Gawler v Raettig
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke,Lord Justice Waller,Lady Justice Smith |
| Judgment Date | 03 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1560 |
| Docket Number | Case No: B3/2007/1399 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2007 |
[2007] EWCA Civ 1560
Sir Anthony Clarke, Master Of The Rolls
Lord Justice Waller and
Lady Justice Smith, Dbe
Case No: B3/2007/1399
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SITTING AT LEEDS DISTRICT REGISTRY
(MR JUSTICE GRAY)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr W Norris QC and Mr P Smith (instructed by Greenwoods) appeared on behalf of the Appellant
Mr C Wilson-Smith QC and Mr M Phillips (instructed by Stewarts) appeared on behalf of the Respondent
Introduction
As will be seen this is an unusual application for permission to appeal which itself raises some questions on principles. For that reason we have decided that our judgment can be reported.
It is an application for permission to appeal again an order of Gray J made on 1 May 2007 pursuant to a judgment handed down on the same day in which he held that the damages for personal injuries which the applicant was liable to pay to the respondent arising out of a car accident be reduced by 25% under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 (“the 1945 Act”).
The accident occurred on 19 December 2004. The applicant was driving the car and admitted liability to the respondent, who was a friend of his and who was sitting in the front passenger seat. The accident happened as the car approached a slight bend on the A1034. The applicant lost control of the car, which left the road, turned over and came to rest on its side in a field between 15 and 20 metres from the road. Unfortunately the respondent was not wearing a seat belt and as a result of the accident, he was totally ejected from the car. He was found lying on the ground between the final position of the car and the road. He was very seriously injured.
It was agreed between the parties that on a full liability basis the applicant would be liable to the respondent for damages in the sum of £2,700,000. The judge reduced that amount by 25% on the ground of the respondent's contributory negligence in that he was not wearing a seat belt.
Issues at the Trial
The sole issue at the trial was whether the damages should have been reduced by more than 25%. The respondent submitted that 25% was the correct figure by reason of the decision of this court in Froom v Butcher [1976] QB 286. In that case this court resolved the question, about which there had been some previous disagreement, whether it was contributory negligence about which there had been some previous disagreement, for a front seat passenger not to wear a seat belt. It held that it was. The judge in that case, Nield J, had held that it was not but that, if it was, the appropriate reduction was 25%. In this court the issue turned on the question whether failure to wear a seat belt was contributory negligence. On the hypothesis that it was (as this court found) neither party challenged the judge's assessment of 20%. In those circumstances the court held that there was no reason to interfere with the judge's figures.
The court nevertheless considered the correct approach to the appropriate reduction, no doubt in order to give guidance for the future. Lord Denning gave the only substantive judgment, with which Lawton LJ and Scarman LJ agreed. Lord Denning said this, at 295H to 296D, under the heading of “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 the 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 case, 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.”
In Lord Denning's concluding paragraph he said on this aspect of the case:
“In the present case the injuries to the head and chest would have been prevented by the wearing of a seat belt and the damages on that account might be reduced by 25 per cent. The finger would have been broken any way and the damages for it not reduced at all. Overall the judge suggested 20 per cent. And the plaintiff has made no objection to it. So I would not interfere. I would allow the appeal and reduce the damages by £100.”
The court thus adopted a pragmatic approach, eschewing a detailed analysis on every case. As I said the passage at page 296C-D divided the case into three classes of case: (1) where the damages (that is the injuries) would have been the same whether or not the passenger was wearing a seat belt, in which case there should be no reduction; (2) where the damages would have been prevented altogether, in which case there should be a reduction of 25%; and (3) where there would have been some damage to the passenger but the damage would have been a good deal less severe, in which case there should be a reduction of 15%. In the instant case it was and is common ground that if the respondent had been wearing a seat belt, his injuries would have been prevented altogether, and that if the principles in Froom v Butcher were applied, the damages would be reduced by 25%.
The guidance in Froom v Butcher has been followed ever since. There have been countless instances of judges of first instance applying the principles and this court has followed them. For instance in J (A child) v Wilkins [2001] PIQR p12 this court, comprising Nourse, Mummery and Keene LJJ, held that the judge could not be faulted for having described himself as being bound by Froom v Butcher, even though on the facts the contributory negligence was not failure to wear a seat belt at all, but failure to wear it appropriately, given that the passenger had a child on her knee. Keene LJ (with whom Nourse and Mummery LJJ agreed) said this at paragraph 15:
“Nor, in my view, can the judge be faulted for having described himself as 'bound' by the decision in Froom v. Butcher. 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.”
Keene LJ then quoted the passage from Lord Denning's judgment in Froom v Butcher at page 296C-D which I have just quoted and added at [17]:
“Mr Main correctly submits that when those figures were put forward it was not compulsory as a matter of law to wear seat belts. It is now. On the other hand, 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.249C. So that was an aspect which was taken into account. 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).”
Thus this court treated the guidelines as extant and effective in 2000 and indeed it had in Capps v Miller, unreported, 30 November 1988, which was not a seat belt case but a case in which the plaintiff, although he had put...
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