Williams v The Estate of Dayne Joshua Williams, Deceased [2013] EWCA Civ 455

Case No B3/2012/1401[2013] EWCA Civ 455
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE BLAIR
9MA90777
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2013
Before
LADY JUSTICE ARDENLORD JUTICE ELIASLADY JUSTICE BLACK
Between
LOUISE EMMA WILLIAMSAppellantThe Estate of DAYNE JOSHUA WILLIAMS, DeceasedRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Graham Eklund QC (instructed by Keoghs LLP) for AppellantJonathan Watt-Pringle QC (instructed by DWF LLP) for RespondentHearing Hearing date: 12 th February 2013
JudgmentBLACK LJ:
[1]On the evening of 19 August 2006, there was a collision between two cars. It was caused entirely by the driving of 18 year old Dayne Williams who had consumed alcohol and illegal drugs. He lost control of his car. It swerved onto the wrong side of the road in front of a car in which was a mother with her daughter, Emma. Emma was then aged 3 years and 2 months old and she was sitting in the back of the vehicle on a booster seat, strapped in with the adult seat belt. Dayne Williams died as a result of the accident. Emma was very badly injured.[2]Proceedings were brought against the estate of Dayne Williams (“the defendant”) for negligence. Liability to Emma was admitted but a claim was made under CPR Part 20 against Emma’s mother, Ms Williams (who is no relation to Dayne Williams), for a contribution in respect of Emma’s claim, see section 1(1) of the Civil Liability (Contribution) Act 1978. The basis of the claim was that it was negligent of Ms Williams to have put Emma on a booster seat rather than in the other child seat which was in the car and which had a 5-point harness.[3]The issue was determined on 25 April 2012 by Blair J. He ordered that Ms Williams was liable to make a contribution of 25% of the damages payable to Emma. Ms Williams appeals against that determination with leave of Blair J.[4]In order to consider the appeal, it is necessary to have some factual information about Emma and about the booster seat in which she was sitting (which is referred to both as a booster seat and as a booster cushion).[5]The booster seat manual began with a warning:
“READ THIS MANUAL. Do not install or use this car seat until you read and understand the instructions in this manual. FAILURE TO PROPERLY USE THIS CAR SEAT INCREASES THE RISK OF SERIOUS INJURY OR DEATH IN A SUDDEN STOP OR CRASH. ”
[6]Later on there is a page headed “Weight and Height Limits” on which appeared the following:
“WARNING FAILURE TO USE booster seat in a manner appropriate for your child’s size may increase the risk of serious injury or death. To use this Graco booster seat, your child MUST meet ALL of the following requirements: With back support (approximately 3 to 10 years old): [requirements set out] Without back support (approximately 4 to 10 years old): * weigh between 15-36 kg, and * are between 101 and 145 cm in height, and * [instructions for positioning the seat belt] * when sitting on the booster seat, your child’s ears are below the top of the vehicle seat cushion/head rest. Your Graco booster seat can be used with or without the back support (on certain models) as long as the above requirements are met.”
I have omitted the passage relating to seats with back support because Emma’s was a seat without back support. To use this Graco booster seat, your child MUST meet ALL of the following requirements: With back support (approximately 3 to 10 years old): [requirements set out]

Without back support (approximately 4 to 10 years old):

[7]On the bottom of the seat was a label which said:
“FOR USE ONLY by children who: * are approximately 4 – 10 years old * weigh between 15 – 36 kg * are between 101 - 145 cm in height * whose ears are below top of vehicle seat”
[8]Between them, the manual and the label on the bottom of the seat referred to five qualifications for the use of the seat. Emma satisfied three of the five: weight (she weighed approximately 15 kg), the position of her ears in relation to the vehicle seat and the correct positioning of the seat belt. However she was only 93 cms tall and, at 3 years and 2 months old, she was 10 months younger than the approximately 4 years of age that was contemplated.

