Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 16

PD1157/14

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

DEBBIE STEVENSON

Pursuer;

against

SIR STEPHEN HOUSE, CHIEF CONSTABLE OF POLICE SCOTLAND

Defender:

Pursuer:  Hastie;  Digby Brown LLP

Defender:  Laing;  Simpson & Marwick

30 January 2015

Introduction
[1]        The pursuer is Debbie Stevenson. She is 26 years old and a police officer with five years’ service, first with Strathclyde Police and now Police Scotland.  On 22 February 2012 she was serving with Strathclyde Police when she attended an Officer Safety Training (OST) Course at Rutherglen police station.  It is an annual refresher course training officers in safety techniques learned during their initial training at the police college at Tulliallan.  It includes first aid, personal defence techniques, crowd control and the use of baton and CS gas.  The pursuer was injured whilst practicing a technique demonstrated on the course.

[2]        The pursuer alleges that the defender is in breach of a common law duty of care owed to her by the instructors on the course.  The defender accepts that in the event of the instructors being found in breach of their common law duty of care to the pursuer, and the pursuer establishing that she sustained injury as a result, he is liable to make reparation to the pursuer in terms of section 39 of the Police (Scotland) Act 1967 and schedule 12 of the Police and Fire Reform (Scotland) Act 2012. The parties agreed quantum in the sum of £9000.  Liability and causation were disputed and I heard proof on these issues.

The technique in which the pursuer was injured
[3]        Among the techniques that are taught are ones which involve a simulated attack by an assailant on an officer on the ground.  One of those involves the officer on his back on the ground being straddled by an attacker, in what is known as a full mount position, and with his hands around the officer’s throat in a choke hold.  The ground defence strangle technique is one taught to officers to enable them to escape the hold.

[4]        The technique is contained in an officers’ student training manual which the officer receives during their initial training at Tulliallan.  It forms part of their training.  The officer is told to use one hand in a hooking action onto the aggressor’s wrist.  This should allow the officer to breathe.  The officer should at the same time displace the assailant towards the side that they hook.  They do that by bringing their feet up to the backside thrusting up with their hips and throwing their free arm over in the direction of the hook.  That should have the effect of displacing the aggressor.  The aim is to reverse positions and enable the officer to gain control.  The officer should then consider the tactical options available to him.

[5]        After being shown the technique by instructing officers the attendees pair off and try it themselves.  One officer will play the attacker while the other will act as the officer under attack.  They will then swap places.  The pursuer was injured while playing the role of the attacker during the teaching of this technique at the refresher course in February 2012.  The pursuer says that her partner in the exercise, DC Ashley Park, thrust up her hips at speed and twisted her body to the left.  Her right arm went up and drove towards the left across her body.  Her wrist was not hooked. As a result she fell off onto her right shoulder causing a significant injury.

Allegation of fault
[6]        The pursuer alleges that the instructors did not instruct those playing the part of officers to hook the wrist.  They did not tell them at the same time to displace the attacker to the side their hand was hooked.  Accordingly it is said that the officer had no control over where and how the attacker was displaced.  Failing to instruct, in accordance with the manual increases the risk that the attacker will injure their shoulder.

Issues
[7]        There are two issues in this case.  First did the instructing officers neglect to instruct the attendees playing the officer to hook the attacker’s arm?  Secondly if they were at fault did this omission cause or materially contribute to the accident?

The importance of the hooking action to the technique
[8]        The hooking action is an important and integral part of the technique.  Mr Eric Baskind, an expert in the use of force, physical interventions, restraints, management of violence and martial arts systems, who gave evidence for the pursuer, said that the technique would not work without the hooking action.  It enables the officer to breathe by relieving pressure on the neck and it destabilises the assailant allowing the officer to twist their body.  It was described as akin to removing a leg of a table.  The two instructing officers on the course, Police Constable Brolly and Sergeant Gray agreed with that evidence.

