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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 >> Froom & Ors v Butcher [1975] EWCA Civ 6 (21 July 1975)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1975/6.html
Cite as: [1976] QB 286, [1975] EWCA Civ 6, [1975] 3 All ER 520

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JISCBAILII_TORT

Neutral Citation Number: [1975] EWCA Civ 6
IN THE SUPREME COURT OF JUDICATURE.

IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
Appeal by defendant from judgment of Mr. Justice Nield on 24th June 1974.

Royal Courts of Justice.
21st July 1975.

B e f o r e :

THE MASTER OF THE ROLLS (Lord Denning)
LORD JUSTICE LAWTON
and
LORD JUSTICE SCARMAN.
Between

____________________

Between:
HAROLD JOHN FROOM, NORA FRANCES FROOM (his wife),JACQUELINE NORTH (married woman) and H.J. FROOM LIMITED
Plaintiffs Respondents
and

BRIAN JAMES BUTCHER
Defendant Appellant

____________________

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

____________________

Mr. KENNETH JUPP, Q.C., and Mr. MICHAEL LEWER (instructed by Messrs. Milners Curry & Gaskell) appeared on behalf of the Appellant Defendant.
Mr. HAROLD JOHN FROOM, Respondent Plaintiff, appeared in person.
Mr. SIMON BROWN (instructed by the Treasury Solicitor) appeared as amicus curiae.

____________________

APPEAL BY DEFENDANT FROM HTML VERSION OF JUDGMENT OF MR. JUSTICE NIELD ON 24TH JUNE 1974.
ROYAL COURTS OF JUSTICE.
DATE: MONDAY, 21ST JULY, 1975.
BEFORE
THE MASTER OF THE ROLLS (LORD DENNING)
LORD JUSTICE LAWTON
AND
LORD JUSTICE SCARMAN.
BETWEEN
HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    THE MASTER OF THE ROLLS:

    1 THE FACTS

    Harold Froom is the managing director of a firm of contractors. He lives in Hertfordshire and has a Jaguar motor car. On 19th November 1972, he was driving home from Southend with his wife beside him and his daughter behind. The car was fitted with seat belts for the front seats. But neither Mr. Froom nor his wife was wearing them. He gave his reasons

    "I do not personally like wearing seat belts. I have seen so many accidents on the road when, if seat belts are worn, then the driver would never have got out of the vehicle that had been in the smash; and, secondly, with a man of my age" - he is 57 - "we do not have to go roaming round the countryside, we just stick to our normal speed".

    On this day he was driving along Gravel Lane, Chigwell. He was going carefully on his near side of the road at his normal speed of 30 to 35 miles an hour. There was a line of traffic coming in the opposite direction. Then a car pulled out to overtake. It was going fast on its wrong side. It struck Mr. Froom's car head-on. The driver was afterwards convicted of careless driving.

    Mr. Froom and his wife and daughter were all injured. Mr. Froom was forced up against the steering column. He had a broken rib and bruises on his chest. He had abrasions on his head. He would probably have been saved from these injuries if he had worn a seat belt. He also had a broken finger, but the seat belt would not have saved that. These injuries were not at all severe. He was back at work next day. The Judge assessed his general damages at 450. Mrs. Froom was also injured but the seat belt would not have saved her from them.

    The question that arises is whether Mr. Froom's damages are to be reduced because he was not wearing a seat belt. The Judge held they were not. The defendant appeals to this Court.

    This is the first case to reach this Court about seat belts. But there have been a dozen or more cases in the lower courts: and they have disclosed a remarkable conflict of opinion. Half of the Judges think that, if a person does not wear a seat belt, he is guilty of contributory negligence and his damages ought to be reduced. The other half think that it is not contributory negligence and they ought not to be reduced.

