Taxi Driver Online

This thread is for those interested in contributary negligence in respect of third parties. There have been some questions raised in other threads about negligence and the wearing of seat belts, culpability, etc etc. I will string together some cases which may be of interest in this field if anyone is interested.

Possibly the main case appertaining to contributary negligence is Froom v Butcher 1976.

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M v R DAVIES (2003)

Total Damages: £126,000
Trial/settlement date: 4/7/2003
Age at trial: 33
Type of Award: Out of Court Settlement
Court: Out of Court Settlement
Age at injury: 30
Sex: Female

The claimant, a 33-year-old woman, received £157,000 for the severe facial scarring sustained in a road traffic accident in August 2000. The claimant required a significant amount of maxillo-facial surgery and suffered from left-sided double vision.

Claimant: Female: 30 years old at date of accident; 33 years old at date of settlement.

Road Traffic Accident: On 19 August 2000, the claimant was travelling as a passenger in the rear seat of a car, when the car in which she was travelling collided with the defendant's vehicle. The claimant was thrown between the two front seats, hitting her face on the dashboard.

The claimant sustained injury and brought an action against the defendant, the third party driver, alleging that he was negligent in his driving.

Liability admitted.

Injuries: The claimant sustained severe facial injuries along with other more minor orthopaedic injuries.

Effects: The claimant's facial injuries were such that a significant amount of maxillo-facial surgery was required. Although the surgery was successful, the claimant's facial features were altered and scarring was visible on her nose. She also suffered from some left-sided double vision, but she was still able to drive.

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Out of Court Settlement: £126,000 total damages.

Background to damages: The claimant received £60,000 for her injuries, past care, a subrogated claim for income and Bupa expenses. She also required titanium spectacles due to the damage to the bridge of her nose along with more nominal expenses such as eye drops, specialist make-up and factor 35 sun cream which had to be applied daily. Further consideration was also given to the cost of counselling, which might be necessary in the future.

The defendant's main argument centred on contributory negligence because the claimant was not wearing a seatbelt at the time of the accident. Using principles laid down in Froom v Butcher (1976), the defendant stated that the settlement should be reduced by 25 per cent. The claimant's solicitors argued however that 15 per cent should be the maximum deduction. The claim was settled for £126,000, 80 per cent of the full value of the claim, which was £157,000 in total.

Richard Roberts instructed by Reynolds Porter Chamberlain for the claimant. Norwich Union for the defendant.
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KELLY ANN INGRAM v CLARISSA J WOODHOUSE (2001)

[2001] EWCA Civ 1057

CA (Schiemann LJ, Sir Murray Stuart-Smith) 25/6/2001

NEGLIGENCE - PERSONAL INJURY

PRIMARY LIABILITY : ROAD TRAFFIC ACCIDENTS : RTA : EMERGENCY BRAKING : SPLIT DECISIONS : CONTRIBUTORY NEGLIGENCE : PEDESTRIANS : CROSSING OF CARRIAGEWAYS : GRASS VERGES : VISIBILITY : ATTEMPT TO SWERVE : STANDARD OF CARE OF PEDESTRIANS

Although a finding of primary liability was upheld, a claimant seeking damages for personal injuries sustained whilst crossing the road was contributorily negligent, having paused on seeing the defendant's car approaching but then continuing to cross.

Appeal from the decision of Mr Recorder Gardner sitting in the Exeter County Court, dated 16 August 2000, in which he found the appellant ('D') wholly liable for the injuries caused to the respondent ('C') following a road traffic accident. On 1 November 1996, C was seriously injured in a road accident. She was a pedestrian on the A383 and was struck by a motor vehicle driven by D. C was walking south on a grass verge running alongside the road. At the scene of the accident, the verge disappeared and C attempted to cross the carriageway. D was driving along the road, and as she came around a bend, saw C in the carriageway a few feet away from the grass verge as she began to cross. D did not take emergency braking action, but rather attempted to steer around C. D collided with C in the middle of the carriageway. At trial a large amount of expert evidence was agreed, in particular, it was agreed that if D, on first gaining sight of C, had taken emergency braking measures, she would have stopped either before C or would have significantly slowed at the point of impact. The judge rejected D's submission that she was not to blame at all for the accident and took into account D's evidence that she had panicked on seeing C in the road, and concluded that a reasonable driver would not have panicked but would have applied emergency brakes. The judge found D to have had primary liability. The judge rejected a claim of contributory negligence by concluding that this was a difficult road to cross and that D was in an impossible situation. The judge concluded that wherever C crossed the road there were hazards. This was an appeal from that decision on the grounds that the judge had been wrong to find primary liability as this was a split-second decision by D in which she had three choices to make, namely: (i) apply emergency brakes; (ii) steer around C; or (iii) continue in the direction in which she was driving. D further criticised the judge for rejecting contributory negligence.

