England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1971] 2 Lloyd's Rep 354, [1971] 2 LLR 354, [1971] 3 All ER 129, [1971] EWCA Civ 5, [1972] 1 QB 270, [1972] RTR 51, [1972] QB 270, [1971] 3 WLR 463

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JISCBAILII_CASE_TORT

		Neutral Citation Number: [1971] EWCA Civ 5
		Case No.:1969 0.No.8005

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(Civil Division)
On appeal from Mr. Justice Payne sitting at Liverpool)

Royal Courts of Justice

7th July 1971

B e f o r e :

LORD JUSTICE RUSSELL
LORD JUSTICE EDMUND DAVIES
and
LORD JUSTICE CAIRNS
____________________

	CHARLES O'CONNELL	(Plaintiff) (Respondent)
	-v-
	THOMAS JACKSON	(Defendant) (Appellant)

____________________

(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd.,
Room 392, Royal Courts of Justice and 2, New Square, Lincoln's Inn, London, W.C.2.)

____________________

MR. GODFREY HEILPERN, Q.C. and MR. A. LOGAN PETCH (instructed by Mr. Harry Smith, Manchester) appeared on behalf of the Appellant.
MISS ROSE HEILBRON. Q.C. and MR. GERALD CROWE (instructed by Mr. W.H. Thompson, Manchester) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE RUSSELL: I will ask Lord Justice Edmund Davies to give the judgment of the Court.

LORD JUSTICE EDMUND DAVIES: By these proceedings the defendant appeals from the judgment of Mr. Justice Payne, who awarded the plaintiff £7,097.13 at the Liverpool Assizes last November. The action was brought in respect of a road accident which occurred in January, 1969, when the plaintiff's moped collided with the defendant's motor car. Negligence was originally denied, but was admitted at the trial. The notice of appeal raised two points: (1) that the learned trial Judge was wrong in acquitting the plaintiff of contributory negligence, and (2) that the damages awarded were excessive. Before us, however, the latter point was abandoned, and the sole ground of appeal now relied upon is that the failure of the plaintiff to wear a crash helmet should, in all the circumstances, have been held to constitute contributory negligence and ought accordingly to have led to a reduction in his compensation below that which the Judge awarded on the basis of full liability.

The relevant facts can be shortly stated. The plaintiff, a marine fitter aged 47 employed at the Cammell Laird works in Birkenhead, was an experienced motorist. Six months before his accident he bought a moped, that is, a pedal-cycle with a small engine. This he used about three times weekly to do the four-mile journey between his home at Wallasey and his place of work. On January 25th, 1969, the defendant motorist was emerging from a Minor road into the major road upon which the plaintiff was travelling, stopped at the junction, but then negligently moved forward. The result was that the plaintiff's moped, approaching from the defendant's right at about 20 miles per hour, struck the car's offside bumper and went off at a tangent. The plaintiff was flung over his handlebars and his head came into heavy collision with the roadway.

The resultant injuries were of a general nature, but for present purposes it is sufficient to say that by far the most significant was the severe and extensive fracturing of the plaintiff's skull, extending from the right parietal region into the frontal bone and across the frontal sinuses into the anterior cranial fossa on the opposite side. The medical witnesses called for both sides expressed in various ways their views regarding the likelihood of such an injury being prevented had the plaintiff been wearing a crash helmet at the time of the accident. The defendant's medical witness said that "a crash helmet would have given him considerable protection and diminished the degree of head injury". One of the plaintiff*s medical witnesses expressed the view that "the chance of his fracturing his skull would have been very much less ...; indeed he might not have sustained frontal fractures"; and the other said, "I think there is very good reason to believe that a crash helmet would have cushioned the blow to the head, and the injury would consequently have been less serious". On that evidence, the Judge arrived at the finding (which is not challenged) that, while wearing a crash helmet would not have prevented or diminished the risk of the collision occurring, it "would probably have reduced the gravity of his head injuries".

