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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 >> Capps v Miller [1988] EWCA Civ 5 (30 November 1988)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1988/5.html
Cite as: [1989] 2 All ER 333, [1988] EWCA Civ 5, [1989] 1 WLR 839, [1989] WLR 839

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JISCBAILII_CASE_TORT

Neutral Citation Number: [1988] EWCA Civ 5
Case No.:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Henry)

Royal Courts of Justice
30th November 1988

B e f o r e :

LORD JUSTICE MAY
LORD JUSTICE CROOM-JOHNSON
and
LORD JUSTICE GLIDEWELL

____________________

ROBIN GRAHAM CAPPS
(suing by his next friend DAVID GRAHAM CAPPS)
Respondent (Plaintiff)
and

MICHAEL RAY MILLER
Appellant (Defendant)

____________________

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London WC2).

____________________

MR. MICHAEL WRIGHT, Q.C. and MR. JONATHAN BARNES (instructed by Messrs Dawson Cornwell & Co., London Agents for Messrs Kenneth Bush & Co., Kings Lynn) appeared on behalf of the Appellant/Defendant.
MR. JOHN LEIGHTON WILLIAMS, Q.C. and MR. JOHN SABINE
(instructed by Messrs Moreton Phillips & Son; London Agents for Messrs Daynes, Hill & Perks, Norwich) appeared on behalf of the Respondent/Plaintiff.

____________________

HTML VERSION OF JUDGMENT (REVISED)
____________________

Crown Copyright ©

    LORD JUSTICE MAY: I will ask Lord Justice Croom-Johnson to give the first judgment in this case.

    LORD JUSTICE CROOM-JOHNSON: This appeal arises out of an accident which took place on 2nd March 1985 when the plaintiff, who was just a few days short of his 17th birthday, was on his moped near his home at about 11.20 at night. He had been out on his moped and he was stationary in the centre of the road about to turn right into the driveway of his home. While he was in that position he was run into from behind by a motorcar which was being driven by the defendant, who had just overtaken another vehicle at a speed, according to the judgment of Henry J. described by the passenger of that vehicle as being "fast but not excessively so". It is now common ground that it must have been between 30 and 40 miles an hour. He ran into the back of the motorcyclist and in his statement to the police he told them that he had not seen the motorcyclist. He also told the police at once that he had been drinking; he was breathalysed and his breath test reading recorded him at midnight as being 72 percent over the limit. He pleaded guilty to a charge of driving with excess alcohol.

    Unfortunately the injuries to the plaintiff were serious. I will come to the injuries in a moment, but principally he received a blow to the head which resulted in brain damage as the result of the accident.

    There was an issue at the trial whether or no the plaintiff at the time of the accident had on his head his helmet. There is no question that while he had been riding the moped it had been on his head and that was what was required by the Motor Cycles Protection (Helmets) Regulation 1980. But regulation 4(3) defines "protective headgear" as headgear which is securely fastened to the head of the wearer by means of the straps provided for that purpose. The difficulty in the present case was, as the judge was forced to find, that the helmet, although upon his head, was not fastened by the straps.

    There was a considerable issue at the trial as to whether, when the head injuries took place, the helmet had been on his head or had already come off because it had not been fastened on by the straps. There were two explanations. That which was put on behalf of the plaintiff (for the plaintiff could remember little or nothing about the circumstances) was that he had been thrown up in the air, a fact which was deposed to by the passenger in the motor car of the defendant and that he had come down on the bonnet of the car and unquestionably his helmet had gone through and smashed the windscreen of that motor car. The helmet was subsequently found on the lap of the passenger in the defendant's motor car. On that basis, when the head injuries were caused, at the time when the blow to the head took place his helmet, albeit unstrapped, was still on his head and that therefore no breach of one of the regulations would have been causative of the injury to his head.