    2 THE PREVIOUS DECISIONS

    It is interesting to glance shortly at the decisions. I will take them in order of the date on which the decisions were given. In Geier v. Kujawa (1970) 1 Lloyd's Rep. 364, a German girl was a passenger in a car. She had never before seen seat belts and did not know what they were for. Mr. Justice Brabin held that she was not guilty of contributory negligence. In Toperoff v. Mor (1973) R.T.R. 419, two young men went out in a car. The driver told the passenger to do up his seat belt. He did so. They stopped to buy ice-cream. The passenger then failed to do up his seat belt. There was afterwards an accident owing to the driver's negligence. The passenger was thrown out and injured. He would not have been so severely injured if he had been wearing his seat belt* Judge Dean on 28th November 1972, held that he was guilty of contributory negligence and reduced his damages by 25%. In Lertora v. Finzi (1973) R.T.R. 161, on 4th December 1972, Judge Edgar Fay thought that failure to wear a seat belt could amount to contributory negligence but that it had not been established in that case, and, in any event, that it would not have saved the injuries. In Pasternack v. Poulton (1973) R.T.R. 334, a young woman undergraduate was a passenger on a short trip in Bristol. It was driven by a follow student. He drove into a lamp post and she was severely injured in the face. Mr. Justice Kenneth Jones on 12th February 1973, held that if she had worn a seat belt it would have saved her from her injuries. He held it was contributory negligence and reduced her damages by 5%. In Parnell v. Shields (1973) R.T.R. 414, a motor car was driven with absolute folly into a motor van, spinning round, so that the driver of the van was thrown out and killed. He would have been saved if he had worn the seat belt. Mr. Justice Wien on 21st February 1973, held that his failure was contributory negligence and reduced the damages to the widow by 20%. In McGee v. Francis Shaw & Co. Ltd. (1973) R.T.R. 409, a car was driven into the back of a stationary vehicle. The driver was wearing a seat belt and was not injured. The passenger was not wearing one. He was a man of ample girth and found it uncomfortable. He deliberately decided not to wear it. He was thrown on to the windscreen and would have been saved if he had worn the seat belt. On 17th April 1973, Mr. Justice Kilner Brown reduced his damages by 33 1/3%.

    Thus far the decisions were mostly that it was contributory negligence not to wear a seat belt. There then followed cases the other way. In Challoner v. Williams (1974) R.T.R. 221, a passenger had his neck broken in a collision. Mr. Justice Shaw on 3rd April 1974, found on the evidence that he was in fact wearing a seat belt, and also that oven if he had not been wearing it, his injuries would have been just the same. But he said, even if he had found the facts otherwise, his opinion was that a failure to wear a seat belt was not contributory negligence. In Smith v. Blackburn (1974) R.T.R. 533, a man and his wife were driving on a one-way road on a fly-over when a man drove madly up it in the opposite direction, and ran into them. Mr. Justice O'Connor on 17th May 1974, found that the injuries would have been just the same, even if they had been wearing seat belts. But he said that, even if a seat belt would have prevented some injury, he would unhesitatingly have hold that failure to wear seat belts did not amount to contributory negligence calling for any reduction in damages. In Freeborn v. Thomas (1975) R.T.R. 16, a man and his wife were driving along the middle lane of a three-lane road when another car, coming in the opposite direction, pulled out in the middle lane. They usually wore their seat belts, but on this occasion they forgot. The wife was badly injured. Sir George Baker, the President, on 23rd May 1974, found that the injuries would not have been any less even if she had worn a seat belt. But he also held that she was not negligent. If he had done so, he said that the proportion would certainly not be more than 10%. Next was our present case - Froom v. Butcher - where on 21st June 1974, Mr. Justice Nield held that omission to wear a seat belt did not amount to negligence, but if he was wrong, he would reduce the damages by 20%. In Chapman v. Ward (1975) R.T.R. 7, two ladies were driving along a country road when the car left the road and collided with a telegraph pole. They were not wearing their seat belts. The passenger sued the driver. They were going to the doctor's they were a little late, it was difficult for her to fit the seat belt. So she did not bother to wear it. Mr. Justice Stocker on 7th October 1974, found that some of her injuries would have been reduced if she had worn a seat belt, but he found that she was not guilty of contributory negligence; and he did not reduce the damages. In James v. Parsons (1975) R.T.R. 20, two young men were taking a high-powered car out for a speed test. They came to a hump-backed bridge and the car left the road. The passenger was injured in the face. He sued the driver. His injuries would have been prevented if he had worn a seat belt. Mr. Justice Kilner Brown on 16th October 1974, exempted the passenger from contributory negligence because neither of these young men gave seat belts a single thought, and so the driver could not allege against the passenger any degree of contributory negligence. In Drage v. Smith (1975) R.T.R. 1, a young couple, newly married, were driving on a short trip when they collided with an estate car which was solely responsible for the collision. The wife was the passenger and was severely injured in the face. She might not have been injured at all if she had worn a seat belt. On 14th November 1974, Judge Stabb held she had been guilty of contributory negligence and reduced her damages by 15%. Finally, in Timner v. Biernaclay Mr. Justice Phillips in March 1975 thought that failure to wear a seat belt was not contributory negligence.

