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Author:	JD [ Sun Jul 16, 2006 3:27 pm ]
Post subject:	Froom v Butcher Seat Belt negligence
The Froom case in the main is the accepted precedent in cases of Contributory negligence. This is a case everyone should read if they are interested in Road Traffic negligence. The court of appeal case is listed first followed by the original case in QBD which precipitated the appeal. ........................................................................... Froom and Others v. Butcher [1973 F. No. 1897]; [1975] 3 W.L.R. 379 Court of Appeal CA Lord Denning M.R., Lawton and Scarman L.JJ. 1975 July 7, 8. 21 Road Traffic--Negligence--Contributory negligence--Seat belt not worn by plaintiff driver--Defendant driver solely responsible for accident--Seriousness of plaintiff's injuries increased by failure to wear belt--Whether plaintiff guilty of contributory negligence--Apportionment--Law Reform (Contributory Negligence) Act 1945 8 & 9 Geo. 6, c. 28, s. 1 (1) The plaintiff, who was not wearing a seat belt, suffered head and chest injuries and a broken finger when the car he was driving was in collision with a car driven by the defendant. He was not wearing a seat belt because he did not like them as he had seen accidents where the driver would have been trapped in the vehicle had he been wearing a seat belt. The accident was caused solely by the defendant's negligent driving but the plaintiff would not have suffered the head and chest injuries had he been wearing a seat belt. He brought an action for damages against the defendant, who claimed that the plaintiff's failure to wear a seat belt amounted to contributory negligence. Meld J. held that, in the absence of any statutory compulsion to wear a seat belt, the plaintiff was not negligent but, if he had been guilty of contributory negligence, the damages would have been reduced by 20 per cent. On appeal by the defendant: - Held, allowing the appeal, that in determining whether the plaintiff had been guilty of contributory negligence, the question was not what was the cause of the accident but what was the cause of the damage; that since the plaintiff's injuries, except for the broken finger, had been caused by his failure to wear a seat belt he had been guilty of contributory negligence and, the judge's assessment having been accepted by the parties, the overall reduction in the damages would be 20 per cent. Pasternack v. Poulton [1973] 1 W.L.R. 476 approved. Smith v. Blackburn (Note) [1974] R.T.R. 533; Freeborn v. Thomas (Note) [1975] R.T.R. 16 and Chapman v. Ward (Note) [1975] R.T.R. 7 disapproved. Per curiam. The reduction in damages for failure to wear a seat belt should be 25 per cent. for those injuries which would have been prevented by wearing a belt and 15 per cent. for those injuries which would have been less severe. There should be no reduction if the injuries would have been the same if a belt had been worn (post, p. 296C - D). It is so well known that a seat belt should be worn that if either the driver or the front seat passenger fails to wear it and the injuries would have been prevented or lessened in an accident, the damages should be reduced (post, p. 296E). Decision of Nield J. [1974] 1 W.L.R. 1297; [1974] 3 All E.R. 517 reversed. 287 The following cases are referred to in the judgment: Challoner v. Williams [1974] R.T.R. 221. Chapman v. Ward (Note) [1975] R.T.R. 7. Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291; [1949] 1 All E.R. 620, C.A.. Drage v. Smith [1975] R.T.R. 1. Freeborn v. Thomas (Note) [1975] R.T.R. 16. Geier v. Kujawa [1970] 1 Lloyd's Rep. 364. Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44, H.L. (Sc.). James v. Parsons (Note) [1975] R.T.R. 20. Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608, C.A.. Lertora v. Finzi [1973] R.T.R. 161. Margaret, The (1881) 6 P.D. 76, C.A.. McGee v. Francis Shaw & Co. Ltd. [1973] R.T.R. 409. O'Connell v. Jackson [1972] 1 Q.B. 270; [1971] 3 W.L.R. 463; [1971] 3 All E.R. 129, C.A.. Parnell v. Shields (Note) [1973] R.T.R. 414. Pasternack v. Poulton [1973] 1 W.L.R. 476; [1973] 2 All E.R. 74. Smith v. Blackburn (Note) [1974] R.T.R. 533. Swadling v. Cooper [1931] A.C. 1, H.L.(E.). Timms v. Biernacki (unreported), March 20, 1975. Toperoff v. Mor (Note) [1973] R.T.R. 419. Vaughan v. Menlove (1837) 3 Bing.N.C. 468. The following additional case was cited in argument: Nance v. British Columbia Electric Railway Co. Ltd. [1951] A.C. 601; [1951] 2 All E.R. 448, P.C.. APPEAL On November 19, 1972, the plaintiff, Harold John Froom, was driving a Jaguar XJ6 motor car when he collided with a car driven by the defendant, Brian James Butcher. The plaintiff suffered injuries and consequential loss. The plaintiff's wife, a front seat passenger in the car and his daughter, a rear seat passenger were also injured. The plaintiff and his family brought actions for damages for personal injuries against the defendant, who admitted liability for the accident but claimed that the plaintiff's injuries were largely the result of his failure to wear a seat belt and that the damages ought to be reduced accordingly. Nield J. held that the plaintiff was not negligent and awarded him £1,792 damages. The defendant appealed on the ground that the judge had erred in not holding that the plaintiff's failure to wear a seat belt amounted to contributory negligent. The facts are stated in the judgment of Lord Denning M.R. Kenneth Jupp Q.C. and Michael Lewer for the defendant. What ought the reasonable driver do to take care for his own safety when setting out on a journey? A reasonable driver must take account of the possibilities of an accident: O'Connell v. Jackson [1972] 1 Q.B. 270. The injured party is under a duty to take reasonable care of himself: Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291 and Nance v. British Columbia Electric Railway Co. Ltd. [1951] A.C. 601. The advice contained in the 288 Highway Code to fit seat belts and use them is declaratory of the sensible practice generally accepted by road users. The Highway Code is not just for motorists; passengers, even if they are non-drivers, must be taken to know as much as anyone about the danger of the road. It is impossible to lay down an absolute standard for all cases; clearly