into these proceedings for decision.
18. Mr Powell's third and, to my mind, more persuasive submission is that, if this case had been brought at the outset, the evidence and the way in which the case would have been conducted would have been different. The defendant's counsel would have cross-examined the claimant differently or more extensively. Mr Powell accepts that the additional cross-examination might not have been great, but there was a possibility that he would have cross-examined by reference to the alternative case. I have some sympathy with this submission, but Mr Powell was realistic in accepting that the extent of further cross-examination would not have been great. It would no doubt have included some teasing of the claimant that this alternative case was not her case and some questions directed to establishing exactly what her case was. But importantly, Police Constable Hamshaw could not have given much, or any, further evidence on the question of whether he was still sitting on her legs when the car stopped; and the medical evidence was, as I have said, consistent with either version of the twisting, but inconsistent with the blow which the claimant alleged. Given that the application to amend was made at a very late stage, and given, as I think, that there is some substance in this last point made by Mr Powell, I do not think that the grounds for refusing permission were sufficient to outweigh the justice of permitting the claimant to advance an alternative case based upon, or close to, the defendant's evidence. Whether that case would have succeeded on the facts taken as a whole is another matter and I do not think that this court can proceed to decide the issue, as we are asked to do, in the claimant's favour.
19. For these reasons, but not without hesitation, I have concluded that the judge was wrong to refuse permission and I would allow the appeal and permit the amendment. I am strongly inclined to think that the time is past for asking the jury to rule on the question of fact and other means must be found of taking forward the consequences of this decision, if my Lords agree with it.
20. LORD JUSTICE SEDLEY: I agree.
21. It is not uncommon for a version of the facts to emerge as a possible deduction from the evidence which has so far been neither side's pleaded case but which one side wants now to plead as an alternative basis, either of liability or of defence. In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of witnesses, this can be done without injustice to the other party or parties.
22. The learned judge, I agree, gave no adequate reason for refusing permission to amend. Looking afresh, as we therefore must, at the application in this court, like my Lord I see no adequate reason to refuse, notwithstanding the late stage at which the application was made. Indeed, it might be said with cogency that, although it was late, it was in the circumstances of a case such as this the appropriate stage at which to seek such an amendment.
23. I therefore agree that the appeal succeeds.
24. LORD JUSTICE RIX: I agree with both judgments.
Order: appeal allowed; permission to amend given in the terms applied for; the jury's findings to stand; trial to continue without a jury before the same judge; application to be made within 14 days to list the matter before the trial judge for directions; defendant to pay the claimant's costs of this appeal, to be assessed if not agreed; costs order below set aside, that matter being left to the trial judge to re-determine at the conclusion of the resumed hearing; assessment of claimant's public funded costs.