England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN`S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
MRS JUSTICE COX DBE
[2009] EWHC 342 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2010

Lord Justice Hughes:

1. This is an appeal brought by the defendant in a running down action. The claimant had been a passenger in the car driven by the defendant. The car was involved in a collision for which the defendant in due course accepted primary liability. The issue was contributory negligence. The sixteen year old claimant had been sharing the front passenger seat with another passenger and neither of them had been wearing a seat belt. The claimant suffered serious frontal lobe brain damage, resulting in significant continuing disability. The judge declined to reduce the damages for contributory negligence on the grounds that it had not been shown that a belt, if worn, would sufficiently have reduced the injuries suffered. She held that one could not know that on the evidence she had received.
2. The principal issue in this appeal is whether the judge was wrong to reach that conclusion. This was a case in which experienced road accident safety engineers, instructed respectively for claimant and defendant, had reached agreement prior to the trial that a properly worn seat belt would probably have been beneficial in reducing the severity of the head injury suffered, but complete prevention of 'serious head injury' would have been unlikely. Was the judge for that reason wrong to conclude as she did, after hearing the evidence of both experts and in the absence of any medical evidence on the likely effect of a seat belt on the internal head injuries ? The answer depends in large part on the particular way in which the evidence emerged at this trial.
3. If the judge was wrong to find that there was no contributory negligence, two further issues would arise, one peculiar to the facts of this case, and the other potentially of general application. The defendant contends that this claimant's level of contributory negligence was greater than that of the passenger who omits to put on the seat belt, because he was party to the dangerous practice of two occupants in one seat. More fundamentally, the defendant submits that this court ought to revisit the decision in Froom v Butcher [1976] 1 QB 286, and that the levels of contributory negligence attributable to failure to wear a seat belt ought significantly to be increased in the light of developments over the intervening thirty years or so.
4. Sometime around 1130 pm on the night of 17 May 2003, the defendant drove away from the Canal Bar, in Swinton, South Yorkshire, in the direction of Mexborough, in his Astra motor car. He was giving a lift to four other people. It does not seem that the various occupants had been in a single party at the Canal Bar; rather, it appears to have been spontaneous convenience which put them all in the same car. His four passengers were two young men and two young women; to what extent, if at all, they were couples that night was unclear. In the back seat were one man and one woman. In the front passenger seat were the claimant and the second young woman. Who was sitting on whom in the front was hotly in issue at the trial, but the judge's finding, which is not now challenged, was that the claimant had the girl on his lap or knee. Neither had the seat belt on. Nor did the driver or the other passengers wear the belts available.
5. The blood alcohol level of the defendant driver was 74/100, just within the legal limit. There was no evidence that the claimant had had too much to drink and the judge did not find that he had. The other three passengers clearly had had too much to drink. The young woman in the front had twice been sick, the young woman in the back was feeling sick and dizzy, and the man in the back had on his own account had 'at least ten beers' and was found by the judge to have been drunk.
6. The defendant driver was in the habit of driving fast, and sometimes inappropriately. He was in a hurry to get to a meeting of a road race club of which he was a member. On a straight road in good weather conditions, albeit with some residual dampness on the surface, he drove too fast and lost control. The judge found his speed to have been at the upper end of the range 61-72 mph, on a single-carriageway road subject to a 30 mph speed limit. His car crossed the central white line and struck an oncoming Peugeot car. By the time of impact the defendant's car was almost broadside, presenting its driver's side to the oncoming Peugeot. The principal impact was between the front of the Peugeot and the offside front wing and driver's door of the Astra. The result was that the Astra rotated further, there was a secondary, glancing, impact to its rear offside corner area, and then it rolled over, finishing on its roof.
7. The defendant driver was killed, more or less instantaneously, in the accident. The claimant suffered a depressed fracture to the back of the skull with associated brain damage to the right parietal, occipital and frontal lobes, the last and perhaps the second apparently via the contre-coup effect. There is continuing significant brain damage, in the form of cognitive deficits of the kind typically associated with frontal lobe damage, including poor memory, reduced concentration, clumsiness and behavioural changes. He also damaged the flexor tendons of his right hand, which also led to continuing loss of function and sensation.
8. The claimant had been just 16 at the time of the accident and was still at school. The defendant driver was 24. The other male passenger was 18 and the two girls were 16 and 15.
9. There were a number of issues of fact at the trial. As well as resolving the question of who was sitting on top of whom in the front passenger seat, the judge also had to determine whether the claimant had verbally encouraged the driver to drive fast and/or had himself drunk too much for his own safety. Those last two questions were resolved in the claimant's favour.
10. Experts in road accident reconstruction and seat belt use were instructed on both sides. Both were engineers of considerable experience in those fields. Dr Rattenbury, instructed for the defendant, had made a particular specialism of seat belt study, from the time when it was the subject of his PhD thesis as long ago as the mid seventies. Mr Henderson, instructed for the claimant, had worked in the automobile industry on the safety-related engineering side for many years. The principal question posed to these experts in this case was who had been on top of whom in the front seat. There was eye witness evidence that in the immediate aftermath of the accident the girl and one of the men from the front of the car were to be seen partly ejected through the driver's window. The evidence of the experts went, in part, to which of the men it was likely, from considerations of motion within the car in the impact, to be, and it went also to what those motion considerations told about the likely starting positions of the two front seat passengers. The experts did not agree about the starting positions and each gave evidence on the topic. Dr Rattenbury had altered his opinion about this between report and oral evidence, indeed while listening to Mr Henderson's evidence. In due course, the judge determined, partly on the expert but perhaps more on the eye-witness evidence, that the man protruding from the car was the driver, and it was that finding which led to the further conclusion, based on resolving the disputed expert evidence in favour of Mr Henderson, that the claimant had started with the girl on his lap or knee.
11. Both experts also addressed the consequences of the omission to wear the seat belt. In their separate reports each reached a similar conclusion, in both cases expressed in brief and general terms. Following their joint meeting, at which they did not achieve agreement on the pre-accident seating positions, they set out the following agreed position on the consequences of not wearing the belt:

