Froom v Butcher

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE SCARMAN
Judgment Date21 July 1975
Judgment citation (vLex)[1975] EWCA Civ J0721-3
Date21 July 1975
CourtCourt of Appeal (Civil Division)
Between:
Harold John Froom, Nora Frances Froom (his wife), Jacqueline North (married woman) and H.J. Froom Limited
plaintiffs
Respondents
and
Brian James Butcher
Defendant
(Appellant)

[1975] EWCA Civ J0721-3

Before:

The Master of The Rolls (Lord Denning)

Lord Justice Lawton and

Lord Justice Scarman.

In The Supreme Court of Judicature

The Court of Appeal

Appeal by defendant from judgment of Mr. Justice Nield on 24th June, 1974.

Mr. KENNETH JUPP, Q.C., and Mr. MICHAEL LEWER (instructed by Messrs. Milners Curry & Gaskell) appeared on behalf of the Appellant Defendant.

Mr. HAROLD JOHN FROOM, Respondent Plaintiff, appeared in person.

Mr. SIMON BROWN (instructed by the Treasury Solicitor) appeared as amicus curiae.

THE MASTER OF THE ROLLS
1

1 THE FACTS Mr. Harold Froom is the managing director of a firm of contractors. He lives in Hertfordshire and has a Jaguar motor car. On 19th November 1972, he was driving home from Southend with his wife beside him and his daughter behind. The car was fitted with seat belts for the front seats, but neither Mr. Froom nor his wife was wearing them. He gave his reason:

2

"I do not personally like wearing seat belts. I have seen so many accidents on the road when, if seat belts are worn, then the driver would never have got out of the vehicle that had been in the smash; and, secondly, with a man of my age" – he is 57 – "we do not have to go roaming round the countryside, we just stick to our normal speed".

3

On this day he was driving along Gravel Lane, Chigwell. He was going carefully on his near side of the road at his normal speed of 30 to 35 miles an hour. There was a line of traffic coming in the opposite direction. Then a car pulled out to overtake. It was going fast on its wrong side. It struck Mr. Froom's car head-on. The driver was afterwards convicted of careless driving.

4

Mr. Froom and his wife and daughter were all injured. Mr. Froom was forced up against the steering column. He had a broken rib and bruises on his chest. He had abrasions on his head. He would probably have been saved from these injuries if he had worn a seat belt. He also had a broken finger, but the seat belt would not have saved that. These injuries were not at all severe. He was back at work next day. The Judge assessed his general damages at £450. Mrs. Froom was also injured but the seat belt would not have saved her from them.

5

The question that arises is whether Mr. Froom's damages arc to be reduced because he was not wearing a seat belt. The Judge held they were not. The defendant appeals to this Court.

6

This is the first case to reach this Court about seat belts. But there have been a dozen or more cases in the lower courts: and they have disclosed a remarkable conflict of opinion. Half of the Judges think that, if a person does not wear i seat belt, he is guilty of contributory negligence and his damages ought to be reduced. The other half think that it is not contributory negligence and they ought not to be reduced.

7

THE PREVIOUS DECISIONS

8

It is interesting to glance shortly at the decisions. I will take them in order of the date on which the decisions were given. In Geier v. Kujawa (1970) 1 Lloyd's Rep. 364, a German girl was a passenger in a car. She had never before seen seat belts and did not know what they were for. Mr. Justice Brabin held that she was not guilty of contributory negligence. In Toperoff v. Mor (1973) R.T.R. 419, two young men went out in a car. The driver told the passenger to do up his seat belt. He did so. They stopped to buy ice-cream. The passenger then failed to do up his seat belt. There was afterwards an accident owing to the driver's negligence. The passenger was thrown out and injured. He would not have been so severely injured if he had been wearing his seat belt. Judge Dean on 28th November 1972, held that he was guilty of contributory negligence and reduced his damages by 25%. In Lertora v. Finzi (1973) R.T.R. 161, on 4th December 1972, Judge Edgar Fay thought that failure to wear a seat belt could amount to contributory negligence but that it had not been established in that case, and, in any event, that it would not have saved the injuries. In Pasternack v. Poulton (1973) R.T.R. 334, a young woman undergraduate was a passenger on a short trip in Bristol. It was driven by a fellow student. He drove into a lamp post and she was severely injured in the face. Mr. Justice Kenneth Jones on 12th February 1973, held that if she had worn a seat belt it would havesaved her from her injuries. He held it was contributory negligence and reduced her damages by 5%. In Parnell v. Shields (1973) R.T.R. 414, a motor car was driven with absolute folly into a motor van, spuni round, so that the driver of the van was thrown out and killed. He would have been saved if he had worn the seat belt. Mr. Justice Wien on 21st February 1973, held that his failure was contributory negligence and reduced the damages to the widow by 20%. In McGee v. Francis Shaw & Co. Ltd. (1973) R.T.R. 409, a car was driven into the back of a stationary vehicle. The driver was wearing a seat belt and was not injured. The passenger was not wearing one. He was a man of ample girth and found it uncomfortable. He deliberately decided not to wear it. He was thrown on to the windscreen and would have been saved if he had worn the seat belt. On 17th April 1973, Mr. Justice Kilner Brown reduced his damages by 33?%.

