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

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/04/2012

MR JUSTICE BLAIR:

1. This is a claim by the defendant (CPR Part 20 claimant) against the third party (CPR Part 20 defendant) pursuant to the Civil Liability (Contribution) Act 1978 for a contribution in respect of the claimant's claim. The third party's liability is said to arise from the fact that at the time of the car accident which gave rise to these proceedings, the claimant, who was a young child, was seated on what is called a "booster seat" or "booster cushion" rather than in the 5-point harness child restraint seat also fitted in the car.

The facts

2. The facts are largely not in dispute. The third party, Ms Louise Williams, is the mother of the claimant, Emma Hughes. She gave oral evidence at trial, and I should say at the outset that I have no doubt that she was an excellent and caring mother. On the evening of 19 August 2006, she was driving home along the A528 road near Wrexham, in North Wales. Her daughter Emma, aged three years, two months, was with her in the car.
3. On the rear offside seat of her car, a Seat Leon, Ms Williams had fitted a Mamas & Papas 5-point harness child restraint seat. On the nearside rear seat, she had also fitted what is called a Graco booster cushion. To quote the third party's expert evidence, this cushion is intended for children who have outgrown forward-facing child seats with harness assistance (such as the Mamas & Papas seat). The booster cushion is designed to raise the child so that the vehicle seatbelt (designed for adults) will fit properly over the child's shoulder. The cushion in question did not have back support, though there is a Graco model which does have back support. There are arm rests on each side. I should make it clear that the term "cushion" and the term "seat" are used interchangeably in the evidence, and for present purposes the nomenclature is not of any significance.
4. Ms Williams says, and I accept, that Emma's safety was of paramount importance to her. She says, and I also accept, that she bought the booster cushion shortly before the accident because she did not think that Emma looked comfortable in the Mamas & Papas seat. She had read various toddlers magazines on the subject, and seen what the other parents did at the school Emma attended. She says that Emma was (as she put it) chunky, and heavy to lift. She had to do all the lifting because Emma's father had recently died. Emma had used the booster cushion approximately six to seven times before the accident. At the time of the accident, Ms Williams still had both of them fitted on the back seat because Emma was going through what she described as a "transition stage".
5. On the evening of the accident, Emma was seated on the booster cushion restrained by the adult seat belt adjusted to shoulder height. Ms Williams says (and I accept) that she had checked that the seat belt was in the correct position.
6. The defendant, Dayne Williams, was 18 at the time of the accident. He was driving along the road in the opposite direction and lost control of his car, which swerved into the path of Ms Williams' car. It is clear that there was nothing she could have done to have avoided a collision. It is accepted on the defendant's behalf that he was entirely to blame for the accident. Ms Williams' car was struck by the defendant's car at right angles, the closing speed between the two vehicles being approximately 53mph. The tragic consequences of the accident were the death of the defendant, and severe injuries to Emma.
7. Emma was air lifted to hospital in Wrexham and was hospitalised thereafter for some six months. Her injuries included right frontal cerebral contusions (from which a full recovery was made), a brachial plexus avulsion and cervical root avulsion at C6 and C7 from the spinal cord, a spinal cord contusion at C1-2, a fractured left humerus, a ruptured liver and bruising over the left pelvis. (An "avulsion" in this context is a tearing away of the nerve from the spine.)
8. As regards the evidence, I should mention a further document mentioned in the written (though not oral) submissions. This is a Road Traffic Collision Reconstruction Report prepared by PC Skinner of North Wales Police Collision Investigation Unit. It is a detailed document which includes photographs, clearly showing the scene and the severity of the collision. The conclusion reached in it is that the defendant's car crossed onto the wrong side of the road, having negotiated a right hand bend too fast, with the loss of control of the vehicle. Ms Williams could not have avoided the collision, the report states. For present purposes, the following statement appears in paragraphs 10.53 to 10.57:

"10.53 Ms Williams' daughter – Emma was just over 3 years and 2 months of age at the time of the collision, and weighed approximately 15kg at a height estimated to be 93 centimetres.

10.54 At the time of the collision, Emma was seated in the 'Graco' booster child seat located on the nearside of the rear seat of the Seat Leon motor car which is designed to carry a child weighing between 15kgs and 36kgs, aged between 4 and 10 years, or 101cm to 145cm in height.

10.55 Emma did not fit the age or height criteria for the 'Graco' booster child seat, and barely made the weight required.

10.56 There was a 'Mamas and Papas' make 'Pro Tech' forward facing child seat, equipped with a 5 point harness designed to carry a child weighing between 9kg and 18kg, aged between 9 months and 4 years located on the offside of the rear seat of this vehicle was a correctly fitted. This seat appears to be more suited to Emma's height, weight and age, falling within the guidelines set by the manufacturer for usage.

10.57 Allowing for this, it is debatable whether or not the severity of Emma's injuries would have been reduced had she been restrained by the available child seat given a closing speed impact of 54 mph."

The claim for a contribution

9. Liability has been admitted on behalf of the defendant (now deceased). The sole issue is as to contribution (if any) by the third party. There is no dispute as to the applicable provisions which are contained in the Civil Liability (Contribution) Act 1978 as follows. Section 1(1) provides:

"Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)."