"If [the claimant] had been the sole occupant of the nearside front seat and he had been wearing a seat belt we agree that:

(1) his shoulder might have slipped away from beneath the belt, allowing his upper body to move towards the offside of the car;

(2) the top of his head might then have struck the steering wheel or the intruding driver's door, thus causing head and/or spinal injuries;

(3) the severity of any such impact would probably have been reduced by the restraining effect of the lap belt against his lower body, with a resultant reduction in the severity of his injury. Thus we agree that seat belt use would, on the balance of probabilities, have been beneficial in significantly reducing the severity of his head injury, but complete prevention of serious injury to the head, face or neck would be unlikely."

12. That followed broadly similar separate conclusions to like effect in their individual reports. But they had expressed those conclusions in ways which differed in some respects. In particular, Dr Rattenbury for the defendant thought it "highly likely" that the claimant, even if belted, would have hit the steering wheel with his head or face. He had also written that it was likely that the claimant would have sustained some "serious injuries to his head and face, involving fractures and a degree of brain injury", but he had said, 'I would not have expected this to have been so severe as the head injury he actually sustained'. For his part, Mr Henderson had, in his initial report, set out his conclusion that a seat belt would have reduced the severity of the impact but had not gone on to say anything about the severity of the injury; however, as has been seen, he concurred in the joint report in the proposition there set out about the latter also.
13. Despite the agreed joint report, the claimant's counsel set out from the start of the trial to advance the case that it could not be demonstrated that a seat belt would sufficiently have reduced the severity of injury to justify a reduction for contributory negligence. That stance was notified to the defendant's legal team by way of skeleton argument provided in the course of the week before trial, the joint experts' report having been produced about a fortnight earlier. For the defendant, Mr Turner QC accepts that the claimant was entitled to take up this stance. The joint expert report is not binding on the parties unless they expressly agree that it shall be; that is expressly provided by CPR 35.12(5), and was no doubt well understood by the experienced teams of personal injuries lawyers involved on both sides. Of course, there were other issues, but the entire case was about contributory negligence. One might have hoped that the case management process and the exchange of information necessary to dispose of the case fairly, which is contemplated by the CPR and in particular by the overriding objective, might have led to one or other party seeking to define the issues in a way which either included or did not include the causation aspect of contributory negligence; there had been several case management conferences. However, neither did so and Mr Turner makes no complaint that the claimant was guilty of any procedural fault.
14. Whether in those circumstances the defendant's team could have complained that earlier notice ought to have been given, or could have sought an adjournment to obtain medical evidence on this issue, are questions which are now immaterial. Nor can it be known to what extent they had or had not explored the possibility of such evidence. For their part, the defendant's team elected, no doubt for what appeared to be good tactical reasons, to stand on the joint report. The judge was left with the trial as it was then conducted.
15. In pursuit of his declared case on this point, counsel for the claimant (not Mr Burton QC who appeared before us) began to ask supplemental questions of his own expert witness Mr Henderson, starting with a question about the part of the brain which might have been affected in the hypothetical impact of a belted claimant with the steering wheel. Mr Turner made immediate objection, in effect on the grounds that a party ought not to supplement the evidence of his witness without notice. The judge observed that it might be better to wait to see what emerged in cross examination. Counsel for the claimant abandoned the line of questions. Mr Turner did not ask, and appears to have been careful not to ask, any questions relating to causation beyond confirming the witness's adherence to the joint report, and so the line of questions was never resumed. It should be noted that the objection was not, and could not be, to counsel for the claimant seeking to undermine the joint report to which his own expert had been party; it was to an attempt to get the claimant's own witness to help, in chief, without notice.
16. However, there could be no such inhibition upon counsel for the claimant cross-examining the defendant's expert, Dr Rattenbury, and he did. Dr Rattenbury was asked what, for his part, he meant when he said in his report (and in the joint report) that serious injury to the head and face was likely even if the claimant had been alone in the seat and properly belted. He answered that the typical injuries from striking the steering wheel were "facial soft tissue injury, facial bone fracture, occasionally skull fracture, a degree of concussive injury and that's not usually severe, but then you do get, in relatively rare cases, major brain injury". Taxed with his assent to the use, both in his report and in the joint report, of the expression "serious injury to the head", he answered that he distinguished between 'serious' and 'severe' and that he had meant only moderate or mild concussion, although with fractures to the head and face. A little later, however, the following exchange took place [297-9]:

"Q: You were agreeing, were you not, that complete prevention of serious injury to the head would be unlikely ? A: Yes"

"Q: Head, face and neck ? A: Yes"

"Q: And included in serious injury to the head, you were including serious injury to the brain ? A: Yes "

17. In re-examination, Dr Rattenbury maintained his distinction between serious and severe brain injury, asserting that most brain injuries described as serious are generally recoverable. He added "We are talking about sort of mild to moderate concussion." He suggested that among accident investigation engineers there was "a relatively general currency" of use of a four point scale of descriptions of injury beginning with 'slight' and progressing through 'serious' and 'severe' to 'fatal'.
18. Faced with that evidence, the judge posed herself the question whether the defendant, on whom the burden of proof lay, had shown that:

"…..the claimant's failure to wear a seat belt probably made a considerable difference; that is, although the claimant would still have suffered some injuries, that his injuries would have been a good deal less severe if he had worn a seat belt, in which case his damages should be reduced by 15%." [paragraph 125]

19. Her conclusion on that question was expressed in this way:

"134. The engineering experts having agreed that complete prevention of serious injury to the claimant's head would be unlikely, had he worn his seat belt, and it is not in dispute that this would involve some degree of brain injury, the question is what evidence has been adduced to show that the head injuries the claimant would have sustained would be qualitatively or quantitatively different, in terms of their impact and effect upon his level of cognitive function.

135. Given the well recognised vulnerability of the brain, the extent to which this different yet serious head injury would have given rise to less severe cognitive deficits that those he now suffers from is, in my judgment, a medical and probably a neurological question….. Yet the defendant has adduced no medical evidence in this case. Further, none of the medical evidence served with the Particulars of Claim, dealing only with condition and prognosis, has addressed this issue.

