BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McPhee v. Chief Constable Of Central Scotland Police [2005] ScotCS CSIH_29 (18 March 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_29.html
Cite as: [2005] ScotCS CSIH_29, [2005] CSIH 29

[New search] [Help]

McPhee v. Chief Constable Of Central Scotland Police [2005] ScotCS CSIH_29 (18 March 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Macfadyen

Lady Cosgrove

Lord Cameron of Lochbroom

 

 

 

 

 

[2005CSIH29]

XA116/03

OPINION OF THE COURT

delivered by LORD CAMERON OF LOCHBROOM

in

APPEAL

From the Sheriffdom of Tayside Central and Fife at Stirling

by

STUART ANDREW McPHEE

Pursuer and Respondent;

against

W.J.M. WILSON, Q.P.M, Chief Constable, Central Scotland Police

Defender and Appellant:

_______

 

 

Act: Clancy Q.C.; Hughes Dowdall, Glasgow (Pursuer and Respondent)

Alt: A. Smith Q.C.; Simpson & Marwick, W.S. (Defender and Appellant)

18 March 2005

 [1]      This appeal concerns an action raised in the Sheriff Court at Stirling. In it the pursuer and respondent, a serving police officer, sued his chief constable, the defender and appellant, for damages for personal injury sustained in the course of an exercise during a training course. The course was an officer safety re-certification course held in the gymnasium at Police Headquarters at Randolphfield, Stirling. The respondent's case before the sheriff was founded on two grounds of fault at common law. The first ground did not survive proof before answer and is not the subject of the present appeal. In it the pursuer had averred that the operation of the course was fundamentally flawed. The second ground was that another police officer, Constable Davidson, also taking part in the course, used excessive force in carrying out a manoeuvre, known as the knee strike technique, against the respondent causing the latter to sustain injury. At the conclusion of the proof before answer the sheriff repelled the respondent's first plea-in-law directed to the first ground of fault but found in fact and law as follows:

"In using force when executing the knee strike on the Pursuer to an extent which prevented him from fulfilling the instructions given on behalf of the Defender not to use full force and to exercise restraint in the amount of force used, and so to an extent which prevented him from fulfilling the instruction to retain hold on the Pursuer's clothing so as to be able to control the Pursuer's fall to the floor resulting from the knee strike, Constable Davidson was in breach of his duties to take reasonable care for the safety of the Pursuer as his fellow employee and for that failure Constable Davidson's employer, the Defender, is vicariously liable".

 [2]      Before this court the appellant has maintained that there was no proper evidence before the sheriff entitling him to make such a finding in fact and law, as stated in the appellant's fourth ground of appeal. Further, in terms of his fifth ground of appeal, the appellant has maintained that the sheriff failed to take into account to a sufficient extent that it was necessary to include in the operation of such training exercises that there should be an element of realism and that the degree of force used by a police officer cannot be weighed in too fine a balance.

[3]      In presenting his submissions and inviting this court to recall the sheriff's interlocutor finding the defender vicariously liable for Constable Davidson's actings, counsel for the appellant intimated that the only findings in fact which he was inviting the court to set aside as unsupported by the evidence, were Finding in Fact 20 and a part of Finding in Fact 28. In doing so, the appellant was complying with the requirements of section 32 of the Court of Session Act 1988 as explained in Marshall v. William Sharp & Sons 1991 SLT 114. No criticism was directed to the remainder of the sheriff's findings in fact.