    The other explanation, which was that put forward on behalf of the defendant was that in the course of the blow by the motor car on the moped and in the course of the plaintiff being thrown into the air, the helmet had come off because it was not fastened and had smashed the windscreen in the way I have described, but the plaintiff, by now without any helmet on his head, had landed on his head on the road and so had suffered the brain injuries which resulted.

    The learned judge investigated these alternative explanations with great care. The explanation depended in part on the fact that these helmets are specially designed so that if they receive a hard blow with the wearer's head inside the helmet, the lining is of a self destructive type and therefore it absorbs the shock. In the present case there was found to be absolutely no destruction or effect upon the lining of the helmet and there was nothing about the condition of the helmet which indicated that it had been on the plaintiff's head at the time.

    There was also an explanation put forward that the plaintiff must have landed on the bonnet of the defendant's motor car and caused some damage to it. That was negatived by evidence and the learned judge found that that had not happened. In the result he came to the conclusion, and said so in terms, that he accepted the explanation given on behalf of the defendant as to how the accident happened, namely that because the helmet was not strapped on, it had come off before the head hit the road and that was the explanation of the brain injuries.

    The brain injuries were dealt with in the evidence of Dr. Anthony Roberts, a Neurosurgeon, who was called as a witness. In a long report, and on the assumption that the accident happened in the way which ultimately the learned judge found that it had, he said this:

    "If this is what happened then I am quite sure his brain injuries were a good deal more serious than they might have been had his helmet stayed on until his head made contact with the road inside it. The concussive forces imparted to his brain would have been substantially cushioned and he might well have escaped with no more than residual impairment of his memory, concentration and perhaps temper control, though possibly not even the latter."

    He then went on to give his explanation of what had happened to cause such injuries as the plaintiff suffered. He said there had been impairment of the temporal and frontal lobes of the brain, worse on the right, and that was likely to have been caused by "the swelling of the bruised brain, subjected to shearing strains in its substance, and the swelling caused secondary damage by impairing blood flow and oxygen supply." He went on to say this:

    "Had the force of the impact been absorbed to any extent, as it is likely to have been by his crash helmet, (I. interpolate to say, that means if it had been on his head at the critical moment) then I think it virtually certain that much of the shear-strain brain damage would not have occurred, secondary damage the result of brain swelling would not have been so severe, and in all probability he would not have been so deeply unconscious for so long which impaired blood and oxygen supply to his brain further. This, of course, is all no more than assumption based on what is known about the value of helmets absorbing impact forces, and there is no way of measuring these so far as I know in the individual case in retrospect. I can only attempt as I have done to look at the type of brain damage he has sustained and offer a guess as to how much less it might have been on the basis of experience of the after effects of less severe uncomplicated closed head injuries."

    He was cross-examined on that report, but what I have read in effect was the substance of the medical evidence ultimately accepted by the learned judge.

    On behalf of the plaintiff another neurosurgeon, Mr. Holmes, was called. His evidence was directed to a different issue, which was not to deal with the worsening effect of the accident if it was caused without any helmet on the head, but more with the idea of showing that the helmet had been on the head and that the accident was therefore caused in the way which the plaintiff put forward and which the learned judge ultimately rejected.

    What the learned judge found as a matter of fact was this. After putting forward the two contentions as to how the accident took place, he said:

    "It is a matter which does not admit of any certainty, there being serious difficulties in each account. I am ultimately compelled to find that, on the balance of probability, the defendants' reconstruction of the accident is likely to be the correct one, namely, that it was a blow to the unprotected head tht caused the brain damage, that is to say, a blow with the helmet off."

    (I interpolate to say that that necessarily means that he came down on the road and not on the motor car) . The learned judge then goes on to say:

    "It seems to me also that the probability is that the extent of the injuries would have been to some incalculable degree less had the helmet stayed on and it would have stayed on if the strap had been done up. Clearly, as I have said, it is a matter about which there can be no certainty, the case is one very close to the line either way, but on the balance of probabilities it seems to me that failure to do the strap up made some difference to the severity of the injuries sustained though it would be impossible to express a view as to what difference it would have made."