136. Mr Turner seeks to rely on the engineers' agreed views as to the beneficial effect of a seat belt in significantly reducing the severity of the claimant's head injury. This however does not assist me in deciding what the residual effect of that head injury would probably have been, and whether the likely injury to his brain would have left him on the balance of probabilities with less severe deficits."

She then reviewed the oral evidence of Dr Rattenbury, which I have set out above. Of it, she said this:

"138. However, not only had Dr Rattenbury failed to set this explanation out in his report, or in the joint report, as he accepted in cross examination he should have done, but it was never put to Mr Henderson, who added no such qualification to the agreed statement at paragraph 5 of the joint report and who had referred in his own report to a quite different classification in use for injuries sustained by road traffic victims, namely the Abbreviated Injury Scale, 1990 Revision.

139. I accept, of course, Dr Rattenbury's extensive expertise and experience as a seat belt specialist. However, leaving aside the lateness of the explanation now offered, I did not find it of assistance in resolving a question which, in my view can only properly be determined with the assistance of specialist medical evidence.

140. I accept that it is possible that this claimant's head injuries and their sequelae would have been less severe if he had worn his seat belt, and if a different part of his head had struck a different part of the car. But the burden of providing that they probably would have been lies upon the defendant. For the reasons I have given, that burden has not been discharged in this case."

