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Cite as: 2004 SCLR 92, [2003] ScotCS 226

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Gilfillan v. Barbour [2003] ScotCS 226 (12 August 2003)

OUTER HOUSE, COURT OF SESSION

A4123/01

OPINION OF LORD REED

in the cause

GEORGE GILFILLAN

Pursuer;

against

ALEXANDER BARBOUR

Defender:

________________

Pursuer: Clancy, Q.C.; Allan McDougall & Co., S.S.C.

Defender: Batchelor, Q.C., Bowen; Drummond Miller, W.S.

12 August 2003

[1] On the evening of Saturday 4 March 2000 the defender went with his wife, Mrs Helen Barbour, to a concert at the Royal Concert Hall in Glasgow. They were both in their sixties, and had been married for 36 years. After the concert they set off towards their home in East Kilbride in their Fiat Punto car. The defender was driving, and Mrs Barbour was in the front passenger seat. They drove eastwards along Gallowgate to its junction with Millerston Street and Fielden Street. They intended to turn right into Fielden Street. As they approached the junction, they heard the siren of a police car, but they could not tell which direction the sound was coming from. There was another vehicle facing towards them, which was waiting to turn right from Gallowgate into Millerston Street, and which restricted the defender's view of the westbound carriageway of Gallowgate beyond the junction. When the defender thought it was safe to do so, he began to turn to his right. The other vehicle was also moving to its right, allowing the defender a better view. He then saw a police car coming towards him at high speed. The police car, a high performance Volvo S70, collided with the Fiat a second or two later. Mrs Barbour was killed in the accident.

[2] Following the accident, the pursuer, who was the driver of the police car, began the present proceedings against the defender, seeking damages in respect of a psychological injury, and a consequential loss of earnings, which he had suffered as a result of Mrs Barbour's death in the accident. The action was based on an allegation that the accident had been caused by the defender's negligent driving. The defender counterclaimed, alleging that it was the pursuer who had been negligent. Contributory negligence was also pleaded as a defence to both the principal action and the counterclaim.

[3] When the case came before me for proof, it was admitted on behalf of the defender that his driving had been negligent. No such admission was made on behalf of the pursuer. The value of their respective claims, if liability were established without any deduction for contributory negligence, was also agreed: the pursuer's claim was valued at £174,550 and the defender's at £32,000. The issues for determination were therefore:

(1) had the pursuer's driving been negligent; and, if so,

(2) to what extent should the damages recoverable by each party be reduced on account of contributory negligence.

[4] It may be best to begin by describing the locus of the accident. The evidence on this matter was largely uncontroversial. Gallowgate is a major thoroughfare leading from the city centre to the east end of Glasgow. It lies between, and parallel to, two other major thoroughfares: Duke Street (which lies to the north) and London Road (to the south). It is subject to a speed limit of 30mph. It has two lanes in each direction, i.e. four lanes in all. At the junction in question, the eastbound carriageway has a third lane for traffic turning left into Millerston Street. The junction is a crossroads where Gallowgate intersects with Millerston Street (to the north) and Fielden Street (to the south). These are themselves important thoroughfares: Millerston Street connects Gallowgate to Duke Street, and Fielden Street connects Gallowgate to London Road. Millerston Street and Fielden Street have two lanes in each direction, i.e. four lanes in all. At the junction, the southbound carriageway of Millerston Street has a third lane for traffic turning right into Gallowgate, and the northbound carriageway of Fielden Street has a third lane for traffic turning left into Gallowgate. The junction is thus a confluence of 11 lanes of traffic: three which have come from the north down Millerston Street, two which have come from the east along Gallowgate, three which have come from the south up Fielden Street, and three which have come from the west along Gallowgate. The junction is controlled by traffic lights. At the time of the accident, there were no filter lights for traffic turning right, and such traffic had to wait for a gap in traffic going straight ahead. There are several pedestrian crossings at the junction. The dimensions of the junction were not established in evidence.

[5] As I have mentioned, the westbound carriageway of Gallowgate has two lanes where it comes to the junction. Traffic in that carriageway which is going to turn right into Millerston Street therefore has to remain in the offside lane until it is able to begin to turn right. Traffic in the eastbound carriageway which is going to turn right into Fielden Street similarly has to remain in the offside lane of that carriageway until it is able to begin to turn right. If there is a vehicle in each carriageway waiting to turn right, then the view which each driver has of traffic approaching the junction from the opposite direction is restricted by the other vehicle: in such circumstances, the driver will not have an unrestricted view until one or other of the vehicles proceeds into its turn.

