1. SEAT BELTS AND HELMETS David Knifton Exchange Chambers Liverpool, Manchester & Leeds

2. Action Plan Proportionality – what is the issue worth? Proportionality – what is the issue worth? Determine whether a seat belt was worn Determine whether a seat belt was worn Would it have made a difference? Would it have made a difference? Assess the deduction Assess the deduction Assess the risk Assess the risk

3. Assemble your team Seat belt expert ? Seat belt expert ? Medical expert? Medical expert? Conference to identify and discuss issues before completion of reports Conference to identify and discuss issues before completion of reports Clarification of causation issues at CMC Clarification of causation issues at CMC

4. Was a seat belt worn? Burden of proof – on D (Lewis v Denye [1939] 1KB 540 at 554) Burden of proof – on D (Lewis v Denye [1939] 1KB 540 at 554) Sources of evidence: Sources of evidence: Police report and vehicle examination Police report and vehicle examination Hospital and/or ambulance records Hospital and/or ambulance records Lay witnesses – proof at early stage Lay witnesses – proof at early stage Attending ambulance, fire and police personnel? Attending ambulance, fire and police personnel? Preservation and inspection of vehicle – SCA s33; CCA s52; CPR 25 Preservation and inspection of vehicle – SCA s33; CCA s52; CPR 25 Seat belt expert Seat belt expert

5. Would it have made a difference? Burden on D (Stanton v Collinson [2010] EWCA Civ 81 at paras 18 and 22) Burden on D (Stanton v Collinson [2010] EWCA Civ 81 at paras 18 and 22) Ensure individual factors are considered: Ensure individual factors are considered: Whether a seat belt was available for use? Whether a seat belt was available for use? Ejection from the rear of the vehicle? Ejection from the rear of the vehicle? Exceptionally tall passenger? Exceptionally tall passenger? Ensure, if appropriate, the issue is considered between medical and seat belt experts Ensure, if appropriate, the issue is considered between medical and seat belt experts Which expert – medical or seat belt? Which expert – medical or seat belt?

6. Stanton v Collinson [2009] EWHC 342 (Cox J) and [2010] EWCA Civ 81 (CA) [2009] EWHC 342 (Cox J) and [2010] EWCA Civ 81 (CA) C (16) and 3 friends accepted lift in D’s Astra C (16) and 3 friends accepted lift in D’s Astra C shared front seat with girl on his lap C shared front seat with girl on his lap No-one wore seat belts No-one wore seat belts D drove too fast, lost control and collided with oncoming car, causing Astra to overturn D drove too fast, lost control and collided with oncoming car, causing Astra to overturn D killed D killed C suffered skull fracture and serious frontal lobe brain damage, due to contre-coup effect C suffered skull fracture and serious frontal lobe brain damage, due to contre-coup effect

7. The Engineering Evidence Mr Henderson and Dr Rattenbury agreed: Mr Henderson and Dr Rattenbury agreed: C’s upper body might have slipped out of seatbelt, if worn, allowing head to strike steering wheel or intruding driver’s door, causing head/spinal injury C’s upper body might have slipped out of seatbelt, if worn, allowing head to strike steering wheel or intruding driver’s door, causing head/spinal injury Severity of any such impact would probably have been reduced by restraining effect of lap belt Severity of any such impact would probably have been reduced by restraining effect of lap belt Seat belt use would, on balance, 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 Seat belt use would, on balance, 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 Rattenbury’s qualification – “serious” (moderate or mild concussion) distinguished from “severe” Rattenbury’s qualification – “serious” (moderate or mild concussion) distinguished from “severe”

8. A Medical Issue? Stanton v Collinson [2009] EWHC 342 (QB), Cox J – refused to reduce damages in absence of medical evidence from D, despite possibility that C’s head injuries would have been less severe if seat belt worn Stanton v Collinson [2009] EWHC 342 (QB), Cox J – refused to reduce damages in absence of medical evidence from D, despite possibility that C’s head injuries would have been less severe if seat belt worn “Given the well-recognised vulnerability of the brain, the extent to which this different, yet serious, head injury would have given rise to less severe cognitive deficits…is, in my judgment, a medical and probably a neurological question…a question which…can only properly be determined with the assistance of specialist medical evidence” – paras 135 and 139 “Given the well-recognised vulnerability of the brain, the extent to which this different, yet serious, head injury would have given rise to less severe cognitive deficits…is, in my judgment, a medical and probably a neurological question…a question which…can only properly be determined with the assistance of specialist medical evidence” – paras 135 and 139