    Those decisions disclose a variety of reasons which I will consider later. But first the principles.

    3 CONTRIBUTORY NEGLIGENCE

    Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt himself, see Jones v. Livox Quarries (1952) 2 QB 608. Before 1945 a plaintiff, who was guilty of contributory negligence, was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury, see Swadling v. Cooper (1931) A.C. 1. Since 1945 he is no longer defeated altogether. He gets reduced damages, see Davies v. Swan Motor Co. (1949) 2 K.B. 291. The present law is contained in section 1(1) of the Law Reform (Contributory Negligence) Act 1945, which says:

    "When 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 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".

    Section 4 says that:

    "'Fault' means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort, or would, apart from this Act, give rise to the defence of contributory negligence".

    Those provisions must be borne in mind as we take our consideration further.

  1. THE CAUSE OF THE DAMAGE
  2. 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 asked: Why should the injured plaintiff have his damages reduced? The accident was solely caused by the negligent driving by the defendant. Sometimes outrageously bad driving. It should not lie 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 Mr. Justice O'Connor. He said:

    "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".

    I do not think that is the correct approach. The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage: and his damages fall to be reduced to such extent as the Court thinks just and equitable. In Admiralty the Courts used to look to the causes of the damage, see The Margaret (1881) 6 P.D. 76. In a leading case in this Court, under the 1945 Act, we looked to the cause of the damage, see Davies v. Swan Motor Co. (1949) 2 K.B. at : page 326. In the crash helmet cases this Court also looked at the causes of the damage, sec O'Connell v. Jackson (1972) 1 Q.B. page 270. So also we should in seat belt cases.

  3. THE SENSIBLE PRACTICE
  4. It is compulsory for every motor car to be fitted with seat belts for the front seats. The Regulations so provide. They apply to every motor car registered since 1st January 1965. In the Regulations seat belts are called, in cumbrous language, "body-restraining seat belts". A "seat belt" is defined as

    "a belt intended to be worn by a person in a vehicle and designed to prevent or lessen injury to its wearer in the event of an accident to the vehicle".

    Seeing that it is compulsory to fit scat belts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seat belt. Everyone is free to wear it or not, as he pleases. Free in this sense, that if he does not wear it, he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law but it is not a sensible thing to do. If he does it, it is his own fault: and he has only himself to thank for the consequences.

    Much material has been put before us about the value of wearing a seat belt. It shows quite plainly that everyone in the front seats of a car should wear a seat belt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads. On 15th November 1974, the Minister of Transport said in the House of Commons:

    ........"In 1973, 41,000 people were killed or seriously injured in the front seats of cars and light vans. I estimate that a thousand of these deaths and nearly 13,000 serious injuries could have been avoided by the wearing of seat belts.....In a frontal crash the car stops very rapidly, but the occupants continue to move forward and strike the part of the car in front of them, frequently causing injuries to the head. Quite often they are ejected through the windscreen. Careful study of accident types and injuries led to the estimate that the risk of death or injury is reduced by 50% if a seat belt is worn".

    This material confirms the provision of the Highway Code which contains this advice:......

    "Fit seat belts in your car and make sure they are always used".

    This advice has been in the Highway Code since 1968, and should have been known to Mr. Froom at the time of his accident in November l972.

    The Statute says that a failure to observe that provision does not render a person liable to criminal proceedings of any kind, but it can be relied upon in civil proceedings as tending to establish or negative liability, see section 37(5) of the Road Traffic Act 1972. The President (Sir George Baker) in Freeborn v. Thomas made a comment on the provision about seat belts. He said:

    "It says nothing about passengers. Nor does it say: You must always wear a seat belt. It is, if anything, an exhortation to the driver or the owner".

    I think that the President construed the Code too narrowly. The Highway Code is a guide for all persons who use the road. "Make sure they are always used" is sound advice, not only for drivers, but also for passengers.

    The Government's view is also plain. During the years 1972 to 1974 they spent 2 million in advertisements telling people to wear seat belts. Very recently a Bill was introduced into Parliament seeking to make it compulsory. In this respect England is following the example of Australia, where it has been compulsory for the last three or four years. The Bill here has been delayed. So it will not be compulsory yet awhile. But, meanwhile, I think the Judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belts whenever and wherever going by car. It is a wise precaution which everyone should take.