[9]        It is also important in a training context.  First the officer playing the attacker will know which way the officer on the ground is going to displace her;  it will be in the direction of the hook.  Secondly there was evidence from Mr Baskind that the action of the hook had the effect of lowering the assailant’s shoulder to some extent making it easier to roll the attacker safely.  Sergeant Gray, one of the instructing officers, was less sure of this.  However in general I accept that in order to carry out the exercise safely it was important to include the hook.  I also accept that there is an increased risk of injuring the shoulder if the hook is not used.  The attacker is simply thrown off and there is no control over how they land.

Pursuer’s evidence
[10]      The pursuer told the court that the technique in which she was injured occurred towards the end of the day.  There were two instructors, PC  Brolly and PC, now Sergeant Gray.  PC Brolly was the lead instructor.  She said that PC Brolly acted as the officer and Sergeant Gray as the aggressor.  They demonstrated the technique in slow time and then in real time.  There was an explanation given with the slow time.  According to her at no time during the demonstration or the verbal instruction were they shown to hook the wrist.

[11]      She had paired off with another female officer, DC Park.  She did not know her.  She had acted as the officer and the pursuer was to be the attacker.  She had sat astride her and pretended to strangle her.  The pursuer said that she did not know what side she would be displaced towards.  According to her the instructors told those playing the officers not to tell the attacker which way they were going.  She said that DC Park had followed the exact technique as demonstrated.  If her hand had been hooked she would have known which way DC Park was going and be prepared for it.

[12]      In cross examination she told the court that she did not think that PC Brolly had given any safety briefing before the start of the course.  She could not recall any other ground attack technique, specifically the one known as grab and punch being demonstrated that day.  She was adamant that the demonstration had not included the hook and there was no verbal instruction to use the hook.  She did not accept that there had been a discussion between her and DC Park as to which way DC Park would displace her.  Medical records on her admission to hospital that day which appeared to show that she told medical staff that she knew which way that she would be thrown were inaccurate.  She accepted that a passage in the record which appeared to indicate that DC Park had kept her arms on the ground throughout was inaccurate.  She thought that this must have been a misunderstanding by her solicitors.

[13]      She could not recall the details of other refresher courses before or since.  She had not participated in this technique at subsequent refresher courses because she had lost confidence in the technique.  She was however able to remember this particular occasion because of her injury.

[14]      John Lindsay is also a police officer.  He is 28 years of age and has six years’ service.  He is the partner of the pursuer.  They have been together for four years.  He was also an attendee at the OST course.  He told the court that there had been a demonstration of the technique at slow speed followed by regular speed.  He said the instruction was to bring their feet up to their bottom and thrust up with the hips and twist to the side.  In the demonstration the only instruction as to what to do with the hands was in relation to the arms;  one arm was to come across the body in the direction of the displacement.  It was the officer’s choice which way to displace the attacker.  They were told not to tell the attacker which way they were going.  There was no instruction to hook the wrist.  In the demonstration he said that PC Brolly, who acted as the officer did not have his hand on PC Gray’s wrist.  The attacker was told not to resist the manoeuvre and go with the flow.  The person playing the officer was told not to use 100% power.  While he had been at other refresher courses before and after this event, including one two weeks before the proof he could not remember the technique.  He remembered this one because of the injury to his girlfriend.

[15]      DC Ashley Park was the officer who paired up with the pursuer for this exercise.  She did not know the pursuer.  She said that she remembered that there had been a safety briefing but not what was said.  She remembered that the technique was taught towards the end of the day.  It was demonstrated in a group.  She could not remember if had been done at different speeds.  She said the she had followed instructions.  She said that the pursuer had sat astride her, that her hands had been by the side but that she had thrust up and believed that her hands had moved across her body.  She could not recall any instruction about hooking.  If she had been told to do that then she would have done so.  She said hooking rang a bell but not with that technique.  She was shown the manual and the reference to the hooking and she said that they could have been told that but she could not remember.  She said that they had been told to discuss with their partner which side to go to. She believed that she had told the pursuer which way she was going.

