Emma Hughes (A child by her aunt and litigation friend Mrs Anne Marie Armstrong) v The Estate of Dayne Joshua Williams, Deceased Louise Emma Williams (Third Party)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BLAIR |
| Judgment Date | 25 April 2012 |
| Neutral Citation | [2012] EWHC 1078 (QB) |
| Date | 25 April 2012 |
| Court | Queen's Bench Division |
| Docket Number | Claim No: 9MA9077 |
[2012] EWHC 1078 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Blair
Claim No: 9MA9077
and
Mr Jonathan Watt-Pringle QC (instructed by DWF Solicitors) for the Defendant
Mr Graham Eklund QC (instructed by Keoghs LLP) for the Third Party
Hearing dates: 7th, 8th and 9th March 2012
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
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.
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.
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".
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.
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.
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.)
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
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)."
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
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?
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.
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...
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Louise Emma Williams v The Estate of Dayne Joshua Williams, Deceased
... ... on a booster seat rather than in the other child seat which was in the car and which had a 5-point ... ...
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EMS (A Minor) v ES and Others
...Froom approach has been applied in cases involving children and the use of child seats. In the case of Hughes (A child) v Williams [2012] EWHC 1078 (QB) Blair J stated: “[74] … I accept Dr Sherriff’s evidence that if seated in the child’s seat Emma’s injuries would largely have been avoided......