No comparable case was cited to us where, although the conduct of the plaintiff in no way contributed to the accident itself, his act or omission could be said to have contributed to the nature or extent of the injuries he sustained as a result of the accident. But Miss Heilbron did not contest that if, as a result of his contributory negligence, a plaintiff suffers greater injury than he would otherwise have sustained, his entitlement to compensation should reflect that fact. In our judgment, Miss Heilbron was right in not challenging that proposition. Section 4 of the Law Reform (Contributory Negligence) Act, 1945, defining "damage" as including "loss of life and personal injury", provides by Section 1(1) that,

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, . . . the damages recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".

The first question, accordingly, is whether this plaintiff was guilty of contributory negligence. In Jones v. Livox ((1952) 2 Queen's Bench 608) Lord Justice Denning, as he then was, said, "Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person 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; and in his reckonings he must take into account the possibility of others being careless". Respectfully adopting this test, it seems clear that the plaintiff, travelling through what we were informed is a busy traffic area, ought reasonably to have foreseen the possibility of his being involved in an accident even though he himself drove with the greatest care.

But ought he also to have been mindful of the possibility that were he, riding his moped, involved in an accident, he could well sustain greater hurt if he failed to wear a crash helmet? The learned Judge answered that question in the negative and so absolved the plaintiff from contributory negligence. For the defendant it is submitted on two grounds that this finding is erroneous. Reliance is first placed upon the provisions of the Highway Code which, in accordance with the Road Traffic Act, I960, Section 74, "....may in any proceedings (whether civil or criminal..) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings". Our attention was directed to the advice contained in paragraph 24 of the latest edition of the Code, "When on a motor cycle, scooter or moped, always wear a safety helmet". That edition was issued as the result of a Parliamentary resolution passed in December, 1968, and it is seriously open to doubt whether a copy was available to the plaintiff before he sustained his accident in the following month, and he said he was unaware of the existence of this advice in the Code. The earlier edition, authorised by Parliament in July, 1959, restricted itself to the advice (printed on the cover and not as part of the Code) that, "Motor Cyclists should always wear properly fitted protective helmets", and made no reference to moped riders. In Hilder v. Associated Portland Cement Co. ((1961) 1 Weekly Law Reports, 1434), where a motor cyclist was killed as a result of being hit by a ball kicked by a boy playing in a field adjoining the highway, Mr. Justice Ashworth declined to ho^d that the failure of the motor cyclist to wear a crash helmet constituted contributory negligence on his part, pointing out (a) that no advice on the matter appeared in the Highway Code current when the accident occurred in February, 1959, and (b) the absence of statutory regulations making compulsory the wearing of helmets. But it is to be noted that Mr.Justice Ashworth went on to say that, ".... having regard to Mr. Hilder's slow speed and relatively low height off the ground, I am by no means certain that, if he had been wearing a helmet, his skull would not have been fractured* Accordingly, if the claim succeeds, it succeeds in full". In the present case, however, as we have already said, the finding of the learned Judge in the light of the medical evidence was to the opposite effect.

Then, for the defendant to be in a position to invoke Section 74 of the I960 Act, does he have to show that the latest edition of the Highway Code (authorised to be issued only in the month before this accident occurred, and for the first time giving advice to moped riders) was available to the plaintiff? Indeed, must he go further and show that the plaintiff had actually read it? Defending counsel submitted (and rightly, in our judgment) that neither need be established, that the Highway Code is declaratory of sensible practice generally accepted, though in varying degrees, by road users, and that the latest edition could therefore, for the limited purpose indicated by Section 74, be adverted to.

The Plaintiff's own attitude in relation to the wearing of crash helmets is the second ground relied upon as supporting the allegation of contributory negligence. I quote from his cross-examination:

"(Q) Did you have a crash helmet?

(A) No.

(Q) You had this machine for about 6 months and you had not obtained a crash helmet?

(A) No.

(Q) Did you not think about getting a crash helmet?

(A) I did do, yes.

(Q) Why did you not get one?

(A) I don't know really, I aimed to get one.

(Q) You aimed to get one I suppose from the time you got your moped?

(A) I didn't use the moped all that many times. I only used it on occasions.

(Q) You had got rid of the motor car?

(A) Yes.

(Q) How else could you got to work?

(A) I used to go on the bus or got a lift.

(Q) You just never got round to getting the crash helmet?".