forgetfulness and inadvertence are not acceptable excuses. In practice the matter can be settled comparatively easily: the plaintiff must show why he is not wearing a seat belt and medical reports can be agreed. Even a contrary but honestly held opinion cannot override the basic principle. A man is free to act on his opinion but must take his share of the responsibility if increased damage results. The position of a passenger is considered in Pasternack v. Poulton [1973] 1 W.L.R. 476, where it was held that a passenger could be guilty of contributory negligence if she ought reasonably to have foreseen the possibility of injury to herself. Simon Brown as amicus curiae. It cannot be strongly argued that there can never be a finding of contributory negligence consisting of non-user of seat belts. In Freeborn v. Thomas (Note) [1975] R.T.R. 16 Sir George Baker P. held that an injured party who was not wearing a seat belt was not guilty of contributory negligence. The question arises whether the subjective attitude of a particular plaintiff to the efficacy of a seat belt should be taken into account. It must be accepted that there are occasions when a person might be worse off if a seat belt is worn. In James v. Parsons (Note) [1975] R.T.R. 20, 24, Kilner Brown J. said that there is a duty on a driver to bring to the notice of a passenger that there is a seat belt fitted and that if he does not use it he should accept the consequence of his failure. In Chapman v. Ward (Note) [1975] R.T.R. 7, 13, Stocker J. considered what the risk was which was reasonably foreseeable so as to give rise to the duty to take care and whether accidents were so common that there was inevitably a duty to take care. It was argued that it is only necessary to wear a seat belt on occasions involving high risk: for example, driving on a motorway in fog. Such statistics as are available do not reveal a higher risk, for example, in the countryside than in town and to adopt a "high risk" test would be unworkable. There is a wide divergence of opinion among the decided cases and uncertainty should be reduced. Judge William Stabb in Drage v. Smith [1975] R.T.R. 1 held that a passenger in the front seat of the car contributed to her injuries by not wearing a seat belt. The judge considered that had she worn a seat belt she might not have suffered any injury at all. The difficulty of a standard deduction of 10 or 20 per cent. is that where there is a failure to wear a seat belt it would only operate on that part of the damage due to non-user of the seat belt. There is no previous Court of Appeal decision on the question. O'Connell v. Jackson [1972] 1 Q.B. 270 was a Court of Appeal decision but it can be distinguished because it was concerned with a motor cyclist's protective head gear and not with seat belts. There can never be a case in which the motor cyclist's failure to wear a helmet reduces rather than aggravates his injury. In short, the novel point for determination in the present appeal is whether the court should find contributory negligence 289 established in respect of an omission, namely, the failure to wear a seat belt. which omission in certain circumstances could save the plaintiff from worse injury. The principle as to whether or not it is negligent not to wear a seat belt must be certain, but the court should consider degrees of blameworthiness in any particular case. There are two relevant questions in the present case: to what extent seat belts would have saved the injuries and the degree of blameworthiness of the driver. Cur. adv. vult. July 21. LORD DENNING M.R. read the following judgment. The facts Mr. Harold Froom, the plaintiff, is the managing director of a firm of contractors. He lives in Hertfordshire and has a Jaguar motor car. On November 19, 1972, he was driving home from Southend with his wife beside him and his daughter behind. The car was fitted with seat belts for the front seats. But neither the plaintiff nor his wife was wearing them. He gave his reason: "I do not personally like wearing seat belts. I have seen so many accidents on the road when, if seat belts are worn, then the driver would never have got out of the vehicle that had been in the smash and, secondly, with a man of my age [he is 57] we do not have to go roaring round the countryside, we just stick to our normal speed." On this day he was driving along Gravel Lane, Chigwell. He was going carefully on his near side of the road at his normal speed of 30 to 35 miles an hour. There was a line of traffic coming in the opposite direction. Then a car pulled out to overtake. It was going fast on the wrong side. It struck the plaintiff's car head-on. The driver, the defendant, was afterwards convicted of careless driving. The plaintiff, his wife and daughter were all injured. The plaintiff was forced up against the steering column. He had a broken rib and bruises on his chest. He had abrasions on his head. He would probably have been saved from these injuries if he had worn a seat belt. He also had a broken finger, but the seat belt would not have saved that. These injuries were not at all severe. He was back at work next day. The judge assessed his general damages at £450. Mrs. Froom was also injured but the seat belt would not have saved her from her injuries. The question that arises is whether the plaintiff's damages are to be reduced because he was not wearing a seat belt. The judge held they were not. The defendant appeals to this court. This is the first case to reach this court about seat belts. But there have been a dozen or more cases in the lower courts and they have disclosed a remarkable conflict of opinion. Half of the judges think that if a person does not wear a seat belt he is guilty of contributory negligence and his damages ought to be reduced. The other half think that it is not contributory negligence and they ought not to be reduced. The previous decisions, It is interesting to glance shortly at the decisions. I will take them in order of the date on which the decisions were given. In Geier v. Kujawa [1970] 1 Lloyd's Rep. 364, a German girl was a passenger in a car. She had never before seen seat belts and did not know what they were for. Brabin J. held that she was not guilty of contributory negligence. In Toperoff