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Police Errors of Judgment and Negligence - Is there a Distinction? W v Chief Constable of Nottinghamshire Police - A closer look
- Aug 25, 2025
- Latest Journal
by Catherine Dent - Barrister at St John's Buildings
Last month, I represented the Claimant in an appeal to the High Court before Mr Justice Bourne. The issues, or rather “issue” could not have been more straightforward - did the failure of a police officer to put his vehicle in neutral amount to negligence or was it simply an error of Judgment - which having regard to the factual circumstances at the time, did not amount to negligence?
A precis of the decision was reported on our website. This article explores the issues in greater depth.
The facts
The Claimant was injured on 15th April 2020, when attempted to evade the police. He was part of a group of men who were being observed by a serious organised crime police unit. The Claimant was part of a group of young men who were observed passing items between them. The group, upon seeing a police vehicle, dispersed in various directions. The Claimant left the scene on his bicycle and proceeded to cycle on the pavement, alongside a row of terraced houses.
The police officer drove alongside the Claimant and repeatedly asked him to stop, but he did not. The police officer pulled ahead of the Claimant in front of an end terrace house which had a concreted over front garden area with a low brick wall. In the heat of the moment, the police officer forgot to put his automatic vehicle into park or neutral and as he attempted to exit the car, it rolled into the brick wall striking the Claimant obliquely.
The Claimant, although knocked over by the impact, managed to make good his escape by a nearby street. The Claimant returned to the scene of the accident and admitted to the police officer that he had in his possession at the time a small quantity of cannabis.
First instance decision
In the first instance the trial judge found that the police officer owed the Claimant a duty of care however, he considered that the failure to place the vehicle in park or neutral did not constitute negligence. From the police officer’s perspective the prevailing set of circumstances were “not trivial”.
Case law
The relevant case law that fell to be considered was Robinson v Chief Constable of West Yorkshire [2018] UKSC4.
The circumstances in Robinson involved a suspect who was dealing drugs outside a shopping centre. Police officers made a plan to apprehend him whilst two or more other officers would wait outside. As the first two officers took hold of the suspect, the suspect resisted arrest and there was a tussle. They collided with Mrs Robinson causing her injury. The lead officer accepted that it was necessary to consider the risk to bystanders and, that if he had walked past someone who was in harm’s way, he would not have attempted the arrest. He simply failed to see Mrs Robinson.
Lord Reed considered that this was not a situation where the suspect had to be detained at that moment. It was therefore held that the trial judge was entitled to find negligence. The following paragraphs of the Judgment were particularly relevant:-
75. The Court of Appeal was correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their operational duties. That is most obviously the case where critical decisions have to be made in stressful circumstances with little or no time for considered thought. This point has long been recognised. For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated, as noted at para 47 above, that the officer’s duty was to exercise “such care and skill as is reasonable in all the circumstances”. He went on to state that those “were no doubt stressful circumstances”, and that although there was no doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent (p 1038). The same point was made, in a context closer to that of the present case, by May LJ in Costello v Chief Constable of Northumbria [1999] ICR 752, 767, where he remarked that “liability should not turn on ... shades of personal judgment and courage in the heat of the potentially dangerous moment”.
76. It is also necessary to remember that a duty to take reasonable care can in some circumstances be consistent with exposing individuals to a significant degree of risk. That is most obviously the case in relation to the police themselves. There are many circumstances in which police officers are exposed to a risk of injury, but in which such exposure is consistent with the taking of reasonable care for their safety. Equally, there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified. A duty of care is always a duty to take such care as is reasonable in the circumstances.
A case going the other way was Marshall v Osmond CA 1983. The Claimant was driving a stolen car. The suspect vehicle pulled up and the occupants fled on foot. The police car skidded and collided with the Claimant. The Judge found that the police did not owe the same duty of care. The Court of Appeal would disagree, however it dismissed the appeal on the facts as summarised by Lord Robertson MR. On the facts, the police officer had made an error of judgment, but the evidence did not show that he had been negligent.
Discussion
The key principle that can be summarised is, that a police car driver owes the same duty, such as to take such care as is reasonable. However, the nature of police work is such that circumstances may be significantly different. For that reason, unrealistically demanding standards of care should not be imposed on officers with little or no time for considered thought.
The cases show that although there is no presumption in favour of either party, if the police driver makes an error of Judgment, for which any other driver is liable, it is necessary to determine what caused the error to be made, and only in those circumstances can the Court decide.
At the appeal, Mr Justice Bourne considered that the relevant act or omission of failing to place the vehicle into park/neutral was not an error of judgment. The officer’s error did not involve anything in the nature of decision making, it was a pure omission that any driver would be bound to make. If the same accident happened in ordinary circumstances. i.e taking a phone call and rolling into a pedestrian, this would plainly be negligent.
Whilst the first instance Judge was right to describe the circumstances as “non trivial”, they were far from extreme. Whilst the Judge’s reference to “difficult circumstances” and the “heat of the moment” were a factually correct explanation as to how the very basic error came about, it was not a significant legal reason to deny liability. If it were, it would suggest that officers attempting an arrest in relatively mundane circumstances could be excused from taking precaution.
In the writer’s view, whether an act or omission constitutes negligence or is simply an “error of judgment” is entirely dependant on the prevailing circumstances of the time. The more mundane the circumstances, the greater the likelihood of negligence. Conversely, as in Marshall, the circumstances may be such that what would otherwise be considered a negligent act, can be excused as an error of judgment.
These types of cases are highly fact sensitive and careful consideration should be given to all the circumstances. What is negligent in one set of circumstances might be considered to simply be an “error of Judgment” in another.
Author
Catherine Dent
Barrister at St John's Buildings
Clerk@stjohnsbuildings.co.uk
Catherine is a personal injury barrister with a particular specialism in disease litigation. She acts for both Claimants and Defendants in Fast-Track, Intermediate Track and Multi Track matters.