    I should add that the learned judge's finding that the strap had not been done up was reinforced by the fact that there was no damage to the strap indicating that it had been done up, but had broken or in some way carried away in the course of the accident. The learned judge then went on to say:

    "As I have said, while the accident was in no sense the plaintiff 's fault but was entirely the fault of the defendant, the damage caused was caused partly as a result of the fault of the plaintiff in that the damage would have been likely to have been less if the chin strap of his crash helmet had been done up. "

    On those facts as found by the learned judge there then arose the question of whether there was contributory negligence on the part of the plaintiff, the negligence of the defendant being admitted and not in issue. That required consideration of the Law Reform (Contributory Negligence) Act 1945. Section 1 reads:

    "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable in respect thereof should be reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage."

    There are three points to note about that subsection. The first is that it got rid of the old common law rule that contributory negligence was a complete defence to the plaintiff's claim. Secondly, that before it comes into force the plaintiff's injury must be the result partly of his own fault and partly the fault of any other person, and that requires that his injury must have been caused by his fault. The last part is, that that having been satisfied, the apportionment of damages and the apportionment of liability then goes on to be considered under the last part of the subsection, which says that the plaintiff's damages "should be reduced to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage."

    In the present case the contributory negligence as alleged was the breach of regulation in not wearing "protective headgear" through not having fastened the strap. Causation was established on the finding of the judge and therefore it was necessary to have the next part of the inquiry to see what was the effect of the increase on the plaintiff's injuries because of his negligence. What test is to be applied in those circumstances?

    O'Connell v. Jackson [1972] 1 Q.B.D.270 came by appeal to this court in a case where a moped driver was not wearing a crash helmet. In those days the regulations enforcing the wearing of a crash helmet had not come into force, but the question was, if the plaintiff was not wearing a helmet, was it foreseeable that he would suffer injury and in those circumstances was he guilty of contributory negligence? This court said without hesitation that he would be guilty of contributory negligence and adopted the test which had been laid down in Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B.291. Davies v. Swan Motor Co. was a case where there was a collision between a dust cart and an omnibus. The plaintiff was driving neither; he was riding on the step of the dust cart in a somewhat unsafe position. The Court of Appeal, having said that the responsibility as between the two motorists was to be apportioned as two thirds and one third, also had to go on to discuss whether the plaintiff, Mr. Davies, was guilty of contributory negligence. This Court came to the conclusion that he had not been taking proper care for his own safety in riding in the manner he was and said that he was 20 percent to blame.

    Returning to O'Connell v. Jackson, the question then arose, applying Davies v. Swan, as to how the Act was to be applied. Edmund Davies L.J., who gave the judgment of the court, said on page 277:

    "The plaintiff being entirely innocent in relation to the collision without which he would not have been injured at all, the tests of blameworthiness and causative potency commonly adopted since Davies v. Swan Motor Co. (Swansea) Ltd. ..... are not entirely easy to apply to the injury which in fact followed. It seems to us that only a broad approach is possible. It must be borne in mind that, for so much of the injuries and damage as would have resulted from the accident even if a crash helmet had been worn, the defendant is wholly to blame, and the plaintiff not at all. For the additional injuries and damage which would not have occurred if a crash helmet had been worn, the defendant, as solely responsible for the accident, must continue in substantial measure to be held liable, and it is only in that last field of additional injuries and damage that the contributory negligence of the plaintiff has any relevance. It is not possible on the evidence to measure the extent of that field and then apportion that measure between the blameworthiness and causative potency of the acts and omissions of the parties. We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess the responsibility of the plaintiff in terms of 15 per cent of the whole...".

