England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd March 2009

Mrs Justice Cox :

1. Shortly before midnight on 17 May 2003, a silver Vauxhall Astra coupé was being driven along Rowms Lane, Swinton towards Mexborough. The driver was the deceased, Matthew Collinson, then aged 24. He was driving fast, and on any view well in excess of the speed limit of 30 mph. He was carrying four teenage passengers, two in the rear and, unusually, two in the front passenger seat, one of whom was the Claimant, William Stanton. It is common ground that no-one in the car was wearing a seat belt.
2. Approximately 20 metres from the sign for Hartley Street Roundabout, Mr Collinson lost control of the vehicle, causing it to veer across the central white line and collide violently with a Peugeot 406 car being driven in the opposite direction. Both cars rotated through about 180 degrees, the Vauxhall turning in an anti-clockwise direction before rolling over and coming to rest on its roof.
3. All the occupants of both cars were injured as a result. Mr Collinson suffered fatal head injuries in the collision and was certified dead at the scene. He probably died instantly. The two rear passengers in the Vauxhall, Amy Stimson (then 16) and Robert Pearson (then 18), suffered significant physical injuries, including fractures, as did Rebecca Hart (then 15), the other front seat passenger, but from which, fortunately, they have all recovered.
4. The Claimant, who had his sixteenth birthday only a few weeks before the accident, suffered a severe head injury, together with a serious injury to the flexor tendons of his right hand. He sustained a depressed fracture to the rear of his skull with injury to the right occipito-parietal cortex of the brain. There was a period of significant cerebral oedema and diffuse axonal injury. His resulting brain damage has led to continuing, serious cognitive deficits of the kind typically associated with frontal lobe injury, including poor memory, reduced concentration, clumsiness and behavioural changes, including inappropriate and obsessional behaviour, disinhibition, impulsivity and verbal aggression. He also has reduced function and sensation in his right hand.

The Issues for Trial

5. Primary liability has been admitted on behalf of the deceased. The issue before me is whether there should be any reduction in the Claimant's damages to reflect contributory negligence on his part.
6. There are four allegations of contributory negligence pleaded in the Defence, namely that the Claimant:

"(i) Failed to wear a seat belt;

(ii) Sat on the lap of a fellow passenger who was, in turn, sitting in the front seat;

(iii) Encouraged the Deceased to drive fast;

(iv) Consumed alcohol to the extent that it impaired his ability to judge what was safe."

7. Paragraph (i) is admitted, but the Claimant's primary submission, relying on the case of Froom v. Butcher [1976] 1 QB 286 CA, is that on the evidence the Defendant has failed to discharge the burden upon him of proving that the Claimant's failure to wear a seat belt worsened the injuries that he in fact sustained. There should, therefore, be no reduction in his damages.
8. In relation to paragraph (ii) there is a factual dispute as to whether Ms Hart was sitting on the Claimant's lap, as the Claimant contends is more likely on the evidence, or vice versa, as pleaded in the Defence. The Claimant also contends that the disputed allegations in paragraphs (iii) and (iv) have not been made out on the evidence. In any event, allegation (iv) adds nothing in this case; and the Defendant has not established that any encouragement to drive fast was causative of this accident or of the Claimant's injuries.
9. At the conclusion of the evidence Mr Turner QC, for the Defendant, accepted in his closing submissions that there was insufficient evidence for him to pursue the fourth allegation, namely that any alcohol consumption by the Claimant had made him more culpable. Allegation (iii) remains in issue.
10. In relation to the second allegation, Mr Turner expressed it at trial in rather different terms from those pleaded, namely that the Claimant was negligent in "sharing the front passenger seat with Rebecca Hart throughout the journey". He submitted that the question of who was sitting on whose lap was immaterial, in terms of the causative potency of the admitted failure to wear a seat belt and shared occupancy of the seat. However, given the conflict in the evidence as to the respective seating positions of the Claimant and Ms Hart, and the attention given to this issue by the engineering experts instructed by both parties, I have considered the evidence on this point and have made findings upon it. In any event, I found it helpful to resolve this factual question in deciding what happened at and following impact, and in considering questions of both blameworthiness and causation of injury.
11. The main thrust of the Defendant's case, as is clear from the Defence, is that on "generic" grounds the conventional discount for the failure to wear a seat belt, based on the Court of Appeal's decision in Froom v. Butcher, now falls to be revisited. This is not the first time that this point has been raised in recent years. It was considered most recently by Gray J. in Gawler v Raettig [2007] EWCA Civ 373. It will be helpful to outline at this stage how this Defendant's case is put.
12. In summary Mr Turner submits that, for the purposes of Section 1(1) Law Reform (Contributory Negligence) Act 1945, a passenger who chooses in 2003 not to wear a seat belt, bears a higher degree of responsibility than he/she would have done at the time that Froom v. Butcher was decided. Given developments since then (for example the introduction of compulsory seat belt use, improvements in seat belt design, and increased public awareness of the need to wear seat belts and of the dangers in not doing so) he submits that the failure to wear a seat belt in 2003 is both more blameworthy and more causatively potent than in the 1970s.
13. He therefore invites me to find that what he expresses as the Froom "starting point" for discount, in cases where all the Claimant's injuries would have been prevented by the use of a seat belt, should now be "updated" from 25 per cent to 50 per cent. In cases where the Claimant's injuries would have been significantly reduced in severity the starting point, he submits, should now be a reduction of one third rather than a percentage reduction of 15% (see paragraph 11 of his opening skeleton argument).
14. In the present case Mr Turner submits that the Claimant falls initially into the "one third" category, because his injuries would have been much less severe if he had worn a seat belt. (The Claimant disputes this.) However, that starting point falls to be increased because of what are said to be the additional, aggravating features of this Claimant's behaviour, in sharing the front passenger seat with another and in encouraging the driver to drive at speed. These factors, combined with the evidence at trial of Dr Rattenbury, the seat belt expert called by the Defendant, as to the extent to which wearing a seat belt would have significantly reduced the Claimant's injuries, means that there should be a reduction in his damages of at least 40 per cent in this case.
15. Finally, even if I were to reject his submissions as to the need to "update" Froom v. Butcher, Mr Turner submits that the additional, aggravating features he relies on are such that a greater discount than the conventional figure of 15 per cent is called for in this case.
16. In response the Claimant submits, in summary, that the Defendant's arguments have been raised previously, most recently in Gawler v Raettig, and have been convincingly dismissed. This Court is therefore bound by Froom v. Butcher in relation to the Claimant's failure to wear a seat belt. The "aggravating" features relied on by the Defendant have not been made out on the evidence and, in any event, were not causative of injury. They do not, in any event, make this a rare and exceptional case justifying a departure from the binding guidance of the Court of Appeal in Froom.