[6] The pursuer described the junction as extremely busy during peak hours, but quieter in the evening. After viewing a CCTV video recording showing the junction during the seconds immediately before the accident, he agreed that it had been fairly busy.

[7] At the time of the accident, the pursuer was a police constable in the Traffic Division of Strathclyde Police. He had 22 years service, of which about 10 had been spent in the Traffic Division. He had passed the advanced driving course for traffic officers at the Police Training College (a four week course) in 1991, and had also undergone two weeks training there as a VIP security driver in about 1993. His training included instruction in fast driving: for example, in cornering techniques. He was not trained specifically in how to drive fast in traffic.

[8] On the date of the accident he came on duty at 2.30pm . He was working with PC Clyde Rodger. Their evidence as to the circumstances forming the background to the accident was broadly similar. The vehicle which they were using was, as I have mentioned, a high performance Volvo saloon. It was a marked car, and was fitted with the most up-to-date sirens and lights. The two officers were on general traffic patrol in the east end of Glasgow. They had two radios in the car. One was tuned to the appropriate frequency to receive messages broadcast by Force Control in police headquarters. The other was tuned to the appropriate frequency to receive messages broadcast by the local police division. In the east end of Glasgow, the local division was based at London Road Police Office, located at the junction of London Road and Fielden Street, a short distance from the junction where the accident occurred.

[9] The pursuer and PC Rodger were on patrol in Shettleston Road shortly after 10pm when they heard a message broadcast from London Road Police Office. According to the pursuer's evidence, the message was to the effect that a police CCTV operator had observed a suspected drunk driver driving north on Fielden Street. The car, which was a large car similar to a Jaguar, had been seen to mount the footpath on several occasions. PC Rodger's evidence was slightly different. His recollection was that the driver was said to be possibly under the influence of alcohol, and that he was said to be smelling of alcohol. The latter observation would imply that a report had been made by someone who had been in close proximity to the driver; and PC Rodger explained that he subsequently learned that the report had been made by a prostitute. He did not recollect the source of the report being said to be a CCTV operator. As explained below, PC Rodger generally had a more reliable recollection of events than the pursuer, and I prefer his evidence on this matter. Calls were prioritised by the dispatcher. This particular message was not categorised as an "immediate response call", which would be issued in relation to an occurrence requiring an immediate response. The message was not given any particular level of priority.

[10] The pursuer and PC Rodger decided to respond to the message. The message had not been directed at them, but they were in the general area. They did not know whether any local police car had responded to it. They sent an acknowledgement that they had received the call. They were at the time about 11/2 miles from the junction where the accident occurred. In order to get to that junction, they had to travel through a built-up area and several junctions controlled by traffic lights as well as a number of roundabouts. They activated the lights and the siren and drove at speed. It took them three or four minutes to get to the junction. They made their way westwards along Shettleston Road to Biggar Street and then on to Gallowgate. When they were in Biggar Street, they received a message that the driver in question had been seen proceeding westwards along Gallowgate in the direction of the city centre. The pursuer and PC Rodger did not know the speed of the vehicle in question. They did not know whether it had remained on Gallowgate, or had turned off, or had parked. The pursuer said that they were not in hot pursuit. They were not chasing the vehicle. They were trying to find it. They were hoping to catch up with it.

[11] According to the pursuer's evidence, he was familiar with the junction. He knew that, if the traffic lights were at green for traffic coming from the east, they would also be at green for traffic coming from the west, and that such traffic, if heading into Fielden Street, would turn across his route. He drove towards the junction, initially in the offside lane, at a speed of 50 to 60mph. Gallowgate was a straight road from its junction with Biggar Street to its junction with Millerston Street, of about 400 metres to 500 metres in length, with a slight downhill slope. About 200 metres before the junction he decelerated and moved into the nearside lane, as a vehicle was in the offside lane at the junction. He had a clear line of sight. As he was quite close to the junction, a red car coming from the west turned across his path into Fielden Street. The pursuer had not seen it until it appeared across his path, and he was surprised. He was then going at about 40 to 45mph. He braked. That car was closely followed by a green car: the defender's. The pursuer continued to brake and moved to his left, but was unable to avoid the collision. He did not see the defender's car until he was right on the junction. He saw it only momentarily before the impact. His view had been obstructed by the vehicle in the offside lane. He thought it possible that the same vehicle had also obstructed the defender's view of the police car. The pursuer said that he was travelling at 35mph when he drove on to the junction. The road surface was dry.