    The matter arose again with further development in Froom v. Butcher [1976] 1 Q.B.286. That was not a crash helmet case. It was a case where the plaintiff was not wearing a seatbelt at the time; he did not like them because of the risk of being trapped in the vehicle had he been wearing a seat belt. He suffered injuries in the accident from which he would not have suffered had he been wearing a seat belt. At that time seat belts, although fitted in most cars, were not compulsory objects to wear and again the question was, was it contributory negligence to avoid wearing one in the way of that plaintiff? The judgment of the court was given by Lord Denning, M.R. who at page 292 said this:

    "In these seat belt cases, the injured plaintiff is in no way to blame for the accident itself. Sometimes he is an innocent passenger sitting beside a negligent driver who goes off the road. At other times he is an innocent driver of one car which is run into by the bad driving of another car which pulls out on to its wrong side of the road. It may well be said: why should the injured plaintiff have his damages reduced? The accident was solely caused by the negligent driving of the defendant. Sometimes outrageously bad driving. It should not be in his mouth to say: 'You ought to have been wearing a seat belt.' That point of view was strongly expressed in Smith v. Blackburn .... by O'Connor J. :

    '..... the idea that the insurers of a grossly negligent driver should be relieved in any degree from paying what is proper compensation for injuries is an idea that offends ordinary decency. Until I am forced to do so by higher authority I will not so rule.'"

    Then in reference to O'Connor J's expression of opinion, Lord Denning went on to say, "I do not think that is the correct approach".

    Since Froom v. Butcher and O 'Connell ' s case the test of foreseeability in both crash helmet and seat belt cases is no longer of much relevance because they are both now the subject of statutory compulsion under regulations which require people to wear them where appropriate. Therefore the question arises as to how the apportionment of blame for the accident under the 1945 Act should be carried out. Lord Denning in Froom v. Butcher at page 295 said this:

    "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. the court said that 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."

    Although that is a seat belt case, now that both have been put on a statutory basis, I see no reason to distinguish between seat belt cases and crash helmet cases and I would apply the dictum of Lord Denning to crash helmets just as he spoke of it in seat belts. Just as the unfastened seat belt is not a way of wearing a seat belt, so an unfastened helmet will not be a way of wearing the statutory helmet.

    It now remains to be seen how the learned judge treated these matters in his judgment. After referring to Lord Denning's passage in Froom v. Butcher, he went on to say this:

    "Pausing there from the citation of the authority, this is clearly the case where the driver of the car, the defendant, was grossly negligent and where I would view the plaintiff's failure to fasten his helmet as almost forgivable. One would not, when going out on one's moped, expect to be involved in an accident as severe as this one was."

    Having referred further to Lord Denning's judgment in Froom v. Butcher, the learned judge came to his conclusions in this way:

    "Dealing with those two factors that one should look at in assessing responsibility under the statute, namely, the factors of causative potency and blameworthiness, on the facts of this case where the defendant's fault was the sole cause of the accident, it seems to me that responsibility, as it is used in the statute, is largely a matter of blameworthiness. It is clearly necessary to look at the importance of the failure to fasten the chinstrap in causing the damage. Even having done that, responsibility, it seems to me, should here be decided principally on the matter of blameworthiness. Here the plaintiff was wearing a full face helmet, only likely to come off in a serious accident. It is probable, but there can be no certainty, that the damage would have been less if the helmet had not come off. The accident was catastrophic in its consequences. It was 100 percent the defendant's fault. His fault was considerably aggravated by the fact that he had been drinking before he drove. Indeed, the probability is that this accident would not have happened had he not been drinking. The probability, it seems to me, is that on the facts of this accident, where he did not even see the motorcyclist before he ran into him, is that the accident was caused solely by the effect of drink on this driver.
    The Court of Appeal has indicated that one should not make apportionments of contributory negligence for percentages less than 10 per cent, that is to say, that there should only be a reduction of the plaintiff's damages where his responsibility is significant, 10 per cent or above. On that basis, I unhesitatingly reject the suggestion that I should find contributory negligence on the plaintiff's part here, in an accident of this severity caused by the driver in the defendant's state. The plaintiff being in no way responsible for the accident, it seems to me that the sole responsibility for the accident which the defendant has must in all the circumstances carry with it responsibility for the damage caused by the accident.
    The defendant's self-induced condition reduced his ability to drive to the point where it seems chat he did not even see the plaintiff before he hit him. He hit him with such force that catastrophic injuries were likely and the fact that the actual injuries sustained might have been reduced had the chinstrap been fastened does not in my judgment reduce the defendant's responsibility for those injuries by any significant extent. Therefore, the issue of contributory negligence is decided in favour of the plaintiff."

