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Stanton v Collinson, Court of Appeal, 24 February 2010

12 March 2010
The issues

Froom v Butcher – contributory negligence – road traffic – failure to wear seatbelt.

The facts

The Claimant was a passenger in a car driven by the Defendant when a collision occurred, for which the Defendant accepted liability. The Claimant was 16 and had been sharing the front passenger seat with another passenger. Neither had been wearing a seat belt. As a result of the collision the Claimant suffered serious brain damage, resulting in a significant continuing disability. At first instance the Judge refused to reduce the damages for contributory negligence that on the basis on the evidence before her, she could not say that a belt, if worn, would sufficiently have reduced the injuries suffered.

The Defendant Appealed with regard to the issue of contributory negligence.

The decision

Two experienced road safety engineers for the Claimant and the Defendant had agreed prior to the Trial that a properly worn seat belt would probably have been beneficial in reducing the severity of the head injuries suffered, but complete prevention of “serious head injury” would have been unlikely.

There was no medical evidence before the Judge on the likely effect of the seat belt on the internal head injuries. Prior to the Trial, and after the agreed joint report of the experts, the Claimant’s Counsel, by way of a skeleton argument provided in the week before Trial, set out the Claimant’s case because it could not be demonstrated that a seat belt would sufficiently have reduced the severity of injury to justify a reduction for contributory negligence. There was no doubt that the Claimant was entitled to take this position. The joint expert report was not binding on the parties unless it was expressly agreed to be so binding (see CPR 35.12(5)).

Despite there having been several Case Management Conferences, neither Claimant nor Defendant had sought to define the issues in a way which either included or did not include the causation aspect of contributory negligence. At Trial, both experts were examined. The Judge found that their evidence was not enough to satisfy her that a seat belt would have made the necessary degree of difference. The two experts had relied on different scales. Mr Henderson, for the Claimant, had not been using the four point scale which Dr Rattenbury, for the Defendant, described as “in relatively generally currency” but had used a slightly different scale called the Abbreviated Injuries Scale, 1990 revision, which had six points rather than four. There was no evidence as to whether or not there was a significant difference between the scales. The Judge was not in the position to know whether the experts had agreed that they meant the same thing by the expression “serious head injury” used in their joint report. The Judge had been faced with a position in which anyone reading the joint report might have been forgiven for being unaware that mere mild concussion was included in the expression “serious head injury”, alongside skull or facial fractures in the scale used by Dr Rattenbury and equally unaware that indefinite brain damage was not included but would be categorised as “severe” in that scale. The Judge was right in coming to her view that the uncertainties left in Dr Rattenbury’s evidence were not in any sense resolved by evidence on the same topic from Mr Henderson.
The decision as to whether this evidence showed on the balance of probabilities that a seat belt would have reduced the injuries sufficiently to require a reduction for contributory negligence was a fine one. Some Judges would have been persuaded that it was more likely than not. Others would not. Much had to depend on the Judge’s on the spot assessment of the evidence overall. The Court did not agree that a neurosurgeon or neurologist would be unlikely to be able to contribute as much as a seat belt expert on this topic. Such a doctor might see fewer car crash victims, but would see many different kinds of head impact injuries, and had in any event a different kind of overall understanding, beyond that based on frequency of occurrence, of how impacts to the head translated into different levels of brain damage. On the basis of the evidence, the Judge was entitled to say that she was unable to say that causation was proved on the balance of probabilities and that medical evidence would have been required to resolve the uncertainties.

Generally, it did not follow that medical evidence was a necessity in every seat belt case or in every such case involving head or even brain injury. Each case would depend upon its facts. Proportionality was also relevant. A large part of the difficulty in this case that had risen from the combination of the proposition in the joint report that serious head injury was likely even with a seat belt, with the less than satisfactory evidence about what that meant. In other cases, if that difficulty did not arise, it might be that skilled seat belt engineers would provide sufficient evidence for the Judge. However, any doubts ought to be avoided if the case management process was operated in such a way as to ensure that it was clear to the parties well in advance of Trial whether the causative aspect of contributory negligence was or was not in issue.

Although it was not necessary to decide the question for the purposes of this case, the Court accepted that there might be unusual cases in which the two brackets of finding in Froom v Butcher were neither appropriate. (If the injuries would have been prevented altogether by wearing a seat belt the reduction should be 25%; if the evidence merely showed that the injuries would have been a good deal less, then damages should be reduced by 15%. In Froom itself, damages were reduced by 20%.) The Court was obliged, by Section 1 of the Law Reform (Contributory Negligence) Act 1945 to ensure that the reduction should be such as appeared to the Court to be just and equitable. It therefore allowed an approach such as that adopted in Froom, based on two broad categories of typical case and the general proposition that, in the absence of something exceptional, there should be no reduction in a case where the injury would not have been reduced “to a considerable extent”. In Froom it had been said that the enquiry into the degree of contributory negligence should not be prolonged by an expensive enquiry into the degree of blameworthiness. That was right. There was a powerful public interest in there being no enquiries into fine degrees of contributory negligence so that the vast majority of cases could be settled according to a well understood formula.

Appeal dismissed.

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