The Facts

17. The Claimant has no recollection of the accident or of events leading up to it and was not called to give evidence.
18. The only witnesses of fact called to give evidence were Robert Pearson, one of the rear passengers in the Vauxhall, called on behalf of the Defendant; and Jovan Dokovic, an independent witness who arrived on the scene shortly after the collision, and who was called on behalf of the Claimant. There is no independent witness who saw this accident happen and the occupants of the Peugeot were unable to assist.
19. Other factual evidence was contained in the police report, the witness statements attached, the transcripts of police interviews with Amy Stimson and Rebecca Hart conducted shortly after the accident, and various other statements, including one from John Davison, Rebecca Hart's solicitor, which were all adduced in evidence. Although not agreed as to the truth of their contents there was much which was, ultimately, not in dispute in this case.
20. In addition, assistance was provided by the accident report prepared by PC Whittingham of South Yorkshire Police Accident Investigation Department, following his investigation at the scene and examination of the vehicles involved. Most of his conclusions were accepted as correct by the expert engineers, Mr Henderson and Dr Rattenbury, called on behalf of the Claimant and Defendant respectively.
21. Having considered all of the evidence adduced, and bearing in mind that some of the disputed witness evidence was not tested in cross-examination, I find the following facts.
22. During the evening of 17 May 2003 the four passengers in the Vauxhall had all been in the Canal Bar, a popular venue in Swinton, although they were not all together throughout that evening. The oldest among them, Robert Pearson, had gone there with a male friend, who left earlier. Mr Pearson had spent some time in the company of Amy Stimson.
23. Excessive alcohol consumption was a feature of this evening for all the young passengers in the Vauxhall save, as I find, the Claimant. In his case there is no evidence as to what or how much he had been drinking. The only evidence relating to this came (a) from Robert Pearson, who said that although the Claimant had, had a drink he was still "pretty lucid"; and (b) from the police interview with Rebecca Hart, who said that although the Claimant had been drinking in the Canal Bar he was not really drunk, but was "just normal". I find that the Claimant was not himself drunk that evening.
24. Tests revealed that the driver's blood-alcohol level, at 74 mg/100ml, was within the legal limit.
25. The level of intoxication of the other passengers in the Vauxhall was, on the evidence, very high. Amy Stimson referred in interview to having had too much to drink, and to having a headache and feeling sick and dizzy. Rebecca Hart also said in interview that she had drunk too much. Even before arriving at the Canal Bar she had been sick in the toilets at the Station Pub. She then continued drinking in the Canal Bar and remembered being taken outside, where she was sick again.
26. Robert Pearson had consumed a considerable amount of alcohol that evening, agreeing in evidence that he had drunk "at least 10 beers". His evidence during cross-examination, that he was nevertheless "not really drunk", I reject as unlikely. It is inconsistent with his own account in his witness statement to the police, made two weeks after the accident, that "I would have considered myself to be drunk". It is also inconsistent with Rebecca Hart's description of him in her police interview as being "really drunk" when he was in the car, and even more drunk then, than he had been earlier on in the evening in the Bar.
27. The evidence as to how all four passengers came to be travelling in Mr Collinson's car is unclear and, given the amount of alcohol consumed by three of them, their evidence is in any event to be approached with caution. Unsurprisingly, there are a number of inconsistencies.
28. Mr Pearson agreed that he knew the Claimant, although he was not a close friend, and that he had met up with him that evening in the Bar. He had spent some time in Amy's company and said that he and Amy had left the Bar together. He did not recall, when it was suggested to him, that he and the Claimant had initially agreed to walk Amy and Rebecca Hart back home after leaving. Since Rebecca was unwell he asked a friend, John Farthing, if they could have a lift back to Mexborough, but there was no room in his car. Mr Pearson then saw the silver Vauxhall belonging to Mr Collinson, who was a friend of his. Although Mr Collinson was in a hurry and had plans to be elsewhere, he did agree to give them a lift.
29. The Vauxhall was a small car with two side doors and a coupé body. The rear could take three people, although there were only two seat belts fitted.
30. On Mr Pearson's account he and Amy got into the back of the car, Amy sitting behind the driver. Rebecca Hart sat in the front passenger seat, at Mr Collinson's request, in case she was sick again. As he recalled it, the Claimant then "suddenly seemed to appear from nowhere", getting into the Vauxhall and sitting on Ms Hart's lap in the front. The car then set off at speed and I shall deal later with the alleged encouragement by the Claimant. Mr Pearson described himself as leaning over and kissing Amy as the car was moving, but he did not accept Rebecca Hart's description of him as being seriously drunk and sprawled over the back seat.
31. Amy Stimson's recollection, in interview on 3 June 2003, was that she and Becky (Rebecca Hart) had tried to stick together inside the Bar, but there came a time when she had lost Becky, eventually finding her outside and obviously unwell. At that point she went back inside the Bar to tell her friends that she and Becky were leaving. Rob (Pearson) and Billy (the Claimant) then said that they would walk with them and make sure they both got home all right because they were both going that way in any event. They all left the pub together, but one of them then must have asked for a lift home, because they all ended up in the Vauxhall.
32. She agreed that she sat in the back with Rob Pearson, getting in via the passenger door, and that she sat behind the driver. She said this in relation to the seating arrangements:

"… Beck, I think Beck, I'm presuming Beck got in first because there was somebody sat in seat where Beck was sat and like she pulled chair forward so we could climb into back and we got into back and then Billy got in front with Beck."

Asked to explain further she said that the Claimant was sitting on Becky's knee.

33. In her police interview on 30 May 2003 Rebecca Hart recalled being taken outside the Bar by some friends and being sick. Amy and another girl helped her up. She recalled trying to get into a different car at first, which was already full, and then getting into the Vauxhall. Like Amy she could recall no details as to the make or colour of the car, save that it was like a "sporty boy-racer type car", but she did recall getting in it, saying:

"All I can remember is getting in and sitting on William Stanton's knee."

Asked why she did this she replied:

"… Amy Stimson had got in back and there were another lad in back and he were laid out on back seat. So I were stood at side of car so I had to sit in front because there were no other room so I sat in front with William.

What can you tell me about this lad who's laid out in the back.

Can just remember he were, I think he were really drunk, he were just laid on back seat and Amy got in and like squeezed in at side of him, that's all I can remember.

…

He were just … sprawled out on back seat."

34. A little later on she repeated that all she could remember was getting in and where she sat (on the Claimant's knee) and that they were going fast. In relation to the speed of the car she said this:

"I can just remember being sat on William Stanton's knee and I were, I think I were trying to hold on to side of door cus he were like going fast and it were like making us go like move out a bit cus we were going that fast.

It was making yer…

We couldn't like sit still in a seat, you know like throwing us forward and that."

Getting in, sitting on the Claimant's knee and the feeling of going fast were the last things she could remember before the collision. Whilst I accept that her account has not been tested in the witness box it is relevant, in my view, that she gave this account spontaneously, and repeated it on several occasions, during an interview conducted soon after the accident.

