Clunk, no click

The recent Court of Appeal case of Stanton v Collinson [2010] EWCA Civ 81 brought two important issues sharply into focus in 'seatbelt' cases. First, the evidence required to determine the appropriate reduction, if any, in road traffic accidents where there is a failure to wear a seatbelt. Second, whether the guidelines enunciated by Lord Denning MR in Froom v Butcher [1976] 1 QB 286 remain relevant today.

On 17 May 2003, Matthew Collinson, then aged 24, was driving his Astra motor car with four teenage passengers. Two of the passengers, including William Stanton (aged 16), occupied the front seat. Collinson was driving in excess of the speed limit and lost control of the vehicle, causing it to cross the central white line and collide with a Peugeot travelling in the opposite direction. The Astra rotated through 180 degrees and rolled over onto its roof. No one in the Astra was wearing a seatbelt. Collinson suffered fatal head injuries. Stanton suffered a severe head injury including a depressed fracture of his skull and brain damage resulting in serious cognitive deficits.

Primary liability was admitted. The issue at trial was whether damages should be reduced for contributory negligence, and one of the four allegations was a failure to wear a seatbelt. The starting point in considering contributory negligence is section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

The law relating to the percentage deduction for failure to wear a seatbelt has been guided by, and not departed from, the decision of the Court of Appeal in Froom. Lord Denning set out guidelines that are easy to follow:

(a) Where the damage would not have been avoided or lessened or where it would have been the same if a seatbelt had been worn, there should be no reduction at all.

(b) Where the damage would have been considerably different or less severe, there should be a 15 per cent reduction.

(c) Where the damage would have been prevented in its entirety, there should be a 25 per cent reduction.

Lord Denning made it clear that the question is not 'what was the cause of the accident', but rather 'what was the cause of the damage'. This is because the claimant is not to blame for the accident; he is an innocent passenger or an innocent driver. This feature distinguishes 'seatbelt cases' from claims in which the claimant driver (or on rare occasions a passenger) is partly to blame for the accident itself.

Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that any reduction in damages should be just and equitable, having regard to the claimant's responsibility for the damage. Courts will be mindful of Lord Denning's opening premise in Froom: 'The negligent driver must bear by far the greater share of responsibility. It was his negligence that caused the accident. It was also a prime cause of the damage as a whole.'

Expert evidence and causation

Both parties instructed experts in road accident reconstruction and seatbelt use. In their joint report, the experts agreed that on the balance of probabilities if the claimant had worn a seatbelt it would have significantly reduced the severity of his head injury, but complete prevention of serious injury to the head, face, or neck would have been unlikely. This was because it was a lateral collision and, as a consequence, even if properly seatbelted, the claimant's body would have slipped out from under the chest part of the belt and a different part of the claimant's head would have struck different structures of the car. At trial, it transpired that the experts may have used the terms 'serious' and 'severe' head injury in different contexts, leading to uncertainty about their agreed evidence and therefore the qualitative consequence of the injury.

Cox J held that there should be no deduction for contributory negligence as the issue of whether a seatbelt would have sufficiently reduced the injuries could only be resolved with medical evidence. She said that the issue was how the head injuries the claimant would have sustained would be 'qualitatively or quantitatively different, in terms of their impact and effects upon his level of cognitive function' if a seatbelt had been worn. The defendant had not adduced any medical evidence to prove whether the likely head injury would have left the claimant on the balance of probabilities with fewer deficits and therefore the burden of proof had not been discharged.

The Court of Appeal upheld the decision, and said that there should be no reduction for contributory negligence where the injury would not have been reduced 'to a considerable extent' by the seatbelt. The evidence required depended upon the circumstances of each case, but must be proportionate. In some cases, seatbelt engineers might be able to identify the injury that would have resulted if a seatbelt had been worn, and medical evidence was not necessary in all cases. The Court of Appeal accepted, however, that medical evidence would not be disproportionate where the disabilities are grave and quantum significant.

In practice, the evidence of well-qualified engineering experts may be sufficient to establish that the injuries would have been prevented or reduced if a seatbelt had been worn. The analysis should consider whether wearing a seatbelt would have prevented the relevant part of the drivers' or passengers' body from making contact with the relevant structure. However, in claims where a head injury and brain damage occur, but the claimant would have suffered a head injury and brain damage even if a seatbelt had been worn, it is likely that the injury and attendant consequences will be outside the competence of autonomic engineers, and particularly where the mechanism of injury and the likely impact on the structures of the brain is complex. In such cases, engineering experts will be able to identify the likely movement of the occupants in the vehicle if seatbelts had been worn, but not the extent and importantly the qualitative effect of the damage to the brain. Based on that information, medical experts will be able to identify the hypothetical injuries.