  5. THE EFFECT OF FAILURE TO WEAR A SEAT BELT
  6. (i) Majority versus Minority

    Quite a lot of people, however, think differently about seat belts. Some are like Mr. Froom here. They think that they would be less likely to be injured if they were thrown clear than if they were strapped in. They would be wrong. The chances of injury are four times as great. Yet they believe it honestly and firmly. On this account Mr. Justice Nield thought they should not bear any responsibility. He recognised that such persons are in a minority, but he thought that proper respect should be paid to the minority view. He said:

    "I do not feel that the Courts are justified in invading the freedom of choice of the motorist by holding it to be negligence, lack of care or fault, to act upon an opinion firmly and honestly held and shared by many other sensible people".

    I am afraid I do not agree. In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individuals or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe, see Vaughan v. Henlove (1837) 3 Bing N.C. 468: Glasgow Corporation v. Muir (1943) A.C. 457 at page 457 by Lord Macmillon. Nowadays, when we have no juries to help us, it is the duty of the Judge to say what a man of ordinary prudence would do. He should make up his own mind, leaving it to the Court of Appeal to correct him if he is wrong.

    (ii) The high risk argument

    Other people take the view that the risk of an accident is so remote that it is not necessary to wear a seat belt on all occasions, but only when there are circumstances which carry a high risk, for example, driving on a motorway in conditions of fog, ice or snow; or engaging in road racing activities. This view was forcibly expressed by Mr. Justice Shaw in Challoner v. Williams,; by Mr. Justice O'Connor in Smith v. Blackburn; and by Mr. Justice Stocker in Chapman v. Ward. I cannot accept this view either. You never know when a risk may arise. It often happens suddenly and when least anticipated, when there is no time to fasten the seat belt. Besides, it is easy to forget when only done occasionally. But, done regularly, it becomes automatic. Every time that a car goes out on the road there is the risk of an accident. Not that you yourself will be negligent. But that someone else will be. That is a possibility which a prudent man should, and will, guard against. He should always, if he is wise, wear a seat belt. (iii) Mere forgetfulness

    Lastly, there are many people who do not wear their seat belts, simply through forgetfulness or inadvertence or thoughtlessness. Their fault is far less serious than that of the negligent driver who causes an accident. Some Judges have expressed themselves strongly about this. In Freeborn v. Thomas, Sir George Baker, the President, said:

    "Looking as an ordinary mortal at the drivers of cars, the vast majority do not wear their seat belts. Must this Court say that the unfortunate plaintiff, having forgotten to put on the seat belt, was neglectful because she failed to do that which so many others do not do? I think not, and I will not".

    I am afraid I cannot share this view. The case for wearing seat belts is so strong that I do not think the law can admit forgetfulness as an excuse. If it were, everyone would say: "Oh, I forgot". In order to bring home the importance of wearing seat belts, the law should say that a person who fails to wear it must share some responsibility for the damages.

    Thus far I have spoken only of the ordinary run of cases. These are, of course, exceptions. A man who is unduly fat or a woman who is pregnant may rightly be excused because, if there is an accident, the strap a cross the abdomen may do more harm than good. But, apart from such cases, in the ordinary way a person who fails to wear a seat belt should accept some share of responsibility for the damage - if it could have been prevented or lessened by wearing it.

    7 THE SHARE OF RESPONSIBILITY

    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 insofar 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.(1949) 2 K.B. at page 326, we 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%.

    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 bolt had still been worn, but there would/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%.

    CONCLUSION

    Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat belt. It is so well known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it and an accident happens - and the injuries would have been prevented or lessened if he had worn it - then his damages should be reduced. Under the Highway Code a driver may have a duty to invite his passenger to fasten his seat belt: but adult passengers possessed of their faculties should not need telling what to do. If such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries. In the present case the injuries to the head and chest would have been prevented by the wearing of a seat belt and the damages on that account might be reduced by 25%. The finger would have been broken any way and the damages for it not reduced at all. Overall the Judge suggested 20% and Mr. Froom has made no objection to it. So I would not interfere. I would allow the appeal and reduce the damages by 100.

    LORD JUSTICE LAWTON: I agree.

    LORD JUSTICE SCARMAN: I agree.

    Appeal allowed: amount of judgment reduced by 100.

    No order as to costs.


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