HELD: (1) The judge's finding of primary liability could not be criticised. D had had the opportunity of avoiding the accident. Had D applied emergency brakes, D would have stopped before she reached C or would have at least given C a greater chance. (2) D's reaction was not that of a reasonably competent driver. She panicked, and that was not a reasonable reaction. (3) With regards to contributory negligence, the judge had been correct to find that C was in a difficult situation. Wherever C crossed the carriageway, there were hazards. However, C began to cross the carriageway and, upon seeing D's car approaching, paused before continuing to cross. The manner in which C crossed the road was of the standard of an adult pedestrian appreciating the difficulties of the crossing. (4) Accordingly, the respondent had contributed to the accident to the extent of 30 per cent.

Appeal allowed in part.

Adam Vaitilingham instructed by Keoghs (Bolton) for D. Christopher D Maken instructed by Newbys (Middlesborough) for C.

MARSHALL v LINCOLNSHIRE ROADCAR CO LTD (2000)

CA (Civ Div) (Kennedy LJ, Laws LJ, Jacob J) 7/12/2000

PERSONAL INJURY - NEGLIGENCE

CONTRIBUTORY NEGLIGENCE : APPORTIONMENT : LIABILITY : BUS : PASSENGERS : DRIVERS : DOORS : OPEN : SHUT : STANDSTILL : STEPPING OFF : SLOWING : STOPS : RISKS : CAUSATION : ACCIDENTS : REASONABLY FORESEEABLE : CHANCES : DANGERS : CHAIN OF CAUSATION : BROKEN : ALIGHTING

By a majority the Court of Appeal held that the law of negligence was not to be employed to compensate a person for damage caused by her choosing to step off a slow-moving bus, such damage being attributable entirely to her own actions.

Appeal from a decision of HH Judge Inglis sitting at Boston County Court on 3 February 2000 dismissing a claim brought by a bus passenger ('M') for damages for personal injuries. M, then 20 years old, was returning from work on a bus being driven by an employee of the defendant. According to M, she stepped of the bus as it was slowing down. She fell and injured her ankle. On a trial of liability HH Judge Inglis found that the sole cause of the accident was the claimant's own negligence, there being nothing about the way that the bus was being driven to a standstill that in any way deceived her into thinking that things were otherwise than they were. The claimant appealed.

HELD (Kennedy LJ dissenting): (1) There was a potential danger created by the defendant's driver allowing the door to open before the bus stopped and he ought to have ensured that the doors remained shut until the bus had come to a standstill. (2) However, M, being a person of full age and capacity, deliberately, and well knowing that the bus was in motion, stepped into the danger. In the circumstances the law of negligence was not to be employed to compensate her for damage which was entirely attributable to her own actions. (3) But for the defendant's driver having opened the doors the accident would not have happened. It did not follow, however, that his actions necessarily fell to be treated in law as the cause of M's accident. If it was accepted that the defendant's driver was in breach of the duty owed generally to his passengers by opening the door when he did, the case could be put on the basis either that M's contributory negligence fell to be assessed at 100 per cent or that her own action broke the chain of causation.

Kennedy LJ: (1) When a bus was equipped with doors they contributed to safety, in that if kept they were closed whilst the vehicle was in motion they prevented accidents caused by passengers attempting to board or to alight while the vehicle was in motion. The safety function was underlined by the defendant's own company orders that required its drivers not to have the bus moving when the doors were open and passengers were on the bus. (2) The judge noted that it was the duty of the driver to take such care as was reasonable in the circumstances to ensure that passengers were reasonably safe when alighting from a bus. That must have meant that it was the duty of the bus driver to keep the doors shut until the bus had stopped. (3) The risk to M was capable of being of considerable magnitude, but was one which could be prevented by the simplest of measures - the driver ensuring that the door remained closed. Accordingly there was no question that there was a breach of duty on the part of the driver which was causative of the accident. (4) M was, however, contributoryily negligent by taking a chance in getting off the bus as she did and was therefore also in breach of duty, though not to the extent that the breach of duty on the part of the defendant driver was totally expunged.