v. Mor (Note) [1973] R.T.R. 419, two young men went out in a car. The driver told the passenger to do up his seat belt. He did so. They stopped to buy ice-cream. The passenger then failed to do up his seat belt. There was afterwards an accident owing to the driver's negligence. The passenger was thrown out and injured. He would not have been so severely injured if he had been wearing his seat belt. Judge Dean on November 28, 1972, held that he was guilty of contributory negligence and reduced his damages by 25 per cent. In Lertora v. Finzi [1973] R.T.R. 161, on December 4, 1972, Judge Edgar Fay thought that failure to wear a seat belt could amount to contributory negligence but that it had not been established in that case, and, in any event, that it would not have saved the injuries. In Pasternack v. Poulton [1973] 1 W.L.R. 476, a young woman undergraduate was a passenger on a short trip in Bristol. The car was driven by a fellow student. He drove into a lamp post and she was severely injured in the face. Judge Kenneth Jones on February 12, 1973, held that if she had worn a seat belt it would have saved her from her injuries. He held it was contributory negligence and reduced her damages by 5 per cent. In Parnell v. Shields (Note) [1973] R.T.R. 414, a motor car was driven with absolute folly into a motor van, spun round, so that the driver of the van was thrown out and killed. He would have been saved if he had worn the seat belt. Wien J. on February 21, 1973, held that his failure was contributory negligence and reduced the damages to the widow by 20 per cent. In McGee v. Francis Shaw & Co. Ltd. [1973] R.T.R. 409, a car was driven into the back of a stationary vehicle. The driver was wearing a seat belt and was not injured. The passenger was not wearing one. He was a man of ample girth and found it uncomfortable. He deliberately decided not to wear it. He was thrown on to the windscreen and would have been saved if he had worn the seat belt. on April 17, 1973, Kilner Brown J. reduced his damages by 33 1/3 per cent. Thus far the decisions were mostly that it was contributory negligence not to wear a seat belt. There then followed cases the other way. In Challoner v. Williams [1974] R.T.R. 221, a passenger had his neck broken in a collision. Shaw J. on April 3, 1974, found on the evidence that he was in fact wearing a seat belt, and also that even if he had not been wearing it, his injuries would have been just the same. But he said, even if he had found the facts otherwise, his opinion was that a failure to wear a seat belt was not contributory negligence. In Smith v. Blackburn (Note) [1974] R.T.R. 533, a man and his wife were driving on a one-way road on a fly-over when a man drove madly up it in the opposite direction, and ran into them. O'Connor J. on May 17, 1974, found that the injuries would have been just the same, even if they had been wearing seat belts. But he said that, even if a seat belt would have prevented some injury, he would unhesitatingly have held that failure to wear seat 291 belts did not amount to contributory negligence calling for any reduction in damages. In Freeborn v. Thomas (Note) [1975] R.T.R. 16, a man and his wife were driving along the middle lane of a three-lane road when another car, coming in the opposite direction, pulled out in the middle lane. They usually wore their seat belts, but on this occasion they forgot. The wife was badly injured. Sir George Baker P., on May 23, 1974, found that the injuries would not have been any less even if she had worn a seat belt. But he also held that she was not negligent. If he had done so, he said that the proportion would certainly not be more than 10 per cent. Next was our present case, Froom v. Butcher [1974] 1 W.L.R. 1297, where on June 21, 1974, Nield J. held that omission to wear a seat belt did not amount to negligence, but if he was wrong, he would reduce the damages by 20 per cent. In Chapman v. Ward (Note) [1975] R.T.R. 7, two ladies were driving along a country road when the car left the road and collided with a telegraph pole. They were not wearing their seat belts. The passenger sued the driver. They were going to the doctor's, they were a little late, it was difficult for her to fit the seat belt. So she did not bother to wear it. Stocker J. on October 7, 1974, found that some of her injuries would have been reduced if she had worn a seat belt, but he found that she was not guilty of contributory negligence and he did not reduce the damages. In James v. Parsons (Note) [1975] R.T.R. 20, two young men were taking a high-powered car out for a speed test. They came to a hump-backed bridge and the car left the road. The passenger was injured in the face. He sued the driver. His injuries would have been prevented if he had worn a seat belt. Kilner Brown J. on October 16, 1974, exempted the passenger from contributory negligence because neither of these young men gave seat belts a single thought, and so the driver could not allege against the passenger any degree of contributory negligence. In Drage v. Smith [1975] R.T.R. 1, a young couple, newly married, were driving on a short trip when they collided with an estate car which was solely responsible for the collision. The wife was the passenger and was severely injured in the face. She might not have been injured at all if she had worn a seat belt. On November 14, 1974, Judge Stabb held she had been guilty of contributory negligence and reduced her damages by 15 per cent. Finally, in Timms v. Biernacki (unreported) Phillips J. on March 20, 1975 thought that failure to wear a seat belt was not contributory negligence. Those decisions disclose a variety of reasons which I will consider later. But first the principles. [b]Contributory negligence Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself: see Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608. Before 1945 a plaintiff, who was guilty of contributory negligence, was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury: see Swadling v. Cooper[1931] 292 A.C. 1. Since 1945 he is no longer defeated altogether. He gets reduced damages: see Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291. The present law is contained in section 1 (1) of the Law Reform (Contributory Negligence) Act 