B3/01/2541/A 
Neutral Citation Number: [2002] EWCA Civ 1482                                               
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE BARRATT)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 3rd October 2002
 
B E F O R E:

LORD JUSTICE PILL 
 
LORD JUSTICE LAWS 
 
SIR MURRAY STUART SMITH 

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CARL RYAN MASTERS
Respondent

‑v‑

CHIEF CONSTABLE OF SUSSEX 
Appellant 
 
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MISS P PANETH (instructed by Messrs Wynne Baxter, Lewes, East Sussex) appeared on behalf of the Appellant
MR H SPOONER (instructed by Messrs George Ide, Phillips, Chichester, West Sussex) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE PILL: This is an appeal by the Chief Constable of Sussex, the appellant, against an order, following a jury trial, of His Honour Judge Barrett QC sitting at Brighton County Court on 24 October 2001. It was ordered that judgment be entered for the claimant, Karl Ryan Masters, the respondent, for £5,500 and costs, to be the subject of detailed assessment if not agreed. Permission to appeal was given by the judge on the basis that the case raised “important legal issues in respect of intention and pleadings on the assault claim and the application of misfeasance principles to the facts of the case for the police.” The appellant also appeals against the order for costs. 
2.	The events which led to the claim against the police occurred during the early hours of 1st August 1997 near the entrance to the pier at Bognor Regis and subsequently at the police station. The respondent claimed that he was wrongfully arrested, assaulted, falsely imprisoned, was a victim of misfeasance by police officers in their public office and maliciously prosecuted. 
3.	Evidence was heard over a period of five days. The judge summed up the case for the jury. Eighteen written questions were posed for the consideration of the jury. The questions were framed in consultation with counsel but were not all agreed. Some of the jury's answers favoured the officers of the Sussex Police Force and the evidence they had given and some the respondent. The judge concluded, on the basis of the answers, that the torts of assault and of misfeasance in public office were established, and that the respondent had failed to prove the other torts. 
4.	The judge gave further directions on the question of damages. The jury assessed damages at £5,500. Unfortunately, the jury were not asked to apportion the sum as between the two torts or as between basic damages and the aggravated damages which were clearly contemplated by the jury. On the basis of the directions given by the judge and for present purposes, counsel agree that the sum should be apportioned as to £3,400 damages for assault and £100 damages for misfeasance, and that the balance of £2,000 be apportioned equally between the torts. For present purposes the apportionment would be relevant only if the court allowed the appeal on one of the causes of action and not on the other. 
5.	Trespass to the person, pleaded as assault
6.	By their answers to questions the jury found that the police officers were entitled to arrest the respondent. As to assault, and in so far as is material, the respondent's pleaded case is that excessive force was used. He was pushed to the ground by the officers and while lying face down an officer held his arms behind him and knelt on his back. His arms were hurting. In spite of the respondent's protests his arms were pushed further up his back. He heard a loud snap from his right arm and was in great pain. He complained that his arm had been broken. He claimed that there were at least three constables restraining him. There is no doubt that at some stage the respondent's right arm was fractured. The respondent's evidence was to the same effect as his pleading. He stated at page 62F: 
7.	Q. “What happened then?
8.	A. It was about five seconds after that I got pushed to the floor, and then when I was on the floor a police officer ‑ I think the first police officer ‑ went on my back, put his knee on my back, and pulled my arm up behind my back. There was another police officer there at this time, a third police officer, who had my head on the floor.
9.	Q. Had you seen where the third police officer had come from.
10.	A. No, my arm was hurting so I said: 'Get off my arm. Get off my arm. It's hurting. Nothing happened, and about fifteen seconds after I hit the floor I heard a loud snap come from my arm.” 
11.	The respondent maintained that account in cross‑examination. At hospital he reported: “arm bent back by policeman, twisted elbow backwards”. 