35. What it was that caused Mr Collinson to lose control of the car in the moments before the accident is unclear. The road is predominantly straight and level, with excellent sight lines in both directions. There were no adverse weather conditions; and both the road surface and the two vehicles involved were found to be free of any pre-accident defects that could have caused or contributed to the driver losing directional control. The passengers could not really assist as to this. Ms Hart could remember nothing before the collision except where she was sitting and being driven at high speed. Mr Pearson recalled the driver swerving towards the right, then back to the left, moments before the impact. Amy Stimson said it felt as if a tyre had clipped the kerb and the car had bounced back into the road.
36. What is clear is that the driver was travelling at some considerable speed; and the third allegation of contributory negligence is that the Claimant encouraged the driver to go fast. This allegation is based on Mr Pearson's account of words he heard the Claimant say, after he got into the car, but before Mr Collinson drove off. Neither Amy Stimson nor Rebecca Hart heard the Claimant say anything. As the driver reversed out of the side street where he was parked Mr Pearson said in his evidence in chief that the Claimant first asked him "Is it fast?" to which came the reply "Yes, of course". The Claimant said "Give it some then" and the driver then set off at high speed.
37. In cross-examination, however, Mr Pearson accepted that, in his witness statement of 30 May 2003, he had referred only to hearing the Claimant "…say something along the lines of, 'Go fast'…". In evidence he said that his impression was that the Claimant was taunting Mr Collinson, although he accepted that he had heard only a snatch of their conversation, as the car was reversing, and that it was difficult to hear conversation inside this particular car.
38. Further, Mr Pearson agreed that Mr Collinson had a tendency to drive this car at fast speeds; that at times he took a pride in driving fast; that he did not need much, or indeed any, encouragement to do so; that he was in a hurry to get to his road race club meeting on this night; and that whenever he was in a hurry he was likely to drive very fast. Mr Collinson's coupé car had been modified, fitted with alloy wheels, strip lights placed beneath the body and a loud exhaust. He was a member of a racing club and was on his way to a meeting at Rotherham that night, which is no doubt why he was both in a hurry and anxious that Rebecca Hart was not sick in the back of his car.
39. Mr Collinson had been seen speeding in this car on previous occasions. Graham Gambles, a steward at an athletics club in Rowms Lane, arrived on the scene after the accident and recognised the Vauxhall as a car he had previously seen driving at speed on more than one occasion. Most recently he had seen it being driven at speed and on the wrong side of the road at about 11.30pm on the previous Saturday.
40. PC Whittingham considered that the car had been travelling at 52 mph at the point of impact, due to the fact that the motorised needle of the speedometer gauge was "frozen" at that point following the loss of power.
41. The experts agree, however, that this "residual" reading is only reliable if the wheels remain in contact with the road surface and are not sliding across the surface when electrical power is lost. In this case, the available physical evidence relating to road marks and damage to the vehicles involved shows that the Vauxhall was sliding sideways at the point of impact, as PC Whittingham himself concluded. The speed of the wheels may therefore not have reflected the travelling speed of the car. On Mr Henderson's alternative calculations, from measurements taken at the scene, the approximate speed of the Vauxhall at point of impact was probably between 61 and 72 mph. The Defendant did not take issue with this. In addition, some speed would have been lost due to the car sliding along the road. Its original speed before the driver lost control was therefore probably greater. I find on balance that the Vauxhall was travelling at a speed approaching the upper end of this bracket at the point when Mr Collinson lost control. The Peugeot is agreed to have been travelling at about 32 mph.
42. The probable movements of the Vauxhall in this accident have been demonstrated through investigation and reconstruction, and there is no disagreement with PC Whittingham's conclusions in this respect. The impact damage to both vehicles was severe.
43. The Vauxhall was fitted with four inertia reel seat belts (two front and two rear). The car was also fitted with SRS airbags for the driver and front seat passenger, both of which had deployed during the accident.
44. PC Whittingham found no physical indication that any of the seat belts in this car had been in use at the time of the accident. Both experts agree that none of the occupants was wearing a seat belt. There was no evidence of marking on any of the seat belts, other than scuffing of the sort that occurs in the course of normal use. After a collision of this severity there would be obvious markings, such as were seen in the case of the belts used by the occupants of the Peugeot. In addition, the off-side rear seat belt was jammed in the retracted position; the retractors of the remaining seat belts locked when tugged sharply; and both rear seat belt buckles were trapped beneath the seat base.
45. Mr Pearson's recollection, which he described as clear, was that he was wearing his seat belt. In the light of the physical evidence and agreed expert opinion, however, his evidence on this is, in my view, unreliable and I reject it. I am satisfied that none of the occupants of the Vauxhall was wearing a seat belt.
46. PC Whittingham's reconstruction showed that, moments before impact, the Vauxhall was travelling substantially sideways. It was at an angle of close to 90 degrees to the Peugeot at the time of the initial impact, and the impacting surfaces were the front of the Peugeot and the off-side front wing and the driver's door of the Vauxhall. Other areas of damage to the vehicles indicated that there was a second glancing impact as the vehicles rotated, in which the off-side rear corner of the Vauxhall struck the near-side door of the Peugeot.
47. The Peugeot driver appears to have taken some avoiding action, steering towards the centre of the road, so that the initial impact took place in the centre of the carriageway, causing severe crush damage to the Vauxhall driver's seating area and significant frontal damage to the Peugeot. The impact caused the Vauxhall to rotate anti-clockwise through 180 degrees, its off-side rear corner striking the near-side rear door of the Peugeot as it did so, although this second impact was much less severe than the first. The Peugeot then rotated clockwise through 180 degrees before coming to rest in the lane for travel towards Mexborough. The Vauxhall rolled onto its roof before coming to rest in the same lane.
48. PC Whittingham described there being "a prolific deposit of blood on the road surface adjacent to the [Vauxhall] driver's door and deposits of blood and tissue around the driver's door window aperture". This indicated to him that the driver had been partially ejected as a result of the roll over action of the Vauxhall.
49. Mr Pearson's evidence is that, after the Vauxhall came to rest, he managed to climb out through the broken rear window. I accept that he did. Mr Gambles described hearing a female, accepted to be Amy Stimson, screaming loudly in the back of the car. Mrs Dokovic saw a female, again accepted to be Amy, climb out through the rear window. Both the rear seat passengers therefore managed to get out of the Vauxhall through the broken rear window and on to the grass verge.
50. The precise location of the driver and of the Claimant, after the Vauxhall had rolled over and come to rest, was initially in dispute in this case. Mr Pearson could not assist as to this; and unsurprisingly there were some inconsistencies in the witness statements.
51. Mr Alderson, a part-time taxi driver who arrived on the scene shortly after the collision, saw a young girl whose head and shoulders were hanging out of what is accepted to be the driver's side window. She was unconscious but another member of the public, Mr Dokovic, was supporting her head. Mr Alderson also saw a young male half out of the car from his waist upwards. There were two large, very deep cuts below his ear and along his jawbone and his face was covered in blood. He attempted, without success, to locate a pulse. Mr Gambles described seeing the male driver, who was not moving, and someone's legs protruding from the front passenger side door window.
52. Mr Patrick, another taxi driver on the scene shortly afterwards, described two pairs of lower legs, one set male and one female, hanging out of the front window and also a man's head, heavily blood stained, protruding from the front of the vehicle.
53. Mr Dokovic who was travelling home to Mexborough with his wife, both as passengers in another taxi, also arrived on the scene. He went immediately to the driver's side of the Vauxhall where he saw a girl's head and shoulders, "to breast level", hanging out of the driver's window. He also saw a man protruding from the driver's window and he described his body as "wedged" on top of hers and "squashing her down". The girl was drifting in and out of consciousness and complaining that the man was pressing down on her. It was not possible to remove her from beneath him and he therefore supported her head so that it was not lying on the road. He felt for the man's pulse, but could not find one. He felt sure that the man was dead, and he saw a large pool of blood beneath his head. His wife then took over from him, holding the girl's head whilst he used a fire extinguisher to deal with smoke seen coming from the Vauxhall.
54. Mrs Dokovic also described in her witness statement how the girl that her husband was tending to was half in and half out of the car on the driver's side; and that "laid across her body was the legs and lower torso of a young male". Mr and Mrs Dokovic left the scene after the paramedics arrived.
55. It is agreed that the young woman protruding from the driver's window was Rebecca Hart. At the conclusion of the trial, Mr Turner accepted that, on the evidence, the man wedged on top of her with severe head injuries and no pulse was more likely to be the driver and not this Claimant. Dr Rattenbury effectively conceded this in his evidence. I am satisfied on the evidence that it was. None of the witnesses referred to seeing the Claimant at any stage, either in, or out of, or partially ejected from the Vauxhall.
56. The casualty details entered in the police report indicate that the injuries sustained by Amy Stimson, Rebecca Hart and the Claimant were "serious". Amy Stimson was noted as having sustained a fractured pelvis, internal stomach injuries and a grazed head, for which she was detained in hospital. Rebecca Hart was also detained and is recorded as having sustained "right arm multiple fractures and head injury, internal injuries and puncture wound". Robert Pearson sustained a fractured nose, but was not detained in hospital. There is no further medical evidence before me relating to the injuries of the others involved in this accident.
57. The Claimant is recorded as suffering "Life threatening head injuries". The ambulance patient report form records the information that he was at point 3 on the Glasgow Coma Scale, although he had a pulse of 78 and normal blood pressure at 119 over 62. He was noted to have swelling to the back of his head and a haematoma at his right ear.