The parties’ positions before the judge

[9]It was not in dispute that a duty of care is owed by a parent to her child to take reasonable steps to ensure that the child is secured with an appropriate seat restraint when travelling in a car.[10]The defendant’s position was that if Emma had been put in the other child seat, her injuries would have been almost entirely avoided or at least significantly reduced. Before the judge, as in this court, the defendant laid considerable emphasis on the instructions that came with the respective seats, arguing that Ms Williams was negligent not to follow them.[11]Ms Williams denied that she had been in breach of her duty of care. Her case was that at most she made a mistake as to which child seat to use but that her choice was reasonable, her actions did not amount to negligence, and in any event it was doubtful that serious injury could have been avoided even if Emma had been in the other car seat. Her evidence was that she read the instructions that came with the booster seat carefully but regarded them as advice rather than a legal requirement and used her own judgment to decide whether to use the seat.[12]It was also submitted on her behalf that the defendant had to establish that by virtue of being 8 cms short of the recommended height for the booster seat and too young for it, Emma had sustained significantly greater injuries than she would otherwise have suffered in the booster seat and that the defendant had failed to establish this. Reliance was placed on the evidence of Dr Pedder from a Canadian safety research and consulting group that if Emma had been 8 cm taller, her injuries would probably have been similarly serious. The judge’s findings[13]The judge did not accept it was the correct approach to look at what would have happened to Emma in the accident if she had met the requirements for the booster seat. He said the issue was “whether it was negligent to put this particular child of her age and dimensions on the booster cushion”. He held that in the circumstances of this case, Dr Pedder’s evidence that Emma’s injuries would probably have been similarly serious even if she had been taller was not to the point.[14]The judge found that the evidence established that the seat with the five-point harness was the most appropriate restraint for Emma who did not meet the requirements of the booster seat. He found that if she had been placed in the seat with the five-point harness, her injuries would largely have been avoided.[15]Dealing with the question of negligence, the judge accepted that “the manufacturers’ instructions should not be blindly treated as determinative of liability questions” but found that the instructions here “could not have been more explicit, both as to requirements for use, and consequences in case of misuse”. He held that “[a]bsent special circumstances ….an individual judgment, however understandable, and however well motivated (as in the present case), cannot override the requirements that are stated for the use of a child safety seat”. A number of factors were advanced on behalf of Ms Williams as indicative of there being, in fact, no negligence on her behalf. The judge summarised them as follows (§67):
“….she had the safety of her daughter uppermost in her mind, and took into account her experience of seeing the child on the seat before the day of the accident appearing comfortable and secure. She had observed other parents doing the same. Dr Pedder referred to the tendency of parents overly to accelerate the progression from seat to booster cushion, and if Ms Williams was at fault in doing so, she acted in the same manner as the majority in society at large. There had been guidance in toddlers’ magazines, along with the fact that Emma was ‘chunky’ and it could be difficult to get her into the car seat. It was Emma’s preference to be in the booster seat, and though this was a sub-optimal restraint, experience elsewhere may suggest a lack of knowledge on the part of many, but not negligence. Reference was also made to the fact that the new regulations treated mass as most important not height, and Dr Pedder’s evidence that studies have shown that there is premature transfer from one seat to another. [Ms Williams’] conduct was similar to thousands of other parents, and no law has been broken. Finally, reliance is placed on the fact that this was a very violent accident.”
[16]Notwithstanding these matters, the judge found that it had been established that Ms Williams was negligent to put Emma on the booster seat and so liable in respect of the damage suffered by Emma. He therefore went on to consider what contribution from her was just and equitable having regard to the extent of her responsibility for the damage in question (section 2(1) Civil Liability (Contributions) Act 1978). Applying the principles established in Froom v Butcher [1976] 1 QB 296, he determined that a contribution of 25% was appropriate.