Appeal dismissed with costs to be paid by the Legal Services Commission.

Mr T Meakin instructed by Hodgkinsons (Skegness) for the appellant. Elizabeth O'Hare instructed by Gosschalks (Hull) for the respondent.

ROBERT RICHARD BARRY (A CHILD SUING BY HIS NEXT FRIEND) v JOHN STANLEY WYNN (2001)

[2001] EWCA Civ 710

CA (Simon Brown LJ, Keene LJ, Longmore LJ) 11/5/2001

NEGLIGENCE - PERSONAL INJURY

BUSES : LORRIES : DRIVERS : ACCIDENTS : BURDEN : SOUNDING OF HORN : FAILURE TO SOUND HORN : RISK OF CLAIMANT RUNNING OUT IN FRONT OF BUS : REASONABLY APPARENT POSSIBILITY

The judge, in finding negligence, placed too high a burden on the appellant, who could not have been criticised for the way he was driving when the accident occurred.

Appeal from the decision of Recorder Patrick Talbot dated the 28 November 2000, sitting in the Central London County Court, when he found the appellant liable in negligence for the injuries caused to the respondent in a road traffic accident. The respondent was 11 years old at the date of the accident on 8 January 1996. The accident happened when the respondent alighted a double decker bus at a bus stop. He ran in front of the bus and across the road, but was hit by the appellant's lorry. The appellant was overtaking the stationary bus on a dual carriageway. He was driving within the speed limit. The Recorder found that the respondent stood on the pavement after alighting from the bus for a few seconds, before he crossed the road. He concluded that it was more likely than not that if the appellant had kept a proper look out, and had reasonably anticipated the possibility of the respondent running out into the road, and had sounded his horn, on the balance of probabilities, the respondent would not have run out. Accordingly, the Recorder found the appellant liable. The appellant appealed.

HELD: (1) On the facts of the case, as found by the judge, it was not open to him to find that there was a risk that the respondent would run out in front of the bus. There was no reasonably apparent possibility that required the appellant to sound his horn (Moore v Poyner (1975) RTR 127 followed). (2) It was unlikely that the appellant would have seen the respondent when he alighted from the bus. (3) The judge placed too high a burden on the appellant who could not have been criticised for the way he drove when the accident occurred. (4) Accordingly, the appellant could not have been found to have acted negligently.

Appeal allowed.

Derek O'Sullivan instructed by Badmans (Croydon) appeared for the appellant. Stephen Shay instructed by Thos Boyd Whyte (Bexleyheath) appeared for the respondent.
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CERI JONES (A CHILD SUING BY HER FATHER AND LITIGATION FRIEND ROBERT GARY JONES) v JAMES PHILIP WILKINS & (1) PATRICIA WYNN (2) PAULINE JONES (Part 20 Defendants) (2000)

CA (Civ Div) (Nourse LJ, Mummery LJ, Keene LJ) 18/12/2000

PERSONAL INJURY

ROAD TRAFFIC ACCIDENT : CHILD A PASSENGER IN CAR : CHILD ON MOTHER'S LAP IN FRONT PASSENGER SEAT : SEAT BELT : CHILD RESTRAINED BY LAP PART OF SEAT BELT ONLY : CAR STRUCK BY DEFENDANT'S CAR : DEFENDANT'S NEGLIGENCE : MOTHER'S LIABILITY : JOINT TORTFEASSORS : CIVIL LIABILITY (CONTRIBUTION) ACT 1978 : APPORTIONMENT OF LIABILITY AS BETWEEN MOTHER AND DEFENDANT : PRINCIPLES APPLICABLE : SIMILARITY WITH LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 : FROOM V BUTCHER (1976) 1 QB 286

The principles in Froom v Butcher (1976) 1 QB 286 regarding contributory negligence under the Law Reform (Contributory Negligence) Act 1945 applied equally to the assessment of the apportionment of liability under the Civil Liability (Contribution) Act 1978 where a mother failed to restrain her child in an approved child restraint in a car which was struck by the defendant's car.

