THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor  EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an assessment of “negligence”. There are important observations in relation to the admissibility of police reports at trial and the steps a party must take if they wish to dispute admissibility at trial.
” It may be that, at least in essentially straightforward litigation like the present, the answer to his problem lies in ensuring that the opposing case is properly pleaded, if need be by amendment following disclosure…From that point the obligation will lie on each party’s lawyers to go through the agreed documents with the client or witness and take instructions on any discrepant evidence, albeit hearsay, relevant to the pleaded issues. But a party which has failed to plead its case with sufficient clarity may well find itself barred from adducing any evidence, hearsay or not, in support of an unpleaded contention.”
The claimant brought an action for personal injuries. The claimant had been a pedestrian in a car park. There had been an episode in the car park with a group of youths involving “banter” which degenerated into “open hostility”. The claimant attempted to drive away from what he perceived as a threats from a group. In driving away he ran over the claimant. The claimant denied liability on the grounds of self-defence and necessity. The claim was put wholly in negligence. (The defendant succeeded in his defence).
OBSERVATIONS ON THE LAW
Turner J was cautious in relation to the argument that self-defence and necessity required separate consideration.
In the particular circumstances of this case, I have concluded that the defences of self-defence and necessity merit no separate consideration. The litmus test of breach of duty in negligence involves the application of the test of objective reasonableness. I am unable to conceive of any practical or conceptual circumstance material to this claim in which this court could conclude that the defendant’s conduct had fallen below the standard of the reasonable man and yet liability could nonetheless be avoided on grounds of self-defence or necessity.
In my view, at least in circumstances where the court finds that the injured claimant is merely an innocent bystander upon whom it was not the intention of the defendant to inflict harm, the availability of a remedy can be gauged simply by the application of the familiar tests for breach of duty and causation in negligence. In many cases, the deployment of descriptive terms such as “self-defence” or “emergency” is apt to mislead by the implication that once a case is so labelled then some special and different test of liability are to be applied. The better modern view is that the stallholders X and Y in Scott would have escaped liability because their conduct was objectively reasonable without the need to demonstrate a “compulsive necessity for their own safety and self-preservation”.
This does not, of course, mean that the court must ignore the fact that any given defendant was acting under particular circumstances involving elements of self-defence, emergency or the like. However, such circumstances must be taken to comprise no more than factors to be taken into account in the balancing exercise involved in the judgment of the court as to what courses of action was objectively reasonable at the time.
ADMISSIBILITY OF THE POLICE ACCIDENT REPORTS
After the evidence was concluded counsel for the claimant attempted to argue that the police records were inadmissible.
After the conclusion of the evidence, counsel for the claimant sought to persuade me, on the strength of the case of Smith v The Chief Constable of Nottinghamshire Police  EWCA Civ 161, that the evidence in the police records was wholly inadmissible despite the fact that it was in the agreed bundle of documents and that no objection had hitherto been taken as to its admissibility. However, he had, it would appear, overlooked the case of Charnock v Rowan  EWCA Civ 2 in which the Court of Appeal observed:
“15. It is the insurers’ case that there was no procedural defect in the preparation or presentation of their case, and therefore no power in the judge to attenuate the value of the evidence they adduced of previous inconsistent statements made by a number of the claimants. As the acquiescence of the claimants’ own counsel at trial confirmed, they were fairly cross-examined on the basis of properly adduced material. It was properly adduced because it formed part of an agreed bundle which, by virtue of CPR 32 PD 27.2, not only operates – subject to notice of objection or to a contrary order of the court – as an admission of the authenticity of the documents in the bundle but makes them admissible as evidence of the truth of their contents. From that point, subject to any want of proper pleadings, it is for the claimants’ lawyers to take instructions on any apparent discrepancy revealed by the documents and thus capable of being a topic of cross-examination. This being so, Mr Turner submits, no question of ambush or want of notice arises…
22. Section 2(1) of the 1995 Act goes on to require such prior notice of intention to adduce hearsay evidence “as is reasonable and practicable in the circumstances for the purpose of enabling [the other party or parties] to deal with any matters arising from its being hearsay”. Section 2(3) makes provision for the notice requirement to be waived. It is, however, unnecessary to explore the wording of the section further because s.2(2) authorises the making of provision by rules of court either to disapply this requirement or to regulate its implemention (sic). This is now done by CPR 33.3, which inter alia waives the need for notice where a practice direction so provides. This, it would seem, gives 32 PD 27 the force, or at least the support, of law when it provides:
All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless –
(a) the court orders otherwise; or
(b) a party gives written notice of objection to the admissibility of particular documents…
23. It may be said that this reverses the notice requirement set out in s.2(1). It can equally be said that the effect is to treat the agreement of a bundle as the requisite notice, leaving it to the objecting party to serve what is in substance a document-specific counter-notice. But Mr Burton contends that more is needed for the admission of such hearsay than simply agreement of a court bundle. It requires, he submits, at least express notice of the fact that reliance is to be placed on the hearsay contained in the bundle, leaving it to the party served to require specificity. Mr Turner, by contrast, takes the stance described above in paragraph 15.
