Stanton v Collinson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lady Justice Hallett,Lord Justice Ward |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] EWCA Civ 81 |
| Docket Number | Case No: B3/2009/0661 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2010 |
[2010] EWCA Civ 81
[2009] EWHC 342 (QB)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN`S BENCH DIVISION
NEWCASTLE DISTRICT REGISTRY
Mrs Justice Cox DBE
Before: Lord Justice Ward
Lady Justice Hallett
and
Lord Justice Hughes
Case No: B3/2009/0661
Mr Frank Burton QC and Ms Yvette Genn (instructed by Irwin Mitchell) for the Respondent
Mr Mark Turner QC (instructed by Berrymans Lace Mawer) for the Appellant
Hearing dates: 20 th January 2010
Lord Justice Hughes:
This is an appeal brought by the defendant in a running down action. The claimant had been a passenger in the car driven by the defendant. The car was involved in a collision for which the defendant in due course accepted primary liability. The issue was contributory negligence. The sixteen year old claimant had been sharing the front passenger seat with another passenger and neither of them had been wearing a seat belt. The claimant suffered serious frontal lobe brain damage, resulting in significant continuing disability. The judge declined to reduce the damages for contributory negligence on the grounds that it had not been shown that a belt, if worn, would sufficiently have reduced the injuries suffered. She held that one could not know that on the evidence she had received.
The principal issue in this appeal is whether the judge was wrong to reach that conclusion. This was a case in which experienced road accident safety engineers, instructed respectively for claimant and defendant, had reached agreement prior to the trial that a properly worn seat belt would probably have been beneficial in reducing the severity of the head injury suffered, but complete prevention of ‘serious head injury’ would have been unlikely. Was the judge for that reason wrong to conclude as she did, after hearing the evidence of both experts and in the absence of any medical evidence on the likely effect of a seat belt on the internal head injuries ? The answer depends in large part on the particular way in which the evidence emerged at this trial.
If the judge was wrong to find that there was no contributory negligence, two further issues would arise, one peculiar to the facts of this case, and the other potentially of general application. The defendant contends that this claimant's level of contributory negligence was greater than that of the passenger who omits to put on the seat belt, because he was party to the dangerous practice of two occupants in one seat. More fundamentally, the defendant submits that this court ought to revisit the decision in Froom v Butcher [1976] 1 QB 286, and that the levels of contributory negligence attributable to failure to wear a seat belt ought significantly to be increased in the light of developments over the intervening thirty years or so.
Sometime around 1130 pm on the night of 17 May 2003, the defendant drove away from the Canal Bar, in Swinton, South Yorkshire, in the direction of Mexborough, in his Astra motor car. He was giving a lift to four other people. It does not seem that the various occupants had been in a single party at the Canal Bar; rather, it appears to have been spontaneous convenience which put them all in the same car. His four passengers were two young men and two young women; to what extent, if at all, they were couples that night was unclear. In the back seat were one man and one woman. In the front passenger seat were the claimant and the second young woman. Who was sitting on whom in the front was hotly in issue at the trial, but the judge's finding, which is not now challenged, was that the claimant had the girl on his lap or knee. Neither had the seat belt on. Nor did the driver or the other passengers wear the belts available.
The blood alcohol level of the defendant driver was 74/100, just within the legal limit. There was no evidence that the claimant had had too much to drink and the judge did not find that he had. The other three passengers clearly had had too much to drink. The young woman in the front had twice been sick, the young woman in the back was feeling sick and dizzy, and the man in the back had on his own account had ‘at least ten beers’ and was found by the judge to have been drunk.
The defendant driver was in the habit of driving fast, and sometimes inappropriately. He was in a hurry to get to a meeting of a road race club of which he was a member. On a straight road in good weather conditions, albeit with some residual dampness on the surface, he drove too fast and lost control. The judge found his speed to have been at the upper end of the range 61–72 mph, on a single-carriageway road subject to a 30 mph speed limit. His car crossed the central white line and struck an oncoming Peugeot car. By the time of impact the defendant's car was almost broadside, presenting its driver's side to the oncoming Peugeot. The principal impact was between the front of the Peugeot and the offside front wing and driver's door of the Astra. The result was that the Astra rotated further, there was a secondary, glancing, impact to its rear offside corner area, and then it rolled over, finishing on its roof.
The defendant driver was killed, more or less instantaneously, in the accident. The claimant suffered a depressed fracture to the back of the skull with associated brain damage to the right parietal, occipital and frontal lobes, the last and perhaps the second apparently via the contre-coup effect. There is continuing significant brain damage, in the form of cognitive deficits of the kind typically associated with frontal lobe damage, including poor memory, reduced concentration, clumsiness and behavioural changes. He also damaged the flexor tendons of his right hand, which also led to continuing loss of function and sensation.
The claimant had been just 16 at the time of the accident and was still at school. The defendant driver was 24. The other male passenger was 18 and the two girls were 16 and 15.
There were a number of issues of fact at the trial. As well as resolving the question of who was sitting on top of whom in the front passenger seat, the judge also had to determine whether the claimant had verbally encouraged the driver to drive fast and/or had himself drunk too much for his own safety. Those last two questions were resolved in the claimant's favour.
Experts in road accident reconstruction and seat belt use were instructed on both sides. Both were engineers of considerable experience in those fields. Dr Rattenbury, instructed for the defendant, had made a particular specialism of seat belt study, from the time when it was the subject of his PhD thesis as long ago as the mid seventies. Mr Henderson, instructed for the claimant, had worked in the automobile industry on the safety-related engineering side for many years. The principal question posed to these experts in this case was who had been on top of whom in the front seat. There was eye witness evidence that in the immediate aftermath of the accident the girl and one of the men from the front of the car were to be seen partly ejected through the driver's window. The evidence of the experts went, in part, to which of the men it was likely, from considerations of motion within the car in the impact, to be, and it went also to what those motion considerations told about the likely starting positions of the two front seat passengers. The experts did not agree about the starting positions and each gave evidence on the topic. Dr Rattenbury had altered his opinion about this between report and oral evidence, indeed while listening to Mr Henderson's evidence. In due course, the judge determined, partly on the expert but perhaps more on the eye-witness evidence, that the man protruding from the car was the driver, and it was that finding which led to the further conclusion, based on resolving the disputed expert evidence in favour of Mr Henderson, that the claimant had started with the girl on his lap or knee.
Both experts also addressed the consequences of the omission to wear the seat belt. In their separate reports each reached a similar conclusion, in both cases expressed in brief and general terms. Following their joint meeting, at which they did not achieve agreement on the pre-accident seating positions, they set out the following agreed position on the consequences of not wearing the belt:
“If [the claimant] had been the sole occupant of the nearside front seat and he had been wearing a seat belt we agree that:
(1) his shoulder might have slipped away from beneath the belt, allowing his upper body to move towards the offside of the car;
(2) the top of his head might then have struck the steering wheel or the intruding driver's door, thus causing head and/or spinal injuries;
(3) the severity of any such impact would probably have been reduced by the restraining effect of the lap belt against his lower body, with a resultant reduction in the severity of his injury. Thus we agree that seat belt use would, on the balance of probabilities, have been beneficial in significantly reducing the severity of his head injury, but complete prevention of serious injury to the head, face or neck would be unlikely.”
That followed broadly similar separate conclusions to like effect in their individual reports. But they had expressed those conclusions in ways which differed in some...
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