[4]      Before considering further these criticisms, it is convenient to set out the general scope of the sheriff's findings which were not the subject of criticism. Prior to 1997 both the respondent and Constable Davidson had been trained and certified as trained in self-defence and control techniques (finding in fact 3). On 4 December 1997 both officers attended a compulsory refresher course. The course instructors were Inspector Higgins and Constable Paton (findings in fact 4 and 5). Those attending and taking part in the course, having been reminded that safety throughout was of first importance, were required to practice in pairs the techniques that they had been shown. The respondent and Constable Davidson elected to form a pair. Constable Davidson was taller, heavier and of bigger build than the respondent (finding in fact 6). In the knee strike technique a police officer by using his knee to strike an intending assailant's leg would cause that assailant to lose balance and be brought to the ground so that he could be controlled there. The technique was also known as a take-down technique since its intended purpose was to result in the intending assailant ending up on the ground or floor on his back (finding in fact 7). The knee strike technique had been developed by Central Scotland Police as an added tool for defence from and control of an intending assailant. While the knee strike technique so developed differed from the form of knee strike technique used in other police forces (which were cascade and not take-down techniques), there was no harm in or prohibition against Central Scotland Police seeking to devise it and instructing and demonstrating it to their officers and in having them practice it, subject to reasonable care for the safety of their employees being taken in relation to such practice in particular (finding in fact 10). The instruction and demonstration of the knee strike technique by Inspector Higgins and Constable Paton were intended to lead to re-certification of those attending the course. It was of a technique to take down an intending assailant by striking that assailant on the left side or back of his left leg above the knee with the police officer's right knee (finding in fact 11). The probable intended angle of approach of the police officer and intending assailant for employment of the technique was as near as might be face-to-face with the police officer then moving to some extent to his right so as to be able to perform the knee strike (finding in fact 12). Because the knee strike technique when practised, being a take-down technique, involved a higher risk of injury, including head injury, than the other non-take-down techniques, in the instruction and demonstration by Inspector Higgins and Constable Paton the practice of the technique required that those who were acting the part of the police officer should take hold of the upper garments of the other officer acting the part of the intending assailant with both hands and retain hold throughout the practice so as to be able to manage and control the latter's fall and so lower him rather than let him fall to the floor; and having received instruction and demonstration of such taking and retaining hold, participants in the course such as Constable Davidson knew or ought to have known that such taking and retaining hold was necessary to counter that higher risk of injury: and participants on the course such as Constable Davidson knew or ought to have known that less than a full force knee strike was necessary if such a hold by him or her was not only to be taken but retained, having been told that during practice of the Central Scotland Police knee strike technique a full force knee strike was not to be used, so that participants were to exercise restraint in the amount of force they employed in that knee strike, in order to increase the safety in practice of the higher risk Central Scotland Police take-down knee strike technique (finding in fact 13). Such taking and retaining hold involved some lack of realism as so taking and retaining hold would probably not be appropriate or employed with a real assailant since it would leave the police officer open to attack. In the practice the officer taking the part of the intending assailant was only pretending an intent to assail since his hand or hands were engaged in holding a strike pad against his left knee (finding in fact 14). The practice involving the respondent and Constable Davidson took place after at least one other pair had practised the technique, with all the instructors and other attenders at the course watching. The respondent played the part of the police officer first and managed the knee strike adequately, taking and retaining hold of Constable Davidson's clothing so as to control and manage Constable Davidson's resulting fall to the floor of the gymnasium and so to see that the respondent played a part in lowering Constable Davidson to the floor rather than leaving him to free-fall to the floor (findings in fact 15 and 16). When the roles were reversed Constable Davidson struck the respondent, who was expecting the strike and was braced to receive it, with his right knee in the way instructed and demonstrated and having in probability taken hold of the respondent's upper garment or garments as instructed to, but "Constable Davidson struck with such force that he was unable to retain that hold so as to lower the [respondent] to the floor as he had been instructed to do" (finding in fact 17). As a consequence the respondent "fell with considerable force to the floor, his legs having left the floor in consequence of Constable Davidson's strike, his whole body being between approximately one and four feet above and so out of contact with the floor for a moment, and thereafter his head and shoulders were the first parts of his body to hit the floor in whatever order, there being also some effect of whiplash from the strike with the [respondent's] head whiplashing backwards and so, as he fell, whiplashing towards the floor" (finding in fact 18). The respondent ended up on a mat on the floor and was "rendered unconscious, semi-conscious, concussed, stunned, dazed and/or shocked to an extent that for a short time he was not aware of what was happening and was unable to speak or to move" (finding in fact 19). Constable Davidson was familiar with the knee strike technique having been shown it and practised it at an initiating course in 1996 and as explained and demonstrated at the re-certification course. He was aware of the need to take and retain control of the intending assailant's clothing (finding in fact 22). In finding in fact 27 the sheriff holds that the strike pad was correctly held in place by the respondent at his left knee area at the time of the strike by Constable Davidson and that "instructions had been given by Inspector Higgins that participants were to exercise restraint in the amount of force used in the knee strike and not use full force under reference to finding in fact 13".

[5]      Finding in fact 20 is in the following terms:

"Onlookers who gave evidence were surprised by the unusual uncontrolled violence indicated by Findings in Fact 17, 18 and 19, one or two of them thinking it a 'perfect strike' which in a real situation it might have been whereas during practice it was not since it resulted in hold and so control not being retained under reference to Finding in Fact 17, while others thought that the force used by Constable Davidson from the results apparent was excessive, with Constable Davidson describing what happened as 'freakish'."