The Claimant's Seating Position

58. Mr Turner submits that the evidence points strongly to the conclusion that the Claimant was sitting on Rebecca Hart's lap in the front passenger seat and was therefore the "secondary" occupant, the experts identifying the other as the "primary" occupant of that seat. He relies, essentially, on the evidence from Robert Pearson, the only witness to give live evidence on this point, whose evidence was, he submits, supported by Amy Stimson in her police interview and by the fact that the Claimant sustained more serious head injuries than Ms Hart, which would be more consistent with him being the secondary occupant. He submits that there is no physical evidence to contradict Mr Pearson's account; that it was open to the Claimant to rebut his evidence by calling Rebecca Hart, but he did not do so because it is abundantly clear that she would have been unable to give any useful oral evidence to the Court; and that on the basis of Dr Rattenbury's explanation in his evidence as to the likely physical movements of the occupants immediately after impact, it is more likely that the Claimant was the secondary occupant. He therefore contends that the burden of proving this allegation, if the Court considers it necessary to resolve it, has been discharged by the Defendant.
59. I have considered these submissions carefully, but I reject them. Having heard Mr Pearson in the witness box, and making due allowance for his obvious distress in having to relive the events of that night, I found his evidence to be unsatisfactory in a number of respects. His confident and repeated assertion, contrary to the agreed expert evidence, that he was wearing his seat belt and that he "did not care" what the experts said, and his assertion that he was not really drunk when in the car cannot, in my judgment, be satisfactorily explained by simple mistake on his part, as Mr Turner suggests. I am entirely satisfied that he was very drunk at the time, as he considered himself to be when he made his witness statement, and in which he was supported by Rebecca Hart's account in her police interview.
60. Whether he was, on his own account, leaning over and kissing or attempting to kiss Amy in the back seat, or whether he was sprawled out on the back seat, as Ms Hart described, his level of intoxication and his position in the back, in my view, render unreliable his account of noticing the respective seating positions of the others in the front. They also render unreliable his account that the Claimant "suddenly appeared from nowhere" and got into the car. It is not suggested that the Claimant knew the driver himself, and I consider it to be more likely that, from the time of leaving the Bar, the Claimant was one of the group of four who ultimately accepted the offer of a lift from Mr Collinson, and that all of them climbed into the Vauxhall at about the same time.
61. I note that Amy Stimson's recollection in interview, as to Ms Hart getting into the car first, was expressed merely as a presumption on her part. Whilst Mr Turner now relies upon her police interview and criticises the Claimant for not calling Ms Hart, Ms Stimson was herself not called to give evidence by the Defendant, upon whom the burden of proving this pleaded allegation of contributory negligence lies.
62. Further, whilst Ms Hart was not called by either party to give evidence, there is no reliable evidential support for Mr Turner's submission that, if called, "it is abundantly clear that she would have been unable to give any useful oral evidence".
63. Mr Turner drew my attention, in this respect, to the witness statement from her solicitor, Mr Davison, dated 5 March 2007, but in my view this did not assist him. Not only was Mr Davison not called to give evidence, but the references in his statement to his initial instructions as to where Ms Hart was sitting were references to information he was given by Ms Hart's mother; and she it was who informed Mr Davison subsequently that her daughter could remember nothing at all about the matter.
64. In the light of Ms Hart's spontaneous and repeated recollection during her police interview, conducted less than two weeks after the accident, that she got into the car and sat on the Claimant's knee, I do not accept Mr Turner's submission that she would not have been able to assist, or that she "would have confirmed that she had no recollection of where she was sitting". I note that a witness statement had been taken from Ms Hart by those acting for the Defendant, but she was not called on behalf of the Defence.
65. I accept the submission of Mr Grace QC, for the Claimant, that it is open to me to infer that what Ms Hart said in interview about this matter was likely to be accurate. Since the question of where she sat related to her personally I agree that she is likely to be the most reliable witness on that point. Not only does she refer to sitting on the Claimant's knee, on several occasions during the interview, but she also gives a vivid description, when the car was travelling at speed, of trying to hold on to the side of the door and of being thrown forward. This, in my view, is more consistent with the insecurity of her position on the Claimant's knee than the other way around.
66. Further, whilst it is unwise to make any generalised assumption about it being inherently more likely that a young girl will travel on a young boy's lap, I do consider that the fact that Ms Hart was unwell, and that Mr Collinson wished her to sit in the front, by a window that could open in case she was sick again, renders it less likely that she, or indeed the driver, would have agreed to someone else sitting on her lap during this journey.
67. Dr Rattenbury's opinion and his reasoning, developed during his evidence in the witness box, that the Claimant was more likely to have been sitting on Ms. Hart's lap, arose in somewhat unsatisfactory circumstances, as follows.
68. Both experts had considered this issue in their original reports. Both agreed in their Joint Report, dated 19 December 2008, that there was no physical evidence to assist in resolving it. Both also agreed that, usually, the person sitting on another's lap would be the more likely of the two to suffer a serious head injury in a collision; and that the girl who came to rest with her upper body lying outside the driver's window was Rebecca Hart. They did not agree as to the respective seating positions of the Claimant and Ms Hart in the front passenger seat.
69. In the Joint Report Mr Henderson's reasoning and conclusion on this point, which had been set out in his own report and which he repeated in his evidence, were summarised as follows:

"3.7 In Mr Henderson's view the person sitting on the other's lap in the nearside front seat would lead the other person towards the offside during the initial impact and would move across the driver, who would be restrained by the door. It is unlikely that their positions relative to each other would be reversed during the vehicle's subsequent movements, unless one or both were completely ejected from the vehicle. However there is no evidence of anyone being completely ejected. Therefore when the vehicle subsequently overturned the driver would be likely to end up over the other person's body.