Defender’s evidence  
[16]      Constable Brolly was one of the instructors along with Sergeant Gray.  He is 41 years old with eleven and a half years service.  He qualified as an OST instructor in April 2010.  In order to qualify he had to undergo a two week training course.  He had previously been with the Metropolitan Police and had been a part time OST instructor for three years.  He had qualified for that position by undergoing a three week residential course at Hendon.  However that qualification was not recognised in Scotland.  The techniques were different.  He explained the background and purpose of the course.

[17]      There was a set syllabus which at the time had to be rigidly adhered to.  The day started with a health and safety briefing read from a laminated sheet.  It included an instruction to obey the instructor’s commands, to listen to all instructions and observe carefully all demonstrations.  If they were unclear or did not understand what was required of them they should ask the instructor before commencing practice of the technique.

[18]      PC Brolly had been a full time instructor since August 2012.  He taught the same OST refresher course four times a week.  By February 2012 he had done so perhaps 250 times.

[19]      Two ground defence techniques were taught; the grab and punch and strangle techniques.  They were demonstrated in that order and towards the end of the day.  In relation to both techniques Sergeant Gray had demonstrated rolling for those playing the role of attacker.  They had been told not to do it at 100%.

[20]      The teaching methodology was referred to as PST – problem/solution/teach.  They were shown what the problem was.  In this case it was an attacker sitting astride the officer with their hands round the officer’s throat attempting to strangle him.  The solution was the ground defence strangle technique.  That was demonstrated in real time.  It was then taught by demonstrating in slow time and giving verbal instructions as to how to carry out the exercise.

[21]      Constable Brolly said that he demonstrated the technique in accordance with the manual and gave verbal instructions accordingly.  He had acted as the officer.  He is about 5’6” and about 11 stone.  Sergeant Gray who was the safety officer acted as the attacker.  He is 6’6” and approaching 20 stone.  They demonstrated the technique in real time and then slowly with verbal instructions.  He was satisfied that he had done it correctly.  If he had not done so he would not have been able to get Sergeant Gray off him.  And Sergeant Gray would have reminded him that he had not demonstrated it properly.

[22]      He explained to the court the importance of the hook;  it is to remove the choke and allow the officer to breathe.  It also upsets the aggressor’s balance and by holding onto the arm it prevents the aggressor from putting his hand out to stabilise himself and regain their balance - posting out.  He accepted that hooking has an important safety aspect and that failure to instruct certain parts of the technique would increase risk.  However he emphasised that if he failed to teach the hook it would not work.

[23]      He remembered the particular course only because of the injury that occurred.  Under reference to a signed precognition given to the pursuer’s agents it was suggested to him that he had once said that he did not recall which exercise it was in which the pursuer was injured.  He denied that and said that there was an error in the precognition.

[24]      It was put to him that both the pursuer and Constable Lindsay had said that he and PC Brolly had neither demonstrated the hook nor given verbal instructions about it.  He said that they were either mistaken or lying.

[25]      Sergeant William Gray was the other instructor on that day.  He is 38 years old with sixteen and a half years’ service.  In 2012 he was a police constable with Strathclyde Police and an OST instructor.  He was promoted in 2012 and is currently a community police sergeant.

[26]      He qualified as an OST instructor in July 2009.  Usually they taught the course four days a week but in 2012 they were doing it five days a week because of the Olympics.  There was a ratio of one instructor to every eight students and a minimum of two officers per course.  He often acted as safety officer.  It was his role to play the attacker and to check the safety of students along with the lead officer.  He had worked a lot with PC Brolly and held him in high regard.  He described the day and confirmed that PC Brolly had started with the safety briefing.  He described the ground defence techniques and confirmed that they taught the grab and punch technique before the strangle technique.  They followed a rigid syllabus and teaching method – problem, solution and teach.  They always taught the ground defence strangle technique in the same way and the technique itself had not changed.  He said that hooking was fundamental to the technique.

[27]      Before the grab and punch exercise he had demonstrated how to roll off the officer.  This was for the safety of the officer acting as the attacker.  They also told the officers on the course not to do it at 100% but perhaps 40%, again for safety reasons.  For obvious reasons the attacker was told not to put their hands round the officer’s neck.  To do so would be dangerous.  The officer on top was told to “go with the flow”.  It was role play but it was designed to show the technique so that the officer would hopefully know how to react if they found themselves in that situation.

