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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> J (a child) v Wilkins [2000] EWCA Civ 3024 (18 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/3024.html Cite as: [2000] EWCA Civ 3024, [2001] RTR 19, [2001] PIQR P12

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CHESTER DISTRICT REGISTRY
(His Honour Judge Rogers QC)

		Royal Courts of Justice Strand, London WC2
		18th December 2000

1. LORD JUSTICE NOURSE: I have asked Lord Justice Keene to deliver the first judgment.
2. LORD JUSTICE KEENE: This case raises a short, but not unimportant, point about the apportionment of liability under the Civil Liability (Contribution) Act 1978 ("the 1978 Act") in cases of road traffic accidents. In particular, it concerns the situation where a child is carried on the lap of a front seat passenger in a vehicle.
3. On the afternoon of Easter Sunday, 7th April 1996, the infant claimant, then two years and nine months old, was travelling on her mother's knee in the front passenger seat of a Vauxhall car being driven by the mother's sister, Patricia Wynn, along the A5 road in the direction of Bettws-y-Coed. Three older children were on the rear seat. The defendant was driving his Volkswagen Golf car along the A5 in the opposite direction. He suddenly drove onto the offside and into a head-on collision with the Vauxhall. Subsequently, the defendant was convicted of driving without due care and attention. Tragically, the infant claimant sustained multiple injuries, which have resulted in paraplegia.
4. She claimed, by her father, damages against the defendant. He admitted his negligence, but joined Patricia Wynn and the claimant's mother, PJ, as Part 20 defendants on the basis that they had been negligent in failing to secure the claimant safely by way of a suitable seat restraint. A split trial was ordered and the issue of liability as between the defendant and the Part 20 defendants was dealt with by His Honour Judge Rogers QC, sitting as a deputy High Court judge, at Chester. In his judgment of 11th October 1999 he found that liability should be apportioned as to 75 per cent to the defendant, the driver of the Volkswagen Golf, and as to 25 per cent to the Part 20 defendants. The defendant now appeals against that apportionment.
5. The trial judge found as facts that the infant claimant was at the time of the accident seated on her mother's knee on the front passenger seat. The mother had the diagonal belt of the seat belt across her own shoulders and chest, but not across the claimant's body. The lap or midriff belt was round both the mother and child, with the result that the claimant had the benefit (if such it was) only of that part of the seat belt. There was a report available from a jointly instructed expert, Dr Rattenbury, who was a seat belt specialist of considerable experience. He concluded that, if the claimant had been seated wearing an approved child restraint, the risk of serious injury to her in this accident would have been eliminated almost entirely or virtually entirely.
6. The learned judge, in consequence, so found. He concluded that the driver, Patricia Wynn, was in breach of section 15 of the Road Traffic Act 1988 and the Motor Vehicles (Wearing of Seat Belts by Children in Front Seats) Regulations 1993; and he found (as had indeed been conceded on their behalf) that both the Part 20 defendants had been negligent. However, he rejected the contention that they had acted in a way which was manifestly dangerous and reckless or that they had put the claimant at deliberate risk in the event of a collision.
7. In so concluding, the judge referred to passages in Dr Rattenbury's report, where it was stated that in his view ordinary members of the public did not understand the potentially devastating consequences of using one lap belt to restrain both an adult and a child on the adult's lap. Dr Rattenbury said in his report that such a form of restraint was in fact the worst possible solution in terms of injuries to the child - worse even than having no belt around the child on the lap of a front seat passenger, because the lap restraint could (and in this case did) cause pelvic and colonic injuries to the child when the adult's body was flung forward in the collision. But the report continued:

"I am doubtful that the public as a whole is sufficiently well informed about the major risk of severe injury that a child carried in this way is exposed to."

