England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
(HHJ SPENCER)

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		14th July 2009

Lord Justice Longmore:

1. The claimant and respondent in this appeal, Mr David Hunter, born on 7 February 1960, is by occupation a Police Sergeant. He serves in the West Yorkshire Police and has been a police officer since 1985 and was promoted to the rank of Police Sergeant and has held that rank since 1997. The claim which he has brought against the Chief Constable is a claim for personal injury suffered by him in the course of a training exercise which took place at the Eccleshill Police Station in Bradford on 3 February 2004. The exercise in question is one to which police officers were subjected on a more of less annual basis, and was described as the Defensive Tactics Refresher Course.
2. HHJ Spencer largely accepted Mr Hunter's account of what happened in the course of the exercise. The first element was that one officer would get hold of a notional offender and bring him to the ground. The second element was what has been described as a blocking and punching routine. Both these operations were one-to-one and had been previously demonstrated to the police officers in attendance by the instructors, Mr Harrison and his assistant, Mr Goodwin.
3. The injury occurred during what was a new routine for the officers and was the third element in the exercise. It has been called by various names; the phrase "fighting arc" has been used and the phrase "clock" has been used, and I shall refer to it as the "clock" exercise. Importantly for the purposes of this appeal, there was no previous demonstration of the exercise. What it involved was a notional circle with the notional offender in the middle of the circle, and Police Sergeant Hunter volunteered to be that notional offender. Four other officers were stationed at approximately 12 o'clock, 3 o'clock, 6 o'clock and 9 o'clock positions. The instructors initially ordered Police Sergeant Hunter to become aggressive towards the 12 o'clock man.
4. There is then, not surprisingly, a degree of confusion about the evidence of what actually happened; but it is clear that the injury which occurred to Mr Hunter occurred at the beginning part of this third part of the exercise. The exercise was noisy because the participants were encouraged to shout the sort of things that police officers do shout to an offender, and it seems likely that there was a general order at some stage of "Get him to the floor". Either Mr Hunter's right foot was turned somewhat outwards or his right foot was facing forward but his torso was facing outwards. Mr Hunter thought at one stage that some or all of the officers jumped on him; and he felt, as he put it, his right knee pop out of its socket as he went down to the floor, and he was in considerable pain. However, he also said that he could not remember the incident in detail, and in fact the only reliable evidence of actual contact with Mr Hunter was from PC Moore, who was approximately in the 9 o'clock position. Mr Hunter sustained a most unpleasant injury to his anterior cruciate ligament, which required a graft from his hamstring for the ligament to be reconstructed. That took some weeks, and the damages, if there is liability, are agreed at £10,500.
5. Mr Hunter's case is that there ought to have been a prior demonstration or instruction to ensure that any injury during this exercise, which was new to the officers, was kept to a minimum. The defence say that no officer used excessive force at any stage and that the injury was just an accident of a kind that can happen in the best regulated training exercise. They also say that it was deliberate that there was no prior demonstration and instruction in relation to the exercise as such because the officers were supposed to use their own initiative, although on the basis already given during the exercise in getting the offender to the ground and in the blocking and punching routine.
6. The judge decided that the Chief Constable was in breach of his duty of care because there was no prior demonstration or instruction of the clock exercise. He expressed his conclusion, after setting out the facts and the arguments, quite shortly in paragraph 30 of his judgment in this way:

"I make the decision which I come to on the basis of the uncontroverted evidence that no instruction or demonstration was given to those who were placed at the various points on the clock face as to the various ways in which it would be appropriate to interact with each other and with the bad man in the middle."