12.	It was put to the respondent that the crack occurred when Constable Green, who was holding the respondent's right arm behind his back, accidentally fell on him at a later stage. He denied that. Three police officers gave evidence about the incident. Their evidence was that, in the course of a struggle with the respondent while they were lawfully trying to restrain him in the course of an arrest, Constable Green accidentally fell on the respondent and the crack and fracture occurred at that stage. 
13.	The jury were asked the question, question 8: “Has the claimant proved on the balance of probability that the degree of force used by one or more of the police officers was excessive and did not occur accidentally in respect of the fracture of the claimant's right arm?” I exclude other parts of the question which are not material for present purposes. The question was answered in the affirmative. Miss Paneth for the appellant submits that the affirmative answer to that question was on the evidence perverse. The claimant called Mr H J Clarke, consultant orthopaedic surgeon, at the trial. The submission is that, having regard to the medical evidence, the claimant cannot be telling the truth about how his bone was fractured. The claimant had to establish, on the balance of probabilities, that excessive force was used by the officers in the course of the arrest and that the fracture was caused by such excessive force. 
14.	For the respondent, Mr Spooner submits that an incident which occurred over a short period of time should not be subdivided into different stages. A broader brush should be applied. Even if the fracture occurred at a later stage than that claimed by the respondent, the jury were entitled to conclude that it was caused by the use of excessive force by the officers. 
15.	I do not accept that submission in the circumstances of this case. If on the evidence the fracture occurred as a result of an accidental fall in the course of a lawful arrest, lawfully effected, the fracture could not be attributed to an unlawful act. The respondent alleged that the fracture had occurred at a particular time and in a particular manner. There is in this case no room for a finding that conduct unconnected with a fracture is actionable as a trespass to the person or that injury resulting from the accidental fall of an officer is actionable. The issue turns, in my view, on whether the jury were entitled to accept the claimant's evidence as to how the fracture occurred. In his written report Mr Clarke stated that the respondent had sustained a mid shaft fracture of the right ulna. He stated:
“I believe that the injury could have been caused by the history of the accident as told to me by Mr Masters but equally could have been caused by the explanation in the police officer's statement whereby he fell on to Mr Masters' right hand side. Mr Masters says that he felt a police officer on his back when he felt a sudden crack when in the half Nelson position but the police officer's testimony states that the police officer's body where he had landed on to Masters' right hand side. I must assume that this had been on to the same area. This is therefore consistent with the mode of injury and the x‑ray appearances subsequently.”
16.	In his evidence‑in‑chief Mr Clarke confirmed that the fracture was in the mid shaft area. He referred to the two bones in the forearm, page 118: 
“There are two. There is the radius bone, which comes down the inside of the forearm, and the ulna which comes down the outside, and they are linked at both ends, which is actually important that they are linked at both ends. 
(Mr Spooner:) Presumably to the wrist and the elbow. 
(A) That is right, but the important thing about them being linked is if, let us say, you do a fall you tend to break both bones, whereas I have described the other possible mechanisms of injury in this case, when you get an isolated bony injury it is usually due to a direct blow to that area. If it is not you usually get a dislocation of the other joint.” 
17.	Asked what degree of force was required to break a bone in that way, Mr Clarke stated: 
“It would take a significant degree of force over a localised area. As I say, with that mid‑shaft particular break it is a direct blow to that area of significant force. It could be also sustained, let us say, by a weight being applied on the arm over ‑‑‑.
COUNSEL: Perhaps you could just slow down a little bit. 
JUDGE BARRETT: By a weight? 
(A) Let us say a weight being applied on to the arm with a point being applied of some sort. For example, let us say, over a table, if I placed weight over it in that way that would be an alternative mechanism.” 