10. Section 2(1) provides:

"…in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

The issues

11. The issues between the parties are (in summary), whether Ms Williams was in breach of her duty of care to Emma in restraining her on the Graco cushion rather than in the Mamas & Papas seat, and whether it is just and reasonable that she should contribute to the damage. Would Emma's injuries have been (a) entirely or virtually entirely avoided or (b) a good deal less severe, or (c) about the same, had she been secured in the Mamas & Papas seat? If the court finds in principle that a contribution should be made, what is the extent of such contribution?
12. In summary, the parties' respective positions are straightforward. According to the defendant, it was negligent to place Emma on the Graco booster seat rather than in the Mamas & Papas seat, which was readily available for use in the car. Her very serious injuries would have been almost entirely avoided, or at least significantly reduced had she been placed in the correct seat. Accordingly, it is submitted, the third party should contribute to the damages that the defendant is liable to pay to the claimant. Based on the case law (including Froom v Butcher [1976] 1 QB 826) a figure of 25 percent is claimed, or at the least 15 percent.
13. According to the third party's case, Ms Williams made a decision between two different forms of car restraint. She may have made a mistake in the decision she took (although that is not accepted), but merely making a mistake does not make her blameworthy. It is necessary to look beyond the criteria of what was necessary for the purpose of safety, and not just whether the booster seat was unsuitable for Emma. It is submitted that the decision taken at the time by Ms Williams was not a negligent one or a blameworthy one having regard to all the circumstances. A decision genuinely taken by a parent for the welfare of the child does not fall outside the range of decisions which a reasonable parent could take. The accident was wholly caused by the defendant. It is not a case for the application of the principles in Froom v Butcher because at the time of the accident Emma was wearing a seat belt and using a form of restraint. Hence, it is submitted, the usual deduction of 25 percent should not be made, nor a deduction of 15 percent, because it is doubtful if serious injury could have been avoided even if Emma had been in the child restraint seat. Further, following the reasoning Capps v Miller [1989] 1 WLR 839, a deduction of less than 10% is indicated.

The instructions as to the booster seat

14. Before turning to the expert evidence, I must deal with the instructions that came with the respective seats. The defendant in particular has placed considerable emphasis on these instructions. So far as the Mamas & Papas child seat was concerned, the instructions stated: "This car seat is designed for children weighing from 9 kg to 18 kg, 9 months to 4 years of age approximately. All ages given are approximate because all children grow at different rates, the weights given are the main safety issue."
15. So far as the Graco booster cushion is concerned, Ms Williams says in her witness statement that she "would have read the manufacturer's instructions that came with the seat in order to fit it appropriately into the car". She said in oral evidence that she read them carefully. These instructions are in the form of an "Owners Manual" which runs over about 20 pages in the court bundle. The manual begins with the following:

"READ THIS MANUAL. Do not install or use this car seat until you read and understand the instructions in this manual. FAILURE TO PROPERLY USE THIS CAR SEAT INCREASES THE RISK OF SERIOUS INJURY OR DEATH IN A SUDDEN STOP OR CRASH."

16. Some pages in, appear the following instructions as to which children may use the booster cushion (described as a booster seat). Both the model with, and the model without, back support are dealt with. (As I have said, it was the model without back support which Ms Williams had bought.) The manual says:

"Weight and Height Limits

! WARNING

FAILURE TO USE booster seat in a manner appropriate for your child's size may increase the risk of serious injury or death.

To use this Graco booster seat, your child MUST meet ALL of the following requirements:

With back support

(approximately 3 to 10 years old):

weigh between 15-36 kg, and

are between 96 and 145 cm in height, and

the shoulder belt MUST lay across child's shoulders in red zone as shown in 1 and the lap portion is positioned low on the childs hips, and

The child's ears are below top of booster seat. If tops of ears are above top of seat, your child is too large for the booster seat

17. The manual then continues on a separate page to deal with the Graco booster seat without back support, the relevant seat in this case:

Without back support

(approximately 4 to 10 years old):

weigh between 15-36 kg, and

are between 101 and 145 cm in height, and

[It continues as in last two bullet points for seats with back support]

Your Graco booster seat can be used with or without the back support (on certain models) as long as the above requirements are met."

18. There was also a label on the bottom of the cushion itself. This said that the seat was:

"FOR USE ONLY by children who:

are approximately 4 – 10 years old,

weigh between 15 – 36 kg, and

are between 101 – 145 cm in height

whose ears are below top of vehicle seat"

19. The evidence is that Emma was below average height and above average weight for a girl of her age. Specifically, as I have said, at the time of the accident she was aged three years two months (she was born on the 28^th May 2003). There is no dispute that her height was 93cm. There was a dispute as to her weight at the time of the accident. Her mother says that she weighed and measured Emma about a week before the accident and that her weight was 15kg. The hospital records indicate a weight of 14kg at the time of admission, and the evidence is that weight is important in measuring drug dosage, implying that this is likely to have been accurate. On the other hand, records from the hospital to which Emma was transferred a few days later give an approximate weight of 15 kg. Thus, this evidence is not conclusive one way or the other. But on balance, and in particular taking into account her mother's evidence, I find that Emma's weight was 15 kg at the time of the accident, and in any case, as is accepted by the defendant, that was a view that her mother was clearly entitled to take.
20. The consequence is that Emma's weight was within the limits specified for use of the booster cushion, but her age and height were not, though as the third party points out, as regards age, the word "approximately" is used in the instructions. (There is no dispute that the shoulder belt was in the right position, and Emma's ears must of course have been well below the top of booster seat.)
21. Ms Williams said in her evidence that she regarded these instructions as advice, and not as legal requirements, and that she had to use her own judgment in the circumstances to make a decision, which she did.