 [6]      Finding in fact 28 is in the following terms:

"In view of Constable Davidson's knowledge as indicated in Finding in Fact 22 in particular, Constable Davidson knew that there was a need for him to retain his hold (which he did not do) on the [respondent's] clothing at and after the strike referred to in Finding in Fact 17 in order to enable him to break the fall of [the respondent] caused by his strike on [the respondent] and Constable Davidson was accordingly aware as was obvious of the need to moderate the force used by him in the knee strike referred to in Finding in Fact 17 sufficiently to enable him to retain that hold which he did not do." (the underlining denotes that part to which criticism was directed by counsel for the appellant).

 [7]      The principal submission made in criticism of the sheriff's findings in fact was concerned with his assessment of the evidence and, in particular, his rejection of evidence about the incident given by Inspector Higgins and Constable Paton. They had been responsible for the instruction and demonstration of the knee strike technique to those attending the course and neither had said that the force used by Constable Davidson had been excessive. At the same time no witness other than the respondent said that the force used was excessive or far too hard. Furthermore no witness had been asked if the reason for Constable Davidson's loss of grip upon the respondent was because he had used excessive force in carrying out the knee strike.

[8]      In challenging the two findings referred to, counsel for the appellant submitted that there was conflicting evidence on the matter of the degree of force used. In particular none of Inspector Higgins, Constable Paton or Constable Davidson accepted that such a degree of force as that indicated by the sheriff had been used. The sheriff gave no reason for judging their evidence to be unreliable. In failing to do so it could not be said that he had taken advantage of his having seen and heard the witnesses who gave evidence before him and the matter was therefore at large for this court to determine de novo. Reference was made to Thomas v. Thomas 1947 SC (HL) 45 and McCusker v. Saveheat Cavity Wall Insulation Ltd. 1987 SLT 24. Finding in fact 20 which purported to be a finding in fact was no more than a retailing of the evidence given by witnesses. Apart from the respondent no other witness suggested that the force employed by Constable Davidson in striking the respondent with his knee was excessive against the background that the exercise undertaken in the practice of the knee strike technique was to achieve some degree of realism. Further, no witness had been asked whether it was because of the force used by Constable Davidson that his grip upon the respondent had been lost. In support of these submissions counsel made reference to passages in the transcript of evidence given by all the witnesses present at the time of the accident with the exception of that of a witness named Manson. He accepted that his evidence was accurately recorded in questions put to Inspector Higgins in cross-examination (though refuted by the witness) to the effect that as a result of the knee strike delivered by Constable Davidson the respondent's feet and legs had been propelled into the air.

[9]      Before we consider these submissions further we note that the appellant's grounds of appeal make no criticism of the sheriff's determination that if excessive force in the circumstances was used by Constable Davidson in delivering the knee strike, it was a cause of the respondent's accident even if there was also a failure on his part to retain a hold on the respondent's clothing and control his inevitable fall to the ground. We find no warrant for the criticism of the sheriff's approach to the matter of credibility and reliability. In paragraph 23 of his Note he specifically deals with this issue. In particular he found the respondent to be credible and reliable in his evidence apart from one matter which is not in point to the present appeal. It is also clear that the sheriff did not find the three witnesses founded upon by the appellant, while credible, to be reliable as to their evidence about the degree of force used for the knee strike or the effect of the knee strike upon the respondent. Their evidence must have been rejected by the sheriff to allow him to make findings in fact 17 and 18 in particular in so far as they relate to these matters. While no witness other than the respondent may have used the adjective "excessive" to describe the force employed by Davidson, the respondent in cross-examination said that there had been "real impact", that "a good deal of force had been used" and described the force employed to be such as to knock the feet right from him so that he turned turtle. He went on to say that it was much more violent than what by inference was suggested to him by the cross-examiner as an appropriate degree of force for the exercise employed but with Davidson "simply losing his grip" as the respondent went down. At a later point in cross-examination the respondent said that he thought Constable Davidson "probably used more force than he should have done .. quite a lot more force, bearing in mind that I went right up and over, I would say a lot more." Nor are the descriptions of other witnesses only to the effect that the strike was a "proper" strike as suggested in the fourth ground of appeal. Three other police witnesses, Strachan, Dick and Manson, all of whom observed the strike, described its effect in terms which are reflected in finding in fact 18. As regards finding in fact 20, we reject the submission that it is not properly a finding in fact. The evidence given by the above three witnesses reflected their immediate and spontaneous reaction to what they observed. Strachan spoke of the knee strike as "being absolutely perfect", that it was the first time he had seen anyone go down the way the respondent went down on a knee strike and that he could "only say that it was done to perfection". In cross-examination he described his initial reaction of surprise at the considerable height that the respondent's body reached after the strike. Dick said that as a result of the knee strike the respondent had gone up "abnormally high" into the air. Her impression at the time was that it was a "well executed knee strike" because of the way it completely off-balanced the respondent. In explanation of her use of the phrase "abnormally high", she said that they had been taught that the use of the knee strike was designed to off-balance the pretend prisoner and assist him to the floor.

