COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SITTING AT LEEDS DISTRICT REGISTRY
(MR JUSTICE GRAY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LADY JUSTICE SMITH, DBE
| MICHAEL VICTOR GAWLER
|- and -
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Mr C Wilson-Smith QC and Mr M Phillips (instructed by Stewarts) appeared on behalf of the Respondent.
Crown Copyright ©
Sir Anthony Clarke:
Issues at the Trial
"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 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.  2 K.B. 291, 326, the court said the 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."
In Lord Denning's concluding paragraph he said on this aspect of the case:
"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."
"Nor, in my view, can the judge be faulted for having described himself as 'bound' by the decision in Froom v. Butcher. I say that because it is clear from his judgment that he was prepared to, and did, consider to what extent the figure of 25 per cent suggested by Lord Denning had been exceeded during the 23 years since that decision, so as to see how readily the courts have been prepared to treat that figure as merely a guideline for the great majority of cases and how readily one should make an exception to it. The fact is that there has been no reported case of which counsel are aware where a passenger's failure to wear a seat belt has resulted in a finding of more than 25 per cent contributory negligence. I read the trial judge's comment as indicating simply that he saw the guidelines in Froom v. Butcher as being applicable. In so doing, he did not go wrong."
"Mr Main correctly submits that when those figures were put forward it was not compulsory as a matter of law to wear seat belts. It is now. On the other hand, the Court of Appeal there was aware that legislation to that effect was being contemplated. Reference is made to that in the judgment of Lord Denning at p.249C. So that was an aspect which was taken into account. A reading of that judgment shows that the Court of Appeal was not there seeking to put forward the figure of 25 per cent contribution as an absolute and immutable ceiling in every single case. But it clearly did wish to give guidance which would apply in the vast majority of cases, so that one could avoid what is described as 'an expensive inquiry into the degree of blameworthiness on either side, which would be 'hotly disputed' (see p.296B)."
Thus this court treated the guidelines as extant and effective in 2000 and indeed it had in Capps v Miller, unreported, 30 November 1988, which was not a seat belt case but a case in which the plaintiff, although he had put on a crash helmet as a passenger on a motor bike he had not fastened it.
Decision of the Judge
Application for Permission to Appeal
(1) that the judge wrongly characterised the respondent's failure to wear a seat belt as an oversight;
(2) that the judge wrongly characterised the respondent's driving as exceptionally culpable; and
(3) that the judge could have held that he was not bound by Froom v Butcher and that the damages were at large, alternatively should exceed 25%.
Petition for Permission to Appeal to the House of Lords
Agreement between the Parties
"(1) That the Defendant within 14 days hereof pays the Claimant's solicitors a further interim payment in the sum of £1,775,000 which when added to interim payments of £250,000 represents 75% of the agreed damages of £2,700,000.
(2) The Defendant will not hereafter seek in any way to recover any part of the interim payments of £250,000 and £1,775, 000 in the event of a successful appeal to the House of Lords, to the Court of Appeal or any basis nor will the Defendant seek to vary any order for costs already made or agreed herein.
(3) The Defendant will indemnify the Claimant in respect of his reasonable costs (on a standard basis) of responding to any appeal and further, the Defendant will indemnify the Claimant in respect of such costs as may be agreed or assessed to be paid on a solicitor and own client basis.
(4) This agreement is binding on the Parties upon the Defendant making an application to the trial Judge for a Certificate under section 12 of the Act."
Application for Permission to Appeal on the Papers
An Academic Appeal
(1) The principles or guidelines in Froom v Butcher were laid down over 30 years ago in 1976 and circumstances have changed since then. The wearing of seat belts has become compulsory and it is now more blameworthy not to wear a seat belt than it was in 1976.
(2) A rigid rule of the kind laid down in Froom v Butcher is unjust especially to defendants where the claimant would have suffered no or no significant injury but for his failure to wear a seat belt.