Defendant's appeal from the order of HH Judge Rogers (sitting as a High Court Judge) made 11 October 1999 that, on the issue of apportionment of liability, the defendant was 75 per cent liable. The claimant, then aged nearly three, was severely injured when the car in which she had been travelling was in collision with a car being driven by the defendant. At the time the claimant had been seated on her mother's lap in the front passenger seat of the car being driven by her aunt, the first part 20 defendant. Her mother had the diagonal part of the seat belt across her body with the lap part across the claimant. The defendant was convicted of driving without due care and attention. On the claimant's claim for damages he admitted negligence but joined the claimant's mother and aunt as part 20 defendants on the basis that they had failed to secure the claimant. The judge accepted the evidence of an expert that had the claimant been wearing an approved child restraint the risk to her would have been eliminated almost entirely. He heard evidence that placing only the lap part of a seat belt across a child's lap was in fact more dangerous than wearing no belt at all although the judge held that ordinary members of the public were probably unaware of this. In assessing the apportionment of liability at 75:25 the judge had first considered himself bound by Froom v Butcher (1976) 1 QB 286 where Lord Denning had held, in a case where no seat belt was worn, that the reduction in damages for contributory negligence should not exceed 25 per cent. Although the present case was not one of contributory negligence the judge held that it would not be right to adopt different principles. Putting the principles in Froom v Butcher (supra) to one side he also held that the substantial liability lay on the defendant since but for his negligence the claimant would have sustained no injury. The defendant appealed.

HELD: (1) Any consideration of apportionment had to begin with the statutory test in s.2(1) Civil Liability (Contribution) Act 1978 whereby the contribution due from any party was as the court found to be "just and equitable having regard to the extent of that person's responsibility for the damage in question". (2) It was well established that the Court of Appeal would only interfere with the apportionment made by a trial judge in well established circumstances. (3) Whilst it was right that Froom v Butcher (supra) was concerned with a reduction in damages for contributory negligence, and not as to the contribution due as between joint tortfeassors, the language of s.1 Law Reform (Contributory Negligence) Act 1945 bore a striking similarity to that used in s.2(1) of the 1978 Act. In those circumstances there was no reason for not adopting the same approach to the question of apportionment as to contributory negligence, such an approach being implicit in the decision in Ingram v United Automobile Service Ltd (1943) KB 612. (4) In Madden v Quirk (1989) 1 WLR 702 at p.707E Simon Brown LJ said, in considering s.2(1) of the 1978 Act that "responsibility involves considerations both of blameworthiness and of causative potency". That of course was also the test under the 1945 Act (see Davies v Swan Motor Co (Swansea) Ltd (1949) 2 KB 291 at p.326) and accordingly the judge had not been wrong to have relied on Froom v Butcher. (5) Nor was the judge wrong to have described himself as bound by Froom v Butcher since the fact was that there had been no reported decision where a passenger's liability for not wearing a seat belt exceeded 25 per cent. (6) Although the figure of 25 per cent in Froom v Butcher was only a guideline, put forward at a time when the wearing of seat belts was not mandatory, the Court of Appeal at that time was aware of impending legislation. Given that the figure of 25 per cent was but a guideline there could be exceptional circumstances where a different figure was appropriate. But that was not this case. (7) Though the judge found that had the claimant been wearing an approved child restraint the injuries would almost certainly have been avoided, that finding did not undermine his reliance on Froom v Butcher. In the present case, although the injuries sustained were causally connected to the defendant's negligence and to that of the part 20 defendants, the blame to be attached to the mother and aunt was to be limited to that which was understandable. Whilst the law required a child to be restrained, although the mother had not complied with the law, she had placed the lap part of the seat belt across the claimant. In the circumstances that proved to be more dangerous than not having placed a seat belt across the claimant at all, and greater publicity on this issue was needed. 8. In the circumstances of this case there was no basis for finding that the judge's conclusions had been plainly wrong.

Appeal dismissed.

P Main instructed by Hill Dickinson for the appellant. Stephen Grime QC instructed by Beachcroft Wansbroughs (Manchester) for the respondent. The claimant did not appear and was not represented.

MARTIJN WILLEM OTTO BIESHEUVEL v ANDREW BIRRELL (1998)

QBD (Eady J) 21/12/98

CIVIL PROCEDURE - CIVIL EVIDENCE - DAMAGES - NEGLIGENCE - PERSONAL INJURY

CONTRIBUTORY NEGLIGENCE : SEATBELTS : REAR SEAT PASSENGER

A person of ordinary prudence would and should wear a seatbelt if travelling as a rear seat passenger. There was nothing, as a matter of logic or of public policy, to justify adopting different standards in relation to rear seatbelts from those laid down in Froom v Butcher (1976) in respect of front seat passengers.

