RTA June 2010

June 2010 Contributory Negligence – Seat Belts

A classic example of getting your experts right has been highlighted in the case of Stanton v Collinson, [2010] EWCA Civ81 which has recently been before the Court of Appeal over whether or not the now seemingly ancient decision in Froom v Butcher [1976] 1 QB 286 should still apply.

Mr Stanton was a front seat passenger in Mr Collinson’s car, who had only recently passed his test. At first instance it was found that Mr Stanton had been sitting in the passenger seat with a female passenger on his lap, with neither wearing a seat belt, had encouraged the defendant to drive faster and had drunk so much alcohol that his decisions were impaired. Mr Collinson lost control of the car and crashed into a tree, suffering fatal injuries. Mr Stanton suffered a depressed fracture to the back of his skull which caused significant damage to his frontal lobe. The question before the court was one of contributory negligence and causation surrounding the failure to wear a seatbelt. A joint report from seatbelt specialists stated that a seat belt would have significantly reduced the severity of his head injury but that Mr Stanton would still have suffered a serious head injury. At trial, the Defendant’s expert defined ‘serious head injury’ as meaning mild to moderate concussion; the Claimant’s expert was not asked to define the term but it was submitted that his expert report indicated a more severe definition.

The Judge refused to award contributory negligence on the ground that the Defendant had failed to prove that wearing a seat belt would have made “a considerable difference” to the injuries namely because the difference in the extent of the head injury sustained between what occurred and what was likely to have occurred had a seatbelt been worn, needed medical opinion. The Defendant appealed on this point. If the Judge was wrong to find that there was no contributory negligence, the Defendant raised two further issues on appeal. Firstly, whether the reduction for contributory negligence should be greater than the 15% set out in Froom, on the grounds that Mr Stanton’s level of contributory negligence was greater than that of a passenger who merely omitted to put on a seatbelt. Secondly, whether the court ought to revisit the decision in Froom and increase, or at least change, the levels of contributory negligence attributable to failure to wear a seat belt, particularly bearing in mind that wearing a seatbelt became law some 7 years after the decision in Froom and that the case itself is now 34 years old.

The Court of Appeal found that medical evidence is not a necessity but that each case must still be on its own merits and again reiterated that proportionality has to be considered. This should be addressed at case management hearings so that each party knows what needs to be dealt with. In relation to Froom, the Court of Appeal found that this is still binding and that, whilst there may be an unusual case in which the two brackets are inappropriate, the Law Reform (Contributory Negligence) Act 1945 requires any reduction to be just and equitable. In view of this decision the other aspect of the appeal was not considered further.

There have been other cases during the last 34 years that have sought to revisit the decision in Froom. None have departed from the original decision but I’m not convinced that this is anything other than the reason that insurers are not choosing the right case to run. This case, ultimately, was about experts and the questions they had been asked to deal with. Indeed it revolves around the whole nature of the way the litigation and ultimate advocacy was run. In some ways this is a lesson to be learnt by us all to ensure that we deal with the issues from the very start of either pleadings or defences.