3.8 The alternative scenario is that William Stanton was sitting on Rebecca Hart's lap. In Mr Henderson's view, for Rebecca to pass beneath William and land across the driver before the car overturned, William's entire body would have to be restrained by the cantrail above the driver's door. While his head injury is consistent with this scenario, in Mr Henderson's view he would be unlikely to escape without also suffering significant injury to his neck and/or upper body. Mr Henderson is not aware that he suffered any such injuries.

3.9 Therefore, … in Mr Henderson's view, if the male that the witnesses say was lying partially over the girl's body was Matthew Collinson then, on balance of probabilities, it is more likely that Rebecca Hart was sitting on William Stanton's lap than vice versa. This scenario would not prevent William Stanton from suffering his head injury."

70. In expanding on this reasoning in his evidence, Mr Henderson considered that this was an unusual accident, involving the Vauxhall colliding sideways with the Peugeot; but that the lateral impact would still result in some forward movement of the occupants. The Claimant's head injuries were therefore probably caused by his striking the back of his head on some part of the structure of the car, the header rail of the windscreen, probably towards the driver's side, or the windscreen pillar. Notwithstanding the normal expectation that the secondary occupant would be the more seriously injured, it was necessary in this case to take into account the respective positions of the primary and secondary occupants when the car came to rest. The fact that the driver ended up on top of Ms Hart in this case meant that on balance the Claimant was more likely to be the primary occupant. In addition, there is no evidence of any injuries to the Claimant's neck or upper body.
71. In the Joint Report Dr Rattenbury expressed his reasoning as follows:

"3.10 In Dr Rattenbury's view, the description of the post collision scene by the witnesses … does not allow a clear understanding of which male (Collinson or Stanton) was where. The statements do not appear consistent in terms of which parts of whose body were protruding through windows on which side of the car. Nor is it clear exactly how the three occupants in the front of the car would have moved in response to the impact, rotation and rolling of the vehicle. Dr Rattenbury does not believe who ended up on top of who, even if this could be determined, gives useful guidance as to exactly where and how the two front seat passengers of the car were sitting prior to the impact.

3.11 It is ultimately a matter for the Court to assess the witness evidence, which is contradictory in this case. However, Dr Rattenbury takes the view that the evidence of the rear seat passengers, in conjunction with the agreed likelihood of greater injury to the person on top … means that the balance of probabilities is that Stanton was on top of Hart."

72. In his evidence, however, he accepted that the lifeless male wedged on top of Rebecca Hart was probably the driver and not the Claimant. He then sought to reconstruct the likely movements of the occupants on impact, on the basis of their positions after the car came to rest; and to express a view as to the likely seating positions of the Claimant and Ms Hart, based upon this reconstruction.
73. Essentially, this reconstruction involved the primary and secondary occupants both moving simultaneously, slightly forward and towards the off-side, at impact and immediately following it, so that the secondary occupant (said to be the Claimant) would be likely to hit his head somewhere near the off-side windscreen pillar. The primary occupant (Rebecca Hart) would be likely to continue moving sideways and to go out through the window. Since the driver would be restrained initially by his door, he would be likely to go out through the window later, after the car rolled over.
74. This theory was advanced for the first time in the witness box. It was not set out either in the Joint Report or, as Dr Rattenbury accepted, in his original report served on behalf of the Defendant. Nor was it put to Mr Henderson in cross-examination. Dr Rattenbury's explanation, that he was putting it forward now because he had become "increasingly unhappy" when listening to Mr Henderson's evidence, was surprising. Mr Henderson's conclusions, and his reasoning in support, had been fully set out in his original report and summarised in the Joint Report. His evidence in the witness box was entirely consistent with that and raised nothing new.
75. Dr Rattenbury's opinion, as set out at paragraphs 3.10 and 3.11 of the Joint Report, seems to me to have been based upon his preference for the evidence of the rear seat passengers, rather than that of Rebecca Hart, taken together with the general likelihood of greater injury being sustained by the person sitting on the other's lap. At that time he expressed the view that the likely movement of the occupants was unclear. The final sentence in paragraph 3.10 does not suggest to me that the theory he now advances was one he then considered helpful or feasible. Certainly he gave no indication in the Joint Report that he disagreed with Mr Henderson's reasoning or explain why, with reference to the reconstruction he now seeks to advance.
76. He accepted that, in retrospect, he should have set this out both in his original report and in the Joint Report and his explanation for not doing so was unconvincing. In particular, he agreed that, after the usual email and telephone exchanges between the experts, he was happy with the contents of the Joint Report, which he then signed.
77. For all these reasons I found this late attempt in the witness box to reconstruct the movement of the occupants to be unsatisfactory. In any event, however, I did not find this theory persuasive. This was, as the experts both agree, a serious accident with unusual features. Dr Rattenbury accepted in cross-examination both that the circumstances in which this collision occurred could result in an exception to the general expectation, that more serious injuries would be sustained by the secondary occupant; and that, at point of impact, the secondary occupant would leave the seating position before the primary occupant.
78. This, in my judgment, is the more likely explanation for the fact that Ms Hart ended up trapped beneath the driver and partially ejected from his door after the car had rolled over. I prefer the reasoning of Mr. Henderson on this point.
79. As part of this theory, Dr Rattenbury suggested that the substantial blood staining, shown on the car roof in photograph number 4 (at page 318 of the bundle), belonged to the Claimant, and that it indicated the likely point of contact with the Claimant's head at impact. On all the evidence, however, I am satisfied that the blood shown in that photograph belonged to the driver. There is ample evidence from witnesses, including PC Whittingham, that Mr Collinson was bleeding heavily from his head at the scene; but there is no such evidence relating to the Claimant, who sustained a closed fracture and the ambulance report refers only to a haematoma at his right ear. There is certainly no evidence of injuries to the Claimant which could account for the heavy blood staining in the relevant photograph.
80. For all these reasons I find on balance that the Claimant was the primary occupant of the front passenger seat, and that Rebecca Hart, as the secondary occupant, was partially ejected from the car and trapped by the driver's body when the car overturned and came to rest upside down. The Claimant probably struck the back of his head on a part of the structure at the front of the car, as Mr Henderson described. He was not ejected or partially ejected from the car because the bodies of Ms Hart and the driver were obstructing his exit. This also explains why the Claimant was not seen by any of the witnesses who arrived at the scene shortly afterwards.