A claim for damages, following a car accident at 4pm on 8 May 1994, in which the plaintiff was a rear seat passenger in a Vauxhall Astra motor car driven by the defendant. The plaintiff suffered a C6 crush fracture that rendered him tetraplegic. It was accepted that the defendant's negligence caused the accident. The court had to consider the extent to which the plaintiff's injuries had been caused by his failure to wear the seatbelt in the back seat and what if any reduction should be made if the plaintiff was contributorily negligent in failing to wear that seatbelt. Contributory negligence would certainly have been found if the plaintiff had been sitting in the front seat without a seatbelt as s.27 Transport Act 1981 and the Motor Vehicles (Wearing of Seatbelts) Regulations 1982 (S.I. 1982/1203) made it a criminal offence not to a wear a seatbelt. As there was no direct authority on the wearing of rear seatbelts, the defence argued that the guidance given in Froom v Butcher (1976) QB 286 in relation to front seatbelts should be followed. In addition Council Directive (91/671) had required all member states to implement legislation rendering it mandatory to wear seatbelts in both front and rear seats. The plaintiff contended that, as less than half of rear seat passengers wore seatbelts and the public perception was that there was less danger generally for such passengers, the level of reduction should be minimised. A request by the defendant for submission of additional expert evidence had earlier been dismissed at the Court of Appeal.

HELD: (1) Two issues, in particular, needed to be considered: (i) whether the failure to wear a seatbelt constituted negligence; and (ii) to what extent, if any, the failure to wear a seatbelt affected the injuries sustained. (2) Although there was no authority directly on the point of rear seatbelts, it seemed impossible to draw any principled distinction between front and rear seatbelts. There was nothing in the authority of Froom (supra) that was unique to front seatbelts even if the law requiring the use of rear seatbelts was more honoured in breach than the observance. Indeed, it was without hesitation that the found that there was nothing in terms of logic or of public policy to justify adopting different standards. (3) As to the effect of not wearing the seatbelt, the plaintiff's expert evidence was convincing. There were questions as to the reliability and objectivity of the defendant's expert evidence. The defence's evidence was not persuasive that the injury to the plaintiff had been caused by a collision with the headrest or the B pillar. It was likely that the injury was solely caused by an impact with the roof in the car's first collision. (4) There was no evidence that wearing the seatbelt would have made any difference to a short movement up towards the car's roof. Seatbelts then fitted to the Astra did permit several inches of vertical movement. Because the plaintiff was 6'4" in height, even a modern pre-tensioning device would not have assisted the plaintiff because his head was close to the car's roof. (5) On the balance of probabilities, had the plaintiff been wearing a seatbelt, there would have been no difference to his injuries. Accordingly, there was no finding of contributory negligence.

Order accordingly with damages to be assessed estimated as between £8,000,000 and £9,250,000.

Mr C Gardner QC, Mr G Samuel and Miss R Jones instructed by Harris & Cartwright for the plaintiff. Mr R Davies QC, Mr C Cory-Wright and Miss C Stern instructed by Edward Lewis for the defendant.

MICAH SHARPE (BY HIS MOTHER & LITIGATION FRIEND CHRISTINE [edited by admin]) v MICHAEL R ADDISON (T/A ADDISON LISTER) (2002)

QBD (Newcastle) (Judge Langan QC) 25/11/2002

PROFESSIONAL NEGLIGENCE - DAMAGES - LEGAL PROFESSION - PERSONAL INJURY

It was not incumbent upon a driver travelling within the speed limit to slow down or give an audible warning when approaching a stationary bus in circumstances where there was no suggestion that he had seen anyone get off the bus.

Action by the claimant ('S') for damages for professional negligence against his former solicitors arising out of their conduct of a personal injury action following a road traffic accident that left S with a degree of brain damage. Having seen his friends on to a bus S started to cross the road at the rear of the bus just as it was pulling away. He was struck by a taxi travelling in the opposite direction to the bus. It was common ground that the taxi was travelling within the speed limit. The evidence of the witnesses was that: (a) S had initially been hidden from the taxi driver's view as the bus pulled away and that he had first seen S when S was already well onto the taxi's side of the road; (b) the taxi driver had braked hard before hitting S; but (c) he had not slowed down or given any audible warning as he approached the bus. The defendant admitted that negligence in its conduct of the action such that S no longer had any prospect of recovery against the taxi driver. The principal issue for determination was whether S would have succeeded in the original action.

