SEAT BELTS AND HELMETS

1. SEAT BELTS AND HELMETS David Knifton Exchange Chambers Liverpool, Manchester & Leeds

2. Action Plan • Proportionality – what is the issue worth? • Determine whether a seat belt was worn • Would it have made a difference? • Assess the deduction • Assess the risk

3. Assemble your team • Seat belt expert ? • Medical expert? • Conference to identify and discuss issues before completion of reports • Clarification of causation issues at CMC

4. Was a seat belt worn? • Burden of proof – on D (Lewis v Denye [1939] 1KB 540 at 554) • Sources of evidence: • Police report and vehicle examination • Hospital and/or ambulance records • Lay witnesses – proof at early stage • Attending ambulance, fire and police personnel? • Preservation and inspection of vehicle – SCA s33; CCA s52; CPR 25 • Seat belt expert

5. Would it have made a difference? • Burden on D(Stanton v Collinson [2010] EWCA Civ 81 at paras 18 and 22) • Ensure individual factors are considered: • Whether a seat belt was available for use? • Ejection from the rear of the vehicle? • Exceptionally tall passenger? • Ensure, if appropriate, the issue is considered between medical and seat belt experts • Which expert – medical or seat belt?

6. Stanton v Collinson • [2009] EWHC 342 (Cox J) and [2010] EWCA Civ 81 (CA) • C (16) and 3 friends accepted lift in D’s Astra • C shared front seat with girl on his lap • No-one wore seat belts • D drove too fast, lost control and collided with oncoming car, causing Astra to overturn • D killed • C suffered skull fracture and serious frontal lobe brain damage, due to contre-coup effect

7. The Engineering Evidence • Mr Henderson and Dr Rattenbury agreed: • C’s upper body might have slipped out of seatbelt, if worn, allowing head to strike steering wheel or intruding driver’s door, causing head/spinal injury • Severity of any such impact would probably have been reduced by restraining effect of lap belt • Seat belt use would, on balance, have been beneficial in significantly reducing the severity of his head injury, but complete prevention of serious injury to the head, face or neck would be unlikely • Rattenbury’s qualification – “serious” (moderate or mild concussion) distinguished from “severe”

8. A Medical Issue? • Stanton v Collinson [2009] EWHC 342 (QB), Cox J – refused to reduce damages in absence of medical evidence from D, despite possibility that C’s head injuries would have been less severe if seat belt worn • “Given the well-recognised vulnerability of the brain, the extent to which this different, yet serious, head injury would have given rise to less severe cognitive deficits…is, in my judgment, a medical and probably a neurological question…a question which…can only properly be determined with the assistance of specialist medical evidence” – paras 135 and 139

9. Seat belt expert? • Stanton v Collinson [2010] EWCA Civ 81, para 20 • “In my view the evidence [of the engineers] was admissible. The experts were not qualified only to give evidence about the mechanics, in particular about what the claimant’s head might have struck, and in what circumstances. They also had, although they were not doctors, ample experience of study of road accidents involving head injury so as to be able to express an informed opinion about what happened by way of impacts to the head and the kind of injuries which had generally been seen to ensue.” – per Hughes LJ

10. The Solution? • Medical evidence is not a necessity in every case – each depends on its own facts and the state of the other evidence • Proportionality is relevant • If skilled seat belt engineers agree about what kind of injury would have been occasioned had a seat belt been worn, their evidence may well be sufficient for judge to resolve that issue • Any doubt about the appropriateness of medical evidence ought to be capable of avoidance by effective case management

11. Apportionment • Law Reform (Contributory Negligence) Act 1945, s1: • “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person…the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”

12. Seat Belt Cases • Froom v Butcher [1976] 1 QB 286 CA • Decided pre-compulsory seat belt legislation • Negligent driver must bear by far the greater share of responsibility • Question of passenger’s share should not be prolonged by an expensive inquiry into degree of blameworthiness on either side • In great majority of cases, just and equitable share: • 25% if seat belt would have prevented damage altogether • 15% if failure made a considerable difference • 0% if failure made no difference • On the facts, 20% was upheld, as most injuries would have been avoided

13. Subsequent Cases • Biesheuval v Birrell (1998) QB unrep • Froom applied to rear seat belts (before compulsory) • J (a child) v Wilkins [2001] PIQR 12 CA • Froom applied in assessing mother’s contribution at 25% in carrying child on knee in front seat with lap belt only • Guidelines remained valid despite compulsory seat belt legislation • Whilst 25% was not an absolute and immutable ceiling, and there could in principle be exceptional cases falling outside the range, such cases would be rare

14. Gawler v Raettig [2007] EWHC 373, Gray J • Froomremained binding, and guidance did not require revisiting in light of huge increase in public awareness of importance of wearing seat belts • Fact that driver only momentarily inattentive, that passenger was experienced, deliberately left off seat belt, and was ejected from car, did not take this into rare or exceptional category. 25% deduction • HL refused permission for leap-frog appeal, as it did not raise arguable point of law of public importance • CA [2007] EWCA Civ 1560 refused permission for academic appeal, as parties had agreed to be bound by 25% deduction, but noted Froom guidance had been followed ever since

15. Stanton v Collinson [2010] EWCA Civ 81 • Froom v Butcher remained binding • There may be unusual cases in which neither of the 2 brackets contemplated by Froomare appropriate • Absent something exceptional, there should be no reduction in a case where the injury would not have been reduced “to a considerable extent” by a seat belt • “There is a powerful public interest in there being no such [prolonged or intensive] enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which do entail trial do not mushroom out of control.” (Hughes LJ, para 26)

16. Gleeson v Court [2007] EWHC 2397, HHJ Foster QC • Where passenger rode in boot of hatchback, knowing driver drunk, 25% would be appropriate under Froom, and 20% for accepting lift from drunk driver, but overall 30% was just and equitable

17. Motorcycle Helmets • Capps v Miller [1989] 2 All ER 333 CA • No reason to distinguish between seat belt and crash helmet cases – Froomshould be applied • Trial judge fell into error by focussing on reponsibility for the occurrence, rather than the injury • On facts, since helmet worn with chin strap unfastened, rather than not worn at all, deduction should be 10% rather than 15%

18. Cycle Helmets • Smith v Finch [2009] EWHC 53, Griffith Williams J • Froomshould apply to the wearing of helmets by cyclists, even though not compulsory (para 43-44): • “As it is accepted that that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one.” • But given likely velocity of impact with ground, helmet would not have prevented or reduced C’s severe head injuries • Failure to adduce medical evidence on the issue was “a fundamental evidential omission. If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that.” – para 55

19. Note that helmet experts agreed that failure to wear helmet may expose cyclist to greater risk of injury • But, unlike seat belts and motorcycle helmets, this is, perhaps, a contentious issue • See www.cyclehelmets.org for further discussion

20. Assessment of Risk and Tactics • Part 36 Liability Offers • Always, if acting for D • Care required, if acting for C • Costs/benefit analysis • What is the seat belt/helmet issue worth? • What are the costs of running it? • ADR • Presentation of the case at trial • Ensure issues and experts are clear before trial starts! • Ensure, if appropriate, that medical evidence is presented on causation issue

21. David Knifton Exchange Chambers Liverpool, Manchester & Leeds www.exchangechambers.co.uk knifton@exchangechambers.co.uk