24. It has to be said that Mr Burton’s position, in addition to sitting ill with the practice direction, is an invitation to almost limitless and costly wrangling both before and at trial. It may be that, at least in essentially straightforward litigation like the present, the answer to his problem lies in ensuring that the opposing case is properly pleaded, if need be by amendment following disclosure…From that point the obligation will lie on each party’s lawyers to go through the agreed documents with the client or witness and take instructions on any discrepant evidence, albeit hearsay, relevant to the pleaded issues. But a party which has failed to plead its case with sufficient clarity may well find itself barred from adducing any evidence, hearsay or not, in support of an unpleaded contention.
25. The generic defence in the present cases was somewhat thin in this respect. It may therefore have been to this that Judge Gore QC should have looked in seeking – as he was justifiably doing — to forestall trial by ambush. But the question is not one on which it is necesssary (sic) to rule here.”
(i) The relevant records were included in the trial bundle without objection from the claimant;
(ii) the defendant’s case was pleaded in detail and it would have been obvious that the material in the police records would be likely to be deployed in support of his version of events;
(iii) this was “essentially straightforward litigation”;
(iv) the defendant’s counsel referred at length to the records during the course of the trial but counsel for the claimant raised no objection as to admissibility until after the conclusion of the evidence.
Upon reflection, counsel for the claimant conceded that the records are admissible but invited the court to place little or no weight on their contents. He pointed, in particular, to: certain discrepancies in the details of the evidence recorded, the fact that the evidence was double hearsay and that the ages and relative competence of at least two of the witnesses were uncertain.
(i) the accounts recorded were made very soon after the events to which they relate;
(ii) they were noted down by a police officer in the course of his or her duty in the full knowledge of the importance of their accuracy and the fact that they were later liable to be scrutinised in a court of law;
(iii) the authors of the accounts were either neutral or, in at least two cases, members of the group of Asian males whose loyalties would give them no incentive to exculpate the defendant’s group some members of which had so recently abused them;
(iv) the discrepancies in the accounts given were with respect to details which are easily attributable to genuine mistakes of recollection or observation in a fast-moving situation. The descriptions of members of the Asian group and of Mr Bagas trying physically to open the doors of the Polo are, in contrast, unlikely to be attributable to error.
THE DEFENDANT SUCCEEDED IN ANY EVENT
The judge found that the defendant was not negligent. He had acted reasonably in circumstances where he believed he was under attack.
I accept the defendant’s evidence that the Asian males were banging on the Polo and trying to open the doors. Mr Bagas was threatening violence and had managed to open the driver’s door and grab him. He was in genuine fear for his safety and that of his two female passengers. These are not circumstances in which the reasonable man could be expected to weigh to a nicety the relative risks involved in choosing between the options open to him.
The fact that he accelerated away at speed was, in my view, understandable and reasonable. Unfortunately, the claimant was standing in his path. The defendant knew of his presence but did not run him down intentionally. I accept that he hoped and expected that the claimant would have been be able to move out of his way.
In his later interview with the police, the defendant, looking back on what had happened, described his own actions as having been irresponsible. I am satisfied, however, that this comment was made with the benefit of hindsight and by someone who was burdened with the guilt of the consequences of the decision he had made. I do not doubt that, if he had acted less decisively and one or both of his passengers had suffered serious harm as a result of being dragged from the Polo and assaulted, his level of guilt would have been no less acute.
I find that the defendant acted in a way which did not fall below the standard of the reasonable driver placed in the threatening and rapidly developing situation in which he found himself. In these circumstances he is not liable in negligence. I do not consider that it would be appropriate to hypothecate on the level of contributory negligence which it may have been proper to find in the event that the defendant had not been exonerated.