The submissions on appeal and discussion

[17]Mr Graham Eklund QC, counsel for Ms Williams, submitted that the judge was wrong to find that she was negligent. He underlined that the question was whether Ms Williams took the care that a reasonably careful parent would take for the safety of her child in all the circumstances, having regard to the range of factors that such a parent ought to have in mind. This had to be determined in the light of the information that would have been available to the reasonably careful parent and judged at the time the child was placed in the booster seat and not with the benefit of hindsight.[18]It is possible to group counsel’s submissions about the judge’s finding of negligence into a number of categories.[19]First, it was submitted that the judge gave too much weight to the manufacturers’ instructions, elevating them to the status of law and treating them as determinative of liability, notwithstanding that he had accepted that they should not be blindly treated as determinative of the question of liability. It was argued that the totality of the factors in the case should have led him to reject the allegation that Ms Williams was negligent. Particular reliance was placed on the fact that Emma satisfied the weight requirement for the booster seat and on what was said to be the practice of many other parents at the time as well as on the statutory framework relating to child safety restraints in vehicles.[20]Mr Eklund submitted that the message from the manufacturers’ instructions and warnings was that it was the size of the child which mattered, not the child’s age which was only approximate. Ms Williams was entitled to make a judgment about whether or not Emma fell within the approximate age range for the seat and was entitled to conclude that she did. This meant that of the requirements in relation to use of the seat, Emma satisfied all but the height requirement.[21]Mr Eklund addressed the height requirement by submitting that it was not established that the risk of serious injury was increased by Emma’s shorter stature and that the relevance of the height requirement was confined to the correct positioning of the seat belt. As there was no dispute that Emma’s seat belt was positioned correctly, it was immaterial, he said, that she was not as tall as the instructions contemplated.[22]This submission ran into difficulty when the evidence that was before the judge was examined, showing that the importance of height was not in fact confined to the correct positioning of the seat belt. Dr Horsfall’s evidence was that he did not know how the minimum height limits were chosen but that, from an engineering standpoint, it was reasonable for a manufacturer to set minimum height limits and the limits set will depend on the detailed design of the product (§5.2.6 of Dr Horsfall’s report). In his oral evidence, he said that the height requirement was “not the same issue as the belt passing over the child’s shoulder” and that “[t]he height requirement is a separate requirement imposed by the manufacturer” (page 71). In re-examination, he explained that in addition to the relevance of height to the positioning of the seat belt, the child’s height indicated the state of growth of the child’s skeleton and therefore the type of restraint system that would be appropriate (page 73).[23]However, Mr Eklund also placed particular emphasis on the fact that Emma satisfied the weight requirement in relation to the seat which he submitted was the all important factor, inviting attention to certain European regulations, namely the Directive 2003/20/EC of 8 April 2003 and Regulation No 44 of the Economic Commission for Europe of the United Nations entitled “Uniform provisions concerning the approval of restraining devices for child occupants of power driven vehicles (‘child restraint systems’)”. He submitted that these regulations reflected the contemporary research and argued that they proceeded on the basis that weight was the important factor in judging the suitability of particular forms of child restraint for particular children. Accordingly, he said, as Emma satisfied the weight requirement for the booster seat, Ms Williams could not be negligent in choosing it, notwithstanding that Emma did not fit completely with the manufacturers’ stipulations.[24]Counsel for the defendant, Mr Jonathan Watt-Pringle QC, objected to this reliance on the Directive and Regulation 44 so late in the day when they had not been relied upon in this way as part of Ms Williams’ case before the judge.[25]In so far as the judge referred to regulations specifically in his judgment, it was to the domestic regulations concerning the wearing of seat belts, although he decided in due course that nothing turned on them. He recorded that the matter was covered at the time of the accident by the Motor Vehicles (Wearing of Seat Belts) Regulations 1993 SI 1993 No. 176. The effect of these was that there was no absolute requirement for a child to be secured in any form of child restraint; if no car seat or booster cushion was available in the vehicle, an adult seat belt could be used. Very shortly after the accident, the law was amended, as the judge noted, by the Motor Vehicles (Wearing of Seat Belts)(Amendment) Regulations 2006 SI 2006 No. 1892 to require the use of a child restraint of a description prescribed for a child of that particular height and weight. It is worth noting however that in §67 of the judgment the judge referred to “the fact that the new regulations treated mass as most important not height”. Furthermore, the booster seat was approved under Regulation No 44 and that regulation was referred to in the evidence (see, for example, Dr Horsfall).