Encouragement to Drive Fast

81. The only evidence that the Claimant deliberately encouraged Mr Collinson to drive fast came from Mr Pearson. I am not satisfied, firstly, that the Claimant ever used the words "Give it some then". Mr Pearson accepted in cross-examination that the Claimant may not have used these particular words and that he may have heard instead "something along those lines". His account in his witness statement, made shortly after the accident, was that he had heard the Claimant use only the words "Go fast". In his evidence, however, he recalled hearing the Claimant first use the word "fast" in the context of a question to the driver about the speed of the car, namely, "Is it fast?" or "Does it go fast?"
82. Given Mr Pearson's level of intoxication, and the fact that he was with Amy Stimson inside the back of a car deliberately modified to be noisier than it would otherwise be, I agree with Mr Grace that there was ample scope for him to mishear or misinterpret what the Claimant said. In my view that is probably what occurred. On balance the Defendant has not discharged the burden of proving that the Claimant was deliberately exhorting Mr Collinson to drive at speed, rather than merely enquiring if it was a fast car.
83. In any event, even if the Claimant had used some such words of encouragement, I would not have been persuaded that they had any causative effect. There is ample evidence, to which I have referred above, that he needed no encouragement to drive fast, as Mr Pearson himself accepted; and Mr Gambles had seen him do so on a number of previous occasions. Further, on this particular night, he was in a hurry to get to a meeting of his racing club, in a coupé car deliberately modified for that purpose. In my judgment, therefore, this allegation of contributory negligence has not been made out on the evidence.

The Claimant's Failure to Wear a Seat Belt – the Froom point

84. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides as follows:

"When any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

Section 4 provides that:

"'Fault' means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence."

85. When considering contributory negligence under the 1945 Act the key question, as is common ground, is whether the injuries sustained were the result, partly, of the Claimant's own fault.
86. The claimant in Froom v. Butcher was the driver of a car which, in November 1972, collided with the defendant's car. The claimant had deliberately exercised a personal choice not to wear his seat belt, there being then no statutory compulsion to do so. The defendant admitted liability for the accident but argued that the claimant's injuries were largely the result of his failure to wear a seat belt. The Court of Appeal allowed the defendant's appeal from the Judge's decision that the claimant was not contributorily negligent. It was the first case concerning the failure to wear a seat belt to reach the Court of Appeal and at the time, although it was compulsory to fit front seat belts, it was not compulsory to wear them.
87. Lord Denning MR, giving the main judgment of the Court, referred to the quantity of material placed before them as to the value of wearing a seat belt and the advice to wear one given in the Highway Code. In particular, he referred to the Government's intention to legislate to make the wearing of seat belts compulsory; to the policy arguments for and against the wearing of seat belts; and the effects of the failure to do so. At page 294 he said this:

"In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe:"

88. In passages which are well known and often cited Lord Denning then said as follows:

"The share of responsibility

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. [1949] 2 K.B. 291, 326, the court said that 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 cases 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.

Conclusion

Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat belt. It is so well known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it and an accident happens – and the injuries would have been prevented or lessened if he had worn it – then his damages should be reduced. Under the Highway Code a driver may have a duty to invite his passenger to fasten his seat belt: but adult passengers possessed of their faculties should not need telling what to do. If such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries. …"

89. Mr Grace submits that this decision has withstood scrutiny for more than 30 years and remains binding on this Court. Mr Turner submits that the decision is now outdated, that the Court never intended to set down an immutable tariff, and that developments since then now require a different approach.
90. I was referred to the Court of Appeal's decision in J (A Child) v. Wilkins [2001] PIQR 12. The child claimant (then under 3) was travelling on her mother's knee in the front passenger seat of a car being driven by her aunt, when it was involved in a collision with the car driven by the defendant. The defendant joined the aunt and mother as Part 20 defendants, on the basis that they had been negligent in failing to secure the claimant safely by way of a suitable seat restraint. The evidence showed that the claimant's injuries would have been entirely avoided if a restraint had been worn. The judge found that liability should be apportioned as to 75 per cent to the defendant and 25 per cent to the Part 20 defendants. The defendant argued on appeal that this apportionment failed to reflect the gravity of the risk to the child in being carried in this way; and that the 25 per cent figure in Froom, applied by the judge in this case, should not be treated as an absolute ceiling or rule of law. I note that Dr Rattenbury gave evidence on behalf of the defendant at that trial.
91. Dismissing his appeal the Court of Appeal held that there was no reason why the principles applicable under the 1945 Act and the 1978 Act should be different in cases where the facts themselves were similar; and that the judge did not err in regarding himself as bound by Froom v. Butcher.
92. It is clear from paragraph 9 of the judgment of Keene LJ, giving the main judgment of the Court, that the defendant in that case also contended that things had changed since 1976, in relation both to technological advances and public perceptions as to seat belt use. There could, therefore, be exceptions to the broad guidelines indicated in Froom and this case was, he submitted, such an exception.
93. Recognising that the word "responsibility" in Section 1 of the 1945 Act involves consideration of both blameworthiness and causative potency, Keene LJ said that the judge could not be faulted for having described himself as "bound" by the decision in Froom. He continued at paragraph 15:

"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."

94. He recognised that the figures were put forward as suggestions or guidelines at a time when it was not compulsory as a matter of law to wear seat belts. However, he pointed out at paragraph 17 that:

"… 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. 294C. So that was an aspect which was taken into account."

95. Keene LJ then continued:

"17 … 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).

18 It follows that, while in principle there could be exceptional cases which fall outside the range suggested, one would expect such cases to be rare. That indeed has proved to be the situation. There is value in having clear guidelines normally applicable, so as to aid parties in arriving at sensible settlements."

The trial judge was held not to have treated the 25 per cent figure in Froom as an absolute ceiling, but to have sought to arrive at a just and equitable decision, which could not be said to be clearly wrong.

96. Mr Turner relies on paragraph 19 of the judgment and Keene LJ's acknowledgement that an exceptional case:

"… might perhaps exist under the 1978 Act where an adult was deliberately carrying someone on his or her lap in the front seat of a vehicle with no seat belt or other fitted restraint being applied to the person, particularly if that person was a child. I can see an argument that the blameworthiness of that adult with a child on his or her lap could be assessed at more than 25 per cent since such a child (or, indeed, an older person) might be in a potentially more vulnerable position than would a person sitting directly on the front passenger seat in the normal way. The child is in closer proximity to the facia and windscreen of the car. No doubt factual expert evidence would be required to establish that there was greater vulnerability. But that is not this case, because here the Part 20 defendants were aware that the claimant was restrained by a lap belt, and indeed the mother had herself fitted it around the child."