18.	Mr Clarke referred to the difficulties involved in deciding the “exact mode of injury”. The doctor was fully cross‑examined by Miss Peneth for the appellant. He repeated that the likely cause of the fracture was a direct blow to the point at which the fracture occurred. He expressed the opinion that the injury was not “a twisting injury or a pulling injury”. Asked about the effect of an arm being twisted up the back, Mr Clarke stated: 
“It could occur, yes. What I would say is that it would be unlikely that it would at that level in the mid shaft of the forearm, particularly also, we have to remember, that because of the other bone (which is the radius bone) is intact and so it is a very unlikely injury from a twisting injury. Also a twisting injury tends to cause what is called a spiral fracture rather than a transverse fracture.
(Q) Spiral meaning it‑? 
(A) Yes, it literally twists around the bone.
(Q) And this is quite clearly not one of those? 
(A) No. This is quite clearly a transverse fracture, which means straight across. I have the x‑rays if you wish to see them.” 
19.	Mr Clarke accepted that the respondent would not have been able to see the actual cause of the injury but “effectively something happened behind him” but the respondent is not aware of the exact cause. The witness was then asked: 
“(Q) But certainly what is not a pulling up of the arm, because, as we know, there has to be a direct blow?
(A) Yes. It is not a pulling up or it is not a twisting injury to the arm .” 
20.	I have come to the conclusion that, in the light of that medical evidence, a jury could not properly come to the conclusion that the fracture occurred in the manner alleged by the respondent. This was not a case in which they could reject the evidence of Mr Clarke. When skilfully cross‑examined, notwithstanding that his evidence as to the difficulty of diagnosis was almost certainly intended to help the respondent, he expressed and confirmed a firm opinion that the pulling or twisting motion alleged by the respondent could not have caused the fracture. While a jury is not always bound to accept medical evidence, the medical evidence in this case was so strong and clear and so contrary to the respondent's account that it would have been perverse of a jury to reject it. The evidence is also consistent with a fracture having occurred during a fall when Constable Green was holding the respondent's arm behind his back, as Constable Green claimed. That also appears from Mr Clarke's original written report. 
21.	Substantial criticisms are made of the summing‑up of the judge and in particular of his failure to summarize and consider the effect of the medical evidence. There is, in my judgment, considerable force in that submission. The jury should have been given further assistance. More detailed analysis of the evidence and the sequence of events was required. In the light of conflicting evidence given over a period of five days as to when the fracture occurred, and having regard to the point now successfully taken on behalf of the respondent, it is surprising that counsel did not request a question which would have directed the jury specifically to this issue. 
22.	Neither party seeks a retrial. In my judgment, on any defensible analysis of the evidence as a whole, a verdict in favour of the appellant on the cause of action of trespass to the person would inevitably result, so that the interests of justice do not require a retrial. That being so, it is not necessary to consider in any more detail the directions given to the jury on the issue of assault. 
23.	Misfeasance in public office. 
24.	The finding in the respondent's favour upon misfeasance in public office is based on the jury's affirmative answer to question 18. Under the heading “The taking of the fingerprints”: 
“Has the claimant proved on the balance of probability that the taking of the claimant's fingerprints by P.C. Dalton occurred when P.S. Labbett knew and had told or should have told PC Dalton that the claimant has a suspected possible fracture of his right arm and therefore was a wilful exercise of the power to do so for an improper motive and as a result of an indifferent disregard of the claimant's pain and suffering.” 
25.	On the morning after the incident already described the respondent's fingerprints were taken by police officers. The respondent's evidence was: 
“The fingerprint was mentioned and then what happened? 
(A) An officer came and showed me where to go. I went there with my dad because my dad was still there. I think he done my left arm first and then done my right arm. I could not move my right arm, so he picked up my fingers and moved it for me ‑ my thumb. It was hurting a lot. I was going: 'Aah, Aah, Aah',and the police officer that was taking the fingerprints said: 'All right, boy, I've heard it all before', or something in the words of that. 
(Q) Were the fingerprints taken on your right hand? 
(A) Yes.” 
26.	[And a later question]:
27.	(Q) When you say you went, 'Aah, Aah, Aah', was that all you said? 
28.	(A) No, it did hurt. I was wincing. I had to move my whole arm around like that as he was taking the fingerprints. A lot of pain.” 