8. Having spelt out those facts, the trial judge concluded that the apportionment should be 75 per cent liability on the defendant and 25 per cent on the Part 20 defendants, for three reasons. The first of those was that he regarded himself as bound by the Court of Appeal decision in Froom v Butcher [1976] 1 QB 286, where Lord Denning MR had dealt with contributory negligence in cases where a seat belt was not worn and had suggested a 25 per cent reduction in damages in cases where the injury would have been prevented altogether if the seat belt had been worn. In so saying, the trial judge recognised that the present case was not one of contributory negligence, but he regarded it as unsatisfactory to adopt a different approach. Secondly, and expressly disregarding Froom v Butcher, the judge concluded that the substantial responsibility for the damage suffered resulted from the nature of the defendant's driving. Had it not been for the negligence of the defendant, the child would have suffered no damage. His third reason was that, while there was a clear risk of injury from carrying the claimant on her mother's lap in the front seat, the substantial risk of injury only arose once the defendant swerved onto the wrong side of the road. He was the more blameworthy. Consequently, the trial judge found the defendant 75 per cent to blame.
9. That apportionment is now challenged by the defendant. On his behalf, Mr Main concedes that the preponderance of liability must fall on him because he caused the accident. There was gross inattention on his part. But it is submitted that the apportionment failed to reflect the gravity of the risk to the child in being carried in this way. It is said that, while it was not wrong for the judge to have had regard to Froom v Butcher, the figure of 25 per cent in that case must not be treated as an absolute ceiling or as a rule of law. There can, says Mr Main, be exceptional cases, particularly because things have changed since 1976 in technology and, indeed, in public perceptions. He emphasises that Froom v Butcher is dealing, as it says, with "the great majority of cases" (see p.296B). It is then argued that this case is such an exception. The child was carried on an adult's lap, closer to the hard facia of the car, the impact with which caused the head and neck injuries. Had a child restraint been worn, the serious injuries would have been eliminated, or virtually so. As for blameworthiness, Mr Main stresses that it was a matter of convenience only that this child was there in the front of the car. Hitherto she had always been carried, according to the mother's witness statement, in a child seat in the rear. This, therefore, should be seen as an occasion when there was deliberate risk-taking by the Part 20 defendants. Moreover, the court should recognise that a parent is more blameworthy when he or she fails in the duty towards their child than is an adult who chooses not to wear a seat belt as a voluntary act. For these reasons it is said that this court should overturn the apportionment.
10. For the respondent, Mr Grime QC submits that nothing in this case indicates that the trial judge went wrong. Nothing on the facts takes it outside the broad guidelines indicated by this court in Froom v Butcher.
11. Clearly, any consideration of the apportionment of liability between persons who are both liable for the same damage has to begin with the statutory test spelt out in section 2(1) of the 1978 Act. That provides that the contribution recoverable by one such person from another:

"... 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."

12. It is well established that an apportionment made under that provision by the trial judge will only be interfered with on appeal where it is clearly wrong or there has been an error in principle or a mistake of fact (Kerry v Carter [1969] 1 WLR 1372, at 1376C-D).
13. It is, of course, right that Froom v Butcher was a decision about a reduction in damages because of a claimant's contributory negligence - a decision, therefore, made under section 1 of the Law Reform (Contributory Negligence) Act 1945. It was not concerned as such with contribution as between joint tortfeasors or others liable for the same damage. Nonetheless, the similarity in the language used in section 2(1) of the 1978 Act and the wording of section 1 of the 1945 Act is striking; and there is no reason why the principles applicable under the two statutes should be different in cases where the facts are themselves similar.
14. That the same approach is to be adopted in both types of cases was implicit in the decision in Ingram v United Automobile Service Ltd [1943] KB 612. In any event, I agree with what was said by Simon Brown J (as he then was) in Madden v Quirke [1989] 1 WLR 702, at 707E, namely that the word "responsibility" as used in section 2(1) of the 1978 Act "involves considerations both of blameworthiness and of causative potency". So, of course, does an assessment of the claimant's share in the responsibility for his damage under section 1 of the 1945 Act (see Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, at 326). In those circumstances the learned deputy judge was not wrong to refer to, and to rely on, the decision in Froom v Butcher. It was a decision which can provide valuable guidance in similar cases falling under the 1978 Act when an apportionment has to be made between defendants or, as in this case, Part 20 defendants.
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.
16. Having said that, it is right to recognise that the Court of Appeal in Froom v Butcher put the various figures forward as suggestions or guidelines. That can be seen from the relevant passage from Lord Denning's judgment at p.296C-D:

"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 cases 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."

