Louise Emma Williams v The Estate of Dayne Joshua Williams, Deceased
| Jurisdiction | England & Wales |
| Judge | Black LJ,Elias LJ,Arden LJ |
| Judgment Date | 30 April 2013 |
| Neutral Citation | [2013] EWCA Civ 455 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2013 |
| Docket Number | Case No: B3/2012/1401 |
[2013] EWCA Civ 455
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE BLAIR
9MA90777
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Jutice Elias
and
Lady Justice Black
Case No: B3/2012/1401
Mr Graham Eklund QC (instructed by Keoghs LLP) for the Appellant
Jonathan Watt-Pringle QC (instructed by DWF LLP) for the Respondent
Hearing date: 12th February 2013
On the evening of 19 August 2006, there was a collision between two cars. It was caused entirely by the driving of 18 year old Dayne Williams who had consumed alcohol and illegal drugs. He lost control of his car. It swerved onto the wrong side of the road in front of a car in which was a mother with her daughter, Emma. Emma was then aged 3 years and 2 months old and she was sitting in the back of the vehicle on a booster seat, strapped in with the adult seat belt. Dayne Williams died as a result of the accident. Emma was very badly injured.
Proceedings were brought against the estate of Dayne Williams ("the defendant") for negligence. Liability to Emma was admitted but a claim was made under CPR Part 20 against Emma's mother, Ms Williams (who is no relation to Dayne Williams), for a contribution in respect of Emma's claim, see section 1(1) of the Civil Liability (Contribution) Act 1978. The basis of the claim was that it was negligent of Ms Williams to have put Emma on a booster seat rather than in the other child seat which was in the car and which had a 5-point harness.
The issue was determined on 25 April 2012 by Blair J. He ordered that Ms Williams was liable to make a contribution of 25% of the damages payable to Emma. Ms Williams appeals against that determination with leave of Blair J.
In order to consider the appeal, it is necessary to have some factual information about Emma and about the booster seat in which she was sitting (which is referred to both as a booster seat and as a booster cushion).
The booster seat manual began with a warning:
"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. "
Later on there is a page headed "Weight and Height Limits" on which appeared the following:
"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):
[requirements set out]
Without back support (approximately 4 to 10 years old):
* weigh between 15–36 kg, and
* are between 101 and 145 cm in height, and
* [instructions for positioning the seat belt]
* when sitting on the booster seat, your child's ears are below the top of the vehicle seat cushion/head rest.
Your Graco booster seat can be used with or without the back support (on certain models) as long as the above requirements are met."
I have omitted the passage relating to seats with back support because Emma's was a seat without back support.
On the bottom of the seat was a label which said:
"FOR USE ONLY by children who:
* are approximately 4 — 10 years old
* weigh between 15 — 36 kg
* are between 101 — 145 cm in height
* whose ears are below top of vehicle seat"
Between them, the manual and the label on the bottom of the seat referred to five qualifications for the use of the seat. Emma satisfied three of the five: weight (she weighed approximately 15 kg), the position of her ears in relation to the vehicle seat and the correct positioning of the seat belt. However she was only 93 cms tall and, at 3 years and 2 months old, she was 10 months younger than the approximately 4 years of age that was contemplated.
The parties' positions before the judge
It was not in dispute that a duty of care is owed by a parent to her child to take reasonable steps to ensure that the child is secured with an appropriate seat restraint when travelling in a car.
The defendant's position was that if Emma had been put in the other child seat, her injuries would have been almost entirely avoided or at least significantly reduced. Before the judge, as in this court, the defendant laid considerable emphasis on the instructions that came with the respective seats, arguing that Ms Williams was negligent not to follow them.
Ms Williams denied that she had been in breach of her duty of care. Her case was that at most she made a mistake as to which child seat to use but that her choice was reasonable, her actions did not amount to negligence, and in any event it was doubtful that serious injury could have been avoided even if Emma had been in the other car seat. Her evidence was that she read the instructions that came with the booster seat carefully but regarded them as advice rather than a legal requirement and used her own judgment to decide whether to use the seat.
It was also submitted on her behalf that the defendant had to establish that by virtue of being 8 cms short of the recommended height for the booster seat and too young for it, Emma had sustained significantly greater injuries than she would otherwise have suffered in the booster seat and that the defendant had failed to establish this. Reliance was placed on the evidence of Dr Pedder from a Canadian safety research and consulting group that if Emma had been 8 cm taller, her injuries would probably have been similarly serious.
The judge's findings
The judge did not accept it was the correct approach to look at what would have happened to Emma in the accident if she had met the requirements for the booster seat. He said the issue was "whether it was negligent to put this particular child of her age and dimensions on the booster cushion". He held that in the circumstances of this case, Dr Pedder's evidence that Emma's injuries would probably have been similarly serious even if she had been taller was not to the point.
The judge found that the evidence established that the seat with the five-point harness was the most appropriate restraint for Emma who did not meet the requirements of the booster seat. He found that if she had been placed in the seat with the five-point harness, her injuries would largely have been avoided.
Dealing with the question of negligence, the judge accepted that "the manufacturers' instructions should not be blindly treated as determinative of liability questions" but found that the instructions here "could not have been more explicit, both as to requirements for use, and consequences in case of misuse". He held that "[a]bsent special circumstances ….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". A number of factors were advanced on behalf of Ms Williams as indicative of there being, in fact, no negligence on her behalf. The judge summarised them as follows (§67):
"….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. [Ms Williams'] 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."
Notwithstanding these matters, the judge found that it had been established that Ms Williams was negligent to put Emma on the booster seat and so liable in respect of the damage suffered by Emma. He therefore went on to consider what contribution from her was just and equitable having regard to the extent of her responsibility for the damage in question (section 2(1) Civil Liability (Contributions) Act 1978). Applying the principles established in Froom v Butcher [1976] 1 QB 296, he determined that a contribution of 25% was appropriate.
The submissions on appeal and discussion
Mr Graham Eklund QC, counsel for Ms Williams, submitted that the judge was wrong to find that she was negligent. He underlined that the question was whether Ms Williams took the care that a reasonably careful parent would take for the safety of her child in all the circumstances, having regard to the range of factors that such a parent ought to have in mind. This had to be determined in the light of the information that would have been available to the reasonably careful parent and judged at the time the child was placed in the booster seat and not with the benefit of hindsight.
It is possible to group counsel's submissions about the judge's...
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