29.	The respondent denied having consented to having his fingerprints taken. He agreed in cross‑examination that he did not object to his fingerprints being taken but said that he was not asked whether or not he consented. It is conceded on behalf of the respondent that the officers were in the circumstances entitled to take the respondent's fingerprints. He had been charged with an offence. 
30.	On his behalf reliance is placed on the first form of liability, misfeasance in public office, defined by Lord Steyn in Three Rivers District Council v Governor & Co of the Bank of England [2002] WLR 1220 at 1231C:
“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a police officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive.” 
31.	 
32.	In Three Rivers Lord Hutton cited the judgment of Brennan J in the High Court of Australia in Northern Territory of Australia v Mengel 69 ALJR 527. Brennan J stated at page 547: “ 
“Misfeasance in public office consists of a purported exercise of some power or authority by a police officer otherwise than in an honest attempt to perform the functions of his or her office, whereby loss is caused to a plaintiff.”
33.	Brennan LJ had stated at page 546 that:
“The mental element is satisfied if the police officer engages in the impugned conduct with the intention of inflicting injury.” 
34.	It is submitted that the jury were entitled to conclude that the power to obtain fingerprints was used for the improper purpose of injuring the respondent and that injury resulted. The jury were entitled to infer, Mr Spooner submits, such improper motive from the failure of Sergeant Labbett to inform Constable Dalton that the respondent had a possible suspected fracture of his right arm or, alternatively, if Police Constable Dalton did know of it, his conduct in proceeding with the fingerprinting. In his summing‑up the judge stated: 
“Then, it's said not only was it false imprisonment but it was a failure by a public officer to carry out the functions which he was given in a way that was the way in which he was required to act. He acted for the wrong motives. And that applied also to fingerprints. There is no doubt, members of the jury, that there is a power to take fingerprints once a person has been charged. But the question here is whether in fact he was required to give them because of his perhaps general demeanour and attitude and hostility. Otherwise he would not have been and whether that would have been a misuse of the power? Now you've just got to decide in these circumstances whether in fact Police Sergeant Labbetts knew or had told Police Constable Dalton about the suspected fracture, possible fracture? It was only a possible fracture at that stage. Given either that Police Constable Dalton knew or certainly the custody sergeant knew what the doctor had advised by that stage, then the exercise of the power in those circumstances, really must have been doing it for an improper motive. Bear in mind it's a very serious allegation. As I said to you earlier, you could not really give an answer 'yes' to that ‑‑ I suggest ‑‑ unless you thought the evidence was really very compelling. Is it more likely than not that the complainant is right about that?” 
35.	In his evidence Sergeant Labbetts claimed that the fingerprints were taken with consent but accepted that, had he known, which he did not, that the respondent was 16 years old, the father's consent should have been obtained. Sergeant Labbetts accepted that he knew that the respondent had a painful and swollen right forearm. Constable Dalton stated that the respondent “yelped with pain” when the right hand fingerprint was taken. The constable said that he did not know that the lad was hurt until he took hold of his hand. He said that the respondent was cooperative and that he went “as gentle as possible with him.” Asked about taking the fingerprint on the right hand, Mr Clarke, the respondent's medical witness stated:
“It would be uncomfortable but it would certainly be possible to do. I would have no particular concern that it would cause severe and undue pain. If it was done voluntarily I would say.
(Q) If the finger was taken hold of by someone else and some pressure applied? 
(A) If it was a very forced rotation then I would expect it would be uncomfortable, but if it was a voluntary turning, I would think with that type of injury it would be quite possible to do a voluntary imprint, then it should not cause undue pain. It may be uncomfortable but it would not cause undue pain.”