[26]Despite complaining of late notice of the point, Mr Watt-Pringle was able to deal with it and, having heard the arguments on both sides, I concluded that neither the domestic nor the European provisions assisted Ms Williams’ case. In Regulation No 44, weight (there called “mass”) is the determining feature in establishing the five groups of child restraint (see for example paragraph 2.1 of Regulation No 44). However, the Directive refers not just to mass but also to age and height (see for example Article 2) and our domestic regulations also refer to age, height and weight. From the provisions, it is clear therefore that a number of factors can be of importance in determining the suitability of a child restraint for a particular child and that weight does not transcend all other factors so that Ms Williams was entitled to give it precedence over the manufacturers’ other stipulations.[27]On the contrary, it was clear from what Dr Horsfall said (see supra) that it was reasonable for manufacturers to set other requirements dependent on the detailed design of their product. The judge rightly focussed therefore on whether it was negligent of Ms Williams to fail to observe the warnings these particular manufacturers gave.[28]The judge took as his “starting point” the undisputed fact that Ms Williams had read the instruction manual (§66). There was no issue, therefore, such as there had been in Harris v Perry [2008] EWCA Civ 907 [2009] 1 WLR 19, about information that was available in documentation which she had not seen. His determination of liability concentrates on the material in the manufacturers’ instructions. He had regard to the explicit warnings given and to the fact that the instructions made clear that the child must meet all the stipulated requirements. Contrary to the argument advanced on behalf of Ms Williams, he did not, however, treat her failure to comply with the instructions as determinative. The passage of his judgment which I have quoted earlier (his §67) is concerned with a consideration of the other circumstances which it was said negated negligence and blameworthiness on Ms Williams’ part.[29]Mr Eklund complained that the judge did not set enough store by the matters to which he referred in §67 and that he omitted other matters which were relevant, in particular failing to take into account that because Emma’s father died before she was born, Ms Williams had no one with whom to discuss matters and therefore observed what others did and followed their lead and also that she had made sure that Emma was restrained sufficiently in the seat as described in the instructions. He argued that each of the factors that Ms Williams took into account was a relevant and appropriate factor to take into account and that these were the type of facts that a reasonable parent would take into account. Her decision to move Emma to a booster cushion, prematurely as it turned out, reflected the state of awareness of many other parents and was a decision that many others would have taken and it was submitted that therefore she should not be regarded as negligent.[30]In my view, §67 contains sufficient reference to the various relevant factors to establish that the judge had them well in mind. He was well aware that the argument advanced on Ms Williams’ behalf was that “she was entitled to use her judgment as to which seat was more suitable, and disregard the stated limits for the use of the booster cushion if that was the judgment she made” (§68). He was well aware of the evidence of Dr Pedder that many parents progressed too quickly from a seat with a harness to a booster cushion so Ms Williams was by no means alone (see §§67 and 70). However, he reasoned that the context of events was significant. The purpose of the booster seat was to protect Emma in case of a collision and the instructions as to its proper use had to be read with that in mind. He rightly thought that the instructions “could not have been more explicit, both as to requirements for use, and consequences in case of misuse” (§69) and that led him to conclude that it was “difficult to see how a different judgment as to the appropriateness of the seat (however understandable in one sense) can be substituted”.[31]I do not consider that this process of reasoning can be faulted on the particular facts of this case. I would supplement it only in relation to the evidence that Ms Williams acted as many other parents would have done. In this respect, it is worth noting that a similar situation arose in Jones v Wilkins [2001] R.T.R. 19 and the approach taken was similar to that taken by the judge here. In Jones v Wilkins a child was seated on her mother’s lap and partially strapped in with the adult seat belt which, “as it turned out …. according to the expert, actually made the situation worse” although there was no evidence that the mother was aware of that and the expert said that “ordinary members of the public do not understand how dangerous such an action is”. The Court of Appeal decided that although the blame to be attached to the mother was limited by her lack of understanding of the risk, she remained 25% liable for her daughter’s injuries.[32]Secondly, it was submitted that it was not reasonably foreseeable by Ms Williams when she chose to place Emma on the booster seat that that would result in materially greater injuries if there was an accident than if Emma had been placed in the seat with the five-point harness or that “the shortfall of 8 cm in Emma’s height would cause serious injuries”. It was submitted that the judge allowed hindsight to play an inappropriate part in his assessment.[33]This argument proceeded upon the basis that the judge wrongly took account of the expert evidence establishing that the seat with the five-point harness was safer when that evidence and the material upon which it was based was not available to Ms Williams.