1945, which provides: "When any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but 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." Section 4 provides: "'fault' means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence." Those provisions must be borne in mind as we take our consideration further. The cause of the damage* In these seat belt cases, the injured plaintiff is in no way to blame for the accident itself. Sometimes he is an innocent passenger sitting beside a negligent driver who goes off the road. At other times he is an innocent driver of one car which is run into by the bad driving of another car which pulls out on to its wrong side of the road. It may well be asked: why should the injured plaintiff have his damages reduced? The accident was solely caused by the negligent driving of the defendant. Sometimes outrageously bad driving. It should not lie in his mouth to say: "You ought to have been wearing a seat belt." That point of view was strongly expressed in Smith v. Blackburn (Note) [1974] R.T.R. 533, 536 by O'Connor J.: "the idea that the insurers of a grossly negligent driver should be relieved in any degree from paying what is proper compensation for injuries is an idea that offends ordinary decency. Until I am forced to do so by higher authority I will not so rule." I do not think that is the correct approach. The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable. In Admiralty the courts used to look to the causes of the damage: see The Margaret (1881) 6 P.D. 76. In a leading case in this court, under 293 the Act of 1945, we looked to the cause of the damage: see Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291, 326. In the crash helmet cases this court also looked at the causes of the damage: see O'Connell v. Jackson [1972] 1 Q.B. 270. So also we should in seat belt cases. The sensible practice* It is compulsory for every motor car to be fitted with seat belts for the front seats. The Motor Vehicles (Construction and Use) Regulations 1973 so provide. They apply to every motor car registered since January 1, 1965. In regulation 17 (3) seat belts are called, in cumbrous language, "body-restraining seat belts." A "seat belt" is defined in regulation 17 (9) as...... "a belt intended to be worn by a person in a vehicle and designed to prevent or lessen injury to its wearer in the event of an accident to the vehicle. ..." Seeing that it is compulsory to fit seat belts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seat belt. Everyone is free to wear it or not, as he pleases. Free in this sense, that if he does not wear it, he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault: and he has only himself to thank for the consequences. Much material has been put before us about the value of wearing a seat belt. It shows quite plainly that everyone in the front seats of a car should wear a seat belt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads. On November 15, 1974, the Minister of Transport said in the House of Commons: "In 1973, 41,000 people were killed or seriously injured in the front seats of cars and light vans. I estimate that a thousand of these deaths and nearly 13,000 serious injuries could have been avoided by the wearing of seat belts. ... In a frontal crash the car stops very rapidly, but the occupants continue to move forward and strike the part of the car in front of them, frequently causing injuries to the head. Quite often they are ejected through the windscreen. Careful study of accident types and injuries led to the estimate that the risk of death or injury is reduced by 50 per cent. if a seat belt is worn." This material confirms the provision of the Highway Code which contains this advice: "Fit seats belts in your car and make sure they are always used. " This advice has been in the Highway Code since 1968, and should have been known to the plaintiff at the time of his accident in November 1972. Section 37 (5) of the Road Traffic Act 1972 provides 294 that a failure to observe that provision does not render a person liable to criminal proceedings of any kind, but it can be relied upon in civil proceedings as tending to establish or negative liability. Sir George Baker P. in Freeborn v. Thomas (Note) [1975] R.T.R. 16, 17 made a comment on the provision about seat belts. He said: "that says nothing about passengers, nor does it say 'You must always wear a seat belt.' It is, if anything, an exhortation to the driver or the owner." I think that the President construed the code too narrowly. The Highway Code is a guide for all persons who use the road. "Make sure they are always used " is sound advice, not only for drivers, but also for passengers. The Government's view is also plain. During the years 1972 to 1974 they spent £2 1/2 million in advertisements telling people to wear seat belts. Very recently a Bill was introduced into Parliament seeking to make it compulsory. In this respect England is following the example of Australia, where it has been compulsory for the last three or four years. The Bill here has been delayed. So it will not be compulsory yet awhile. But, meanwhile, I think the judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belts whenever and wherever going by car. It is a wise precaution which everyone should take. The effect of failure to wear a seat belt* (i) Majority versus Minority. Quite a lot of people, however, think differently about seat belts. Some are like the plaintiff. They think that they would be less likely to be injured if they were thrown clear than if they were strapped in. They would be wrong. The chances of injury are four times as great. Yet they believe it honestly and firmly. On this account Nield J. thought they should not bear any responsibility. He recognised that such persons are in a minority, but he thought that proper respect should be paid to the minority view. He said [1974] 1 W.L.R. 1297, 1302: " I do not feel that the courts are justified in invading the freedom of choice of the motorist by holding it to be negligence, lack of care or fault, to act upon an opinion firmly and honestly held and shared by many other sensible people." I am afraid I do not agree. In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe: see Vaughan v. Menlove (1837) 3 Bing. N.C. 468 and Glasgow Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. Nowadays, when we have no juries to help us, it is the duty of the judge to say what a man of ordinary prudence would do. He should make up his own mind, leaving it to the Court of Appeal to correct him if he is wrong. 