No answer to that question is recorded for the learned Judge intervened with a question "About how often do you go to work on the moped?

(A) It all depended on if the weather was fine.

(Q) Roughly how many times every month?

(A) I would say three times a week. Sometimes I didn't bother at all with it if I got a lift". Then learned Counsel, Mr. Temple, took up the matter: "You knew that you ought to wear a helmet?

(A) Yes.

(Q) You knew that the Highway Code says you should wear one, did you not?

(A) I didn't know that.

(Q) You have the Highway Code?

(A) I have read the Highway Code, yes."

The defence understandably place strong reliance upon this passage. They say it demonstrated quite clearly that this experienced road-user of mature years realised that the prudent user of a moped would wear a crash helmet for his own safety's sake. That, they submit, is of itself sufficient to convict him of some degree of contributory negligence. They do not seek to establish as a general proposition that failure to wear a helmet must in all circumstances lead to that result. They content themselves with the submission that to ride a moped at 20 miles per hour in a busy traffic area, as this plaintiff did, rendered it prudent to take that simple step in order to minimise the risk of serious injury to himself.

Miss Heilbron disputed this and cited MacDonnell et al v. Kaiser ((1968) 68 Dominion Law Reports (2d) 104), where a Canadian Court declined to hold that the failure of a motorist to use an available seat-belt amounted to contributory negligence. She submitted that, by analogy, a similar conclusion should be arrived at in the present case. But it is noteworthy that the Canadian decision turned on the Judge's conclusion that the effectiveness of seat-belts was still in the realm of speculation and controversy, whereas in the present case the probable effectiveness of crash helmets in reducing the risk of a serious head injury was solidly established.

It is true that no use has yet been made of the power conferred by Section 41 of the Road Traffic Act, 1962, to make regulations requiring the wearing of protective headgear in such cases as the present. We would welcome such a regulation if economic considerations permit, for the possibility of serious injury resulting from failure to do so is manifest. More to the point, the evidence of the plaintiff himself in the present case establishes that he was alive to this risk and had only himself to blame for failing to remedy the omission. In these circumstances, we respectfully dissent from the learned Judge's complete exculpation of the plaintiff, and we hold that he should bear part of the responsibility for the severe consequences of the accident.

To what extent this finding should be reflected in the diminution of the g;7,097.13 awarded as full compensation is not an easy question. The plaintiff being entirely Innocent in relation to the collision without which he would not have been injured at all, the tests of blameworthiness and causative potency commonly adopted since Davies v. Swan ((1949) 2 King's Bench 291) are not entirely easy to apply to the injury which in fact followed. It seems to us that only a broad approach is possible. It must be borne in mind that, for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance. It is not possible on the evidence to measure the extent of that field and then apportion that measure between the blameworthiness and causative potency of the acts and omissions of the parties. We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess the responsibility of the plaintiff in terms of 15 per cent, of the whole, and allow the appeal to the extent of reducing the damages

to that extent.

LORD JUSTICE RUSSELL: What is the result of that on the Order, Miss Middleton? I apprehend that each of the three figures and the total in the Order should be reduced by 15 per cent. Is that right?

MISS MIDDLETON (for Mr. Logan Fetch): If your Lordship pleases.

LORD JUSTICE RUSSELL: The figures are £7,097.13, £345.20, £43.28 and the consequent total. I am very bad at sums, but I think the result is that you substitute £6,032.58, £293.45 and £36.83. Will Counsel kindly check those figures and let the Associate have an agreed answer before they leave the Court. Now what about costs?

MISS MIDDLETON: I ask for an order that the Respondent pay the Appellant*s costs of the appeal to be taxed on a party and party basis.

LORD JUSTICE RUSSELL: What do you say, Miss Heilbron? This was an appeal purely on whether there was contributory negligence and it has succeeded.

MISS HEILBRON: I cannot resist that.

LORD JUSTICE RUSSELL: Very well. So the appeal will be allowed with costs and the Order below will be varied in the manner I have indicated subject to checking the figures, that is to say, by reducing each of the four figures in the right-hand column of the Order by 15 per cent.

(Appeal allowed with costs. Order below varied by reducing the figures set out therein by 15 per cent.)