[12] This evidence was contradicted in a number of material respects by other evidence which I accept. First, the junction was filmed by a CCTV camera which recorded the accident. When the video recording was played to the pursuer, he accepted that his recollection had been mistaken. The film shows that the police car, as it approached the junction, crossed on to the eastbound carriageway in order to overtake a vehicle in the offside lane. The police car then continued in a diagonal direction towards the junction, moving back into the offside lane of the westbound carriageway just before a traffic island in the middle of the road, then moving across the offside lane and into the nearside lane to the left of a car which was waiting to turn right at the junction, and then moving on to the junction. These manoeuvres, from the overtaking until the accident, took place over a short distance, and over a period of time of between three and five seconds.

[13] After viewing the video recording, the pursuer agreed that if he had been travelling within the speed limit when he moved to the nearside lane, he would have been able to stop in time to avoid the accident. He had been unable to stop because of his speed. He had not been aware of vehicles waiting to cross his path. He had become aware of the first car when it crossed his path. He did not know why he had not anticipated that another car might do the same. He had not seen the defender's car until he had entered the junction. He had not had a clear view. An appropriate speed for a police car responding to an emergency call (which he considered the call in question to have been) depended on the circumstances. It depended first of all on what one could see. If there was a hazard at a junction, then extra caution was required. He accepted that it had not been safe to go through the junction at the speed at which he was travelling.

[14] In relation to the lights and sirens on his vehicle, the pursuer said that he would have expected the lights to be visible at the junction, and the siren to be audible there, from the moment the vehicle entered the Gallowgate.

[15] The pursuer's evidence was also contradicted in some respects by the evidence of PC Rodger. PC Rodger had a more accurate recollection than the pursuer of the events leading up to the accident (as far as accuracy could be checked against the CCTV video recording), and I considered that he was to that extent a more reliable witness. He said that he was aware of being carried towards the junction, and of the situation "tightening". By that he meant that the road space available to the police car was becoming narrower. He had a tunnel view of the junction as the police car approached it. Vehicles in the offside lane were masking the view to 2 o'clock. Buildings on the left hand side of the road were masking the view to 11 o'clock. He could not see the traffic on Millerston Street. He could not see the traffic on the west side of the junction for the first 20 or 30 metres back from the Stop line. He could not see any stationary traffic at the junction. The pursuer's view of traffic at the junction would have been even more restricted, as the vehicles in the offside lane would obstruct his view to a greater extent. Although PC Rodger had had a better opportunity to view the junction at an earlier stage, when the police car was overtaking on the other side of the road, he had not been looking that far ahead: he was concentrating on the situation immediately ahead of the police car. About 50 yards before the junction the car decreased slightly in speed. There would have been a downwards change of gear at about that point, so as to be able to accelerate after clearing the hazard. The hazard was the junction. Traffic could be turning right or left from each direction. The traffic lights could change at any time. There were pedestrian crossings. It was generally a busy junction. That would apply at 10 to 10.30pm on a Saturday night. As the car began to slow, PC Rodger was aware of vehicles on the offside and the buildings on the nearside. Then the red car turned in front of the police car. PC Rodger was startled by its appearance. It had been masked by the vehicles waiting to turn right. Then the red car was followed by the green car. The momentum of the police car had been disturbed when the red car crossed in front of it, but it had not decreased in speed. There was no time to stop. The police car turned to the left just before the impact. The impact lifted the green car into the air, and the passenger door came off. PC Rodger accepted that the possibility of a car turning right, across the path of the police car, as the red and green cars had done, was one of the hazards that existed at such a junction, especially if the police driver's view was obscured by vehicles turning right.

[16] After viewing the video recording, PC Rodger accepted that there had in fact been only one vehicle in the offside lane, waiting to turn right. He maintained however that that vehicle had masked his view (and the pursuer's) of the traffic from the other direction which was waiting at the junction. He had had a tunnel view until the point was reached when the police car was committed to going on to the junction. He considered that a police driver would be cautious approaching the junction. A police driver was trained to a higher degree than the average driver, and was more aware of hazards. He observed, from the video recording, that the traffic lights had changed to green only shortly before the arrival of the police car, and that there had been a build-up of traffic coming from the west, which was waiting in both the eastbound lanes at the junction. He also observed that the driver of the vehicle which the police car overtook had reacted at only the last moment to the presence of the police car. That driver had apparently not noticed the police car, despite its lights and siren, until the police car began to overtake it. It was possible that the police car had approached that driver at speed and caught him unawares. The driver of the red car had also been well within the range of the lights and the siren. It was possible that drivers at the junction would have heard the siren but would not have been able to tell from the sound whether the police car was approaching from the front or from behind or from the side. Whether a driver on the west side of the junction would see the lights of the police car could depend on whether his view was blocked by vehicles in front of him. The pursuer had driven on to the junction at a speed in excess of the speed limit, at a time when his view was obscured. He could not have known if there was any traffic coming from his right. He drove across the junction not knowing whether any car was going to cross his path, in a situation where the red car had done that just seconds before.