295 (ii) The high risk argument. Other people take the view that the risk of an accident is so remote that it is not necessary to wear a seat belt on all occasions: but only when there are circumstances which carry a high risk, for example, driving on a motorway in condition of fog, ice or snow; or engaging in road racing activities. This view was forcibly expressed by Shaw J. in Challoner v. Williams [1974] R.T.R. 221; by O'Connor J. in Smith v. Blackburn (Note) [1974] R.T.R. 533; and by Stocker J. in Chapman v. Ward (Note) [1975] R.T.R. 7. I cannot accept this view either. You never know when a risk may arise. It often happens suddenly and when least anticipated, when there is no time to fasten the seat belt. Besides, it is easy to forget when only done occasionally. But, done regularly, it becomes automatic. Every time that a car goes out on the road there is the risk of an accident. Not that you yourself will be negligent. But that someone else will be. That is a possibility which a prudent man should, and will, guard against. He should always, if he is wise, wear a seat belt. (iii) Mere forgetfulness. Lastly, there are many people who do not wear their seat belts, simply through forgetfulness or inadvertence or thoughtlessness. Their fault is far less serious than that of the negligent driver who causes an accident. Some judges have expressed themselves strongly about this. In Freeborn v. Thomas (Note) [1975] R.T.R. 16, 19, Sir George Baker P. said: "... looking as an ordinary mortal at the drivers of cars, the vast majority do not wear their seat belts. Must this court say that the unfortunate plaintiff, having forgotten to put on the seat belt, was negligent because she failed to do that which so many others do not do? I think not and I will not." I am afraid I cannot share this view. The case for wearing seat belts is so strong that I do not think the law can admit forgetfulness as an excuse. If it were, everyone would say: "Oh, I forgot." In order to bring home the importance of wearing seat belts, the law should say that a person who fails to wear it must share some responsibility for the damages. Thus far I have spoken only of the ordinary run of cases. There are, of course, exceptions. A man who is unduly fat or a woman who is pregnant may rightly be excused because, if there is an accident, the strap across the abdomen may do more harm than good. But, apart from such cases, in the ordinary way a person who fails to wear a seat belt should accept some share of responsibility for the damage - if it could have been prevented or lessened by wearing it. The share of responsibility* Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? or whether the failure to 296 wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry could easily be undertaken, it might be as well to do it. In Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291, 326, the court said that consideration should be given not only to the causative potency of a particular factor, but also its blameworthiness. But we live in a practical world. In most of these cases the liability of the driver is admitted, the failure to wear a seat belt is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases. Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent. Conclusion* Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat belt. It is so well known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it and an accident happens - and the injuries would have been prevented or lessened if he had worn it - then his damages should be reduced. Under the Highway Code a driver may have a duty to invite his passenger to fasten his seat belt: but adult passengers possessed of their faculties should not need telling what to do. If such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries. In the present case the injuries to the head and chest would have been prevented by the wearing of a seat belt and the damages on that account might be reduced by 25 per cent. The finger would have been broken any way and the damages for it not reduced at all. Overall the judge suggested 20 per cent. and the plaintiff has made no objection to it. So I would not interfere. I would allow the appeal and reduce the damages by £100. LAWTON L.J. I agree. SCARMAN L.J. I agree. Representation Solicitors: Milners, Curry & Gaskell; Treasury Solicitor. Appeal allowed. No order as to costs. Damages reduced by £100. (J. W. ) (c) Incorporated Council of Law Reporting For England & Wales [1976] Q.B. 286 ……………………………………………………………………. Froom and Others v. Butcher 1973 F. No. 1897 Queen's Bench Division QBD Nield J. 1974 June 21, 24 Road Traffic--Negligence--Contributory negligence--Plaintiff driver not wearing seat belt--Defendant driver solely responsible for accident--Seriousness of plaintiff's injuries increased by failure to wear belt--Whether plaintiff guilty of contributory negligence The first plaintiff, who did not use a seat belt because he did not like wearing them and because he knew of cases where a driver had been unable to release himself from the belt after an accident, was injured when the car he was driving was in collision with a car driven by the defendant. The accident was caused solely by the defendant's negligent driving but the first plaintiff's injuries would have been slightly less serious if he had been wearing a belt. The first plaintiff, two passengers in the car and the owner of the car brought an action for damages against the defendant, who claimed that the first plaintiff had been negligent in not wearing a seat belt. On the question whether there had been contributory negligence on the part of the first plaintiff: -- Held, giving judgment for the plaintiffs, that in view of the strongly held conflicting opinions on the safety factor in the wearing of the seat belt and in the absence of any statutory compulsion to wear a seat belt, the omission of the plaintiff to wear the fitted seat belt did not amount to contributory negligence on his part for the injuries sustained by him. O'Connell v. Jackson [1972] 1 Q.B. 270, C.A. distinguished. Challoner v. Williams [1974] R.T.R. 221 followed. 