20. Mr Turner QC, for the defendant, complains that the judge was concluding that the engineers had strayed beyond their expertise. She did not, however, say that their evidence on this topic was inadmissible. She merely said that it was not enough to satisfy her that a seat belt would have made the necessary degree of difference. In my view the evidence was admissible. The experts were not qualified only to give evidence about the mechanics, in particular about what the claimant's head might have struck, and in what circumstances. They also had, although they were not doctors, ample experience of study of road accidents involving head injury so as to be able to express an informed opinion about what often happened by way of impacts to the head and the kind of injuries which had generally been seen to ensue. But the judge still had to decide whether that (admissible) evidence was sufficient to show that the brain damage that there would have been would have been significantly less if the belt had been worn.
21. Mr Turner's contention is that the jointly expressed opinion, together with Dr Rattenbury's explanation of what he at least meant by it, was the only evidence on this topic and there was no basis for the judge not to accept it. That Dr Rattenbury was the only witness asked about the meaning of the joint report was, he says, the result of counsel for the claimant's decision to open up the question in cross examination, and not the defendant's responsibility.
22. Given the tactical decisions which were made on either side by very experienced lawyers, I agree that it was counsel for the claimant who brought about the situation in which Dr Rattenbury's evidence on what he meant by the joint report was the only evidence expanding on its terms. Nor had he sought to recall Mr Henderson to deal with the point. Of course, the defendant was in those circumstances entitled to submit to the judge that the claimant was bound by the answers given. But that does not mean that the judge was bound to accept those answers as sufficient to discharge the onus of proof resting on the defendant to establish the causation leg of contributory negligence.
23. Mr Turner's skilled microscope, applied to the judge's paragraph 138, yields the submissions that (i) Dr Rattenbury ought not to be criticised for not putting his interpretation of 'serious head injury' into his report nor for answering the questions in cross examination which he was asked and (ii) the defendant could not be criticised for not having earlier put that interpretation to Mr Henderson. I agree that Dr Rattenbury had to answer the questions asked. He in fact conceded that the interpretation "should have been made clearer", and he was right to do so. Anyone reading either his report or 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, still less that indefinite brain damage was not included but rather should be categorised as 'severe'. I agree also that the defendant had been under no obligation, if he wished not to explore the matter despite the claimant putting causation in issue, earlier to have put this interpretation of the expression to Mr Henderson. But however all this may be, it left it as a fact that no one knew whether Mr Henderson had also meant what Dr Rattenbury said he meant, or had used the expression in a different sense. As the judge pointed out, Mr Henderson had not been using, in his report, the four point scale which Dr Rattenbury described not as universal but as "in relatively general currency". He had used a slightly different scale called the Abbreviated Injury Scale, 1990 revision, which, the report revealed, had six points rather than four. It may well be that that scale also employs the terms 'serious' and 'severe', although the latter was not in evidence. There may or may not in the end be a significant difference between the scales: that was not in evidence. The judge carefully left out of her assessment the lateness of Dr Rattenbury's explanation. But what she simply did not know was whether the experts had agreed that they meant the same thing by the expression used in their joint report. She was not, as I read her words, saying any more than that the assertion that serious brain injury meant mild to moderate concussion was new, that Dr Rattenbury's replies in evidence begged as many questions as they provided answers and that the uncertainties which they left were not in any sense resolved by evidence on the same topic from Mr Henderson. In that, she was right.