    In my view in those passages the learned judge fell into error. First, in allocating responsibility for the damage, he seems to have concentrated almost, if not entirely, on the responsibility for the accident, which has to be taken into account, it is true, in assessing blameworthiness, but not to the exclusion of the plaintiff's own contributory negligence, and causative contributory negligence,, in failing to secure his helmet. This was a breach of a statutory duty by the plaintiff, and moreover one which was a criminal offence, which had been passed into law not only for the purpose of inflicting fines but for the protection of motor cyclists and to prevent or lessen what injuries might be caused if not complied with. What the learned judge seems to have taken into account is what might have been in the plaintiff's mind when he went out on his moped but did not comply with the regulation in fastening his helmet. When he said: "One would not when going out on one's moped expect to be involved in an accident as severe as this one was", the learned judge was in my view taking into account something which was quite irrelevant. The whole point about wearing helmets is that you never know what is going to happen in an accident, or what kind of accident you may unfortunately get involved in, albeit through no fault of your own, when you are on the road. The purpose of the regulation which requires the wearing of helmets is because they must be Protection against whatever may happen, with a view to pre- venting or lessening the effect of head injury.

    Second, the learned judge, having come to the conclusion that the accident was unquestionably the governing factor in apportioning blameworthiness (and applying Lord Denning's judgment in Froom v. Butcher that must be clearly right) he did it to the extent where he entirely failed to take into account the plaintiff's breach of statutory duty. He applied what he took to be the rule that, if you were disposed to find a case of contributory negligence made out but with an apportionment of contributory negligence of something less than 10 per cent, you would not give effect to any finding of contributory negligence whatsoever. This was a matter which after the passing of the 1945 Act did have, and may still have in places, currency in the law of negligence that if something was really de minimis here, he would not give effect to it. We were referred, owing to the industry of Mr. Jonathan Barnes, to the origin of that idea. It appears to have been in the unreported case of Johnson v. Tennant decided by the Court of Appeal on 19th November 1954 by Lord Goddard and Lords Justices Hodson and Romer. What had happened in that case was that somebody had fallen through a hole in the factory floor in circumstances which overwhelmingly represented negligence upon his part, notwithstanding that the factory owner was in breach of the then Factories Act, section 25, which said that the hole in the factory floor should be fenced. The finding was not the element of negligence or breach of statutory duty on the part of the factory owners at something less than 10 percent, but in the circumstances of that particular case the breach of statutory duty was not the effective cause of the injury. If the court found that, then section 1 of the Law Reform (Contributory Negligence) Act 1945 never came into play. But be that as it may, the matter did apparently have some currency and was to the recollection of some members of this court applied in negligence cases at one time. It may have a good foundation in common sense not to enter into too fine a distinction in findings of negligence. But where you have here an unquestionable breach of a statutory regulation, that kind of consideration is not in my view applicable and accordingly, in my view, the learned judge was wrong in the present case when he said that he was not going to find any contributory negligence upon the part of the plaintiff.