1298 Pasternack v. Poulton [1973] 1 W.L.R. 476; McGee v. Francis Shaw & Co. Ltd. [1973] R.T.R. 409; Parnell v. Shields (Note) [1973] R.T.R. 414 and Toperoff v. Mor (Note) [1973] R.T.R. 419 not followed. The following cases are referred to in the judgment: Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781; 20 J.P. 247. Challoner v. Williams [1974] R.T.R. 221. Lochgelly Iron and Coal Co. Ltd. v. M'Mullan [1934] A.C. 1, H.L.(Sc.). McGee v. Francis Shaw & Co. Ltd. [1973] R.T.R. 409. O'Connell v. Jackson [1972] 1 Q.B. 270; [1971] 3 W.L.R. 463; [1971] 3 All E.R. 129; [1972] R.T.R. 51; [1971] 2 Lloyd's Rep. 354, C.A. Parnell v. Shields (Note) [1973] R.T.R. 414. Pasternack v. Poulton [1973] 1 W.L.R. 476; [1973] 2 All E.R. 74; [1973] R.T.R. 334; [1973] 1 Lloyd's Rep. 439. Smith v. Blackburn, The Times, May 18, 1974. Toperoff v. Mor (Note) [1973] R.T.R. 419. The following additional cases were cited in argument: Enridge v. Copp (1966) 57 D.L.R. (2d) 239; [1966] C.L.Y.B. 5570. Mallett v. Dunn [1949] 2 K.B. 180; [1949] 1 All E.R. 973. ACTION On November 19, 1972, the first plaintiff, Harold John Froom, was driving a Jaguar XJ6 motor car (registration no. ERK 888J), owned by the fourth plaintiffs, H. J. Froom Ltd., with his wife, Mrs. Nora Frances Froom, the second plaintiff, as the front seat passenger, and his daughter, Mrs. Jacqueline North Froom, the third defendant, as the rear seat passenger. The first plaintiff was driving the motor car along Gravel Lane, Chigwell, Essex, when a collision occurred between the motor car driven by him and a motor car driven in the opposite direction by the defendant, Brian James Butcher. As a result of the collision the first, second and third plaintiffs suffered personal injuries and consequential loss, and the fourth plaintiffs suffered loss and damage. By a writ dated October 12, 1973, the plaintiffs alleged that the defendant had been negligent, the first, second and third plaintiffs claimed damages from the defendant for personal injuries and loss, and the fourth plaintiff claimed from the defendant loss and damage arising out of the collision. By his defence the defendant denied negligence on his part but at the trial he admitted liability in causing the collision. The defendant claimed that all or the greater part of the loss and damage sustained by the first and second plaintiffs were wholly or in part caused by their failure to wear a seat belt and that such failure constituted contributory negligence. The facts are stated in the judgment. Representation Peter Ripman for the plaintiffs. Michael Lewer for the defendant. NIELD J. In this action there are four plaintiffs. Each claims damages for personal injuries or loss arising as the result of a road accident which took place on November 19, 1972. On that day at twilight the first plaintiff, Mr. Harold John Froom, was driving a Jaguar car belonging to the fourth plaintiffs, H. J. Froom Ltd., along Gravel Lane, Chigwell, Essex, and with him were his wife, Mrs. Nora Frances Froom, the second plaintiff, 1299 sitting in the front passenger seat, and his daughter, Mrs. Jacqueline Froom, the third plaintiff, who has resumed her maiden name, who was sitting in the back. As the first plaintiff drove along a motor car driven by the defendant came out from a line of traffic travelling in the opposite direction on to the wrong side of the road and collided, it would seem head on, with the Jaguar. The claims of the second plaintiff, and of the fourth plaintiff's, have been settled. It is admitted that the defendant was negligent in the driving of his motor car, but it is contended on behalf of the defendant that the first and second plaintiffs were guilty of contributory negligence in that they did not wear the inertia safety belts -- I refer hereafter simply to "the belt" -- which were fitted to the front seats of the Jaguar car. I consider first the sum by way of damages which is appropriate in the cases of the first and third plaintiffs, on the basis of full liability. The first plaintiff is now 57 years of age and managing director of the fourth plaintiffs, a company engaged in the plant hire business on public works. He has always been an active man whose work included visiting the company's customers and various sites by car. It is clear that the first plaintiff is a person of considerable substance. The injuries which he suffered are set out in Dr. Wilkinson's report of October 29, 1973. They were shock, an abrasion of the scalp, contusion of the front of the chest, fracture of the Fourth right rib, fracture of the base of the right fifth metacarpal bone and bruising of the knee. The first plaintiff was taken to hospital at Epping. He was detained only for the purposes of X-rays and he was back at work the next day although, for about a week after the accident, he was driven to his work instead of driving himself and he worked somewhat shorter hours. He gradually increased the amount of work which he did and was back at full work eight weeks after the accident. The first plaintiff in the course of his evidence told the court that at the time the pain was unendurable. He went on to say that coughing was painful, dressing was difficult, he had some trouble with sleep and he still gets "awful pains" in the head when he is worried and so forth. I am inclined to the view that the first plaintiff has exaggerated somewhat, but on the other hand he has shown very considerable fortitude in overcoming these difficulties. The matter is complicated by the fact -- as fact it is -- that some of these symptoms, namely, to the neck and the head, are not related to the injuries sustained in the accident. In truth, there was degenerative change in the first plaintiff's system which is quite common at his age and which is giving rise to these particular symptoms. Dr. Wilkinson in his final opinion in February 1974 says: "There is no residual disability from his other injuries." -- That means the accidental injuries. "He is carrying out his full pre-accident work. His golf is restricted at present, but this too is unlikely to be attributable to the accident." Turning from the