HELD: There was no prospect that S would have succeeded in the original proceedings. It was not incumbent upon a driver travelling within the speed limit to slow down or give an audible warning when approaching a stationary bus in circumstances where there was no suggestion that he had seen anyone get off the bus.

Claim dismissed.

In The Journal of Personal Injury Law 2001, Ian Walker summarised the Wilkins case in relation to the precedents laid down in the Froom case, as follows.
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J.P.I. Law 2001, 2, 182-183

Journal of Personal Injury Law

2001

Case Comment:

ROAD TRAFFIC - CHILD ON MOTHER'S LAP IN FRONT PASSENGER SEAT

Ian Walker.

Case: J (A Child) v Wilkins [2001] R.T.R. 19 (CA)

Subject: NEGLIGENCE. Other related subjects: Transport

Keywords: Accidents; Children; Contributory negligence; Personal injury; Road traffic; Safety belts

Abstract: Extent to which mother, who failed to restrain her child adequately when travelling as passenger in car, was liable for injuries sustained by child in road traffic accident.

This case concerns the law in relation to the failure to wear a seatbelt in a car where wearing a belt would have prevented injury, and whether the law in relation to contributory negligence applies to liability as between defendants. The principles in Froom v. Butcher (1976) 1 Q.B. 286 on contributory negligence were applied equally to the assessment of the apportionment of liability as the mother failed to restrain her child in an approved child restraint in a car which was struck by the defendant's car.

Commentary:

The infant plaintiff, aged at the date of the accident two years nine months, was being carried in Mrs Wynn's car. She was sitting on her mother's lap in the front seat with the lap belt portion of the safety belt around both mother and child. The diagonal belt was around the mother only. A car, driven by Mr Wilkins, collided with the front of Mrs Wynn's car due to Mr Wilkins' admitted negligence. The force of the collision caused extremely serious injuries to the claimant who was in effect squashed between the belt and her mother. An expert report from a Dr Rattenbury, an acknowledged expert in such cases, who was jointly instructed by claimant and defendant, stated that had the child been properly seated and restrained she would have escaped injury. The defendant therefore brought Mrs Wynn, as the driver, and Mrs Jones, the child's mother, into the proceedings as Part 20 defendants, claiming that they had been negligent in failing to secure the claimant safely by way of a suitable seat and restraint.

The judge at first instance held that he would apportion liability as to 75 per cent to Mr Wilkins and as to 25 per cent to the Part 20 defendants. He regarded himself bound by Froom v. Butcher ((1976) 1 Q.B. 286) where Denning M.R. had dealt with contributory negligence cases where wearing a seat belt would have prevented injury. He felt that although the present case was one involving an apportionment of liability between defendants, and not contributory negligence, nevertheless the same principle applied.
He also held that the substantial cause of the child's injury was the defendant's driving, and that he was therefore the more culpable of the parties. Had it not been for the defendant's negligent driving the accident would never have occurred. He was the more blameworthy. An apportionment of 75/25 was therefore appropriate.

The mother was not deliberately taking a risk--she was genuinely ignorant of the danger in which she was placing her child. The Court of Appeal said that the judge was right to conclude as he did. The court said that the similarity of wording between section 1 of the Law Reform (Contributory Negligence) Act 1945 and section 2(1) of the Civil Liability (Contribution) Act 1978 was remarkable, and there was no reason why the principles applicable under the two statutes should be different in cases where the facts are similar.

The judge was therefore right to conclude that he ought not to depart from the guidance contained in Froom v. Butcher.
However they recognised that Froom v. Butcher put forward figures only as a guideline, and that the court could if it wished to do so depart from those figures in exceptional cases. There was in theory nothing to prevent a court from making a reduction of more than 25 per cent in a seatbelt case. The court however expected such cases to be exceedingly rare. They had not regarded the 25 per cent figure as a ceiling but had considered the matter carefully. They made it clear that the trial judge was not to be criticised for coming to the apportionment that he did.