The regulations

22. Before dealing with the expert evidence, I should say something as to the requirements of the law relating to children wearing seat belts. This was touched on in the written submissions of Mr Graham Eklund QC for the third party. In brief, the matter was covered at the time of the accident by the Motor Vehicles (Wearing of Seat Belts) Regulations 1993, SI 1993 No.176. The relevant provisions applied as regards a child aged three or more. As Mr Eklund QC has paraphrased it, under the Regulations, there was no "absolute requirement for a child to be carried in a child seat or on a booster cushion. A child could be carried in a vehicle wearing a seat belt only, if no car seat or booster cushion was available."
23. Shortly after the accident, the law was amended in the Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006, SI 2006 No. 1892. Again, taking Mr Eklund's paraphrase, the amendment required "children between 3 and 11 years of age but less than 135cm in height to be secured with a child restraint appropriate for their height and weight in the rear of motor vehicles provided there was an adult belt in place to secure the child restraint".
24. The effect of the new regulations (which came into force on 18 September 2006) is that the previous qualification that applied to compulsory use, namely whether a child seat or booster cushion or the like was available in the car, was abrogated. Mr Eklund submits that at the time of the accident (19 August 2006) however, the law contemplated that those responsible for a three year old child were entitled to use a form of restraint which was different from the child seat (i.e. the Mamas & Papas seat) which was fitted in Ms Williams' car.
25. As a matter of application of the Regulations, it is not in dispute that this is correct. In agreement with the defendant however, my view is that limited assistance is gained from the Regulations on the facts of the present case. This is because in this case in fact two forms of child restraints were fitted in the rear of Ms Williams' car, both of which were available for use. The Regulations do not answer the question which has to be determined, namely whether or not in the circumstances of this case it was or was not negligent to use the booster cushion instead of the child seat.
26. It is also to be noted by way of an analogy that at the time Froom v Butcher was decided, although it was compulsory to fit seat belts in cars, it was not compulsory to wear them. The court nevertheless had regard to the evidence as to the value of wearing a seat belt. There is similar evidence in the present case to the effectiveness of an appropriate safety restraint in the case of a young child.

The expert evidence

27. In the light of the above, I must now consider the expert evidence. The defendant agreed a report prepared for the third party by Mr Stephen Henderson as regards accident reconstruction. Among other things, he notes that the speed of each of the vehicles at impact was 8 to 12 mph for Ms William's vehicle, and 41 to 44mph for the defendant's vehicle. He makes it clear that for the purpose of assessing injury causation issues in traffic collisions, the most important aspect is the velocity change experienced by the injured party within the vehicle, which is closely related to the velocity change experienced by the vehicle itself. In the present case, he estimates this at 24mph so far as Ms Williams' car was concerned.
28. The defendant also agreed the evidence of Dr W. Forbes, a consultant neuroradiologist, again prepared at the request of the third party. He describes in particular Emma's "severe and complex injury to the cervical spine and… probable contusional injury to the frontal lobe". He notes that these injuries are uncommon in day to day clinical practice. However, he cannot say whether a 5-point harness as opposed to a booster cushion using the adult seat belt would have resulted in any difference in the nature of the injuries sustained.
29. The third party also produced two reports by Ms Marianne Hynd, Head of the TRL Child Safety Centre, within the Vulnerable Road Users Group at TRL. These are in the form of a preliminary report of May 2010, and a supplementary report of December 2010. Her reports are in the trial bundle, and indeed were relied on in the skeleton argument settled by Mr Jonathan Watt-Pringle QC on behalf of the defendant. However, in the event, the third party did not call Ms Hynd to give evidence at trial.
30. As regards the medical aspect of the case, the third party produced a report by Mr Paul May, consultant neurosurgeon with the Walton Centre NHS Foundation Trust, again in the trial bundle. In the event, he was not called either.
31. As regards the remaining expert witnesses who did give evidence at trial, each was well qualified, and impressive. The defendant called Dr John Horsfall to deal with (among other things) restraint systems for children travelling in cars. In summary, he said that the Graco booster cushion on which Emma was seated had no back support and no side "wings" or other structures to provide lateral constraint. There were no means of preventing her from leaning or moving sideways (away from the side where the seat belt passed over her shoulder) such that her upper body was no longer properly restrained by the seat belt. By contrast, the Mamas & Papas seat had a 5-point harness which allowed very little lateral or forwards movement relative to the seat in normal use, and it had deep side "wings" for added protection. Because the Graco booster cushion utilises the adult seat belt (rather than a separate harness fitted to the seat, as there is with the Mamas & Papas seat), it would have been possible for Emma to be leaning forwards before the collision.