(3) Such a rigid rule is inconsistent with section 1(1) of the 1945 Act which provides that the damages "should be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damages." A rigid rule cannot be just and equitable.
(4) To permit an increase in the maximum figure of 25% would help to deter people from failing or refusing to wear a seat belt and would therefore increase road safety and so further the public interest.
(5) In these circumstances, although in one sense this is a private law case, the issues remain questions of public importance which should be determined. It should be treated as a test case.
(6) Whatever the position before the Civil Procedure Rules, to treat this as a test case would be to further the overriding objection of dealing with cases justly.
(7) There would be no downside in hearing such an appeal, because therefore the issues will be fully argued. The argument for the status quo will be fully deployed by leading counsel in the person of Mr Wilson-Smith.
That case thus supports the general principle that academic appeals will not generally be entertained but does not support an absolute rule in any class of case. Moreover it does not support the proposition that the question whether or not the court should entertain an academic appeal is one of jurisdiction.
"My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.
The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other places the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise 'On the facts of this case'; the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case."
"More generally, the board submitted that these were not genuine claims but mere pretexts designed to keep the appeal alive. The appellants have never particularised their damage claims, but it may very well be that these claims are an after thought which would never have been pursued but for the appellant's desire to argue the appeal. That does not, however, even if true, entitle this court to brush the claims aside as being illegitimate or of not consequence. Nor can I regard the desire of the appellants (or their union) to argue the appeal as vexatious or reprehensible. The tribunal's decision and the judgment of the EAT contain rulings on questions of legal principle which will or may affect a significant number of other cases. The parties have spent time and money litigating these questions up to this level. Much of that time and money would have to be spent all over again if, in any later case raising the same questions, it were sought to challenge the existing ruling of the EAT. That would not in my view be creditable to our legal system. All cases must of course be viewed in the light of their own peculiar circumstances, but I do not think that this could ever have been seen as a case in which the argument on one side or the other was likely to go by default because there was any lack of concern about the outcome. In the event, I am quite sure that the appeal could not have been argued with greater care and skill if the board's offer to pay the arrears of wages to the appellants had never been made. I do not, however, regard this as being a case in which the court had a choice whether to hear the appeal or not: so far as I know, no agreement had been reached concerning the costs of the appeal, and it would seem that that of itself provides sufficient lis to keep the appeal alive (see Westminster City Council v Croyalgrange Ltd)  2 All ER 353 at 354,  1 WLR 674 at 678 per Lord Bridge)."
"The issue at the heart of the appeal is, however, an issue of public law of very great importance which is causing very great difficulties in solicitors' offices and barristers' chambers and in the orderly conduct of contested litigation through the country. The language of s 328 of the 2002 Act has caused great uncertainty within the legal profession, particularly because Parliament has given a much wider meaning to the phrases 'criminal conduct' and 'criminal property' than was required by the relevant EU directive."
"We were therefore anxious to continue hearing the appeal if we possibly could, so as to comply with the entreaties of all the parties who appeared before us. To send them away empty-handed on an issue of such importance seemed to be not only churlish but also in breach of the overriding objective which illuminates all civil court practice today."
The court then referred to the speech of Lord Slynn in ex parte Salem to which I referred earlier. In particular it referred at page 12 to the passage in which Lord Slynn indicated that appeals that are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example where a discrete point of statutory construction arises which does not involve a consideration of facts and when a large number of similar cases exist, so that the issue will most likely need to be resolved in the near future in any event.
"13. These criteria are amply satisfied in the present appeal. The only difficulty is that the underlying litigation is private law and not public law litigation. However, Lord Slynn was careful to refer to 'disputes concerning private law rights between the parties to the case'. What is in issue here are public law duties. The contemporary practice of both the House of Lords and this court to permit interventions in private litigation when discrete points of statutory construction are causing great difficulty in a way that was not contemplated when Ainsbury v Millington was decided has created a new scenario within which to consider a point of this kind (compare Callery v Gray  EWCA Civ 1117,  1 WLR 2112, CA;  UKHL 28,  1 WLR 2000, HL, where there were many interveners in this private law litigation).
