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Jones v Wilkins, Court of Appeal

8 February 2001
The issues

A Road Traffic Accident. Injuries To Child Passenger – Apportionment.

The facts

The Claimant was aged 2 years and 9 months at the time of the accident. She was carried in the front passenger seat of the car seated on her mother’s knee. The car was driven by the mother’s sister. The mother had a diagonal belt across her shoulders and chest but not across the Claimant’s body. The lap belt was around both mother and child. The Defendant driving in the opposite direction drove onto the wrong side of the road in a head on collision. The Claimant sustained terrible injuries – paraplegia.

At first instance the Judge apportioned blame 75% to the Defendant and 25% to the Third parties, the child’s mother and Aunt following Frome v Butcher. On appeal.

The decision

Frome v Butcher was a decision under Section 1 of the law reform (contributory negligence) Act 1945 and was not concerned with contribution as between joint tort feasers. However, the language of the law reform Act and of the Civil Liability Contribution) Act 1978 was strikingly similar. Frome v Butcher therefore provided valuable guidance in cases falling under the 1978 Act. 25% was not an absolute “and immutable ceiling in every case”. It was for guidance only. The Judge had followed Frome in this light. This was not withstanding his finding that the terrible injuries to the child would have been entirely or virtually avoided had she been wearing an approved restraint. The Judge was entitled to bear in mind the fact that the Defendant had caused the accident by his gross inattention. He had been entitled to bear in mind that the mother had put the lap part of the belt around the child (notwithstanding that this actually made the situation worse). The 75/25% apportionment was a distribution he was entitled to arrive at.


Interestingly, Michael and I found in Bingham only one case quoted where 25% had been exceeded. The real point of this case may i.e. in the Court of Appeal’s wish to ensure that an insurer stood behind a tort feaser. The report hints at another justification – blame and in this regard has some similarities with Rahman reported on earlier and then that case was a case on causation and involved two successive tort feasers. The Court of Appeal had to decide on questions of apportionment. Laws J reconciled Jobling v Baker on the basis that concepts of blame had a role in apportioning damages. Per Law LJ “blame may be material to the application or dis-application in any particular case of our ideas of novis actus and egg shell skulls”.

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