[17] Evidence about the speed of the police car was given by Sergeant David Simpson, who had attended at the scene shortly after the accident and had prepared a report on the accident for the procurator fiscal. Sergeant Simpson was an impressive witness, and I accept his evidence in its entirety. He had calculated the speed of the police car by using the video recording to estimate the change in the car's position, relative to the road markings, between each frame. The time interval between the frames was known. The distance between the road markings had been measured. Sergeant Simpson had thus been able to estimate the distance travelled over a known interval of time, and so to calculate the estimated speed. Aspects of this approach involved a margin of error. In particular, the measured distances were measured parallel to the centre line of the road, whereas the police car had been travelling at a diagonal to that line, and had therefore travelled further than the measured distance. In addition, Sergeant Simpson had assumed, in the pursuer's favour, that the car had passed one of the road markings only when it could plainly be seen to have passed it. As a consequence of the foreshortening effect of the CCTV camera, the car could in fact have travelled some distance past the marking before that would be clearly apparent on the image. The speeds calculated by Sergeant Simpson were thus estimated on a basis which was likely to err in the pursuer's favour, and represented a minimum.

[18] Sergeant Simpson calculated the average speed of the police car over the last 50.9 metres before the Stop line at the junction as being at least 61mph. The average speed over the last 25 metres before the Stop line was calculated as being at least 60mph. The fact that the two calculated speeds were so close to each other implied that there had been no significant variation in speed over the last 50.9 metres. At the point when the police car passed the Stop line, the video image showed that the defender's car had already turned in front of it, and the collision was inevitable. The interval in time from the point at which the vehicle in the offside lane turned right, enabling the driver of the police car to have a clear view of the defender's car (and vice versa), until the point at which the police car had passed the Stop line and the collision was inevitable, was less than one second. The interval in time from the point at which the red car crossed in front of the police car (then slightly more than 51 metres from the Stop line) until the point when the police car had passed the Stop line was less than two seconds. Sergeant Simpson also gave evidence about the possibility of either driver stopping in time to avoid the accident. At 60mph, the stopping distance in optimum conditions would be 73 metres. On the night in question however the road surface was damp. That would affect the stopping distance considerably. The pursuer could not have stopped in time, at the speed he was travelling, even with his brakes full on. The defender was of course moving much more slowly as he turned right. A driver's reaction time was however typically between one and two seconds. By the time the defender saw the police car, his opportunity to react had probably gone.

[19] In relation to the defender's opportunity to be aware of the presence of the police car, Sergeant Simpson said that it was very difficult to ascertain the direction of travel of a police vehicle from the sound of its siren. From the video recording, it appeared that the defender had had the opportunity to have an extended view of the carriageway to the east of the junction. He could have lost that opportunity if he had been looking in his mirror. In the seconds before the accident, his view of the police car might well have been restricted by the vehicle opposite which was turning right. If he had waited at the junction, the police car would have been able to pass him safely, wherever it was coming from.

[20] In the light of Sergeant Simpson's evidence, counsel for the pursuer intimated that the pursuer accepted that his speed was approximately 60mph when he drove on to the junction.

[21] The defender also gave evidence. He was somewhat prone to confusion. His recollection of events appeared however to be generally accurate, although he was in error on some points of detail. He said that he and his wife had heard the siren when they were about 100 yards from the junction. He looked in his rear mirror, but saw no police car behind. He cruised slowly up to the junction in the offside lane, with two cars ahead of him. One of those cars moved into the nearside lane to go straight ahead. The defender and his wife could still hear the siren, but could not decide what direction the sound was coming from. The sound was bouncing off the buildings. It was all around them. He made sure the police car was not behind him. He assumed it was either coming up Fielden Street or coming towards him. He did not see the police car coming. He was watching the red car in front of him. He did not require to stop before he entered the junction, as the traffic lights were in his favour. He therefore took up a position to turn right. The red car started turning. A car coming from the east was waiting to turn right, across from the defender. It was blocking his view of the road opposite. The red car turned across. The defender thought the road must be clear. He crept out. The car opposite was still trying to turn right, and blocking the defender's view. The defender was half way out. Then he caught sight of the police car, coming "like a bat out of hell". They were right in its path. Then it hit them. He only saw the police car a second or so before it hit them. He tried to accelerate out of the path of the police car, but the police car swerved to its left, into the middle of his car. He could have waited at the junction until he knew where the police car was.