97. The potentially exceptional situation being described there, however, is not this case. In the context of the 1978 Act, Keene LJ was primarily concerned with an adult front seat passenger deliberately carrying a child on his or her lap, with no appropriate restraint. Secondly, even in the case of an older person being deliberately carried on the adult's lap, he was contemplating the potentially greater vulnerability of that person, being closer to the windscreen than the passenger in the seat, and the possibility of severe injuries which would have been avoided if a suitable restraint had been applied. In such circumstances, depending on the evidence adduced, he was recognising that the blameworthiness of the seated adult might be assessed at more than 25 per cent. These cases will inevitably be highly fact-sensitive, however, and deciding whether a case is sufficiently exceptional to merit a different figure from that which the Court of Appeal said should be applied in the vast majority of cases will always depend on the particular circumstances.
98. In the present case, it was the Claimant who suffered the more severe injuries in the unusual circumstances of this accident. Further, I am not persuaded on the evidence available that this Claimant could reasonably be said to have exercised a deliberate choice in the matter, or to have decided deliberately not to wear a seat belt and to carry Ms Hart on his lap. It is at least possible that he was required to adopt this arrangement at the driver's insistence, because the driver did not want Ms Hart to be sick again in the back of his car, and that this young Claimant just went along with the situation with which he was suddenly presented. In any event the potentially exceptional circumstances being briefly, and hypothetically, considered by Keene LJ do not, in my view, assist the Defendant in this case.
99. In March 2007 the guidance in Froom was considered by Gray J in Gawler v. Raettig [2007] EWCA Civ 373, in which the defendant contended for a reduction in damages of more than 50 per cent, where the claimant was a front seat passenger who did not wear his seat belt and was totally ejected from the car in the accident. The medical experts agreed that the claimant's injuries were sustained as a direct result of his ejection.
100. The claimant's counsel submitted that the Court was bound by the decision in Froom. The defendant's counsel submitted, firstly, that the Court of Appeal was not laying down a hard and fast rule as to the appropriate percentage deduction in seat belt cases; and that Lord Denning's observations, in the passages I have cited above, constituted mere suggestion or guidance only. Reliance was placed on the passages in Keene LJ's judgment in J v. Wilkins set out above. Gray J considered that no support for counsel's submissions could be found in those passages. I respectfully agree.
101. The defendant's counsel submitted, in the alternative, that a gateway had been left open in Froom for the rare or exceptional case where the "ceiling" is inapplicable. The four, exceptional features relied on in that case are set out at paragraph 27 of the judgment, as follows:

"(i) that the claimant, being then aged 24 and having passed his driving test two years before the accident, was both older and a more experienced driver than the defendant;

(ii) that the claimant had deliberately left off his seat belt, probably for some time;

(iii) that the driving of the defendant was no worse than careless – this was a case of momentary inattention and

(iv) that the claimant would have suffered no, or at least only moderate, injuries if he had been wearing a seat belt."

102. Gray J considered, however, that this combination of features was not sufficient to bring that case into the category of rare or exceptional cases identified in J v. Wilkins.
103. He concluded that Froom was binding upon him. However, it is clear from paragraphs 39 – 59 of his judgment that counsel for the defendant had also sought to persuade the court that, even if Froom was binding, it was time to reconsider the Froom guidelines, having regard to issues of public policy and to overseas authority.
104. In the present case, notwithstanding paragraph 4(vi) of the Defence, which indicates to the contrary, Mr Turner expressly disavowed some of the arguments pursued before Gray J in support of this submission. However, the arguments set out, at paragraphs 40 – 46 of the judgment, as to the growth of public awareness of the importance and benefits of seat belt use; the amount of statistical information now publicly available; the introduction of statutory compulsion and the dramatic increase in seat belt use; and the steady education of the public since 1975 seem to me to raise most of the points now being raised once again before me in support of Mr Turner's "generic" grounds for revisiting the Froom guidance. The additional evidence before me as to improvements in seat belt design does not alter the fundamental submission being made.
105. Gray J said this, however, at paragraphs 42 – 43:

"42. I accept that, no doubt largely as a result of the efforts of bodies such as ROSPA, the public at large has been educated as to the importance of wearing seat belts and that public awareness of the value of seat belts has grown hugely since 1975. However, it does not appear to me to follow that the guidance given by the Court of Appeal in Froom needs to be revisited. Rather the question appears to me to be this: can it be said that the Court of Appeal in Froom under-estimated the desirability of wearing seat belts or failed to take due account of the benefits of doing so, both in terms of avoiding deaths and serious injuries and saving the cost to the NHS of treating injured drivers and passengers. If the answer to that question were to be in the affirmative, then I would readily understand why it could be said that public policy requires reconsideration of the Froom guidelines.

43. However, when one looks at the judgment of Lord Denning in Froom, it is striking how alert the court was as early as 1975 to the vital importance of wearing seat belts."

106. After referring to a number of the passages in the judgment of Lord Denning MR, set out above, he concluded at paragraph 46:

"46. Whilst I accept that public awareness of the vital importance of wearing seat belts has increased markedly since 1975, it appears to me that judicial awareness, both in Froom and in the numerous cases which followed it, of the dangers of not doing so is clear. The public costs consequences of failing to belt up are self-evident. That being so, I do not accept that in this respect public policy calls for a review of the approach laid down in Froom."

107. On appeal from Gray J's decision the defendant sought to argue, amongst other things, both that the Court should no longer follow Froom v. Butcher; or alternatively, that this was an exceptional case which justified a departure from the Froom guidance. In fact, the matter was settled between the parties and permission to appeal was ultimately refused on the principled basis that any such appeal would have been academic.
108. Giving the judgment of the Court, Sir Anthony Clarke MR referred to Froom and, at paragraphs 57 – 58, to the fact that the Court in that case had adopted a "pragmatic approach, eschewing a detailed analysis in every case"; and had provided guidance which had been followed ever since. He referred to the "countless instances of judges of first instance applying the principles" and to the fact that the Court of Appeal had followed them, citing J v. Wilkins in which the Court of Appeal "treated the guidelines as extant and effective in 2000."
109. The defendant/appellant had decided to invoke the leap-frog procedure for a direct appeal to the House of Lords on the basis that he was bound by Froom v. Butcher. His detailed petition rehearsed the arguments of principle he had raised before Gray J and now sought to raise before the Court of Appeal. In refusing permission the Committee stated that "the petition does not raise an arguable point of law of general public importance".
110. In the Court of Appeal, in rejecting the arguments of counsel for the appellant as to the Court having jurisdiction to entertain an academic appeal in a "rare case", the Master of the Rolls set out the features being relied upon at paragraph 22. Five of them, in my view, were very similar indeed to those now sought to be raised on behalf of this Defendant, as follows:

"(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 could be treated as a test case."

111. In refusing permission to appeal, whilst dealing in the main with the law relating to the jurisdiction to entertain academic appeals, the Master of the Rolls stated, at paragraph 38, that:

"There is no evidence that there is an urgency about the resolution of what [counsel] says are the important points of principle."

And that:

"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."

112. In my view, notwithstanding Mr Turner's submissions and the detailed analysis of developments since 1972 undertaken by Dr Rattenbury in his report, the Defendant in this case is seeking essentially to raise, once again, the same public policy arguments advanced previously in J v. Wilkins, and to a greater extent in Gawler, which the Courts in those cases found unpersuasive. For that reason I do not intend to rehearse the evidence and these arguments again, because I have formed a clear view that I should not accept them.
113. The decision in Froom was arrived at, as the passages cited above show, in full knowledge of the relevant research and statistical information and, also, knowledge of the legislative background and the imminent arrival of statutory compulsion. The pragmatic, workable and consistent approach adopted, to be applied in the "great majority of cases" has stood the test of time and continues to do so, for good reason. Mr Turner, like others before him, can point to no case where the Froom guidelines have ever been departed from.
114. In my judgment, there is nothing in the cases of J v. Wilkins or Gawler which assist the Defendant in the present case in submitting that Froom should now be revisited.
115. I should add that Mr Turner also referred me to the judgment of Tuckey LJ in Goodman v. Keeves [2003] EWCA Civ 800, when refusing permission to a defendant, on his renewed application for permission, to appeal against findings of contributory negligence made against the claimant.
116. In one of the applicant's submissions, at a hearing where the claimant/respondent did not appear and was not represented, counsel urged the Court to grant permission "so that the Froom v. Butcher guidelines can be revisited". In rejecting his submission, Tuckey LJ considered that in J v. Wilkins the Court of Appeal had visited the point and had described Froom v. Butcher as still representing the rule. Mr Turner nevertheless relies on the fact that, though rejecting it, Tuckey LJ expressed "some sympathy for the submission".
117. In my view such reliance is misplaced. Quite apart from the absence of any submissions from the claimant at that hearing, Tuckey LJ seems to have been influenced, at least in part, by counsel's reference to a settlement in another case (Hitchens v. Berkshire County Council, 21 June 2000, unreported), where a reduction of 50 per cent was made for the claimant's failure to wear a seat belt. As was made clear in Gawler however, (see paragraph 21 of the judgment of Gray J) that case was agreed to have no jurisprudential value, the outcome having been influenced by entirely extraneous considerations. This therefore takes the matter no further.