    This was not a case which was de minimis that could be put on one side. It was quite clearly a case where the injured plaintiff had been out on his moped. The circumstances in which there was no strapping of his helmet do not seem to have been investigated. All that happened was that it was known that the defendant had been driving when he had had too much to drink and obviously driving badly. What was also known, on the judge's findings, was that the plaintiff was in breach of his legal duty to see that his helmet was properly secured. Accordingly in my view there ought to have been a finding by the judge of contributory negligence upon the part of the plaintiff with, to some extent, a consequent reduction of his damages. The question is how much?

    If one takes Lord Denning's guidelines in Froom v. Butcher and the passage at page 296, one has to read in instead of seat belts "an effectively secured helmet". When Lord Denning says "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", that is a description of the circumstances in which the present case came before the court. Lord Denning laid down guidelines. The question is whether it is right to depart from them and in what circumstances. My own view is that guidelines are there for a purpose and to be complied with in the circumstances in which they are provided. One does not say that they should never be departed from, but ordinarily they should be adhered to because it is of the greatest importance that they should generally be kept to for the sake of the swift conduct, and it may be settlement, of litigation. I would myself say that here the conditions which had been postulated by Lord Denning in Froom v. Butcher were complied with. If the presence of the helmet would have made no difference at all, then the damages should not be reduced. If they would have prevented his injuries altogether, they should be reduced by 25 per cent. If the presence of the helmet on his head would have caused a less severe degree of injury, then the damages ought to be reduced by 15 percent.

    The learned judge did not make any finding, and he could not make any finding on the evidence, as to the amount by which the plaintiff's injuries have been made worse because his helmet had come off. It simply was not possible on the medical evidence and on the material available.

    In those circumstances I would apply the lower of Lord Denning 's figures and say that the degree of the plaintiff's blameworthiness should be put at 15 percent and his damages reduced accordingly. As, however, my learned brothers have come to the conclusion that the right figure would be 10 percent and not 15 percent, I do not propose to differ from that figure. I would allow this appeal and make the finding of contributory negligence accordingly.

    LORD JUSTICE GLIDEWELL: Everybody must have great sympathy for this plaintiff who, at quarter to eleven on the night of 2nd March 1985 was a fit young man of nearly 17 years of age, with a good job and good prospects and no doubt looking forward to a happy life. Five minutes later he sustained injuries which have left him so severely brain damaged that he will never be capable of holding or doing a proper job. It is doubtful whether he will ever be able to look after himself in any real sense. He will probably live most of his life in care and his emotions have been greatly affected.

    The temptation on a judge assessing the damages for those injuries in a case in which it is now established beyond a peradventure that the defendant by his attrocious driving was entirely responsible for the accident that resulted in these injuries, to award the plaintiff the full damages as if there were no question of contributory negligence, must in such circumstances be considerable.

    Nevertheless, as the law stands, section 1 of the Law Reform (Contributory Negligence) Act 1945 requires that when a person is proved to have suffered damage partly as the result of his own fault, the court must assess the extent to which it thinks it just and equitable, having regard to his share in the responsibility for the damage, to reduce the amount of his damages. That is the exercise that the learned judge undertook and he decided that they should not be reduced.

    For the reasons that he has just given, I agree with Croom-Johnson L.J. that the learned judge fell into error. He should have concluded in the circumstances, where the plaintiff was wearing a helmet which was either not fastened at all or was not securely fastened, and where it was clear that the wearing of a securely fastened helmet would most probably have substantially lessened the injuries which he suffered, that it was proper for the court to assess a percentage by which the damages should be reduced. I therefore also agree that the appeal must be allowed.

    As my Lord has indicated, we have differed as to the percentage. Mr. Wright urges us to adopt the guidelines postulated in 1976 by Lord Denning M.R. in Froom v. Butcher as an exact analogy. Here the evidence failed to establish with clarity, as must often be the case, the extent to which the injuries would have been lessened if the young man's helmet had remained on his head throughout the consequences of the accident. Mr. Wright therefore urges us to say that this falls fairly and squarely within the dictum of Lord Denning at page 296C-D of the report in Froom v. Butcher, where he said:

    "..... 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."