36.	In my judgment, the judge was not entitled to find the tort of misfeasance in public office established by reason of the jury's affirmative answer to question 18. Giving the word “therefore” in the question its ordinary meaning, the question would allow the tort to be constituted merely by the taking of fingerprints when the fingerprinting officer knew or should have known that the respondent had a suspected possible fracture of the right arm. As framed, the question made no provision for a consideration of other ingredients of the tort. It did not provide for consideration of whether the officer had an improper or ulterior motive for taking the fingerprint, such as an intention to injure the respondent. It had no regard to the need to prove injury. A series of questions would have been necessary to supply the material to establish the tort. 
37.	However, even with careful drafting, a finding against a police officer of misfeasance in public office would not, in any event, have been justified on the evidence in this case. Fingerprints are routinely taken from a person charged. The inference that in this case they were taken with the intention of injuring the respondent could not legitimately be drawn on a failure to inform the fingerprinting officer of the suspected possible fracture, having regard to the medical evidence on the condition of the respondent's right arm and the evidence as to the manner in which the fingerprints were taken. 
38.	In my judgment, the allegation should have been withdrawn from the jury. The direction given to the jury as to the ingredients of the tort and the evidence to be considered was also far from sufficient but, as with assault and for the same reason, the need to analyze it in detail does not arise. On the basis of the respondent's own evidence, including his medical evidence, the prospect of establishing the ingredients of the tort of misfeasance in public office were extremely speculative. 
39.	I would deprecate the routine inclusion of such an allegation in cases of this kind. The burden of establishing that an officer following routine procedures does so with the ulterior motive of injuring the detainee is not easily satisfied. The addition of this cause of action to the others alleged was not justified in this case. It may have been the multiplicity of causes of action in this case which had the effect of distracting the judge and counsel from the framing of questions appropriate to each cause of action.
40.	Costs. 
41.	The grounds of appeal against the order for costs against the respondent arise for consideration only if the substantive appeal were to fail wholly or in part. Upon my conclusions the appeal succeeds. There can be no justification for an order for any of the costs of the trial to be met by the appellant. I would allow the appeal against the costs order. It is not in the event necessary to consider submissions on behalf of the appellant as to the relevance of the factors taken into account by the judge when ordering costs against the appellant and I make no findings on that issue, save to note the concession rightly made on behalf of the respondent that the judge was wrong to take into account the fact that the appellant was or constituted a public authority. 
42.	For the reasons I have given I would allow this appeal. 
43.	LORD JUSTICE LAWS:I agree that this appeal should be allowed and that there is no call for a retrial. Mr Clarke, the consultant orthopaedic surgeon, gave what was in my judgment unequivocal testimony whose effect was that the fracture of the claimant's right ulna was not occasioned by the arm's being forced upwards behind the claimant's back. That however was the claimant's case. The only other candidate for the cause of the fracture was that PC Green fell on to the claimant. That was the police defendant's case. The doctor made it plain that the fracture was of a kind which would have been caused by a direct blow and not a twisting or pulling injury. 
44.	While as a matter of law a jury is entitled to reject expert evidence, here there was nothing whatever to set against the doctor's testimony. There was no suggestion that it was false or mistaken. A jury might I suppose be so impressed with a particular witness that they feel driven to accept his testimony, even in the face of expert evidence which tends to contradict him. But the jury were not so impressed with the claimant here. They rejected part of his case and cannot have believed the whole of his evidence. It is to be regretted that the judge in his summing‑up offered the jury no assistance whatever in relation to the medical evidence. That may account for their having overlooked its effect, despite what I am sure were Miss Paneth's elegant submissions in closing her case. 
45.	The result is that I agree with my Lord, Lord Justice Pill, that a reasonable jury was on the facts here bound to reject the claimant's account as to how he came by the fracture to his arm, and therefore to reject also his claim to have been assaulted. I agree also with my Lord's reasoning and conclusions upon the issue of misfeasance in public office which should never have been alleged in the pleadings or advanced before the jury. I add nothing in relation to the costs appeal.
46.	SIR MURRAY STUART SMITH:I agree with the judgments of my Lords and I wish to add nothing in relation to the claim for misfeasance or on the question of costs. 