general aspect of the matter, there is special damage in the case of the first plaintiff, some of which is agreed, namely, damage to spectacles £17, trousers £5. The charges sought to be claimed in respect of osteopathy must go because the osteopathy was required by reason of the degenerative bone condition existing in the first plaintiff and unconnected with the accident. Then there arises the question of home-help. This claim is, of course, closely connected with the injuries suffered by his wife, the second plaintiff, whose claim has been settled. I am satisfied that her injuries were such that the employment of home help was fully 1300 justified. I am further satisfied that the £10 a week which was paid to a Mrs. Hammett was a proper sum and properly claimed by the first plaintiff. As Mr. Lewer pointed out, the amount of help might have been reduced as the second plaintiff improved in health and also the first plaintiff, a man of means, might as time wore on, have employed domestic aid in the house to help his wife, and would have done so even without any accident having happened. Doing the best I can I think it is fair to both sides to allow £10 a week from the date of the accident up to June 1975 which is a total of 132 weeks, so that in respect of that item the special damage to be awarded is £1,320. To the £1,320 has to be added £22, that is to say £1,342, and I assess the general damage in this case at the sum of £450, so that on the basis of full liability the first plaintiff would be entitled to £1,792. [His Lordship then considered the injuries and loss suffered by the third plaintiff and continued:] The result is, on my arithmetic, that the third plaintiff's special damage is £414.81 and to this must be added for general damage the sum of £2,000. She would therefore be entitled, on full liability, to damages of £2,414.81. Thus I come to the final issue whether or no there is to be a reduction in the damages because, as it is urged on behalf of the defendant, the first and second plaintiffs were negligent. If they were, this would affect by way of reduction the first plaintiff's damages. Two issues arise, (1) did the omission of either the first or second plaintiff or both to wear the provided belt constitute negligence? (2) If so, did such negligence cause or contribute to the injuries? I deal with the second of these issues first. The principal evidence about this comes from the two medical witnesses, Dr. Wilkinson and Mr. Baron. Dr. Wilkinson told the court that his view was that the idea of a belt is to prevent head injuries, not leg injury, and that a belt could have the risk of causing abdominal injury if the force were very great and his opinion was based upon the suggestion that the bulkhead of this Jaguar car had been pushed back some four inches -- it turned out in the course of evidence that that suggestion was wholly ill-founded. There was only some movement of the toe-board. Dr. Wilkinson went on to say that in the case of the first plaintiff his scalp injury and the chest and the rib might have been or probably were, I think he said, increased in severity at any rate, by the omission to wear a belt. In the case of the chest and the rib there had been contact with the steering column which might have been prevented by the wearing of a belt. Mr. Baron gave his opinion on this: he said that so far as the second plaintiff was concerned there was a 50 per cent. chance that the ankle injury might have been avoided. As to the first plaintiff, the scalp, chest and rib injury would have been prevented, but the real protection, of course, is above the waist and not below. Counsel have submitted that it is open to the court to differentiate between these two persons who were travelling in the front seat of this Jaguar, and I do. It is not shown, in my opinion, that any of the injuries suffered by the second plaintiff could have been prevented or their severity diminished by the wearing of a belt. In the case, however, of the first plaintiff I feel that the evidence leads to the conclusion that the injuries, slight as they were, might well have been slighter if a belt had been worn, and I would say in this connection that the first plaintiff's blame, if any, would be to the extent of 20 per cent. This brings me to the only point in the case on the question of liability. Was it negligence in the first plaintiff -- I have already dealt with the second plaintiff -- to omit to wear the belt provided? I have looked at Pasternack v. Poulton [1973] 1 W.L.R. 476; McGee v. Francis Shaw & Co. Ltd. [1973] R.T.R. 409 1301 ; Parnell v. Shields (Note) [1973] R.T.R. 414 and Toperoff v. Mor (Note) [1973] R.T.R. 419. I have also looked at Challoner v. Williams [1974] R.T.R. 221 and Smith v. Blackburn, The Times, May 18, 1974. All these cases fall to be considered in the light of the Court of Appeal decision in O'Connell v. Jackson [1972] 1 Q.B. 270. The point which requires to be dealt with has a feature which is not usually found in the ordinary road accident case. In the ordinary road accident case the burden on the plaintiff is two-fold, namely, to prove according to the standard required in civil cases, first that the defendant was negligent in the manner of his driving and, second, that such negligence caused the plaintiff's injuries. In the ordinary case the plaintiff's damages are reduced if it is shown that his own negligent driving contributed to the happening of the accident. In the present case the first plaintiff was in no way negligent in driving his car, he was wholly blameless in this regard. It is said, however, that the first plaintiff's injuries might have been avoided or reduced in severity if he had worn his belt. The issue is whether the first plaintiff's omission to wear a belt constituted negligence or lack of care or, as I prefer to put it, "fault" -- not, of course, using the word "fault" in the moral sense. I think it a useful test to consider whether a number of persons opposed to the wearing of belts are to be found on the upper deck of the omnibus bound for Clapham -- not an eccentric few, but a reasonable number of sensible people. It is in my opinion open to the court to take note of the controversy between those who recommend the use of the belts and those who