England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE CRAWFORD-LINDSAY, QC)

		Royal Courts of Justice Strand London WC2 Thursday, 10th May 2001

Thursday, 10th May 2001

1. LORD JUSTICE TUCKEY: The applicant, Perry John Cockram, renews his application for permission to appeal from the judgment of His Honour Judge Crawford-Lindsay, QC, who in the Central London County Court on 10th January 2001 dismissed his personal injury claim against his employer, the Commissioner of Police for the Metropolis.
2. The claim arose out of an accident on 8th October 1996 at the Pickett's Lock Sports Centre where the applicant, a detective constable at the time, and a number of other officers were undergoing mandatory arrest and restraint training. It was common ground that the applicant fell to the floor and badly injured his left kneecap whilst practising a technique called "the sweep kick." This involved the arresting officer kicking the back of a suspect's leg so as to distract him or cause him to lose his balance or, in the words of the police manual, "create dysfunction", whatever that means.
3. In the training exercise the applicant was playing the part of the suspect and another officer, Sergeant Scales (against whom no criticism was made), the arresting officer. He was not meant to kick too hard and the applicant was not intended to fall but to absorb the kick by using a pad for protection and not to put weight on the leg which was being kicked.
4. The judge found that the accident happened in the great hall which had a concrete floor and the injury was sustained when the applicant fell onto the concrete. However, a judo mat, 8 to 10 feet long and 3 to 4 feet wide had been issued to each pair because (as the sergeant responsible for the training exercise accepted in cross-examination) there was a risk that someone would fall even though that was not intended and so it would be negligent not to provide mats to avoid the risk of injury from such a fall.
5. Having reviewed the evidence and made a number of findings of fact about which there is no criticism the judge said:

"... I find the accident occurred when Sergeant Scales kicked Mr Cochram, and it was as a result of Sergeant Scales either using more than fifty per cent force and/or Mr Cochram not letting his leg move freely as had occurred certainly on the earlier occasions, and/or Mr Cochram 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.

Mr Millar, of Queen's Counsel, acting on behalf of the claimant, Mr Cochram, 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."

6. It is the second paragraph of this passage which gives rise to the application for permission. Mr Millar submits that the employer's duty extended to providing a mat or mats of sufficient size to cover the area where the suspect would or might fall. The judge appears to have rejected this submission as being a counsel of perfection. If that is what the judge is saying then I agree with Mr Millar that there are clearly grounds for appeal. But as I said when I refused permission that passage:

"Has to be read with the preceding and following paragraphs where the judge says that the mat was of sufficient size and the claimant may have fallen on the concrete because he had not used the available space on the mat. I read the middle paragraph as saying simply that the defendants were not required to provide a mat of such size that however or wherever the claimant fell he would not land on the floor."

7. Taking account of this view of what the judge meant in his submissions to me this morning Mr Millar has said even if I am right that is not good enough. The risk of injury here was accepted. It could have been avoided very simply at no costs to the employer because there were apparently an unlimited number of mats available in this hall and there would have been no difficulty in providing each pair with a pair of mats to ensure that the area covered by mats was sufficiently large to prevent injury however the suspect came to fall. It was not safe to predict that the suspect would only fall in a straight line – and so a single mat only 3 or 4 feet wide was not sufficient to guard against the risk that the suspect might fall sideways and, if he did so, fall and injure himself badly on the hard concrete floor.
8. With some hesitation I think this argument does give the applicant a sufficient prospect of success for permission to be granted. The threshold is "real prospect", which in this context means simply more than fanciful. I think that the applicant does cross this threshold contrary to the view I formed when I considered the matter on paper. I also bear in mind that the injury he suffered has had serious consequences. I should make it clear however that the view I originally expressed may well prevail when the full court considers this matter and hears argument from the Commissioner.
9. In those circumstances I will grant permission.
(Application granted; no order for costs).