[22] It is not in dispute that the defender was in breach of the duty of care which he owed towards the pursuer, and that that breach contributed to the accident. In considering the nature of his breach of duty, it is appropriate to have regard to the Highway Code, in accordance with section 38(7) of the Road Traffic Act 1988:

"(7) A failure on the part of a person to observe a provision of the Highway Code... may in any proceedings (whether civil or criminal...) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

The 1999 edition of the Highway Code, which was the edition current at the date of the accident, contains the following rule concerning emergency vehicles:

"194. Emergency vehicles. You should look and listen for ambulances, fire engines, police or other emergency vehicles using flashing blue, red or green lights, headlights or sirens. When one approaches do not panic. Consider the route of the emergency vehicle and take appropriate action to let it pass. If necessary, pull to the side of the road and stop, but do not endanger other road users."

Rule 157 of the Code also states that extra care should be taken when turning to the right in front of another vehicle also turning right, since the latter vehicle may block the driver's view of oncoming vehicles.

[23] In the present case, the defender had not seen the police car, and in consequence did not know from which direction it was coming, until a stage was reached at which a collision was inevitable. Even making allowance for the speed at which the police car was moving, the possible loss of an opportunity to see it when the defender was looking in his mirror, and the degree to which his forward vision may have been restricted by other vehicles, it is probable that a driver keeping a good look-out specifically for the emergency vehicle, as recommended in the Highway Code, would have noticed the police car well before the defender saw it: it was brightly lit, with a formidable array of flashing lights, and was travelling towards the defender on a straight road with a slight downhill slope. Perhaps more significantly, the defender had in any event heard the siren, and had appreciated that the police car was coming in the direction of the junction, although he did not know from which direction. In those circumstances, in order to "take appropriate action to let it pass", he should have waited at the junction rather than going on to an area of the roadway which was liable to be used by the approaching emergency vehicle. In particular, in these circumstances, it was unwise to turn right when his line of sight was obscured: he could not see whether he might be turning across the path of the oncoming emergency vehicle. At the same time, it has to be acknowledged that he moved into the turn slowly, and did not shoot across the junction. If the police car had been travelling within the speed limit, the collision could have been avoided. He ought however to have anticipated that a police car sounding its siren might be travelling faster than other traffic and might be expecting other traffic to let it pass, in accordance with the Highway Code. It was not suggested that the defender's reaction when he saw the police car - to attempt to move forward out of its way - was negligent. In reality, he had no time to react in any considered manner: any reaction in such circumstances could only be instinctive, and not something to which any blame could attach.

[24] The question whether the pursuer also was at fault is less straightforward. It was not in dispute that the pursuer owed the defender the ordinary duty of care owed by any driver: a duty to take reasonable care for the safety of other persons using the road whom he can reasonably foresee may be injured as a result of his actions. Parties differed however as to the standard of care. Counsel for the defender submitted that the standard of care required was the degree of skill and care to be expected of a careful driver: to drive, in other words, with due care and attention. There was said to be no difference in the standard of care to be met, even if the driver was driving an emergency vehicle, and even if he was responding to an emergency call (a description which, it was submitted, did not apply in the present case). If the driver was driving at high speed due to an emergency, the level of skill and attention required of him was correspondingly greater, since he was not permitted to create a danger. Counsel for the pursuer on the other hand submitted that the standard of care required was dependent on the circumstances, and that a police driver responding to an emergency could not be expected to drive with the same standard of care as the ordinary driver. Both counsel referred to a number of authorities, which I shall discuss.