do not. As to this, plainly there are two bodies of opinion and also plainly, as I think, the dominant opinion is that belts should be worn. On the other hand I feel that proper respect should be paid to the minority view. To put an extreme case, a motorist might say: "If I must be killed in a motor accident I would prefer to be despatched quickly by being precipitated through a windscreen rather than be burnt to death slowly, entangled in a belt, which however efficient it is claimed to be might fail to release itself." The classic definition of "negligence" I suppose is that propounded by Alderson B. in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781, 784: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." It is the second limb of this definition which bears upon the present case. If the defendant's contention is right, that second limb would require amendment and it would have to read in this way: "Negligence is doing something which a majority of prudent and reasonable men would not do." That would be to import words extending the measure of the duty and extending it so as adversely to affect the position of a plaintiff whose driving was without fault. Lord Wright is also quoted in a passage inSalmond on Torts, 16th ed. (1973), p. 197, para. 72 in Lochgelly Iron and Coal Co. Ltd. v. M'Mullan [1934] A.C. 1, 25: "In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing:..." 1302 The evidence of the first plaintiff here, it has to be observed, was that he did not wear his belt (1) because he did not like to do so, and (2) because he had seen many accidents and had known of cases where drivers were not able to get out when a crash or smash occurred. The first of these reasons involves freedom of choice; the second involves a reasonable apprehension of the danger should the belt be worn. Without at least the sanction of Parliament, and perhaps even with it, I do not feel that the courts are justified in invading the freedom of choice of the motorist by holding it to be negligence, lack of care or fault, to act upon an opinion firmly and honestly held and shared by many other sensible people. It remains to consider whether this view -- at variance I regret to say, with the views of Judge Kenneth Jones Q.C. in Pasternack's case [1973] 1 W.L.R. 476; Kilner Brown J. in McGee's case [1973] R.T.R. 409; Wien J. in Parnell's case [1973] R.T.R. 414 and Judge Dean Q.C. in Toperoff's case [1973] R.T. R. 419, but consistent, I am glad to say, with the observations of Shaw J. in Challoner's case [1974] R.T.R. 221 and O'Connor J. in Smith's case, The Times, May 18, 1974 -- is in conflict with O'Connell v. Jackson [1972] 1 Q.B. 270, decided, as I have mentioned, in the Court of Appeal and therefore binding upon me. In Challoner v. Williams [1974] R.T.R. 221 it is true that Shaw J. was considering the position of a passenger when he distinguished the case he was trying from that of O'Connell v. Jackson but in the course of his judgment he said, at p. 224: "Ordinary prudence should encourage anyone to have regard at all times for his personal safety. But that he should take particular action to that end can only be demanded when a particular risk takes shape as something more than a nebulous possibility. It need not, of course, be imminent but it must not be so remote that it cannot be regarded as in any sense impending. Where there is no reasonable ground for present apprehension it seems to me unreasonable to require of someone that he should take steps to protect himself against a vague and distant contingency which may arise from the negligence of someone else with whom he has no connection save that that other person might fortuitously be somewhere on the same road at the same time. That in the ordinary everyday activities of life people should maintain a state of constant and unremitting apprehension in which they must not only expect, but also take steps to anticipate, injury through the negligence of a stranger is even in these days altogether too lugubrious a doctrine." Shaw J. was dealing with the case of a passenger. O'Connor J. in Smith v. Blackburn, The Times, May 18, 1974, apparently took the view that the arguments would be valid also in the case of a driver and that would seem consistent with Shaw J.'s judgment when he went on to say, at p. 224: "A distinction can, perhaps, be drawn between the non-use of a seat belt by an occupant of a car and the non-wearing of a crash helmet by the rider of a moped or motor cycle. The rider is constantly in a precarious situation, for he is unenclosed and is at all times in a state of unstable equilibrium. Danger looms large and continuously as long as he is in the saddle. He exposes himself inevitably to a very high degree of risk. For myself I would not equate the position of someone in a car with the situation of a moped or motor cycle rider. Nor would I equate with the responsibility of such a rider to take steps for his 1303 safety that of the occupant of a car, unless there is some special circumstance which creates a special risk,..." In this way Shaw J. and O'Connor J. have distinguished the case of driver and passenger in a motor car from that of the rider of a motor cycle, and I am in agreement with them. It follows that in my judgment the omission of the first plaintiff' to wear a belt did not amount to negligence and it therefore follows that the first plaintiff is entitled to judgment for the damages that I have mentioned without reduction. Representation Solicitors: L. Dawson & Co.; Milners, Curry & Gaskell. Judgment for first plaintiff for £1,792 (general damages £970 and special damages £822) with interest on £450 of general damages at 8 1/2 per cent. from date of writ and interest on special damages at 4 per cent. from date of accident to June 1974.Judgment by consent for second plaintiff for £3,000 (sum to include interest).Judgment for third plaintiff for £2,414.81 with interest on general damages of £2,000 at 8 1/2 per cent. from date of writ and interest on special damages of £414.81 at 4 per cent. from date of accident.Judgment by consent for fourth plaintiffs for £3,000 (sum to include interest).Defendant to pay plaintiffs' costs. ………………………………………………………………………………..

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