[34]The answer to this argument comes back once more to the instructions, in my view. They contained clear and repeated warnings that failure to use the seat as instructed could result in serious injury or death and it was therefore reasonably foreseeable to Ms Williams that Emma would be injured. Indeed, she accepted in evidence that the manual left her in no doubt that failure to follow the instructions could give rise to serious injuries and that she knew that Emma did not fit all the requirements.[35]Thirdly, it was argued that the judge was wrong to place weight on the fact that there was a safer option available to Ms Williams in the form of the seat with the five-point harness. It was submitted that the question was simply whether Ms Williams was negligent to have used the booster seat and she could not be negligent merely because she chose what turned out to be the less safe of the two options in the car.[36]It became clear in oral submissions that the premise for counsel’s argument that the availability of the seat with the 5-point harness was irrelevant was that the judge had not made a finding that the booster seat was unsafe, only that the other seat would have provided greater protection. I cannot accept that analysis of the judgment.[37]In seeking to persuade us that it was so, Mr Eklund took us to the passage in the judgment where the judge set out the evidence of Dr Pedder (starting at §47). Dr Pedder had said in her report that “from an informed scientific point of view the …. 5-point harness child seat would have provided greater protection” and that it “was the most appropriate child restraint for Emma but she said that “Emma was reasonably restrained in the booster cushion at the time of the collision”. As the judge records at §53, in cross-examination it was put to her that she did not address specifically in her report the question whether the booster cushion was a suitable child restraint for Emma at the time of the accident and that by implication, having said that the seat with the 5-point harness was the most appropriate restraint, she was answering that question in the negative. She replied, “Yes I would be”. The judge recorded that in re-examination she confirmed the passage in her report which concluded in the view that Emma “was reasonably restrained in the booster cushion at the time of the collision” but that he did not find that portion of her evidence particularly convincing. The judge’s conclusion about the point was: “Although overall Dr Pedder was a good witness with a great deal of experience in the field, and I do not think that she intended to abandon her conclusion in the answer she gave in cross-examination, she did not appear to me to have a good answer to the point that the …booster cushion was not a suitable restraint at the time of the accident because Emma did not fall within the limits specified in the instructions for its use.” (§53)[38]It seems to me that the necessary implication from this passage of the judgment is that the judge himself had concluded that the booster cushion was not a suitable restraint for Emma. This is consistent with the way in which he went on to discuss the issue of breach of duty and to reach his conclusions.[39]I do not read the judgment as indicating that when he came to discuss the issues and reach his conclusion, the judge departed in any way from the view that he had expressed earlier in §53. It is clear from a reading of the judgment as a whole that he proceeded upon the basis that the booster seat was not suitable because Emma did not meet the manufacturers’ requirements for it and “a different judgment as to the appropriateness of the seat” could not in this case be substituted for the manufacturers’ assessment of what was appropriate (§69). His finding that the booster seat was not appropriate is also implicit in the following paragraph where he referred to the fact that “premature graduation of a child from a harness seat to a booster seat or a seat belt” can have very serious consequences and said that that made it particularly important for the requirements stated for the use of the device to be followed.[40]The finding that the booster cushion was unsuitable was in line with the evidence of the other experts. The defendant’s witness, Dr Horsfall, provided an engineering analysis report. In it (§6.2.3) he identified the importance for younger children of a seat with a backrest including head rest and side wings which help to maintain the child in an upright seated posture whereas booster cushions such as this one with no back have no means of preventing a child leaning or moving sideways away from the side at which the seat belt passes over their shoulder so that their upper body is no longer restrained properly by the seat belt. The judge summarised this evidence at §§31 and 32 referring also to Dr Horsfall’s statement that Emma did not meet the requirements of the booster cushion whereas the other seat was suitable for her (see also §63).[41]The defendant also called Mr Sherriff, a consultant in accident and emergency medicine and Director of Emergency Services at Addenbrooke’s Hospital in Cambridge. The judge recorded his evidence about the role in Emma’s injuries of the lateral movement permitted by the booster cushion which he considered, subject to a qualification in his oral evidence which the judge described as “not a major departure” (§45), would in contrast have been prevented in the other seat. Mr Sherriff considered (§36) that had Emma been in the other seat, her injuries would have been slight only.