No need for review

Stanton was presented as something of a test case by the defendant, arguing that the guidelines provided by Lord Denning in Froom were outdated and required revisiting because of developments over the last 34 years. In particular, Froom pre-dated the introduction of law requiring the compulsory use of seatbelts and that an increase in public awareness of the need to wear a seatbelt made it more blameworthy not to wear one in 2003.

The defendant failed. Lord Justice Hughes stated that Froom was binding, and that intensive enquiry into the fine degrees of contributory negligence did not serve the 'public interest'. Therefore, the majority of cases could be settled according to well-understood formula, and cases that are litigated kept within reasonable bounds. The Court of Appeal had the opportunity to review Froom, but declined to do so. Cox J noted that the same public policy arguments advanced by the defendant had already been raised and rejected previously in Gawler v Raettig [2007] EWHC Civ 373 (QB), and [2007] EWCA Civ 1560, and J (A Child) v Wilkins [2001] PIQR 12. Significantly, it was clear from the judgment of Lord Denning that the court in Froom had taken account of the importance of wearing a seatbelt and the data in support.

Exceptional circumstances

The alternative argument advanced by the defendant was that the particular circumstances of this accident justified departing from the guidance provided in Froom.

The defendant relied upon a passage in the Court of Appeal's decision in Wilkins. Keene LJ, giving the main judgment of the court, referred to Froom and stated: 'It follows that, while in principle there could be exceptional cases which fall outside the range suggested, one would expect such cases to be rare.' Importantly, the circumstances in Wilkins (a child seated on the lap of the adult passenger) were very different. Having reviewed all of the evidence, Cox J held that in relation to William Stanton there were no exceptional features. He was not seated on the lap of the other front seat passenger; he had not encouraged the driver to go faster; his judgement was not impaired by excess alcohol; and he was only 16 years of age compared with the driver who was 24.

Moreover, there was no evidence that he had decided deliberately not to wear the seatbelt. The fact that the claimant permitted another passenger to share the front seat with him did not render it a rare and exceptional case. The defendant did not challenge those findings. The Court of Appeal accepted that there could be 'unusual cases' in which the two guidelines set out in Froom were not appropriate, but gave no further guidance.

Given the refusal of the Court of Appeal to revisit the guidelines in Froom, it is likely that defendants may advance arguments for a deduction based on 'exceptional circumstances'. The circumstances that will render a case exceptional are speculative, but, certainly, the failure to wear a seatbelt on its own is not one, nor would it seem is the mere fact of sharing the front seat.

At trial

The claimant argued at trial that it could not be demonstrated that a seatbelt would have sufficiently reduced the severity of the injury to justify a reduction for contributory negligence. CPR 35.12(5) provides that the joint expert report is not binding upon the parties unless they expressly agree that it shall be. Counsel for the claimant took three approaches. First, he asked questions of his own engineering expert about the parts of the brain that might have been injured if a seatbelt had been worn. The defendant's counsel objected. Next, he cross-examined the defendant's engineering expert. That expert conceded that he had failed to include in his report his own interpretation of the movement of the front and back seat passengers and serious and severe head injury. The defendant continued to rely on the agreement in the joint report. Third, the claimant's counsel successfully persuaded the court that the extent of the brain injury could only be determined by means of medical evidence.

Hughes LJ opined that while parties may rely on joint reports, judges are not bound to accept the opinion as sufficient to discharge the burden of proof. The task of identifying whether a particular matter is within or without an expert's expertise is a question not only for the expert in the first instance but also for the court. The defendant knew that contributory negligence was in issue between the parties but did not instructa medical expert '“ and the lack of such evidence proved fatal.

A failure to wear a seatbelt claim must be distinguished from cases in which the conduct of the driver or passenger caused or contributed to the accident. In seatbelt cases, the burden is on the defendant to prove that damages should be reduced by the failure to wear a seatbelt, and consideration will need to be given to the type of expert evidence that is likely to be required. Stanton does not open the door to medical evidence in all seatbelt cases.