32. Serious injury, Dr Horsfall said, is associated with sub-optimal child restraints in motor vehicles. Had Emma been placed in a seat with a 5-point harness, the loads in a predominantly frontal impact (as occurred in this case) would have been applied by the lap belt and shoulder belts of the harness. As he put it, the five-point harness seat distributes the force of an impact over a larger area symmetrically, and the child is held in place. Furthermore, provided the harness was correctly adjusted, it would not have been possible for her to have been significantly "out of position" in the seat. Since there was no significant damage to the car's rear passenger compartment, it would have been unusual for a correctly restrained rear seat occupant to sustain serious injury. Emma did not meet the requirements for the Graco booster cushion. There was a suitable Mamas & Papas seat for her use in the back of the car.
33. As regards support in the literature, Dr Horsfall relied on an Australian article from 2006 entitled "Serious injury is associated with suboptimal restraint use in child motor vehicle occupants". (The same article was relied on by the defendant's other witness, Mr Sherriff.) As the title of the paper implies, the key finding of the study was that all child occupants aged 2-8 years that attended a particular hospital, who sustained significant injuries in a car crash were sub-optimally restrained, while no optimally restrained occupant sustained such injuries. It was pointed out in cross-examination that the sample was relatively small, and the definition of "optimal restraint" differs somewhat from the parameters that have been explored in this litigation (other points were made too). There is force in these points though, so far as it goes, I consider that the paper does provide the defendant's expert witnesses with some support. I am however conscious of the point made by Mr Eklund QC that there is an extensive literature which is not before the court, and that not too much weight should be placed on a single study.
34. Dr Horsfall accepted in cross-examination that from the point of the view of the occupant of the car, what mattered was how big the speed change was. He accepted that the g force experienced by the occupants was very high, but qualified this by saying that it was significantly less severe than that experienced in crash testing, and well within the limits of what the restraints were designed for. As regards the comfort of the child in the child seat, he said that safety has to be the paramount consideration, and the car seats were designed with this in mind. He accepted that the child's head was not restrained in the child seat, and that the head would move forward on impact, with a degree of rebound.
35. The defendant also called Mr H.M. Sherriff, who was a Consultant in Accident and Emergency Medicine, and Director of Emergency Services, at Addenbrooke's Hospital, Cambridge, and who now provides consultancy services in cases such as this. He approaches the suitability of the booster cushion over the child seat from the perspective of his experience of road accidents, expressing an opinion as to injuries which he says would have been avoided had Emma been placed in the child seat.
36. Having examined the engineering and medical evidence and applying his own experience of injuries arising in serious road accidents, he concludes that Emma would have suffered slight injuries only if she had been placed in the Mamas & Papas seat. In particular, the avulsion injury to the left brachial plexus with avulsion of the nerve roots C6 and C7 from the spinal cord and the spinal cord injury were caused by the lateral flexion on the Graco cushion; these injuries would probably have been avoided had the Mamas & Papas seat been used. Had Emma been in the proper seat, the lateral movements of the head would have been prevented, and would have reduced the risk or prevented the head injury, the arm fracture and the liver injury. It is possible that a 3-year old child could have suffered a spinal cord contusion in a proper child seat, but that is less likely on the balance of probabilities than in the booster seat. In fact, he added in oral evidence that he had never seen a spinal cord contusion in such a situation.
37. In cross-examination, Mr Sherriff accepted that he had not made any reference to the speed of impact, or deceleration or g-forces in his report. He was cross-examined about the nature of the injuries suffered by Emma. The injury to Emma's arm, he said, would have been avoided altogether had she been in the seat. He agreed that the bruising of her liver could be described as a minor injury.
38. As regards the spinal injuries (that is, those described in paragraph 3.1 of his report, which are the most serious injuries suffered), these were consistent with a traction injury on the spinal cord and nerve roots. In this context, he was asked about the forces to which Emma's head would have been subject even if she had been seated in the child seat, and not in the booster seat. He said that the sides would provide some support as regards lateral flexion. He was then asked about the child's head going forward, and the following exchange took place:

Q "… So even if she had been restrained with a harness such as that [in the child seat] and her head free to move forward and sideways, she would have been subjected to, her head would have been subjected to the same forces."

A "My experience suggests that that is a very slight risk."

In his clinical experience, he said, he had seen an unrestrained child who had suffered spinal injury (myelomalacia, that is, softening of the spinal chord), and had seen many children in child restraint seats who had been effectively uninjured or sustained minor bruising.

39. He was asked about paragraph 3.8 of his report, to the effect that if the child had been restrained in a child seat such as the Mamas & Papas fitted with 5-point harness, then lateral movements of the head would have been prevented. He accepted that this was not correct, and that "it is possible that there would be lateral movement".
40. He accepted that his conclusion, namely that she would have sustained slight injuries only had she been in the seat with full harness and back and wings, had to be read in the context of these qualifications.
41. In his closing submissions, Mr Eklund QC submitted that Mr Sherriff's evidence "failed to establish any reduction in the injuries let alone to a considerable extent". This was on the basis that the mechanism of the spinal injuries was the sudden and violent movement of Emma's head, which placed strain on the neck structures, and he suggested that Mr Sherriff had accepted in cross-examination that this would have happened even if she had been restrained by the harness in a car seat.
42. However (in agreement with that of Mr Watt-Pringle QC), my note did not accord with this analysis of this evidence, which effectively involved a reversal of the conclusion expressed by Mr Sherriff in his report. Having heard and seen the witness, my view was that Mr Sherriff had qualified the evidence which led to his conclusion, but not so as to depart from it. Counsel had the opportunity to listen to the tape of Mr Sherriff's evidence, so that there were no misunderstandings as to what had actually been said. In the event, this submission on behalf of the third party was not pursued.
43. Nevertheless, Mr Eklund asked for a transcript to be provided which, because of the potential significance of the evidence, exceptionally I felt it right to order, along with an opportunity to provide any post-closing further submissions that were thought appropriate. Mr Eklund said that such submissions would go to the weight which should be given to Mr Sherriff's evidence in the light of what he submitted were its shortcomings, which they did.
44. First, it was suggested that Mr Sherriff was at fault for referring to medical records giving a weight of 14kg, and not those giving a weight of 15kg. I reject the suggestion that this reflects on his credibility as a witness, noting (as pointed out on behalf of the defendant) that Dr Pedder, called by the third party, also overlooked entries recording a lower weight.
45. Criticism was also made on the basis that, whereas in his report Mr Sherriff had said that lateral movements of the head would have been prevented had the child been restrained in a child seat, he accepted in cross-examination that it was "possible" that there would be lateral movements. However, in context this was not a major departure form his report, and the fact that he was prepared to qualify his evidence does not reflect adversely on its reliability. Nor was there any inconsistency with the evidence of Dr Horsfall in this respect.
46. It was submitted that Mr Sherriff's evidence was anecdotal, and that his evidence that the risk of injury would have been very slight if Emma had been restrained in a car seat was not reliable and should not be accepted. I reject this submission too, and as is pointed out on behalf of the defendant, there was no challenge to Mr Sherriff's expertise in cross-examination. As he explained, his duties as a Consultant in Accident and Emergency Medicine required him to attend over one hundred road traffic accidents a year, and see for himself the injuries caused, and the aftermath of accidents, including the damage to vehicles. I accept the relevance of his expertise, and I also accept his evidence, which is consistent with the totality of the evidence in this case. I have already noted that the third party's own medical expert was not called. The reality is that the third party was not in a position to challenge the evidence of Mr Sherriff.
47. In the event, the only expert called by the third party was Dr Jocelyn Pedder, who is president of RONA Kinetics and Associates Limited, a safety research and consulting group based in Vancouver, Canada. She conducted a test (attended by Ms Hynd) on a child who was about three centimetres taller than Emma. (She is not a medical doctor, but obtained a PhD from the Accident Research Unit at the University of Birmingham.) In her written report, she says that at the time of the collision, Emma would have moved forward towards the principal direction of force between 11 and 1 o'clock. The major thrust would have been forwards. It is possible that her left shoulder rolled out of the torso belt. At the same time her head and neck would have "hyperextended" and "hyperflexed". Her left arm was probably caught between the left arm rest of the booster cushion and the door. It was, in Dr Pedder's opinion, the flexing of the head and neck that caused the C1-C2 cord contusion.
48. As regards the restraints which were fitted in the car, she says the 5-point harness child seat is very effective in protecting the child in a survivable collision. As regards the booster cushion, she notes that Emma was 8 cm shorter than the height threshold. Based on the experiment she conducted, she concludes that even if Emma had been 8 cm taller her injuries would probably have been similarly serious.
49. Dr Pedder also refers to the literature, saying that the data indicates that there is a reduced risk of injury among 3 and 4 year old children when restrained by recommended forward-facing child restraints with harness system compared to booster seats. In restraining Emma in a booster cushion, she says however that Ms Williams probably reflected the state of awareness of many other parents. Observational surveys of child restraint use commonly show premature graduation of a child from a harness seat to a booster seat. Although, she says in her report, "from an informed scientific point of view the Mamas & Papas 5-point harness child seat would have provided greater protection, Emma was reasonably restrained in the booster cushion at the time of the collision". However, based on the estimated mass and height of Emma at the time of the collision, the Mamas & Papas seat "was the most appropriate child restraint for Emma".
50. If Emma had been in the Mamas & Papas child seat, she would probably not have sustained the frontal contusion, brachial plexus injuries, or the ruptured liver. It is possible she could still have sustained serious cervical spine injuries. Such injuries "without head impact are, however, extremely rare amongst older children properly restrained in forward-facing child seats with harness systems, but they still cannot be discounted here given the collision forces".
51. As a lay person, without specialist knowledge, Dr Pedder said, Ms Williams appears to have acted as a reasonable parent in her effort to restrain Emma properly, taking into account the legislation in place at the time of the collision, public awareness and compliance.
52. In cross-examination, Dr Pedder said that the child seat would have enabled Emma to "ride down" the collision. On impact, the seat belt would have locked up, but with some slack. This allows the child slowly to come to a stop. As regards lateral movements, she accepted that there was no barrier to lateral movement in the booster cushion. There was, she says, considerable data indicating that the sitting height of the child was most significantly related to injuries, rather than the standing height. She was asked about the advantages of the booster cushion over the child seat. She said that the latter was definitely the most appropriate. She had difficulty however in saying that the booster seat was not appropriate, as opposed to a situation where Emma had been in the vehicle unrestrained. That would clearly have been not appropriate. Given her height, she didn't think it was inappropriate. She did however accept that it was inappropriate in terms of the manufacturers' instructions.
53. It was put to her that one of the questions she had been asked to consider in giving her report was "whether the Graco booster cushion was a suitable child restraint for the claimant at the time of the accident". She did not (it was put to her) address this question specifically, and by implication, she was answering it in the negative. She agreed that she would be. In re-examination, she was taken to the passage in her report that I have quoted already, ending with the words "Emma was reasonably restrained in the booster cushion at the time of the collision". She was asked to, and did confirm this passage in her report. I have to say that I did not find this evidence in re-examination particularly convincing. Although overall Dr Pedder was a good witness with a great deal of experience in the field, and I do not think that she intended to abandon her conclusion in the answer she gave in cross-examination, she did not appear to me to have a good answer to the point that the Graco booster cushion was not a suitable restraint at the time of the accident because Emma did not fall within the limits specified in the instructions for its use.