9

Thus far the decisions were mostly that it was contributory negligence not to wear a seat belt. There then followed cases the other way. In Challoner v. Williams y (1974) R.T.R. 221, a passenger had his neck broken in a collision. Mr. Justice Shaw on 3rd April 1974, found on the evidence that he was in fact wearing a seat belt, and also that oven if he had not been wearing it, his injuries would have been just the same. But he said, even if he had found the facts otherwise, his opinion was that a failure to wear a seat belt was not contributory negligence. In Smith v. Blackburn (1974) R.T.R. 533, a man and his wife were driving on a one-way road on a fly-over when a man drove madly up it in the opposite direction, and ran into them. Mr. Justice O'Connor on 17th May 1974, found that the injuries would have been just the same, oven if they had been wearing seat belts. But he said that, even if a seat belt would have prevented some injury, he would unhesitatingly have held that failure to wear seat belts did notamount to contributory negligence calling for any reduction in damages. In Freeborn v. Thomas (1975) R.T.R. 16, a man and his wife were driving along the middle lane of a three-lane road when another car, coming in the opposite direction, pulled out in the middle lane. They usually were their seat belts, but on this occasion they forgot. The wife was badly injured. Sir George Baker, the President, on 23rd May 1974, found that the injuries would not have been any less even if she had worn a scat belt. But he also held that she was not negligent. If he had done so, he said that the proportion would certainly not be more than 10%. Next was our present case – Froom v. Butcher – where on 21st June 1974, Mr. Justice Nield hold that omission to wear a seat belt did not amount to nagligence, but if he was wrong, he would reduce the damages by 20%. In Chapman v. Ward (1975) R.T.R. 7, two ladies were driving along a country road when the car loft the road and collided with a telegraph pole. They were not wearing their seat belts. The passenger sued the driver. They were going to the doctor's they were a little late, it was difficult for her to fit the scat belt. So she did not bother to weir it. Mr. Justice Stocker on 7th October 1974, found that some of her injuries would have been reduced if she had worn a scat belt, but he found that she was not guilty of contributory negligence; and he did not reduce the damages. In James v. Parsons (1975) R.T.R. 20, two young men were taking a high-powered car out for a speed test. They came to a hump-backed bridge and the car left the road. The passenger was injured in the face. He sued the driver. His injuries would have been prevented if he had worn a seat belt. Mr. Justice Kilner Brown on 16th October 1974, exempted the passenger from contributory negligence because neither of these young men gave seat belts a single thought, and so the driver could not allege against the passenger any degree of contributory negligence. In Drage v. Smith (1975) R.T.R. 1, a young couple, newlymarried, were driving on a short trip when they collided with an estate car which was solely responsible for the collision. The wife was the passenger and was severely injured in the face. She might not have been injured at all if she had worn a seat belt. On 14th November 1974, Judge Stabb held she had been guilty of contributory negligence and reduced her damages by 15%. Finally, in Timner v. Biernaclay Mr. Justice Phillips in March 1975 thought that failure to wear a seat belt was not contributory negligence.

10

Those decisions disclose a variety of reasons which I will consider later. But first the principles.

11

3 CONTRIBUTORY NEGLIGENCE

12

Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt himself, see Jones v. Livox Quarries (1952) 2 Q.B. 608. Before 1945 a plaintiff, who was guilty of contributory negligence, was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury, see Swadling v. Cooper (1931) A.C. 1. Since 1945 he is no longer defeated altogether. He gets reduced damages, see Davies v. Swan Motor Co. (1949) 2 K.B. 291. The...

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