[25] The earliest case cited was Ward v London County Council [1938] 2 All E.R. 341. It concerned an accident which occurred when a fire engine, going through a crossroads in disobedience to a red light, collided with a car going through the crossroads at right angles, with the green light in its favour. The fire engine was proceeding to a fire and was sounding its gong. It appears from the report that the fire engine driver had no exemption from the regulations requiring a red light to be obeyed, and that the fire brigade had issued an instruction that such a signal should always be obeyed. The fire brigade's instruction added that obeying such a signal did not in practice hamper the carrying out of emergency duties. It was found as a fact that the driver had seen the car coming across the junction; that he could easily have stopped and let the car pass; but that he decided to carry on, against the red light, and to run the risk of colliding with the car. Unsurprisingly, judgment was given for the occupants of the car. In a passage on which counsel for the defender placed some emphasis, Charles J. said (at page 343):

"It is said that, because he was driving a fire engine, he was in a certain privileged position. That is not so. He was not in a privileged position at all. It is perfectly true that, when the bell is clanged, people generally draw aside, but, if they do not draw aside, the driver of a fire engine has no business to charge into them. He must use reasonable care, and get to the scene of the fire as quickly as possible..... The fire brigade must get there as quickly as possible, and.... stopping at the red signal in practice is found not to hamper the proper conduct of the fire brigade in the carrying out of its duties."

[26] Counsel for the defender cited the opening sentences of this passage in support of his proposition that the driver of an emergency vehicle is in the same position as any other driver if he causes injury to another road user. It appears to me however that the observation that the driver was not in "a privileged position" has to be understood in the context of the facts of the case: in particular, the fact that the driver was not exempted from the requirement to obey the traffic signals, and the fact that obedience to such signals was not considered to hamper the fire brigade in carrying out its duties.

[27] The next case cited was Gaynor v Allan [1959] 2 Q.B. 403. It concerned an accident which occurred when a pedestrian crossing the road was knocked down by a police motor-cyclist. The road was subject to a 40mph speed limit. The police officer was driving at 60mph, pursuing a car which was speeding. On the facts, it was found that the officer was not committing any criminal offence in driving in excess of the speed limit, by reason of a statutory provision in the following terms:

"The provisions of any enactment, or of any statutory rule or order, imposing a speed limit on motor vehicles shall not apply to any vehicle on an occasion when it is being used for fire brigade, ambulance or police purposes, if the observance of those provisions would be likely to hinder the use of the vehicle for the purpose for which it is being used on that occasion."

A similar provision, contained in section 87 of the Road Traffic Regulation Act 1988, was in force at the time of the accident with which the present case is concerned. McNair J. observed (at page 406):

"That, however, deals only with criminal liability, and it raises a question which, so far as I know, is without authority, namely, whether and to what extent the circumstances which bring that provision into effect, affects the civil liability of the driver."

On this point the judge said (at page 407):

"In my judgment, the driver of this police motor-cycle on this occasion must be judged, as regards civil liability, in exactly the same way as any other driver of a motor-cycle in similar circumstances. He, like any other driver, owed a duty to the public to drive with due care and attention and without exposing the members of the public to unnecessary danger."

[28] Counsel for the defender in the present case relied on the principle expressed in the first sentence just quoted. There is however a question how far that principle is to be carried. The police officer, like any other driver, owes a duty of care to other road users: that much is indisputable. The real question, however, is not as to the existence of a duty of care, but as to the standard of care which that duty imposes: something which one might expect to depend on the circumstances. McNair J. appears to have considered that the standard of care required of the police officer was the same as the standard required of any other driver, for he continued:

"The question, as I see it, is this: First, is it clear that the police motor-cyclist, judged by the standard of an ordinary driver of a motor-vehicle on his private occasions, is to be held guilty of negligence causing the accident? I think the answer to that clearly must be 'Yes'. To drive at that speed on a restricted road, in the half-light at a time of the evening when it must be known that there may be pedestrians making their way home, is itself, in my judgment, to drive at an improper and unsafe speed" (emphasis added).

The only other question was as to the contributory negligence of the pedestrian.

[29] This decision may be unexceptionable on its facts; but the reasoning appears to me, with respect, to be questionable. It does not appear to me to be correct to say that the standard of care required of a police driver is necessarily the same as that required of an ordinary driver on his private occasions.

[30] Driving inevitably involves taking certain risks (or, to put it differently, creating certain dangers) in relation to other road users. The risks were at one time minimised by having motor vehicles preceded by a pedestrian carrying a red flag. In modern times, however, the reasonable man drives at a considerably faster speed, notwithstanding the concomitant risks, for example to inattentive pedestrians who may step off the pavement without looking, or to inattentive drivers who may fail to give way at a junction. The ordinary driver of a motor vehicle on his private occasions will ordinarily meet the standard of care required of him, so far as his speed is concerned, if he keeps within the speed limit applicable to the road in question; although he will of course be expected to drive more slowly in particular circumstances where the reasonable man would do so (e.g. when it can be anticipated that children are liable to step out on to the road, for example to retrieve a ball or to cross to an ice-cream van). If the ordinary driver breaks the speed limit, that is in itself a material factor in determining whether he has been negligent.