[42]It follows that the judge did not approach this matter on the basis that Ms Williams made what turned out to be the wrong choice between two appropriate forms of restraint. The foundation for his finding of negligence was that Ms Williams chose a restraint which was not appropriate and that she should not have done so given the manufacturers’ instructions.[43]Fourthly, it was argued that the judge should have had regard to the fact that there was no evidence that a child who did meet the manufacturers’ criteria (“the hypothetical child”) would have been safe on the booster seat and that it was not established that the discrepancy between Emma’s characteristics and those dictated by the instructions made any material difference to her injuries. Indeed, Dr Pedder gave evidence, as the judge recorded, that if Emma had been 8 cms taller, her injuries would probably have been similarly serious.[44]Mr Eklund submitted that the judge had acted inconsistently in that he had had regard to a hypothetical child (fulfilling the manufacturers’ stipulations) when determining that the booster seat was not suitable for Emma but declined to have regard to what would have happened to the hypothetical child in the booster seat in this accident which was necessary to his determination.[45]Mr Watt-Pringle submitted that the judge rightly refused to adopt the approach proposed by Mr Eklund. As the judge said (§57), “[t]he issue is whether it was negligent to put this particular child of her age and dimensions on the booster cushion” which “cannot be answered by reference to a hypothetical child of different dimensions” so Dr Pedder’s evidence on the point was irrelevant. He submitted that it would be pure speculation to investigate what injuries might have been caused in other circumstances. He pointed out that this was not a product liability claim and that investigating the sort of hypothetical situation which it was suggested was relevant would be disproportionately expensive and complicated by the fact that there may be many permutations of dimension/age to be considered.[46]This is the aspect of the appeal which I have found the most difficult. There is no doubt that there is a logic to Mr Eklund’s submission if one focusses purely on Ms Williams’ disregard of the instructions for use of the booster seat. Suppose a case in which the only options open to the parent were to use the booster seat or not to use the booster seat, that is to say where the alternative of the seat with the 5-point harness was not available. Suppose also that it were to be accepted that the booster seat would not have protected even a child who fitted the stipulations in the manufacturer’s instructions either because of the nature of the accident or because of a failing in the design of the seat. In those circumstances, obeying the seat instructions would not have prevented the injuries and conversely disobeying them made no difference to the outcome.[47]But I do not think that causation issues can be considered in a vacuum in this way. The actual circumstances are what matter. As the judge put it in §25 of his judgment in a slightly different context, “the question which has to be determined [is] whether or not in the circumstances of this case it was or was not negligent to use the booster cushion instead of the child seat”. In this case, if Ms Williams had not disregarded the manufacturers’ instructions, she would have put Emma in the seat with the 5-point harness and in that seat Emma would probably not have suffered the injuries that she did. In other words, but for the action which the judge characterised as negligent, the damage would not have occurred.[48]It follows that in my view Mr Watt-Pringle’s argument is correct and the judge directed himself properly as to the issue he had to decide which revolved around this particular child in this particular car in which there were two alternative child seats available. He was right to reject an enquiry into what would have happened to the hypothetical child.[49]In summary therefore, the appellant’s submissions on liability have not persuaded me that the judge erred in finding that Ms Williams was negligent in placing Emma on the booster cushion.[50]A number of submissions were made by Mr Eklund in relation to the question of contribution. It was submitted that the judge failed to have proper regard to the fact that, as the law stood at the time, if no suitable restraint was available, Emma could simply have been strapped in with an ordinary adult seat belt.[51]It was also argued that he failed to balance justice and equity as between Dayne Williams and Ms Williams as the Civil Liability (Contribution) Act 1978 required, requiring too high a contribution from Ms Williams when she had nothing to do with causing the very violent accident which was entirely caused by the extremely dangerous driving of Dayne Williams, who had both alcohol and illegal drugs in his system at the time. It was also relevant, it was said, that many parents might have made the decision that Ms Williams made.[52]Furthermore, it was submitted that the judge allowed his determination on this issue to be inappropriately influenced by hindsight when Ms Williams’ liability to contribute had to be determined upon the basis of the circumstances prevailing at the start of the journey.[53]It was also argued that the judge’s reliance on authority was incorrect and failed to pay sufficient regard to the fact that Ms Williams had taken measures to keep Emma safe even if they proved ineffective. Froom v Butcher [1976] 2 QB 296 was not applicable, it was said, because making the wrong choice between safety precautions was quite different from failing to use a seat belt at all; the judge should have had regard to Capps v Miller [1989] 1 WLR 839 and should have classified Ms Williams’ degree of responsibility as at most the 10% found in that case.