9. Seat belt expert? Stanton v Collinson [2010] EWCA Civ 81, para 20 Stanton v Collinson [2010] EWCA Civ 81, para 20 “In my view the evidence [of the engineers] was admissible. The experts were not qualified only to give evidence about the mechanics, in particular about what the claimant’s head might have struck, and in what circumstances. They also had, although they were not doctors, ample experience of study of road accidents involving head injury so as to be able to express an informed opinion about what happened by way of impacts to the head and the kind of injuries which had generally been seen to ensue.” – per Hughes LJ “In my view the evidence [of the engineers] was admissible. The experts were not qualified only to give evidence about the mechanics, in particular about what the claimant’s head might have struck, and in what circumstances. They also had, although they were not doctors, ample experience of study of road accidents involving head injury so as to be able to express an informed opinion about what happened by way of impacts to the head and the kind of injuries which had generally been seen to ensue.” – per Hughes LJ

10. The Solution? Medical evidence is not a necessity in every case – each depends on its own facts and the state of the other evidence Medical evidence is not a necessity in every case – each depends on its own facts and the state of the other evidence Proportionality is relevant Proportionality is relevant If skilled seat belt engineers agree about what kind of injury would have been occasioned had a seat belt been worn, their evidence may well be sufficient for judge to resolve that issue If skilled seat belt engineers agree about what kind of injury would have been occasioned had a seat belt been worn, their evidence may well be sufficient for judge to resolve that issue Any doubt about the appropriateness of medical evidence ought to be capable of avoidance by effective case management Any doubt about the appropriateness of medical evidence ought to be capable of avoidance by effective case management

11. Apportionment Law Reform (Contributory Negligence) Act 1945, s1: Law Reform (Contributory Negligence) Act 1945, s1: “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person…the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage” “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person…the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”

12. Seat Belt Cases Froom v Butcher [1976] 1 QB 286 CA Froom v Butcher [1976] 1 QB 286 CA Decided pre-compulsory seat belt legislation Decided pre-compulsory seat belt legislation Negligent driver must bear by far the greater share of responsibility Negligent driver must bear by far the greater share of responsibility Question of passenger’s share should not be prolonged by an expensive inquiry into degree of blameworthiness on either side Question of passenger’s share should not be prolonged by an expensive inquiry into degree of blameworthiness on either side In great majority of cases, just and equitable share: In great majority of cases, just and equitable share: 25% if seat belt would have prevented damage altogether 25% if seat belt would have prevented damage altogether 15% if failure made a considerable difference 15% if failure made a considerable difference 0% if failure made no difference 0% if failure made no difference On the facts, 20% was upheld, as most injuries would have been avoided On the facts, 20% was upheld, as most injuries would have been avoided

13. Subsequent Cases Biesheuval v Birrell (1998) QB unrep Biesheuval v Birrell (1998) QB unrep Froom applied to rear seat belts (before compulsory) Froom applied to rear seat belts (before compulsory) J (a child) v Wilkins [2001] PIQR 12 CA J (a child) v Wilkins [2001] PIQR 12 CA Froom applied in assessing mother’s contribution at 25% in carrying child on knee in front seat with lap belt only Froom applied in assessing mother’s contribution at 25% in carrying child on knee in front seat with lap belt only Guidelines remained valid despite compulsory seat belt legislation Guidelines remained valid despite compulsory seat belt legislation Whilst 25% was not an absolute and immutable ceiling, and there could in principle be exceptional cases falling outside the range, such cases would be rare Whilst 25% was not an absolute and immutable ceiling, and there could in principle be exceptional cases falling outside the range, such cases would be rare

14. Gawler v Raettig [2007] EWHC 373, Gray J Gawler v Raettig [2007] EWHC 373, Gray J Froom remained binding, and guidance did not require revisiting in light of huge increase in public awareness of importance of wearing seat belts Froom remained binding, and guidance did not require revisiting in light of huge increase in public awareness of importance of wearing seat belts Fact that driver only momentarily inattentive, that passenger was experienced, deliberately left off seat belt, and was ejected from car, did not take this into rare or exceptional category. 25% deduction Fact that driver only momentarily inattentive, that passenger was experienced, deliberately left off seat belt, and was ejected from car, did not take this into rare or exceptional category. 25% deduction HL refused permission for leap-frog appeal, as it did not raise arguable point of law of public importance HL refused permission for leap-frog appeal, as it did not raise arguable point of law of public importance CA [2007] EWCA Civ 1560 refused permission for academic appeal, as parties had agreed to be bound by 25% deduction, but noted Froom guidance had been followed ever since CA [2007] EWCA Civ 1560 refused permission for academic appeal, as parties had agreed to be bound by 25% deduction, but noted Froom guidance had been followed ever since