[31] In the case of a police officer, on the other hand, in circumstances in which he is exempted from obeying the speed limit, no inference of negligence can be drawn from his driving at a speed in excess of the speed limit. The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be. On the facts of Gaynor itself, the officer was in pursuit of a speeding motorist; and unless he himself drove above the speed limit, the driver he was following was bound to escape. Whether that could justify driving at 60mph in the half light at a time of the evening when pedestrians were making their way home would however depend on whether it was reasonable to drive at that speed for that purpose, having regard to the risks to other road users.

[32] The next case cited was Dyer v Banwell (1965) 109 Sol. J. 216. It concerned an accident which occurred when a police car was being driven on urgent duty at 45mph or more on a street which was subject to a 30mph limit. The police car was not sounding its siren. The taxi in front of it pulled in to allow it to pass, and the police driver was then unable to stop in time to avoid a van which was ahead of the taxi and was turning right. The judgment of Glyn-Jones J., as reported in the brief report of the case, is consistent with the approach which I have suggested:

"[A]s police officers on duty were not bound by the 30mph speed limit in built-up areas, it was not negligent for a police officer in execution of his duty to drive at a high speed, and, if there were nothing against the constable except that he was driving at 45mph or more, he could not be said to have been negligent. Such driving was taking a measure of risk but, having regard to the duty owed by a police constable to his superiors and the public at large, he could not be blamed for trying to get where he was urgently going on duty as fast as he reasonably could without being bound by the speed limit. If he found it necessary to drive so fast he must exercise a degree of care and skill proportionate to his speed, and remember that the ordinary road user in a built-up area would not expect motor vehicles to drive at that speed."

Judgment was given for the van driver on the ground that the police officer had been at fault in failing to give audible warning of his approach.

[33] In that case, it is plain that the police driver was not judged by the standard of an ordinary driver of a motor vehicle on his private occasions. The judge appears to have considered that the officer was going as fast as he reasonably could, and that the question was therefore whether he was exercising a degree of care and skill proportionate to a speed which was itself reasonable in the circumstances.

[34] I should mention two other cases which were not cited to me but which appear to me to be of some assistance, insofar as they treat the nature of a police officer's duties, and the nature of his driving skills, as material factors. McLeod v Receiver of the Metropolitan Police [1971] Crim L.R. 364 concerned an accident which occurred when a police car was being driven at 70mph to answer an emergency call, and the driver lost control of the car. The brief report records that the police driver was not criticised for driving fast in answering an emergency, but that he was held to have been negligent in driving at such a speed that he lost control of his vehicle. Langley v Dray and M.T. Motor Policies at Lloyds [1998] P.I.Q.R. 314 concerned an accident which occurred when a police car being driven in pursuit of a speeding vehicle skidded on black ice and hit a lamp post. Stuart Smith L.J., with whose judgment the other members of the Court of Appeal agreed, observed (at pages 320-321):

"A pursuing police officer is under a duty of care to other road users and to himself for his own safety. He cannot blindly drive through a red light without taking care to see that there is nothing coming the other way, though no doubt, if he is sounding his siren, he can expect other road users to look out for him and give way. But a specially trained police officer can drive in a manner which does not present the same degree of risk to others because his reactions may be faster and he has greater skill in handling the vehicle so that he does not lose control. There may well come a time when even a highly trained police officer should consider that it is too dangerous both for himself and others to continue pursuit, and if so, he will be at risk of a finding of contributory negligence if he continues the chase and is injured."

[35] A number of other authorities were cited to me, which I can deal with more briefly. Wood v Richards [1977] R.T.R. 201 and D.P.P. v Harris [1995] 1 Cr. App. R. 170 were concerned with criminal liability under section 3 of the Road Traffic Act 1988, a matter which raises different issues from those with which the present case is concerned. Marshall v Osmond [1983] 1 Q.B. 1034 is again concerned with a different question, namely whether a police driver owes a duty of care to a participant in a criminal offence whom he is pursuing. The distinction drawn in that case by Sir John Donaldson M.R. between an error of judgment and negligence on the part of a police driver in such a situation is however relevant to the present case, as explained below. The ratio of Cox v Dixon (1984) N.L.J. 236 is unclear to me from the brief report. Griffin v Mersey Regional Ambulance (1998) P.I.Q.R. 34 is again concerned with a different question, namely the question whether an emergency vehicle is entitled to cross a junction against a red light. It is however of some relevance to the present case insofar as it rejects the proposition that there is an absolute rule in favour of traffic crossing a junction on green.

