Road traffic update

established that the failure to wear a seat belt while travelling in a motor car amounts to contributory negligence. Giving the judgment of the court Denning MR observed that it was not the cause of the accident that was the critical issue but the cause of the injuries. If, therefore, the injuries in a road traffic accident were sustained because of both the negligence of a driver and the failure by an injured driver or passenger to wear a seat belt, then it would be appropriate for the injured ?party's damages to be reduced to the extent that was just and equitable having regard to the blameworthiness of the respective parties' actions.

In apportioning damages, while it would be possible for the issues of blameworthiness and causation to be explored extensively, taking a pragmatic approach the court ruled that there should not be a prolonged and expensive enquiry into the degree of blameworthiness on each side. Instead if the evidence shows that the failure to wear a seat belt made no difference to the severity of the injuries then there should be no reduction for contributory negligence; if the wearing of a seat belt would have made all the difference and injury would have been prevented altogether then the reduction should be 25 per cent, and if the wearing of a seat belt would have made a considerable difference then the reduction for contributory negligence should be 15 per cent.

Although Froom was decided at a time when the wearing of seat belts was not compulsory in England and Wales, it remains good law. Lord Denning's judgment appears to be guidance rather than an authoritative ruling, but, in Stanton v Collinson [2010] EWCA Civ 81, the Court of Appeal regarded it as binding. This is clearly a pragmatic and appropriate way of dealing with seat belt issues. In many cases both primary liability for the accident and the failure to wear a seat belt are admitted and the simple formula for determining contributory negligence provided by Lord Denning works well in practice.

Child car seats

In Froom the issue under consideration was contributory negligence but the principles also apply in cases where the issue is the relative contribution to be made between tortfeasors. In Jones v Wilkins [2001] RTR 19, an infant was seated on her mother's lap in the front passenger seat of a car with the lap part of the seat belt around the child and mother but the shoulder part of the belt over the mother only. This exposed the child to a significant risk but there was no evidence that the mother was aware of that additional risk. The vehicle, which was being driven by the child's aunt, was involved in an accident due to the negligence of the defendant, but the evidence was that if the child had been seated in a proper child restraint seat then the injuries would have been avoided almost entirely.

Based on Froom the Court of Appeal upheld the trial judge's apportionment of liability between the negligent motorist on the first part and the aunt and mother on the second, that the latter were liable for 25 per cent of the claim for damages brought on behalf of the child because of the failure to ensure that the child was properly secure as a passenger. The court observed that the language of section 1 of the Law Reform (Contributory Negligence) Act 1945 and section 2(1) of the Civil Liability (Contribution) Act 1978 (which deals with the assessment of contribution between joint wrongdoers) is strikingly similar and so it was appropriate to import the principles established in Froom.

Recently, in Hughes v Williams [2012] EWHC 1078 (QB), a mother placed her daughter, who was three years and two months old, on a child booster seat in the back of her car. Fitted next to the booster seat was a five-point child restraint seat but the mother took the reasonable decision to use the booster seat because her daughter, who was heavy for her age, preferred the booster seat and would be more comfortable on it. The child's height was 8cm short of the appropriate range for such a booster seat and she was too young for the seat by a matter of a few months. The car was involved in a collision and the girl was seriously injured. The accident was wholly the fault of another motorist, the defendant, who was killed in the collision. His insurers brought contribution proceedings against the mother alleging negligence on her part in failing to ensure that the claimant was seated in the five-point child seat.

Adopting the reasoning in Jones the trial judge held that the issue was not the cause of the accident but the cause of the damage. The context was important: the child seat was a safety device intended to minimise the danger to a child arising out of a collision and the instructions as to its use had to be read with that in mind. An individual judgment as to the comfort of the child, however understandable and well intentioned, cannot override the requirements that are stated for the use of the child seat

Cycle helmets

The principles established in Froom were applied in relation to the failure of a cyclist to wear a cycle helmet in Smith v Finch [2009] EWHC 53 (QB). The claimant cyclist was knocked from his bicycle by the negligence of a motorcyclist who rode too close. The claimant, who was not wearing ?a cycle helmet, struck his head and sustained serious head injuries. Griffiths Williams J held that the observations of Lord Denning in Froom should apply in such circumstances.

Although the wearing of cycle helmets was not compulsory, it was encouraged by the Highway Code and it would be negligent for a cyclist not to wear one. In fact the claimant had struck the ground at more than 12 mph, a speed which was too high for a cycle helmet to have afforded any protection. Further, there was no medical evidence to the effect that the wearing of a cycle helmet would have prevented injury or would have substantially reduced the severity of the injuries sustained by the cyclist. In the circumstances no reduction was made from the claimant's damages on account of his contributory negligence in failing to wear a helmet, the defendant having failed to demonstrate that the cyclist's contributory negligence had caused an injury. More recently a reduction for contributory negligence was made in respect of a cyclist's failure to wear a helmet in Reynolds v Strutt & Parker LLP [2011] EWHC 2263.

It is clear from these cases that causation is the critical issue. In order for there to be a reduction on account of contributory negligence, or for there to be a contribution between tortfeasors where an adult motorist has failed to take appropriate preventative safety measures, it is necessary to show that the failure to take the appropriate precaution has either caused injury where little or none would have been caused or that the failure has caused the injuries to be more severe than they would have been. In the vast majority of cases it would be necessary to adduce medical evidence to this effect and in many cases expert engineering evidence may be necessary ?as well.

Although the wearing of cycle helmets was not compulsory, it was encouraged by the Highway Code and it would be negligent for a cyclist not to wear one