15. Stanton v Collinson [2010] EWCA Civ 81 Stanton v Collinson [2010] EWCA Civ 81 Froom v Butcher remained binding Froom v Butcher remained binding There may be unusual cases in which neither of the 2 brackets contemplated by Froom are appropriate There may be unusual cases in which neither of the 2 brackets contemplated by Froom are appropriate Absent something exceptional, there should be no reduction in a case where the injury would not have been reduced “to a considerable extent” by a seat belt Absent something exceptional, there should be no reduction in a case where the injury would not have been reduced “to a considerable extent” by a seat belt “There is a powerful public interest in there being no such [prolonged or intensive] enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which do entail trial do not mushroom out of control.” (Hughes LJ, para 26) “There is a powerful public interest in there being no such [prolonged or intensive] enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which do entail trial do not mushroom out of control.” (Hughes LJ, para 26)

16. Gleeson v Court [2007] EWHC 2397, HHJ Foster QC Gleeson v Court [2007] EWHC 2397, HHJ Foster QC Where passenger rode in boot of hatchback, knowing driver drunk, 25% would be appropriate under Froom, and 20% for accepting lift from drunk driver, but overall 30% was just and equitable Where passenger rode in boot of hatchback, knowing driver drunk, 25% would be appropriate under Froom, and 20% for accepting lift from drunk driver, but overall 30% was just and equitable

17. Motorcycle Helmets Capps v Miller [1989] 2 All ER 333 CA Capps v Miller [1989] 2 All ER 333 CA No reason to distinguish between seat belt and crash helmet cases – Froom should be applied No reason to distinguish between seat belt and crash helmet cases – Froom should be applied Trial judge fell into error by focussing on reponsibility for the occurrence, rather than the injury Trial judge fell into error by focussing on reponsibility for the occurrence, rather than the injury On facts, since helmet worn with chin strap unfastened, rather than not worn at all, deduction should be 10% rather than 15% On facts, since helmet worn with chin strap unfastened, rather than not worn at all, deduction should be 10% rather than 15%

18. Cycle Helmets Smith v Finch [2009] EWHC 53, Griffith Williams J Smith v Finch [2009] EWHC 53, Griffith Williams J Froom should apply to the wearing of helmets by cyclists, even though not compulsory (para 43-44): Froom should apply to the wearing of helmets by cyclists, even though not compulsory (para 43-44): “As it is accepted that that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one.” “As it is accepted that that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one.” But given likely velocity of impact with ground, helmet would not have prevented or reduced C’s severe head injuries But given likely velocity of impact with ground, helmet would not have prevented or reduced C’s severe head injuries Failure to adduce medical evidence on the issue was “a fundamental evidential omission. If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that.” – para 55 Failure to adduce medical evidence on the issue was “a fundamental evidential omission. If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that.” – para 55

19. Note that helmet experts agreed that failure to wear helmet may expose cyclist to greater risk of injury Note that helmet experts agreed that failure to wear helmet may expose cyclist to greater risk of injury But, unlike seat belts and motorcycle helmets, this is, perhaps, a contentious issue But, unlike seat belts and motorcycle helmets, this is, perhaps, a contentious issue See www.cyclehelmets.org for further discussion See www.cyclehelmets.org for further discussionwww.cyclehelmets.org

20. Assessment of Risk and Tactics Part 36 Liability Offers Part 36 Liability Offers Always, if acting for D Always, if acting for D Care required, if acting for C Care required, if acting for C Costs/benefit analysis Costs/benefit analysis What is the seat belt/helmet issue worth? What is the seat belt/helmet issue worth? What are the costs of running it? What are the costs of running it? ADR ADR Presentation of the case at trial Presentation of the case at trial Ensure issues and experts are clear before trial starts! Ensure issues and experts are clear before trial starts! Ensure, if appropriate, that medical evidence is presented on causation issue Ensure, if appropriate, that medical evidence is presented on causation issue

21. David Knifton Exchange Chambers Liverpool, Manchester & Leeds www.exchangechambers.co.uk knifton@exchangechambers.co.uk