[10]      In paragraph 21 of his Note the sheriff sets out his reasoning which gives rise to the finding in fact and law which the appellant attacks. In particular, he founds upon findings in fact 13 and 20 and from these findings in fact infers that the cause of Constable Davidson's failure to retain hold of the respondent's clothing when performing the knee strike resulted in probability from his use of excessive force when performing the knee strike so that the dynamics were such that he was unable to hold on to the clothing. The sheriff explains excessive force as being the use of more force than Constable Davidson was instructed to use and that it was probable that apart from originally taking hold of the appellant's clothing Constable Davidson behaved as if he was in a real situation rather than a practice and that confusion between real and practice situations might be a confusion which affected the witnesses who thought the strike perfect, meaning perfect in a real situation but not perfect for practice. We are satisfied that on the evidence the sheriff was entitled, on a balance of probability, in the light of his findings in fact to reach such a conclusion. The dynamics consequent upon the knee strike are described in findings in fact 18 and 19. There was no dispute that Constable Davidson was aware of the need to retain hold of the respondent's clothing. In evidence he offered no explanation for his loss of grip. He denied that he had hit the respondent much too hard, suggesting that what had happened was just "a freak chance of accident". But he agreed in cross-examination that it was not part of the exercise to lift the respondent off his feet but rather was to make him lose his balance and go to the ground. Standing the terms of findings in fact 13, 17 and 27 in particular, none of which are challenged by the appellant, the sheriff was on the evidence well entitled to make finding in fact 28 in full.

[11]      We also agree with counsel for the respondent that in the absence of challenge to findings in fact 17 and, especially, 18, the evidence for which was wholly contrary to the evidence given by Inspector Higgins and Constable Paton, the foundation of the appellant's submissions is fatally flawed. Constable Davidson himself had no recollection of what happened between the strike and the respondent landing on the ground or what was the position of the respondent following the strike.

[12]      We are in any event satisfied that the sheriff has not misdirected himself in his approach to the evidence led before him. In McCusker the Lord Ordinary was held to have erred in saying that only one witness had contradicted the presence of hard packed snow on the road whereas in fact others had also done so. No such error is identified in the present appeal. The sheriff plainly had in mind and identified the conflict between the witnesses and the respective bodies of evidence. He determined that conflict by reference to the advantage he had of seeing and hearing the witnesses as he makes clear in his Note. We find it impossible to hold that it is unmistakably the case that the sheriff has not taken proper advantage of his having seen and heard the witnesses in the present case so that the matter has become at large for this court. We note in passing that, as counsel for the respondent pointed out, this particular criticism finds no place anywhere in the appellant's grounds of appeal and that no attempt was made prior to or during the hearing before us to seek to amend the grounds of appeal to make specific reference to the criticism.

[13]      The further submission for the appellant founded upon in his fifth ground of appeal, derived from the proposition that the weight of the evidence was to the effect that the incident occurred during a properly executed exercise in which a degree of realism was necessarily a part, and one in which Constable Davidson lost his grip. It was said that it was impossible to measure force to any exact degree and that the duty of reasonable care had to be related to that circumstance. Reference was made to Blake v. Galloway 2004 1 WLR 2844 and Woolridge v. Sumner 1963 2 QB 43.

[14]      We agree with counsel for the respondent that the foregoing cases do not assist other than that they underline that where a duty of care arises, and it is not suggested for the appellant that no such duty arises in the present case, the standard of care which the common law requires depends on all the circumstances of the case. Neither was concerned with a carefully regulated exercise of the kind in the present case involving experienced police officers knowing the difference between practice and real situations, in which the risk of injury of the type which occurred had been recognised and in which instruction and demonstration had not only identified the risk but had given explicit instruction about moderating the force to be employed in the knee strike and the object to be secured, namely, the off-balancing of the pretend assailant. The sheriff clearly had regard to the issue of realism and noted in finding in fact 14 that there was some lack of realism and hence a degree of artificiality in an exercise which created the very risk of injury which the instruction and demonstration were intended to counteract. In the circumstances as found in fact by the sheriff, we can find no basis for criticising the sheriff's determination that Constable Davidson was under the duty of care towards the respondent founded upon and that he breached that duty of care.

[15]      For the foregoing reasons we shall refuse the appeal.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_29.html