[28]      In cross examination he denied that they had demonstrated in slow time first;  the methodology was drilled into the instructors.  He accepted that he could not remember the detail of how it was done on that particular day.  In giving evidence he had said “he would have done” this or that.  However he was quite clear that he had not missed anything out on this occasion.  He was a highly qualified instructor and it simply was not possible for him to miss it out.  If during the demonstration PC Brolly had forgotten to hook his arm he would have continued to sit astride him.  The difference in height and weight amongst other things meant that the only way PC Brolly could get him off was by doing the technique properly.  In the unlikely event that PC Brolly forgot the hook he would have reminded him.  That was part of his role as safety officer.  Moreover this was a technique which was taught during initial training and at refresher courses.  There were bound to be officers there who would know how to do the technique and they would have asked why there was no hook.  In all the time in working with PC Brolly he had never missed anything out.

[29]      Sergeant Gray said that one of the problems with the course was that a lot of officers did not want to be there.  He admitted that some did not pay as full attention as they might.  However the people on the course were police officers, not children.  They were paid to be there, to pay attention and observe.

[30]      It was put to him that both the pursuer and Constable Lindsay had said that he and PC Brolly had neither demonstrated the hook nor given verbal instructions about it.  His response was that they were lying.

Expert evidence
[31]      As I noted above Eric Baskind gave expert evidence for the pursuer.  As the primary issue is one of fact nothing much turns on the detail of his evidence.  I should however record that he considered that the exercise should not be carried out at anything other than 100%.  If it was not done in that way then the officer would not learn whether the technique was effective.  He considered that done properly there was little risk in doing the exercise at 100%.  On this point I preferred the evidence of the officers who were full time instructors and carrying out the exercises on a daily basis.

[32]      I also noted his evidence that it was still foreseeable that a person might land on their shoulder even if the arm was hooked if there was not sufficient rotation of the body.  I accept that evidence.

Decision
Liability
[33]      Mr Laing, for the defender, accepted that if I found that the instructors had failed to instruct the hook as part of the technique that would be a breach of the defender’s common law duty of care to the pursuer.

[34]      I have little difficulty in concluding from the evidence before me that the ground defence strangle technique was properly demonstrated and proper verbal instructions were given.  For the avoidance of doubt I find that this included the requirement that the officer hook the wrist of the attacker while displacing them in that direction.

[35]      PC Brolly and Sergeant Gray were both impressive witnesses.  They are and were at the time highly experienced instructors who had been instructing on the same course on a daily basis for some considerable time.  The syllabus and teaching method adopted did not allow for variation.  The techniques themselves would have become second nature to them.  I accept their evidence that they taught the course according to a rigid syllabus and methodology which can be summarised as problem/solution/teach.  Accordingly it is clear that contrary to the evidence of the pursuer and Mr Lindsay the technique was demonstrated in real time before being demonstrated slowly with verbal instructions.  I accept that was the method they adopted on that course.

[36]      Accordingly the technique is communicated in different ways at least three times before the participants are asked to practice it.  Mr Hastie, for the pursuer, I think accepted the oral evidence, and the obvious evidence from the considerable difference in height and weight between Messrs Gray and Brolly, that when done in real time unless Sergeant Gray’s arm was hooked he could not have been removed from the top of Constable Brolly.  However he submitted that Sergeant Gray had conceded that it may be that not all officers saw the hook as part of the real time demonstration.

[37]      It is clear to me that had PC Brolly omitted the hook in the real time demonstration Sergeant Gray would not have moved.  What I then have to accept, if I am to find for the pursuer, is that having done it properly once both officers then forgot about it during both the slow time demonstration and during the verbal instruction.