7. The Chief Constable now appeals and says that the judge's conclusion was wrong because it was reasonable not to have given any specific demonstration or instruction for the clock exercise beyond the training which the officers had already received in the techniques earlier that day. The instructors would not be expected to say expressly that an attack by a number of men is more likely to cause injury than an attack by one man; nor was it appropriate to give instructions on the moves to be done if the exercise was to have any realism to it. Secondly, it is said on the Chief Constable's behalf that, even if there had been a previous demonstration or instruction, there was no guarantee that the accident would not have happened in any event, and that the claimant has not proved that his injury is to be attributed to the breach of duty which the judge found.
8. It is perhaps of some importance, in considering this case, to recall that the only evidence of actual contact with the claimant at the time of the injury was the contact of Police Constable Moore at approximately the 9 o'clock position. There was some evidence of other officers closing in, but no evidence of actual contact by them.
9. Mr Foster for the claimant submits that neither Mr Moore nor any other officer had been given any demonstration or instruction in relation to minimising any injury during the clock exercise, that Mr Moore came from the side rather than behind and that, although the morning's exercises had demonstrated the technique of getting an offender to the ground from in front and behind, there was something inherently dangerous in an attack from the side from about the 9 o'clock position. That submission is a considerable amplification of the simple way in which the judge decided the case, which was to say that it was sufficient for liability that no demonstration or instruction was given.
10. To my mind, neither the judge's decision, nor Mr Foster's amplification of it, are satisfactory. There is no doubt that the officers had been trained in getting the notional offender to the ground in the earlier exercise. It seems to me that the defendant was not in breach of duty in failing to give a demonstration or instruction in relation to what was essentially not a very different exercise from that conducted earlier in the day. It is axiomatic that offenders who are potentially violent can be faced with more than one police officer in different positions. An exercise in how to bring such a person down cannot be choreographed in advance if it is to have any degree of realism to it. In my view the senior instructor, Mr Harrison, dealt with the matter in a very convincing way in the course of the following question and answer in his cross-examination:

"Q. And maybe one-on-one it would be fine, but here you were adding an additional element of danger because you had gone from one person to four officers potentially dealing with this particular assailant, and there is the scope, is there not, for there to be confusion between those officers if the situation is not controlled and managed effectively, and those officers do not really know what they are doing?

A. With regards to this situation here, scenarios generally speaking are in a controlled environment, but you do not give them specific instructions … The reason for that is that I cannot relate what an aggressor would do in a given situation and where an officer particularly might be. If one officer gets thrown with -- say the aggressor throws him away with one arm, that officer might be in a completely [different] position to how I would actually describe it to him or to her, so you can't be too prescriptive about a scenario."

11. It is said that none of the officers knew what they were supposed to do in the exercise in the absence of a demonstration or instruction. But the fact is that Mr Moore did have a good idea of what to do, since he did proceed at a particular point of the exercise to bring Mr Hunter to the ground. In the course of so doing, this most unfortunate accident occurred; but that is what it was, an unfortunate accident, and cannot to my mind be said to have arisen from any breach of the defendant's duty of care.
12. In coming to this conclusion I have been somewhat assisted by the two Scottish cases to which Mr Skelt refers and which related to training exercises not wholly different from that with which we are in this case concerned. In Brisco v Secretary of State for Scotland [1997] SC 14 an injury occurred in the course of a training session for prison officers. They were required to go up a narrow stairway with their shields while objects were being thrown down the stairs. A heavy fencepost was dropped, and an officer sustained a serious injury to his foot. But the Lord Ordinary had concluded that the risk of injury was slight, and the Inner House agreed with that, saying of that slight injury at page 18 of the report:

"That risk, however, still has to be balanced against the other matters to which we have referred in determining whether or not the Prison Service failed to exercise reasonable care. It is true, as was submitted on the reclaimer's behalf, that an instruction to prohibit the use on a stairway of heavy missiles, such as that which struck the reclaimer, could have been given without trouble or expense. However, the whole purpose of the exercise was to give to the trainees realistic experience of the conditions with which they might be faced in a genuine riot, and there was ample evidence to indicate that the use of heavy missiles was required for that purpose. There was also evidence which strongly indicated that an essential part of the training involved the use of stairs so as to simulate a situation in which officers would have to climb a prison stairway while maintaining cover."

In Grant v Chief Constable of Grampian Police [2001] Scot CS 101, injury was sustained to the forearm of a police officer in the course of a police training exercise dealing with the defensive use of police batons. In dismissing the claim, Lord Johnston said at paragraph 17:

"I am satisfied that considerable care was put into the formulation of the course. The issue of the volume of force was addressed, as was the question of technique, to a substantial if not total extent. I recognise that realism, so far as it could be reasonably achieved, was essential, and that therefore what had to be balanced was the sufficient degree of force to create a realistic position against the risk that excessive force might cause an excessive injury."