[54]I cannot accept these arguments. It may be appropriate to start with a consideration of the judge’s use of authority. He relied on Froom v Butcher “as interpreted in the present kind of circumstances [i.e. a 1978 Act contribution case] in Jones v Wilkins” (§81). In my view, he was right to do that.[55]It is clear from Froom v Butcher that the court’s aim was to provide guidelines that would be applied robustly. Setting up the two standard categories of reduction in damages of 25% and 15%, Lord Denning MR said: “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 [1949] 2 KB 291, 326, 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.” (page 295-6)[56]A quite recent endorsement of Froom v Butcher and a useful reminder of the “powerful public interest” in there being no “prolonged or intensive enquiry” “into fine degrees of contributory negligence” is to be found in Stanton v Collinson [2010] EWCA Civ 81 [2010] RTR 284 at §26, quoted in this case by Blair J.[57]Furthermore, it is important to remind ourselves that the Court of Appeal will only interfere with an apportionment of liability such as Blair J made “where it is clearly wrong or there has been an error in principle or a mistake of fact”, see Jones v Wilkins supra.[58]Turning to look more closely at how the present facts fit with the existing authorities, it is notable that the themes which have featured in the argument for Ms Williams in this case, featured also prominently in the judgment of Lord Denning MR in Froom v Butcher. He began his discussion of the issue in that case with an acknowledgment that “[i]n these seat belt cases, the injured plaintiff is in no way to blame for the accident itself” (page 292D), just as Ms Williams was in no way to blame for the accident here. He went on to acknowledge that it was (then) compulsory to fit seat belts for the front seats of cars but not compulsory to wear them (just as it was not compulsory for Emma to be strapped in with a child restraint) although he noted that people were advised to do so and that doing so reduced the risk of death or injury significantly. He also acknowledged that there were those who honestly and firmly, but wrongly, believed they were safer without a belt or simply forgot to wear one (as in this case, Ms Williams believed that Emma would be safe on the booster cushion and merely made a wrong choice of restraint). But he still said that “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” (page 295G).[59]As I have already observed (§31), there are also parallels between some of the circumstances in this case and those in Jones v Wilkins where the child’s injuries would also have been largely avoided had the correct restraint been used and where a contribution of 25% towards the child’s damages was required from the mother.[60]In Capps v Miller, upon which Mr Eklund relies, it was not possible to make a finding on the medical evidence as to the extent to which the plaintiff’s injuries were worse because his undone helmet came off thus it was not possible readily to attribute the case to Lord Denning’s categories. Croom-Johnson LJ inclined towards a deduction for contributory negligence of 15% but accepted the 10% upon which Glidewell and May LJJ had settled. Glidewell LJ drew a distinction between the plaintiff who puts on a crash helmet and fails to fasten it and the plaintiff who fails to wear a helmet at all, as did May LJ. Glidewell LJ explained his reasoning for this as being that a close fitting but unfastened helmet will in some accidents remain on the head, thus reducing or eliminating the damage resulting.[61]In my view, the judge was entitled to follow the guidance in Froom v Butcher and Jones v Wilkins rather than modelling himself on Capps v Miller. He summarised his reasoning at §78, contrasting this case with Capps v Miller in that the present case concerned a safety device which should not have been used at all rather than a safety device which was not being used properly and, unlike in Capps v Miller,he had been able to make findings about the degree to which Emma’s injuries were worse because of Ms Williams’ action. We can see from §82 that the core findings that drove the judge’s determination that Ms Williams’ contribution should be one of 25% were “that the booster cushion should not have been used, that the child seat should have been used, and that if it had been, the injuries sustained in the accident would largely have been avoided”.[62]There was no question of Ms Williams’ contribution being less because the injuries would only have been reduced and not avoided had the correct seat been used. It is upon her relative blameworthiness (or lack of it) that reliance is placed in arguing for a lower contribution than the judge found. However, I am not persuaded that the judge’s approach to this was at fault. In my view, he was entitled to conclude that in the circumstances a 25% contribution was just and equitable and appropriately reflected the extent of Ms Williams’ responsibility for the damage in question.[63]I would therefore dismiss this appeal. Before concluding however, I want to reiterate the judge’s recognition that Ms Williams was an excellent and caring mother whose daughter’s safety was naturally of paramount importance to her. There were no doubt other similarly caring parents who would have done as she did but that does not determine the issue of liability or the amount of contribution here, nor does the fact that she was in no way to blame for the road accident that had such tragic consequences for her and her daughter.

ELIAS LJ:

[64]I agree.

ARDEN LJ:

[65]I also agree.

Cited in 1 later judgment