Discussion and conclusions

54. It is not in dispute that a duty of care is owed by a parent to her (or his) child to take reasonable steps to ensure that the child is secured with an appropriate seat restraint when travelling in a car (see on different facts, Harris v Perry [2009] 1 WLR 19 at [37]). However, except where there has been a clear failure, whether there has been a breach of that duty is likely to be a fact sensitive issue, since the characteristics of children differ so much, even in the case of a young child, and there may be a number of reasonable options available (see by analogy Chittock v Woodbridge School [2003] P.I.Q.R. P6 81 at [18], albeit that case was concerned with the duty of teachers, rather than parents). Although put in different ways, the essence of the third party's case is that in placing Emma in the booster seat rather than the child seat, her mother made a reasonable choice, albeit it may have proved to be a mistake with hindsight.
55. As he put it in closing, Mr Eklund QC submitted that before considering whether another form of restraint should have been used, and whether it would have made any difference, a finding is required as to whether Emma was reasonably safe on the booster cushion. If Emma had been a few months older and 8cm taller, there could have been no criticism of the third party. Emma would have been regarded as reasonably safe, even though she may have sustained serious injury, including the same serious injury. Accordingly, it is submitted, it is necessary for the defendant to establish that by being 8cm too short of the recommendation and a few months too young, Emma has been caused to sustain greater injuries to a considerable extent than she would have sustained. In this respect, reliance is placed on Dr Pedder's evidence set out above that if Emma had been 8cm taller, her injuries would probably have been similarly serious.
56. To understand this submission, it is necessary to recall that the instructions for the Graco booster cushion stipulated use only by children who were approximately 4 to 10 years old, and were between 101 and 145cm in height. Emma did not qualify in either of these respects, since her age was 3 years 2 months, and her height was 93cm.
57. However, I agree with Mr Watt-Pringle QC that this is not the correct approach. The issue is whether it was negligent to put this particular child of her age and dimensions on the booster cushion. That cannot be answered by reference to a hypothetical child of different dimensions. So Dr Pedder's evidence in this regard does not address the issue which the court has to decide. On the other hand, if the evidence shows that Emma would have suffered similar injuries if placed in the child seat, that would be a relevant consideration in determining whether there has been a breach of duty. I will have to express my findings in that respect.
58. In my view, the approach to be adopted is as set out by the Court of Appeal in Jones v Wilkins [2001] R.T.R.19. In that case, the claimant, aged 2 years and 9 months, was on her mother's lap in the front passenger seat of a car. The mother had the diagonal seat belt across her own shoulders, and the lap belt around both her and her daughter. They were involved in a head on collision caused solely by the defendant's negligence, and the claimant was seriously injured. The defendant sought a contribution from the claimant's mother and the driver on the basis that they had been negligent in failing to secure the claimant safely by way of a suitable seat restraint. The evidence was that if the claimant had been seated wearing an approved child restraint, the risk of serious injury to her in the accident would have been eliminated almost entirely or virtually entirely. The judge held that the mother and the driver should contribute 25 percent towards the damages recovered by the child as a result of the defendant's negligent driving under s.2(1) Civil Liability (Contribution) Act 1978. The defendant appealed on the basis that the apportionment to the mother and the driver should have been greater but the Court of Appeal upheld the judge's decision.
59. On appeal, (as in the court below), the analysis centred on the classic judgment of Lord Denning MR in Froom v Butcher [1976] 1 QB 286. In that case, the court gave guidance as regards the appropriate reduction in damages by way of contributory negligence for failure to wear a seat belt. Essentially, the reduction depended on the extent to which injuries would have been prevented by wearing a belt, or would have been less severe. The court approached the issue on the basis that the question was not what was the cause of the accident, but what was the cause of the damage. In Jones v Wilkins, the court held that the guidance was equally appropriate to a case where the issue concerns a contribution under the 1978 Act.
60. The issue in Jones v Wilkins was in substance the same as that which arises in the present case, in that it is also said here that had the child been appropriately restrained, her injuries would have been largely avoided.
61. The third party submits that this case is not a Froom v Butcher type case, because that case deals with cases where no seat belt at all is being used. In this case, a particular type of restraint system was being used. However, whilst accepting that this is a distinction on the facts, I do not think that it is a valid distinction of principle. It is true that a restraint system was being used in this case, but the issue of substance is whether it was an appropriate restraint, or whether it was negligent to use it, and the causal consequences. This appears to fall within the following passage in Froom v Butcher at p.292D-H (allowing for the fact that this case concerns a contribution rather than contributory negligence):

"In these seat belt cases, the injured plaintiff is in no way to blame for the accident itself. Sometimes he is an innocent passenger sitting beside a negligent driver who goes off the road. At other times he is an innocent driver of one car which is run into by the bad driving of another car which pulls out on to its wrong side of the road. It may well be asked: why should the injured plaintiff have his damages reduced? The accident was solely caused by the negligent driving of the defendant. Sometimes outrageously bad driving. It should not lie in his mouth to say: "you ought to have been wearing a seat belt. … I do not think that is the correct approach. The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in the part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the court thinks just and equitable."