47.	So far as the verdict on the claim for assault is concerned, it is necessary to consider how the rival cases were pleaded and presented. The claimant's primary case was that he was minding his own business, neither drunk nor disorderly. Admittedly he had cleared his throat of phlegm, but it was mischance and not intentional that one discharged fairly close to the policeman and the other on the police car. So behaving, he was arrested for no reason, kneed in the thigh and pushed to the ground, where his right arm was twisted up his back so far and so violently that it was broken. 
48.	If that case was made out the police were clearly guilty of an unlawful arrest and assault and battery, and it matters little precisely how the arm was broken. It all happened as a result of an unlawful arrest which was an assault. But the claimant's primary case was not made out. That is clear from the jury's answer to question 7. They clearly accepted the police version that the claimant was behaving in a drunken and disorderly manner, refused to give his name and address and became violent when PC Jones tried to arrest him. 
49.	The claim might nevertheless have succeeded on an alternative basis, namely that, in effecting what was a lawful arrest, the police had used excessive force. This would depend on the jury accepting that the injury was caused by the claimant's arm being twisted or pushed too far and too violently. That such action could cause a fracture of the arm is not in dispute; but had the claimant proved on the balance of probability that that was what occurred here? Although the jury rejected a very substantial part of the claimant's evidence, and therefore it would have been surprising that they preferred his evidence on this crucial point, they could at least in theory have done so if there was no other evidence that bore upon the issue. But there was other evidence, and moreover it was from an independent source, cogent and clear. My Lord, Lord Justice Pill has referred to the relevant parts of Dr. Clarke's evidence. I do not repeat them. Whatever may have been Dr Clarke's initial uncertainty, when he may not have had a clear picture of what the claimant was alleging, there can be no doubt that the evidence tended to refute the claimant's case and support that of the police, namely that the fracture occurred when PC Green fell accidentally on to the arm. Had the jury appreciated the significance of this evidence they could not have given the answer that they did to question 8.2. Unfortunately, the judge never mentioned the doctor's evidence, still less gave the jury any assistance as to its significance. This was a serious omission and may explain why the jury reached what, in my view, was a perverse verdict on question 8.2. Without that finding the necessary ingredient of excessive force was not established. 
50.	I am bound to say that I do not think that the jury received the assistance in the judge's summing‑up that they were entitled to expect. My Lord has dealt with the summing‑up in relation to misfeasance in public office. I say no more about that. To my mind the simplest and most helpful way to sum up the case on the assault would have been, after giving the usual direction on the burden and standard of proof, to tell the jury that, if they accepted the claimant's primary case as I have outlined, then they would probably conclude that the assault was established and that it mattered not precisely how the arm was broken. But if they considered that that case was not correct and that the police were justified in using force to arrest him, they had to be satisfied that excessive force was used before they could find for the claimant. That meant that they had to be satisfied on the balance of probability that the claimant's arm was being twisted up his back and that that was the correct version. The judge should have reminded the jury of the doctor's evidence and the significance of it. 
51.	At one stage in the course of his submissions Mr Spooner appeared to rely on the jury's answer to question 8.1, namely that PC Luxford used excessive force in the knee strike and that this in some way supported the claimant's case on the fracture. To my mind this finding was irrelevant and had no bearing on whether the arm was broken due to excessive force. The knee strike caused no injury. It did not succeed in incapacitating the claimant and putting him on the floor. Miss Paneth wisely did not challenge this finding. It was not necessary to do so. I am inclined to think that the answer was irreconcilable with the jury's answer to question 7 which clearly indicated that the police were justified in using force to arrest an unruly claimant. I find it difficult to see that a knee strike that had no effect and caused no injury can be described as excessive force. As I have indicated, I think that Mr Spooner eventually accepted that the jury's answer to question 8.1 did not assist in resolving the critical issue in this case. For these reasons and those given by my Lord I would allow the appeal. 
ORDER: Appeal allowed; section 11 order made.