Road traffic accident update

Every year, a number of road users are fatally wounded in collisions with police vehicles being driven in response to emergency calls. According to an Independent Police Complaints Commission report, those killed tend to be vulnerable road users, such as pedestrians, cyclists and motorcyclists.

Most police forces have a policy designed to guide response drivers on the standards to be exercised when attending emergencies. Devon and Cornwall police guidance includes the following salutary passage:

“Police drivers are ambassadors of road safety and all are expected to drive in a manner which equates with their skill and the level of training achieved. Only police vehicles within the force that are equipped with two-tone horns/sirens and blue lights should be only used in emergency situations to warn others.

“Such equipment gives no right of precedence whatsoever. They are simply warning devices to alert other road users and pedestrians to the presence of a police vehicle responding to an emergency situation… The use of the equipment must not be regarded as a reason to travel at unsafe speeds or to drive without exercising the proper care.”

Lawyers acting for claimants alleging negligence on the part of emergency response drivers should ensure that they have a copy of the relevant
policy and that the judge is aware of its contents. The negligence of emergency response drivers often lies in using excessive speed for the circumstances; no doubt out of anxiety to arrive
as soon as possible to assist those in peril and to prevent crime.

In Keyse v Commissioner of Police for the Metropolis [2001] EWCA Civ 715, Judge LJ observed: “When judged in relation to speed restrictions, speed alone is not decisive of the question of negligence… Emergency services vehicles are expressly exempted from the criminal process arising from contravention of the statutory provisions relating to speed limits, keep left signs, and traffic lights (section 87 of the Road Traffic Regulations Act 1984, and regulation 15(2) and 33(2) of the Traffic Signs Regulations and General Directions Order 1994).

“None of these provisions sanctions
negligent driving, or indemnifies the negligent driver of a vehicle on emergency duty against
civil liability. The duty of the driver to take care remains undiminished.”

The assessment of liability in cases involving death and injury in emergency-vehicle response accidents is necessarily fact sensitive. However,
the driver must exercise reasonable care in the circumstances and the extent (if any) to which
they will be able to use the exemption from
having to obey speed limits will depend on
all the circumstances at the time.

So what effect does the use of blue lights and two-tone sirens have on the driver’s potential liability? As set out above, police driving policies make it clear that using ‘blues and twos’ does not mean that police vehicles have precedence over others or a mandate to drive carelessly. It is one
of the circumstances that the emergency vehicle driver can take into account in assessing what speed is safe.

When blues and twos are activated, a faster speed can reasonably be driven than when they are not available to be used. This is because a police driver is usually entitled to assume that other road users will not ignore the unmistakable evidence
of their approach as advertised by using blues
and twos.

In Armsden v Kent Police [2009] RTR 31 CA,
a serious accident occurred when a police car responding to an emergency collided with a Ford Fiesta at a junction, which was between a minor road and an A-road but positioned on a bend leaving a sight line of about 100 metres.

Responding to a high priority call, a police
officer was driving at a speed of 100–110mph on the straight road approaching the bend late one night. He slowed to about 93mph as he rounded the bend where the Fiesta pulled out into his path with fatal consequences for the Fiesta driver. The police vehicle was displaying blue lights but the siren was not activated.

On appeal, it was observed that it had not been appropriate for the trial judge to have found that the police driver was negligent in failing to activate the siren, but that the fact that the siren was not sounding affected the speed that could reasonably have been driven. A speed of 93mph was plainly excessive and the police officer was found to have been 40 per cent responsible for the accident.

Contributory negligence

In Smith v Chief Constable of Nottinghamshire [2012] EWCA Civ 161, a 16-year-old girl had been enjoying a Friday night in Canal Street, Nottingham, where a large number of pedestrians were on both sides of the road, some worse for drink. A police Volvo with blues and twos activated was driven at a speed
of 45–50mph along the street in response to an emergency as the claimant was walking across
the road, which had four lanes.

As she became aware of the vehicle, the
claimant attempted to move out of its path but was struck and seriously injured. The distance between the location of the accident and the destination that the police vehicle was heading
for was only 1,350 metres. Had the police vehicle been driven more slowly, it would have made only a few seconds’ difference to the reaction time.

There were many pedestrians in the area and the destination of the emergency response was only a short distance away, so a speed of 40–45mph was excessive in the circumstances and primary liability was established. The Court of Appeal upheld the finding of primary liability but reduced the trial judge’s finding of contributory negligence of
75 per cent against the young claimant and
instead reduced this by one-third.

Considerable emphasis was placed on the Nottinghamshire police response and pursuit driving policy by the Court of Appeal and the
trial judge’s failure to make reference to it in his judgment. In particular, part of the policy directed drivers to consider that despite using blues and twos, it should not be assumed that pedestrians will hear the siren – in contrast to the observations in Keyse.

It is important to bear in mind that, following Lunt v Khelifa [2002] EWCA Civ 801, in assessing contributory negligence, the fact that a motor vehicle is a potentially lethal weapon that can cause horrendous injuries to pedestrians affects the respective blameworthiness and causative potency of the actions of the participants in such
a road traffic accident.

Accordingly, it is rare that a negligent pedestrian will be held guilty of contributory negligence to an extent of more than 50 per cent when they are injured in collision with a negligently driven vehicle.

Speed limit

More recently, in Donald MacLeod v Commissioner of Police for the Metropolis [2014] EWHC Civ 977 (QB), a police driver was found to have been negligent in approaching a mini-roundabout at 55mph in a 30mph area at night in response to an emergency call. His speed and desire to arrive at the destination meant that he did not see the claimant riding a bike, wearing a high-visibility
vest and with lights on.

The judge found that, had the police driver
kept to the speed limit, he would have arrived at the destination in an appropriate response time.
As it was, he did not arrive at all, the claimant was knocked from his bike and was seriously injured. The use of blues and twos did not make a difference and there was no finding of
contributory negligence.

To avoid tragic accidents, the Independent Police Complaints Commission suggests that
the decision as to what priority to give to an emergency response should rest with the control room and not the driver of the response vehicle. The level of priority should not dictate the driving standard of the officer in the response vehicle: they should prioritise their own safety and that of other road users above any response time.

As these cases show, emphasis on response time can lead drivers to use excessive speed with the result that the emergency vehicle never arrives at the destination to which it has been summoned. SJ

Roger Cooper is a barrister practising from Parklane Plowden

---

Copyright & permissions