Both these Scottish judgments recognise that if a training exercise is to have any degree of realism, which it surely should, it cannot be demonstrated or structured in advance; a choreographed exercise would not be a useful one.

13. Mr Foster relied on some remarks in the evidence of the officer currently in charge of the safety of officers in West Yorkshire, Mr Oldright, to the effect that if things were wrongly done in the course of an exercise, such as the clock exercise, that could be put right in a debriefing session; and Mr Foster submitted that that was not good enough. As he put it in the course of his submissions:

"If no instructions are given, there is a risk of confusion and injury."

The judge agreed with this submission, saying that it was not appropriate for the matter to be approached on the footing of dealing with problems as they arise.

14. This is not, to my mind, a fair overall way of looking at the evidence as a whole. It was accepted by Mr Hunter that the officers were intending to use the technique which they had practised earlier that day. He also accepted, as did other officers, that the officers had been told not to injure anybody so far as they could in any of the training exercises which they were asked to carry out. Moreover, the Deputy Instructor, Mr Goodwin, encapsulated the situation during his cross-examination by Mr Foster, as can be seen in the following exchange that we have at page 143 of our bundles, page 63 of the transcript:

"Q. Every time you introduce one of these elements of aggression -- one officer, two officers, three officers or four officers -- you are bringing into the scenario something that had not been covered, had not been taught, had not even been discussed. And that in itself, does it not, lead to the potential for confusion?

A. No, I disagree.

Q. All right, does it not lead to the potential for exposing the participants of that scenario to harm because they do not really know what they are doing?"

A. I disagree, again.

Q. Why do you disagree?

A. Because, as I have already highlighted, the fact that all the techniques are available to them -- all the recognised and approved techniques that are available, and are options available for officers to use, they are then -- they are taught all those. They are put into a scenario situation, and they are told we cannot stage manage it. We can't. We can't take them -- or through -- or through a walkthrough, a talk through about scenario, because basically we would -- we would then be telling them what they must or must not do. We cannot do that as trainers. We give them a range of options that are available. We then tell them they can use those range of options that are available depending upon what they deem to be appropriate and reasonable. So we cannot stage manage a scenario and tell an officer what he or she must or must not do."

15. So although one has every sympathy for Mr Hunter in relation to his injury, I cannot for my part attribute it to any breach by the Chief Constable of his duty of care, let alone to the breach found by the judge of failing to give a demonstration or instruction before the clock exercise was carried out.
16. For my part, I would therefore allow this appeal.
17. I would add that even if this were wrong, I would hold that the claimant has not proved that the breach of duty on which he relies caused his injury. If there had been a demonstration or instruction as to how the officer at 9 o'clock or any officer should conduct himself during the exercise, the likelihood must be that there would still have been contact between one of the officers and claimant. If the claimant had been caught off-balance, the knee injury would probably have been the same. The judge merely said as to this aspect of the matter that the knee injury was not something that occurred spontaneously for reasons unconnected with the exercise. That, of course, is true; but the injury has to be connected with the breach of duty, not with the exercise, before damages can be recoverable. If the Chief Constable had performed his duty to the hilt, the likelihood must be that the injury would have happened anyway.
18. Recognising, however, that there must be an element of speculation about this, I prefer to base my decision on the fact that there was, in my view, no breach of duty in the first place; and it is for that reason that I would allow this appeal.

Lord Justice Toulson:

19. I would uphold the judge's judgment. I consider that on the evidence before him it was open to him to find that there was negligence and it was causative of the respondent's injury. I take the two elements in turn, but I agree with my Lord, Lord Justice Longmore, that the principal issue is the negligence issue.
20. As to that, the background was that the officers had in the morning been practising techniques which involved one officer disabling the pretended offender. One particular technique was for the person playing the role of the policeman to take the offender from behind, twist him and pull him backwards, so as to get him off-balance and make him fall over. This was demonstrated by the instructors and practised by the officers. They then did some exercises which involved the police officers in groups of two doing some blocking and punching routines. These again were demonstrated so that each officer knew what his proper role was. Then came the clock exercise described by Lord Justice Longmore, and it was common ground that no particular instructions were given in relation to that. The judge said in his judgment that it was common ground that there was no demonstration or instruction of the way in which the group were to interact with the bad man and with one another while the process of dealing with the bad man was taking place. It is to my mind a striking feature, as the judge found, that the other officers taking part in the exercise did not know what the role of the wingers -- that is, the officers at 9 o'clock and 3 o'clock on the clock face -- were to do when the bad man was taken by the person at 6 o'clock.
21. The respondent, by the nature of his accident, was not able to describe precisely who did what and what the mechanism was; but by the end of the trial it seems to have been fairly clear. As to the mechanism of injury, in the course of the respondent's evidence the following exchange took place between the judge and counsel for the appellant at page 94 of the transcript:

"Judge: The right knee was either broken or certainly sufficiently damaged to be in immediate need of repair. I would have thought that, as anybody knows, it is a regular affliction of footballers to suffer an injury of that character. It happens when the body, as it were, north of the knee -- that is to say, the thigh and the torso -- move, and for some reason the foot does not?

Mr Skelt: Yes.

Judge: Are we agreed about that?

Mr Skelt: That is my layman's understanding.

Judge: Yes, yes. I mean, it is straightforward mechanics, I would have thought.

Mr Skelt: Yes."

That seems to me, with respect, to have been a sensible approach.

22. As to how the mechanics operated in this particular case, the evidence makes the matter tolerably plain. The respondent explained that he was standing with both legs on the floor, but his body had been twisted to one side, which meant that his torso was twisted around while his feet stayed square on. Counsel for the appellant put this question to him:

"Q. Right. That sounds, does it not, like somebody is trying to do what they had been told to do in the morning, given the description you have given us of the twisting and down technique that people had been practising?

A. Yes."

23. It appears to have been at this juncture that PC Moore (?), one of the wingers, came in from the side, causing the respondent to go to ground and sustain the injury that he did. The judge had referred, in the passage which I have just mentioned, to the commonplace nature of this sort of injury among footballers, and it is a matter which is very well known. That is why sliding tackles, in which the tackler makes contact with the player but not the ball, are treated so severely, because of the kind of twisting injury which can occur. This is not a matter which requires deep medical knowledge. It is a commonplace.
24. Ought the officers to have received some instruction as to what they, and in particular the wingers, were to do when the exercise of taking a man from behind and twisting him was then augmented by wingers coming in? In my judgment the judge was entitled to reach the conclusion that they ought. Mr Skelt's response was that this would have been either artificial or positively undesirable, because it would have been impossible or undesirable to attempt to choreograph each move and the exercise had to have a degree of realism (i.e. unpredictability) to be of any value. I am not personally impressed by that argument.
25. Of course the police officers could not be choreographed as if they were ballet performers. That does not mean that they could not be given some basic instructions about what the role of the wingers was to be. Of course, uncertainties may occur in an incident on the street, but that does not mean that police should not be given some training as to techniques for dealing with it. If the instructors in charge of the course had given to the wingers instructions as to what their role was to be, for my part I find it difficult to imagine that a winger would have come in sideways, applying pressure to somebody who was standing twisted in the position described by the appellant. I do not consider that is simply being wise with the benefit of hindsight, because, as already mentioned, this type of injury to a ligament is not an uncommon one when a person is subjected to those sorts of forces.
26. There remains the issue of causation. If the judge was entitled to conclude that the officers ought to have been given instruction as to how the wingers should and, perhaps more particularly, should not intervene when tackling the bad man, in order not to put him at unnecessary risk for the purposes of the training exercise, it is my view that the judge was also entitled to conclude that the injury was likely to have resulted from the absence of such instruction. Had the instruction covered what the winger was to do when joining in restraint of a man who was being twisted and pulled back by the officer behind him, there is in my view good reason to suppose that he would have not acted in the way that he did, and the judge, on that basis, was entitled to conclude that causation was established. I accept that the judge might have explained his reasoning more fully than he did, but, on the evidence before him, for my part I would have concluded that he was entitled to reach the decision which he did.

Lord Justice Patten:

27. I am going to allow the appeal for the reasons given by my Lord, Lord Justice Longmore, and there is nothing I can usefully add to the reasons he has given.

Order: Appeal allowed.