Breach of duty

62. Since the back seat of Ms Williams' car was fitted with both a booster seat and a child seat, I shall begin by expressing my conclusions as to the evidence I have summarised above as to the respective suitability of these seats for Emma. In this regard, the engineering experts are agreed. As Dr Pedder¸ instructed by the third party puts it in her report, "Based on the estimated mass and height of Emma Hughes at the time of the collision and my specialist knowledge, the Mamas & Papas Pro-tec child seat with the 5-point harness was the most appropriate child restraint for Emma Hughes". As she put it in cross-examination, the child seat was definitely the most appropriate. This view is entirely consistent with that of Dr Horsfall, it is plainly correct, and I accept it.
63. Further, Dr Horsfall said, correctly, that Emma did not meet the requirements for the Graco booster cushion. This point is the principal basis for the defendant's case that the third party was in breach of duty. I have set out the relevant extracts from the manual (which the third party accepts she read), as well as the label on the cushion, which is essentially the same. As it states, the booster cushion is "FOR USE ONLY by children who: are approximately 4 – 10 years old, weigh between 15 – 36 kg, and are between 101 – 145 cm in height, whose ears are below top of vehicle seat". Although she was just within the weight limit, the claimant was neither old enough (three years, two months) not tall enough (at 93 cm) to fall within these limits.
64. On behalf of the third party, it is pointed out as regards age that the term "approximately" is used in both the manual and the label. This is correct, though as Dr Horsfall said, the instructions distinguish between booster seats with back support, in respect of which the child must be approximately 3 to 10 years old, and booster seats without back support (such as the one in this case) in respect of which the child must be approximately 4 to 10 years old. This tends to underline rather than undermine the significance of the lower age limit. That aside, at 3 years, 2 months, Emma was well outside the indicated age bracket for use of this seat.
65. In this regard, both parties place reliance on Harris v Perry [2009] 1 WLR 19. In that case, a child injured on a bouncy castle claimed damages from the defendants who had hired it for their children's birthday party. It was held that the defendants had been required to take such care as a reasonably careful parent would take for the safety of her child of the claimant's age playing on a bouncy castle, which depended critically on the risks that the reasonable parent ought to foresee. Regard could and should properly be paid to any relevant information which the defendants read, but not to other documents which the defendants had not read ([37]). In the material which the defendants had read, there is no specific reference to the prohibition of somersaults such as had caused the injury ([43]). The court held that the accident was a freak and tragic one, which occurred without fault [47]).
66. Applying the principles in that decision to the present case, the starting point is that the third party had read the Owner's Manual. This states on the front that, "FAILURE TO PROPERLY USE THIS CAR SEAT INCREASES THE RISK OF SERIOUS INJURY OR DEATH IN A SUDDEN STOP OR CRASH". As regards the weight and height limits, the warning reads that "FAILURE TO USE booster seat in a manner appropriate for your child's size may increase risk of serious injury or death. To use this Graco booster seat, your child MUST meet ALL of the following requirements". The requirements are then set out. In determining what steps were reasonable in the present case, the court must have regard to these warnings, which are explicit. Furthermore, the instructions make it clear that the child must meet all of the stipulated requirements before the seat can be used.
67. In Harris v Perry, the document read by the defendants recommended that there was to be no mix of children of different sizes on the bouncy castle. At [45], Lord Phillips CJ (with whom May and Wilson LJJ agreed) refers to the fact that the defendants knew that the child who caused the accident was responsible and gentle, albeit very large for his age. Similarly, it is submitted by the third party, the third party was entitled to make a judgment about the use of the booster cushion, having taken account of the instructions. A number of points, it is submitted, suggest no negligence or blameworthiness. These are that she had the safety of her daughter uppermost in her mind, and took into account her experience of seeing the child on the seat before the day of the accident appearing comfortable and secure. She had observed other parents doing the same. Dr Pedder referred to the tendency of parents overly to accelerate the progression from seat to booster cushion, and if Ms Williams was at fault in doing so, she acted in the same manner as the majority in society at large. There had been guidance in toddlers' magazines, along with the fact that Emma was "chunky", and it could be difficult to get her into the car seat. It was Emma's preference to be in the booster seat, and though this was a sub-optimal restraint, experience elsewhere may suggest a lack of knowledge on the part of many, but not negligence. Reference was also made to the fact that the new regulations treated mass as most important not height, and Dr Pedder's evidence that studies have shown that there is premature transfer from one seat to another. The third party's conduct was similar to thousands of other parents, and no law has been broken. Finally, reliance is placed on the fact that this was a very violent accident.
68. In reaching a conclusion on these points, in my view, the context is significant. A safety device such as the child seat or booster cushion is intended to minimise the danger to a child in the case of a collision. This is a significantly different context from that of the bouncy castle in Harris v Perry. Instructions as to proper use have to be read with that in mind. Effectively, the case put on behalf of the third party is that she was entitled to use her judgment as to which seat was the more suitable, and disregard the stated limits for use of the booster cushion if that was the judgment she made.
69. I accept Mr Eklund QC's submission that manufacturers' instructions should not be blindly treated as determinative of liability questions. As he said, such instructions may be framed principally with the manufacturer's own product liability exposure in mind. But the instructions in the present case could not have been more explicit, both as to requirements for use, and consequences in case of misuse: "FAILURE TO USE booster seat in a manner appropriate for your child's size may increase the risk of serious injury of death". In those circumstances, it is difficult to see how a different judgment as to the appropriateness of the seat (however understandable in one sense) can be substituted.
70. Absent some special circumstances, it seems to me that an individual judgment, however understandable, and however well-motivated (as in the present case), cannot override the requirements that are stated for the use of a child safety seat. As Dr Pedder said, premature graduation of a child from a harness seat to a booster seat or a seat belt is a common problem, and one which plainly can have very serious consequences. This makes it particularly important that the requirements stated for use of the device are followed. I have given careful consideration to the matters raised on behalf of the third party, but I conclude that the defendant has established that it was negligent to place Emma on the Graco booster seat. The harness seat was available for use in the car.  