The court noted Dr Rattenbury's opinion that ordinary members of the public did not understand the danger of using one belt to restrain mother and child. Rattenbury felt that some greater publicity ought to be given to the potentially disastrous consequences that might follow such a practice (as in the present case). It seems amazing to me that people are still unaware of the potential dangers of carrying infants in the front of cars, as Mrs Jones did, and if this is the case some publicity is urgent needed.
I believe that the decision here is one of manifest common sense on the facts of the case. It would have been ridiculous if the court had decided that the principles in Froom v. Butcher were not of great assistance to the court in such a case. What is important is that this case restates Denning's judgment in Froom, and approves it.

The court noted that although at the time of that judgment the wearing of seatbelts was not mandatory, the court in Froom noted that legislation on the point was about to be brought in and took such legislation into account. It is therefore still the law that it will indeed be an exceptional case where a finding of more than 25 per cent deduction is made against a non-seatbelt wearer.

Perhaps this is a suitable opportunity to kill a myth. It has recently been suggested that an unrelated case of Hichens v. Berkshire County Council gives authority for the proposition that Froom v. Butcher is no longer good law and that reductions of up to 50 per cent can be made for a failure to wear a seatbelt. This case was compromised at appeal and the settlement approved by the Court of Appeal. It was compromised at 50/50 not because the claimant accepted the defendants' allegation of a 50 per cent reduction for contributory negligence for failure to wear a seatbelt. It was because of the uncertainty of the claim on primary liability in the light of the then-outstanding judgment in Goodes v. East Sussex on the ice-clearing issue. Claimants should therefore continue to use Froom v. Butcher, as approved in the above case, as authority that, except in the most exceptional cases, a reduction of 25 per cent should be regarded as maximum.

Commentary by Ian Walker
JPIL 2001, 2, 182-183

United Kingdom Statute 1945 c 28 s 1

LAW IN FORCE.

LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 CHAPTER 28

UK Statutes Crown Copyright. Reproduced by permission of the Controller of Her Majesty's Stationery Office.

In-force date: February 1, 1991 (see Analysis Tab for Commencement Information)

s 1 Apportionment of liability in case of contributory negligence.

(1) Where 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:

Provided that--

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

(3) [...] [FN1]

(4) [...] [FN2]

(5) Where, in any case to which subsection (1) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the Limitation Act 1939, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages[...] [FN3] from that other person or representative by virtue of the said subsection.

(6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced. [FN4]

(7) [...] [FN8]

Notes:

Act extended by Crown Proceedings Act 1947 (c. 44), s. 4(3), Animals Act 1971 (c. 22), s. 10 and Merchant Shipping (Oil Pollution) Act 1971 (c. 59), s. 1(5), (England, Wales) by Water Act 1981 (c.12), ss. 6(4)(7), 7(2), (Scotland) by Animals (Scotland) Act 1987 (c.9), s. 1(6), modified by Consumer Protection Act 1987 (c.43), ss. 6(4), 41(2), 47(1)(2)

[FN1] Repealed by Civil Liability (Contribution) Act 1978 (c. 47), Sch. 2

[FN2] Repealed by Fatal Accidents Act 1976 (c. 30), Sch. 2

[FN3] Words repealed by Civil Liability (Contribution) Act 1978 (c. 47), Sch. 2

[FN4] In relation to Scotland:

1. -- Apportionment of liability in case of contributory negligence.

(1) Where 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:

Provided that--

(a) this subsection shall not operate to defeat any defence arising under a contract;

(b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2) Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

(3) [...] [FN5]

(4) [...] [FN6]

(5) Where, in any case to which subsection (1) of this section applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the Limitation Act 1939, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection.

(6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been at fault and the extent to which those damages are to be reduced.

(7) [...] [FN7]

[FN5] Repealed by Civil Liability (Contribution) Act 1978 (c. 47), Sch. 2

[FN6] Repealed by Fatal Accidents Act 1976 (c. 30), Sch. 2

[FN7] Repealed by Carriage by Air Act 1961 (c. 27), Sch. 2

[FN8] Repealed by Carriage by Air Act 1961 (c. 27), Sch. 2

GENERAL MATERIALS
Royal Assent date - Long Title - Notes

UK-LIF ST 1945 c 28 s 1
UK ST 1945 c 28 s 1
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Halsbury's laws. Avoidance of liability for negligence, breach of contract, etc. "Unfair Contract Terms Act 1977".

2 Negligence liability

(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.

(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

NOTES
Initial Commencement
Specified date

Specified date: 1 February 1978: see s 31(1).
Extent

This section does not extend to Scotland: see s 32(2).
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