24. It seems to me that the decision whether the evidence nevertheless showed, on the balance of probabilities, that a seat belt would sufficiently have reduced the injuries to require a reduction for contributory negligence was a fine one. Some judges might, as it seems to me, have been persuaded that this was more likely than not, given the apparent agreement to that effect of both experts, with relevant experience, and given the element of restraint which at least the lap part of a seat belt would have provided. But others would not, and much depends on the judge's on the spot assessment of the evidence overall. The judge trying the case has the incomparable advantage of seeing the evidence as a whole, the context in which it emerges, and the quality of those who give it. I do 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 may or may not see fewer car crash victims, but will see many different kinds of head impact injuries, and has in any event a different kind of overall understanding, beyond that based on frequency of occurrence, of how impact to the head translates into different levels of brain damage. On the facts of this case, I conclude, despite Mr Turner's persuasive arguments, that the judge was entitled to say that the experts' evidence, combining the written and the oral, left her unable to say that the causation leg was proved on the balance of probabilities, and that medical evidence was required to resolve the uncertainties. The brain is, as she observed, a vulnerable, and I would add an extremely complex, organ.
25. It does not follow that medical evidence is a necessity in every seat belt case, or in every such case involving head (or even brain) injury. Each case will depend upon its facts and upon the state of the other evidence. Proportionality is also relevant: what is appropriate in a case with grave disabilities and large sums at stake may not be called for in one where the injury is relatively straightforward. A large part of the difficulty in the present case arose 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 may well be that skilled seat belt engineers, if they agree about what kind of injury would have been occasioned if the belt had been worn, provide evidence which is sufficient for the judge to resolve the issue. However, any doubt about the appropriateness of medical evidence ought to be capable of avoidance in the great majority of cases if the case management process is operated in such a way as to ensure that it is clear to the parties well in advance of trial whether the causation aspect of contributory negligence is, or is not, in issue. The overriding objective in CPR 1, especially 1.4(2)(b) with 1.3 (the duty to help the court identify the issues), provides ample scope for ensuring that this happens.
26. Mr Turner also submitted that the judge's original question posed in paragraph 125 of her judgment (quoted supra at paragraph 18) was wrong. The question posed drew directly upon the language of Lord Denning MR in Froom v Butcher. I do not agree that it was the wrong question. In particular, I do not agree that even if the seat belt would or might have made a lesser difference to the injury, as distinct from "a considerable difference" or from reducing the injuries to ones "a good deal less severe", section 1 Law Reform (Contributory Negligence) Act 1945 nevertheless requires the court to investigate the extent of the difference with a view to ordering a reduction of less than 15% for contributory negligence. There may, I accept, be unusual cases in which the two brackets of finding contemplated by Froom v Butcher are neither appropriate. But the Act requires that the reduction for contributory negligence shall be such as appears to the court to be just and equitable. It therefore permits an approach such as adopted in Froom v Butcher based upon two broad categories of typical case and the general proposition that, absent something exceptional, there should be no reduction in a case where the injury would not have been reduced "to a considerable extent" by the seat belt. Both parties in this appeal urged upon us, in different contexts, the undesirability of a prolonged or intensive enquiry in these cases. They were right to do so; there is a powerful public interest in there being no such enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which entail trial do not mushroom out of control. Froom v Butcher so states, and is binding.
27. Since these are my conclusions, the two other potential questions raised by Mr Turner do not arise and we should not attempt to decide them. For my part, I should not wish that statement to be taken as any indication that I would otherwise have welcomed the opportunity to re-visit the judicial anticipation of modern public attitudes which underlay Froom v Butcher.

Lady Justice Hallett:

28. I agree.

Lord Justice Ward:

29. I also agree.