Whether the injuries would have been avoided or reduced by use of the child seat

71. Applying the authorities cited above, the question is whether Emma's injuries would have been (a) entirely or virtually entirely avoided or (b) a good deal less severe, or (c) about the same, had she been secured in the harness seat.
72. As I have pointed out, although a medical report was obtained by the third party and included in the trial bundles, the witness in question was not called on the day. The only medical evidence was that given by Mr Sherriff on behalf of the defendant. For reasons I will not repeat, Mr Sherriff was well qualified to give an opinion on these matters, not only because of his experience for many years at Addenbrooke's Hospital, but also because in the course of it he was frequently called out to the scene of road accidents, and so saw collisions first hand. I have stated above in some detail the effect of his evidence. Although it is fair to say that he qualified his evidence somewhat in cross-examination, he did not abandon his conclusion, which was that Emma would have sustained slight injuries only had she been in a child seat.
73. This is supported by the evidence of Dr Horsfall (for the defendant). It is also consistent with that of Dr Pedder (for the third party) in this respect. She says that in her opinion, if the Mamas & Papas seat had been used, Emma "... would probably not have sustained the frontal contusion, brachial plexus injuries or ruptured liver; in light of the severity of the collision, it is possible that Emma Hughes could still have sustained serious cervical spine injuries. The hyperextension and hyperflexion of her head and neck would still have occurred. The potential for neck injury exists for children involved in severe frontal collisions and restrained in a forward-facing child restraint, even in the absence of head contact. Such injuries without head impact are, however, extremely rare among older children properly restrained in forward-facing child seats with harness systems, but they still cannot be discounted here given the collision forces".
74. On this basis, it appears to me that there is not such a great gulf between Mr Sherriff and Dr Pedder, though one is approaching the matter from the perspective of a physician, and the other is approaching it from the perspective of a kineticist. I have to reach a conclusion on the evidence on the balance of probabilities. For reasons I have given, and on the balance of probabilities, I accept Dr Sherriff's evidence that if seated in the child seat Emma's injuries would largely have been avoided. This conclusion is entirely consistent with the totality of the evidence in this case.

Whether a contribution should be ordered, and if so, in what amount

75. I come therefore to consider the final question for decision. It follows from the above that the third party is liable in respect of the same damage as the defendant, and the question is whether a contribution is recoverable such as may be just and equitable having regard to the extent of her responsibility for the damage in question.
76. Reliance is placed by the third party on Capps v Miller [1989] 1 WLR 839. In that case, the plaintiff had been riding his moped wearing a crash helmet, but the straps were unfastened, and the helmet came off before his head hit the ground. It was held by the majority of the court that the degree of blameworthiness of someone who wore a crash helmet but failed to fasten it properly was less than that of someone who did not wear a helmet at all, which was to be equated with the failure of a motorist to wear a seat belt. In that case, the plaintiff's contributory negligence was assessed at 10 percent.
77. It is submitted on behalf of the third party that any contribution in the present case must be less than 10 percent, since although it is said that the cases are analogous, whilst the plaintiff in the Capps case was unprotected, Emma was not unprotected.
78. As was pointed out on behalf of the defendant, the judge at first instance in Capps did not make any finding as to the amount by which the plaintiff's injuries were worse because his helmet had come off, and he could not make any such finding on the evidence (Croom-Johnson LJ at p. 850C). In the present case, there is such evidence, and I have made findings. Further, the issue in the present case is not whether the booster seat was being used properly, but whether it should have been used at all. The present case is not one therefore in which "… the whole scale of reduction, because of the lesser blameworthiness, should to an extent be less" (Glidewell LJ at p.852A). In the present case, the appropriate safety restraint, namely the child seat, was not used at all.
79. Reliance is also placed by the third party upon Stanton v Collinson [2010] RTR 26. In that case, the trial judge declined to reduce damages for contributory negligence on the grounds that it had not been shown that a seat belt, if worn, would sufficiently have reduced the injuries suffered. However that was (as the court made clear at [24]), a decision on the facts. The court went on to make it clear that the Froom v Butcher principle was not in question.

Conclusion

80. I should note that it was suggested on her behalf in opening that the effect of a finding against the third party would be that (as a tortfeasor) she would be unable to recover in respect of the voluntary care which she has been required to give Emma on account of her injuries. Mr Watt-Pringle QC on behalf of the defendant and his insurers undertook that no such point would be taken against her. Since any contribution ordered will be paid for by the third party's own insurance company, it follows that there should be no financial penalty accruing to her. I only mention this because in Mr Eklund QC's opening, it was asserted as a merits point that the defendant's insurers were seeking to avoid the entire liability for the consequences of their 18 year old insured driving at an excessive speed resulting in an accident which Ms Williams could do nothing to avoid. This litigation, in reality, is a dispute between insurers, but in any case it must be decided solely on principle as applied to the facts. Having said that, as Mr Eklund fairly pointed out, no parent would wish to be subject to a finding of negligence in such circumstances.
81. I am bound to follow the rules laid down in Froom v Butcher [1976] 1 QB 286 as interpreted in the present kind of circumstances in Jones v Wilkins [2001] R.T.R.19. The importance of doing so was reiterated recently by the Court of Appeal in Stanton v Collinson [2010] RTR 26, to which I have already referred. It had been submitted in that case by the appellant that the trial judge's question posed in her judgment was wrong. Hughes LJ (with whom Ward and Hallett LJJ agreed) said at [26]:

" … The question posed drew directly upon the language of Lord Denning M.R. 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", s.1 of the 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 per cent 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."

82. I have every sympathy with Ms Williams, who was, as I have said, was an excellent and caring mother. However, the evidence establishes that the booster cushion should not have been used, that the child seat should have been used, and that if it had been, the injuries sustained in the accident would largely have been avoided. The provisions of the Civil Liability (Contribution) Act 1978 that I have set out above are satisfied, and applying the above authorities, in my judgment a contribution of 25% follows in the present case.
83. I shall hear the parties as to the drawing up of the order and any consequential matters. I am very grateful to them for the assistance which they have provided.