[38]      While it is just about possible to conceive of a situation where even an experienced officer might forget the hook on one occasion it becomes in my mind improbable with two such experienced instructors on more than one occasion.  Had PC Brolly forgotten the hook during the slow time demonstration then I have to accept that Sergeant Gray nevertheless rolled off Constable Brolly without the hook being applied and said nothing either to Constable Brolly or to the participants on the course.  Yet Sergeant Gray’s role was not simply to play the aggressor;  he was the safety officer amongst whose duties was to ensure the safety of those on the course. 

[39]      Mr Hastie made criticisms of the evidence of both officers.  I have taken these into account.  Having done so, I am not persuaded that their evidence is unreliable in any material aspects.

[40]      While I found PC Brolly and Sergeant Gray to be impressive witnesses I cannot say the same for the pursuer.  What detail she remembered was often demonstrably wrong.  For example she insisted that the technique had been demonstrated in slow time first before being demonstrated in real time.  That is clearly wrong.  She could not remember the safety briefing and seemed pretty sure that there had not been one.  She had limited recollection of other techniques being taught that day.  She could not remember the details of other refresher courses.  The evidence suggests she gave a different account about the accident to medical staff and this found support in the evidence of DC Park.  In my view her attitude was summed up in answer to a question from me about the importance of the technique for the safety of police officers.  She replied that many officers who found themselves in that situation would react instinctively adding “but if they want to teach that its fine by me”.  It appeared to me that she had little interest in the course or its techniques and paid insufficient attention to what she was being taught.

[41]      Against that background I find it worrying that remembering little of the rest of the detail she was adamant that the hook had neither been demonstrated nor had verbal instructions on it been given.  I can only conclude that, appreciating that her case rested on the slender but improbable thread that two highly experienced instructors had at the same time and more than once missed the crucial element of the technique, she was determined to give no quarter to any suggestion that that she may be wrong.  I simply did not believe her.

[42]      I regret to say that PC Lindsay appeared to fall into the same category.  I think he was there to support his partner and again I did not believe him.

[43]      It is not necessary for me to come to a conclusion as to whether or not DC Park followed the instructions given or did not carry it out correctly.  I was not particularly impressed by her evidence either but I think that she was probably mistaken in her recollection.

Causation
[44]      Even if I had accepted that the instructing officers had omitted the hook from the technique I would have had some difficulty with causation.  I accept Mr Baskind’s evidence that there was a risk that the attacking officer might land on their shoulder even if the hook had been used.  But part of the safety issue was the signal that the hook gave to the attacking officer as to the direction in which they were to be displaced.  As the pursuer put it she could have readied herself for the fall.  However I think it highly likely from the evidence of DC Park and what the pursuer is recorded as having told medical staff on admission to hospital that there was a discussion between them as to which way DC Park would go.  Accordingly there is no reason why the pursuer could not have anticipated the direction in which she would be displaced.  Moreover the unchallenged evidence of both PC Brolly and Sergeant Gray was that Sergeant Gray had demonstrated to the course the correct way to roll when displaced from the full mount position.

[45]      Mr Hastie submitted that Mr Baskind’s evidence was to the effect that it was significantly more dangerous if there was no hook but that the technique was, as he put it, choreographed.  The issue he said was to do with the rotation of the body.  Instead of the body being rotated by the combination of the hook and the throwing of the arm to the hook side the aggressor would simply be thrown off and that would be dangerous.  Constable Brolly said that he would defer to the expert and Sergeant Craig refused to answer a hypothetical question.

[46]      Mr Laing, for the defender submitted that there was insufficient evidence regarding the likelihood of the pursuer landing on her shoulder as a result of the thrust applied by DC Park had the pursuer’s wrist been hooked.  He gave as an example the fact that there was no evidence about respective body weights though having seen them both in the witness box DC Park is clearly smaller than the pursuer.  I have some sympathy with that submission.

[47]      I should also note in passing that this should not have been new to the pursuer.  It was a technique that she was supposed to have learned during her initial training at Tulliallan.  She had done it once before in a refresher course.  The purpose of the refresher course is to refresh skills that should already have been learnt.

[48]      I do not require to make a finding on causation but against that background it seems to me that the pursuer would struggle to show that the lack of the hook had a material contribution to the accident.

[49]      I shall grant decree of absolvitor.