14. Mr Elliott QC, who appeared for the Law Society, reminded us that in Ainsbury v Millington Lord Bridge accepted that different considerations might arise in relation to what were called 'friendly actions' and conceivably in relation to proceedings instituted specially as a test case. This language showed that even the rule on private law litigation permitted of exceptions, and he suggested that an important point of public law, involving a public authority, where there was an additional public interest element arising out of the court's supervisory role in connection with solicitors (as officers of the court), who were perplexed as to the content of their obligations under the 2002 Act when conducting or settling litigation, made this par excellence an appeal over which the court should assume jurisdiction.
15. We accept these submissions. If it is in the public interest for this court to decide an important and difficult point of law arising out of the interpretation of a recent statute, when both the parties to the case and three interveners of the status of those who appeared before the court are anxious that the court should do so, it is in our judgment unnecessary for the court to resort to artificial devices on which to found its jurisdiction."
"In sum, the hearing of appeals that are no longer determinative of the rights of the parties will depend on whether the matter is of general public interest and whether entertaining an appeal is the most effective way of resolving the issue and promoting the overriding objective."
This consideration of the cases leads, in my opinion, to the conclusion that the court will not entertain an appeal between private parties in private litigation unless it is in the public interest to do so. Moreover, this is likely to be a very rare event, especially where the rights and duties to be considered are private and not public. Indeed, so far as I am aware, if we permitted this appeal to proceed, it would be the first case in which the court had ever considered such an appeal, since (as stated above) Bowman v Fels was a case involving an issue of public law.
The Present Case
(1) While I see the force of Mr Norris' submissions, there is no evidence that there is an urgency about the resolution of what he says are the important points of principle.
(2) At any appeal, although Mr Wilson-Smith will remain instructed by his solicitors, there is no evidence that they represent any interest beyond that of the respondent, who has no interest in the outcome of this appeal or indeed of future cases. It would be preferable for any issues of principle to be determined between parties with a real interest in the outcome and thus with a real interest in putting relevant evidence before the court. I do not think that it is sufficient to rely upon a claimant's interest group such as APIL to intervene in an appeal, valuable though this might well be.
(3) In the course of the argument Mr Norris sought to rely upon the principles of contributory negligence, mitigation, causation and volenti non fit injuria, which he says support his submission by way of analogy. I have some doubts about that but it became clear that he wished to submit that on the facts found by the judge, the true position was that the respondent's claim should have failed because, by deliberately failing to wear a seat belt, the respondent voluntarily assumed the risk that, if there was an accident, whether caused by the negligence of the appellant or otherwise, he would suffer injury as a result of failing to wear a seat belt. The judge refused an application to introduce such a plea because it was made too late although the applicant does not challenge that refusal, he submits (1) that the court should consider what the position would have been if the point had been pleaded in time, (2) that it should hold that the claim would have failed and (3) that that conclusion supports the appellant's submission in the appeal.
(4) I am far from persuaded that there is any real force in that submission but it highlights the unsatisfactory nature of the position. If it is a defendant's case that he has a defence of volenti, it should be pleaded in order to ensure that the claimant knows what is said and so that the evidence can directly address it. While it would be no doubt possible for this court to refuse to entertain an argument based on volenti even by analogy, in my opinion such an argument should be addressed at first instance on the basis of evidence addressed to it and, if it really is relevant, decided then. It would be far from satisfactory to consider detailed submissions on volenti on an appeal when the appellant's evidence on the topic would only be as it were obiter.
(5) In short there is no pressing need for an academic appeal to be heard in the absence of parties with a real interest in the outcome.
(6) I am not persuaded that the public interest requires permission to appeal to be granted, even if I were persuaded of the potential merits of the appeal.
Lord Justice Waller:
Lady Justice Smith:
Order: Application refused.