Should the Claimant's Damages be Reduced?

118. The Claimant, as I find, had not drunk in such quantities as to impair his judgment. Further, in marked contrast to the "exceptional features" sought to be relied on by the defendant in Gawler, this Claimant, at just 16 years of age, was much younger than the 24 year old driver and not yet able to drive. There is no evidence to suggest that he decided deliberately not to wear the seat belt rather than be presented with a situation, not of his own making, which he just went along with, possibly unwillingly.
119. Nor could this case be said to involve momentary inattention on the driver's part. This particular driver had a history of driving at speed along this stretch of road and on this occasion, having allowed four teenagers to travel in the car without using seat belts, he deliberately drove at approximately twice the speed limit before losing control of the car. In view of my conclusions in this case it is unnecessary to decide whether, in permitting the passengers not to use seat belts and allowing two people to share the front seat, the driver was himself in breach of duty, as was raised in argument at one point and subsequently, at the Defendant's request, became the subject of an amendment to the pleadings. It is sufficient to find, as I do, that this was an extremely bad case of negligent driving.
120. In permitting Rebecca Hart to sit on his lap the Claimant was obviously sharing with her the occupancy of the front passenger seat. Mr. Turner submits that it is incontrovertibly more irresponsible to share the front passenger seat of a small car than it is inadvertently to fail to wear a seat belt. The element of risk, he submits, is increased automatically by the creation of an inherently dangerous situation. However, whilst I accept that this was an unusual feature, the evidence in this case does not in my judgment render it a rare and exceptional case, such as to justify a departure from the guidance in Froom. There is in any event no evidence, and in particular no expert evidence, in support of Mr. Turner's submissions as to there being an increased risk for the primary occupant in these circumstances. I regard the decision in Froom as binding upon me, and it is therefore to be applied in this case.
121. The starting point, as Lord Denning observed, is that the negligent driver must bear by far the greater share of responsibility, his negligence being a prime cause of the whole of the damage. The question, therefore, is what share, if any, this Claimant is to bear.
122. The Court in Froom contemplated that a Court required to assess a party's share of responsibility would be assisted by evidence.
123. Where that evidence shows that a failure to wear the belt made no difference and that the damage would have been the same even if the belt had been worn the damages should not be reduced at all. Mr Grace's primary submission is that this is the case here.
124. Mr Turner does not submit that, in this case, the Claimant's injuries would all have been prevented if a seat belt had been worn. This is not, therefore, a case where it is suggested that the damages fall to be reduced by 25 per cent.
125. The question to be resolved, therefore, is whether the evidence in this case shows 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 per cent.
126. In determining that issue, the burden of proof being upon the Defendant, the question is whether on the evidence adduced the Defendant has demonstrated on the balance of probabilities that the Claimant's injuries were substantively more than they would have been had he been wearing a seat belt; or, rather, that his injuries would have been a good deal less severe had he worn his seat belt.
127. The expert engineers agree that in this collision the interior damage to the Vauxhall included the intrusion of the driver's door and the fact that the steering column had been forced up and bent forwards towards the near-side, with the steering wheel protruding through the windscreen aperture. Any significant crushing of a car's bodywork results in intrusion of the vehicle structure into the car's interior. Thus the structure is moving towards an occupant at the same time as that occupant is being projected towards the intruding structure.
128. They agreed also that seat belts are most effective during a frontal impact (the most common type of impact); and that they are less effective during lateral impacts of the kind which occurred in this case. It is also agreed that, during lateral impacts, the upper body of an occupant seated on the non-struck side of a car can slide out from beneath the diagonal section of the seat belt, allowing them to move towards the opposite side of the car. In this movement the head and chest are moving sideways and downwards towards the opposite side of the car (in this case the off-side).
129. Dr Rattenbury pointed out in his report that in these circumstances "the head and face may strike parts of the car, or another occupant, and serious injury can occur". Mr Henderson referred, in his report, to research showing that non-struck side occupants remain at risk of suffering head injuries in lateral collisions, even if they are wearing a seat belt.
130. Dr Rattenbury, given the Claimant's overall direction of movement forward and across the passenger compartment, considered it to be "… highly likely that he would have hit the steering wheel with his head and face. It is, therefore, unlikely that use of a seat belt could have provided total protection against injuries to the head and face".
131. In preparing their Joint Report the engineering experts were asked to address, amongst other questions, the following:

"What injuries if any, would William Stanton have probably sustained even if he had been wearing his seat belt as a sole occupant of the passenger seat?"

132. At paragraph 5.1 of the Joint Report they agreed both that the Claimant's shoulder might have slipped from beneath the seat belt, allowing his upper body to move towards the off-side; and that his head may then have struck the steering wheel or the intruding driver's door. It was common ground that the Claimant would probably have struck the right-hand side of his head or, if he struck the driver's door panel, the crown of his head.
133. They also agreed the following:

"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 likely."

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 effects 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 than those he now suffers from is, in my judgment, a medical and probably a neurological question. Medical evidence as to the Claimant's injuries and the extent to which they would have been different if a seat belt was worn, was adduced in both J v. Wilkins and Gawler; and I would anticipate that it has been adduced in most, if not all, of the cases where this is in issue between the parties. 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 effects 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.
137. In the witness box, although not in his report, Dr Rattenbury sought to draw a distinction between "severe" and "serious" brain injury. In agreeing with Mr Henderson, for the purposes of the Joint Report, that complete prevention of serious injury to the Claimant's head, including his brain, was unlikely, he sought to explain that by "serious", he had meant no more than moderate to mild concussion, that is a relatively temporary sort of brain injury from which people generally recover without suffering any long-term effects. This, he said, was based upon his experience of the injuries people involved in such accidents usually sustain; and upon what he referred to as a "relatively general currency" in use by mechanical specialists, in categorising injuries as "slight, serious, severe or fatal".
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 5.1. 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 proving 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.
141. Further, in relation to the Claimant's hand injury, there is no evidence before me that that injury would have been reduced or prevented if he had worn a seat belt.
142. In my judgment therefore, having regard to the provisions of the 1945 Act and to the decision in Froom, the damages recoverable by this Claimant should not be reduced by reason of his failure to wear a seat belt. He is, consequently, entitled to recover damages on a full liability basis.
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