[36] On the facts of the present case, I am prepared to infer that obedience to the speed limit would have been likely to hinder the use of the police car for the purpose for which it was being used on the occasion when the accident occurred: the pursuer and PC Rodger were attempting to catch up with, and intercept, the Jaguar-type vehicle; and they were more likely to succeed in that objective if they exceeded the speed limit than if they obeyed it. I therefore do not draw any inference of negligence merely from the fact that the pursuer was driving in excess of the speed limit.

[37] It also appears to me to be important, in circumstances such as those of the present case, to bear in mind that the responsibilities of a police officer on mobile patrol can involve making difficult judgments: for example, as to the urgency of responding to a call and the appropriate speed for him to adopt in doing so, bearing in mind that he has been trained in driving skills to a higher level than the ordinary driver. Such judgments may have to be made in circumstances where the potential consequences of excessive delay, or of excessive haste, may be equally grave; and where there may be little time for reflection upon the choice to be made. It is therefore important, when such a driver is alleged to have been negligent, for the court to be satisfied that his conduct went beyond a mere error of judgment within the scope of the proper performance of his duties, and amounted to conduct which can be regarded as negligent. In determining that question, the court has to consider all the circumstances, including the nature and degree of any emergency involved, in order to decide whether, in driving as he did, the driver acted reasonably or not.

[38] In the present case, the call to which the pursuer and his colleague had responded was not one which had been given any particular degree of priority: it had not, in particular, been categorised as requiring an immediate response. There was nothing to indicate a grave or imminent danger to life. At the same time, a suspected drunk driver is a matter which it would be reasonable to regard as calling for an urgent response, particularly where the driver was reported to have mounted the footpath, since there would be a potential danger to other road users and to pedestrians. The other potential danger, at the junction in question, was that traffic might cross the path of the police car and that a collision might result. In that regard, it is clear from the evidence of PC Rodger that, when approaching the junction, the pursuer had a restricted view of traffic waiting there, and in particular of any vehicles waiting to turn right across his path. Such vehicles might be unable to see him, and he could not see them. He could not reasonably proceed on the basis that, his siren being audible, any such vehicles would necessarily remain stationary and thus keep out of his way. As Lord Uthwatt once observed, "a driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form these follies commonly take" (Upson v London Passenger Transport Board [1949] A.C. 155 at page 173). Counsel for the pursuer accepted that it was very difficult to say that the possibility of a vehicle turning right across the pursuer's path was not reasonably foreseeable, especially when another vehicle had just done so. In approaching the junction at 60mph or more, on a damp road surface, the pursuer made no allowance for the possibility that a driver who had failed to see him might, even cautiously, edge out into his path. His driving therefore created a risk of serious collision and, given the speed and weight of his vehicle, a risk of serious resulting injuries, and even of death. All he needed to do to avoid that risk was to slow down as he approached the junction, so as to be able to stop if need be, until he could be reasonably confident that any traffic waiting to turn right was stopping for him. In these circumstances, I conclude that his driving failed to meet the standard to be expected of a reasonable driver, even in the circumstances of a police officer answering a call of some urgency.

[39] The remaining issue is that of apportionment of liability. In relation to this issue, I follow the guidance given by Lord Reid in Stapley v Gypsum Mines Ltd [1953] AC 663 at page 682:

"A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness."

[40] In the circumstances of the present case, I find it impossible to attempt any mathematical computation. The defender was inattentive in failing to see the police car before it approached the junction, and he was unwise in attempting to cross the junction when he knew an emergency vehicle was approaching, somewhere in the vicinity; but his driving was otherwise cautious, and if the police car had been travelling more slowly, a collision could have been avoided or would at least have had less serious consequences. The pursuer was driving much too fast in the circumstances, as it seems to me, and it was his speed and the weight of his vehicle which caused the accident to have such serious consequences; at the same time, some allowance has to be made for the fact that in driving at speed he was attempting to fulfil his responsibilities as a police officer. Looking at the matter broadly, I see little to choose between the parties overall, and I shall therefore apportion responsibility equally between them.

[41] I shall therefore award the pursuer 50 per cent of the agreed damages in the principal action: namely, the sum of £87,275. I shall award the defender 50 per cent of the agreed damages in the counterclaim: namely, the sum of £16,000.