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.294C. 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).
18. It follows that, while in principle there could be exceptional cases which fall outside the range suggested, one would expect such cases to be rare. That indeed has proved to be the situation. There is value in having clear guidelines normally applicable, so as to aid parties in arriving at sensible settlements.
19. Such an exceptional situation might perhaps exist under the 1978 Act where an adult was deliberately carrying someone on his or her lap in the front seat of a vehicle with no seat belt or other fitted restraint being applied to the person, particularly if that person was a child. I can see an argument that the blameworthiness of that adult with a child on his or her lap could be assessed at more than 25 per cent since such a child (or, indeed, an older person) might be in a potentially more vulnerable position than would a person sitting directly on the front passenger seat in the normal way. The child is in closer proximity to the facia and windscreen of the car. No doubt factual and expert evidence would be required to establish that there was that greater vulnerability. But that is not this case, because here the Part 20 defendants were aware that the claimant was restrained by a lap belt, and indeed the mother had herself fitted it around the child.
20. In the present case the trial judge did not, in my judgment, treat the 25 per cent figure in Froom v Butcher as an absolute ceiling. Nor did he rely solely on that case, but exercised also his discretion under the 1978 Act independently of Froom v Butcher. He sought to arrive, as he said, at a just and equitable decision, bearing the responsibility of each of the parties in mind.
21. Was the judge clearly wrong or guilty of an error in principle in arriving at the conclusion which he reached? One accepts that the judge found that the terrible injuries to this young child would have been entirely, or virtually entirely, avoided had she been wearing an approved child restraint. But that does not undermine the apportionment arrived at below. The figure of 25 per cent contribution was put forward in Froom v Butcher for precisely those cases where the damage would have been prevented altogether by the wearing of a seat belt. It remains the fact that the defendant, driving his Volkswagen Golf, caused this accident. The injury suffered by this child was the result causally both of the defendant's negligence and of that of the Part 20 defendants. That is the very reason why the 1978 Act is applicable.
22. In terms of blameworthiness, one has to bear in mind the following factors. First, as a matter of law, there is no prohibition on a child travelling in the front of a vehicle. Secondly, while the law does require a child of this age travelling in the front of a vehicle to have appropriate seat restraint, the mother had in fact put the lap part of her seat belt around the child. What she did did not comply with the law, but she did not leave the child wholly unrestrained. Thirdly, as it turned out, that action on her part, according to the expert, actually made the situation worse. However, there was no evidence that the mother or her sister were aware of that. Undoubtedly, as Mr Main has accepted, the mother thought that she was helping to protect her child by putting the lap belt around her. As Dr Rattenbury said, ordinary members of the public do not understand how dangerous such an action is. In the light of this case, they ought to be so advised; and those responsible for road safety may wish to give consideration to giving greater publicity about the risks attendant on such a situation. But as things stood, the blame to be attached to the mother and her sister must be limited by their lack of understanding of this risk - a lack which they shared with much of the public and which in that sense was objectively understandable. This was not merely a subjective ignorance on their part, but something shared by those who lacked expertise in such matters. Fourthly, I can see no basis for interfering with the judge's finding that the Part 20 defendants were not deliberately taking a risk. The evidence was such that he could properly make the finding which he did.
23. When all those factors are taken into account, it seems to me that one cannot say that the trial judge was clearly wrong or that he went wrong in principle in approaching the issue of apportionment in the way he did. The figures of 75 per cent and 25 per cent were, on the facts, a distribution of liability which he was entitled to arrive at, given the gross inattention of the defendant and the behaviour of the Part 20 defendants.
24. It follows that, for my part, I would dismiss this appeal.
25. LORD JUSTICE MUMMERY: I agree.
26. LORD JUSTICE NOURSE: I also agree.
Order: Appeal dismissed with costs, to be the subject of a detailed assessment.