Claimants are often the authors of their own misfortune

Debenhams Ottaway last month successfully defended Thames Valley Police following a substantial claim for damages bought by the rider of a motor cycle who failed to stop when pursued by the police (Henry v Thames Valley Police).

In performing his duty to apprehend the motorcyclist, the officer drove too close to his cycle. This was an error of judgment, but did not amount to negligence as per Marshall v Osmond (1983).

The claim was in negligence for damages for personal injuries and losses and expenses incurred after an accident on 22 August, 2004. The claimant’s right leg was injured when it came into contact with the offside front wheel of the police car that had been pursuing him.

The defendant’s marked police vehicle had been following the claimant who was riding his motorcycle in 30mph areas at speeds of up to 60mph and in national speed limit areas at more than 100mph. The claimant’s evidence that he was unaware he was being followed by a police vehicle and/or that he felt intimidated by the presence of the following vehicle was not accepted by the trial judge at Reading County Court.

Eventually the claimant slowed to turn into a village. This allowed the police car to close up behind him. Its blue strobe lights and flashing headlights were turned on, but the claimant did not stop and accelerated, reaching a speed of about 60mph. The court found that he was aware of the flashing lights.

He then turned into an unlit drive blocked by wooden gates. He nudged the left-hand gate with his motorcycle and accelerated in, pursued by one of the police officers. The driver of the police vehicle nudged the right hand gate open and his car came through the gate, travelling about 13.5 meters at 2 to 5mph in the dark, colliding with the claimant’s leg.

It was not clear to either officer that the claimant’s home was beyond the gates; the officers therefore were still in “pursuit” of him.

Video evidence showed that the driver had six seconds to “size up” the situation from the time he entered the gates to the time his vehicle came into contact with the claimant’s leg.

The judge held that had the claimant stopped on the gravel drive in front of the house and surrendered himself to police, the incident would not have happened. Alternatively, the claimant inflamed the officers’ suspicions. He made it look like he had something to hide.

This is an important judgment because it demonstrates that the courts recognise the need not to impede the police in carrying out their duty by imposing liability where there is an error of judgment which does not amount to negligence.

While the insurers appreciated that there was a litigation risk, a decision was made to take the case to trial. It reinforces the seemingly forgotten principle that claimants are often the author of their own misfortune. Had the claimant stopped his motorcycle when it was obvious that he was required to do so, this accident would not have happened.

Anna Marie Bailey is a solicitor for Debenhams Ottaway, St Albans