    That proportion coincides with the judgment of this court in O'Connell v. Jackson [1972] 1 Q.B.270 where at the conclusion of the judgment of the court Edmund Davies . L.J. said at page 278:

    "We can only cover the two stages in one stride and express the responsibility of the plaintiff in terms of a percentage of the whole. Giving the best consideration that we can to the whole matter, we assess | the responsibility of the plaintiff in terms of 15 per cent of the whole, and allow the appeal to the extent of reducing the damages to that extent."

    O'Connell v. Jackson was a crash helmet case, Froom v. Butcher was a seat belt case. Mr. Wright urges us to say that there is no practical difference and should be no legal difference between not wearing a seat belt and not wearing a crash helmet or wearing a crash helmet that is not properly fastened. In O'Connell v. Jackson the plaintiff was not wearing a crash helmet at all. The present regulations were not yet in force, but the Highway Code recommended the wearing of a crash helmet and the plaintiff admitted that he had read the Highway Code. For my part I agree that a failure by a motor cyclist not to wear a crash helmet is equivalent to a failure by a car driver or front seat passenger not to wear a properly fastened seat belt and I would normally think it right to apply Lord Denning's guidelines in Froom v. Butcher in such a case. But I draw a distinction between a case where a motor cyclist is wearing a crash helmet but has not fastened it or has not fastened it properly, and a case in which he is not wearing a crash helmet at all.

    Mr. Wright, in answer to a question from May L.J., accepted that there was a factual difference, but said that that difference should have no legal consequence. I disagree. It seems to me obvious that wearing, as this young man was, a close fitting crash helmet, will in some accidents have the result that the helmet will remain on the head and thus be effective either in reducing the effect or alternatively eliminating damage to the head from the results of the accident. In my view the degree of blameworthiness of a plaintiff, who puts on a crash helmet but fails to fasten it properly or at all, is less than that of one who does not put on his helmet at all. Mr. Wright suggested that blameworthiness really came in before one got to the stage of the 25 per cent in Lord Denning's guidelines for not wearing a seat belt where it is proved that the result of that was that injuries which would not have been sustained at all if a seat belt had been worn, worsened. I do not disagree with that proposition. It seems to me that in the altered circumstances where a crash helmet is worn but not properly fastened, the whole scale of reduction, because of the lesser blameworthiness, should to an extent be less. It is for that reason and in those circumstances that I think the appeal should be allowed but to the extent of reducing the Plaintiff's damages by 10 percent and attributing that degree of causation of the damage to him.

    LORD JUSTICE MAY: With respect to the learned trial judge I, too, agree that he erred in considering the question of contributory negligence in the respects referred to by my Lord, Croom-Johnson L.J. Of the authorities to which we have been referred in the course of the appeal, in my judgment the most pertinent is that of O'Connell v. Jackson [1972] 1 Q.B.270. As my Lords have pointed out, that was a claim by a moped rider who had not been wearing a crash helmet when he was involved in a road accident, the responsibility for which accident had been solely that of the other road user. I respectfully agree with Glidewell L.J. that factually that case can, and should be, distinguished from the instant case in that in that case no helmet at all was being worn, whereas in the present case a helmet was being worn, although not properly fastened.

    In the instant case I direct myself in accordance with the principles contained in the last paragraph of the judgment of the court delivered by Edmund-Davies L.J. (as he then was) which begins at page 277G of the report. I do not embark on the inquiry deprecated by the Master of the Rolls, Lord Denning, in the passage from his judgment in Froom v. Butcher, to which Croom-Johnson L.J. has referred. I merely give the best consideration that I can to the facts and circumstances of the instant case and, doing so, would agree. with Glidewell L.J. in assessing the contributory negligence in this case at 10 percent. I would allow the appeal accordingly.

    Appeal allowed with costs, to be paid by the Legal Aid Fund.


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