Palmer v Palmer, the estate of & Ors [2006] EWHC 1284 (QB)

Case No HQ02X04022[2006] EWHC 1284 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/05/2006
Before
His Honour Judge McKenna
Between
KYLIE PALMERClaimant(1) THE ESTATE OF KEVIN PALMER, DECEASEDDefendants(2) THE MOTOR INSURERS’ BUREAUDefendant(3) PZ PRODUCTS LIMITEDDefendant
for Claimant - William Edis for First and Second Defendants - John Norman for Third Defendant - Charles Cory-WrightHearing Hearing dates: 30 and 31 January, 1, 2, 3, and 23 February 2006
Judgment

Introduction

[1]This case arises out of a particularly tragic road traffic accident which took place as long ago as 6 January 1996 in which the Claimant, Kylie Palmer, then aged six, now aged 16, was being driven by her father as a front seat passenger in a Nissan Micra car.[2]Whilst driving, Mr Palmer suffered a fatal epileptic seizure at the wheel. In the ensuing crash, Kylie sustained severe injuries, the principal one being brain damage caused by the impact of her head close to the near-side end of the instrument panel of the car in which she was travelling.[3]Liability for the accident has been conceded by Mr Palmer’s estate, the essential allegation having been that he was driving when he knew that he should not have been as he was a diagnosed epileptic who was both not taking his prescribed medication and still subject to fits.[4]Mr Palmer was insured under a policy taken out by his former wife, Tina Palmer. That policy has subsequently been avoided in the High Court on the basis of non disclosure by Mrs Palmer of her own epilepsy. As a result, when the Claimant came to sue, the Motor Insurers Bureau (“MIB”) became involved and were joined into the action as Second Defendant.[5]At the time of the accident, the Claimant was wearing a seatbelt. That seatbelt had a device known as a Klunk Klip attached, the evidence suggesting that this device had been fitted to the car by its previous owner, a driving instructor from whom Mr Palmer purchased the car as a present for his wife. . This product was manufactured by the Third Defendant, PZ Products Limited, and is a device designed to be used in conjunction with inertia reel seatbelts to introduce slack into the seatbelts with a view to making them more comfortable. It is an “after market device” not provided as standard by car manufacturers.[6]The MIB is liable to pay damages which would have been payable by the insurers of Mr Palmer. However, the MIB has the right to require, as a condition of its meeting any liability, a person making a claim against the fund to “take all reasonable steps” to secure judgment against a third party. So far as such judgment is/are enforced against the third party, this reduces the MIB’s liability. The MIB have compelled the Claimant to sue the Third Defendant.[7]Pursuant to the Order of Master Rose, dated 24 June 2005 (bundle 1/67), this trial is only concerned with issues of liability

The Accident

[8]The circumstances of the accident are largely non controversial. Although neither the Claimant herself nor her father have been able to give an account of the accident, there were a number of eye witnesses whose accounts of what they saw appear in the form of witness statements in the trial bundle. In addition, a good deal of work has been undertaken by accident reconstruction experts.[9]As a result, it is common ground that at the time of the accident the Claimant was a front seat passenger in a two door blue Nissan Micra motor vehicle being driven by her father who suffered a fatal epileptic seizure attack and consequent loss of control of the car as a result of which it collided with the end of metal fencing mounted on a parapet where the elevated section of the A12 road begins at the Gallows Corner Flyover. Both the Claimant and her father were wearing seatbelts at the time and both front seatbelts had Klunk Klip devices fitted to them.[10]Earlier on in the journey, the Claimant’s mother had been in the front passenger seat with the Claimant travelling in the rear. The Claimant’s mother was dropped off outside St Margaret’s Church on Barking Road in Canning Town. At this point the Claimant changed seats and spent the rest of the journey in the front passenger seat, her seatbelt having been fastened for her by her mother.[11]At the time of the impact the car was travelling at about 40 mph and prior to the head on collision with the fencing mounted on the parapet, the vehicle collided a number of times, at least two and possibly up to six times, with the off-side kerb of the central reservation before mounting the near-side kerb and colliding with the fencing mounted on the parapet as shown in the series of photographs taken by the Metropolitan Police Photographic Section. (3/971 and following in the bundle).[12]The Claimant struck the nearside end of the fascia panel with her face, sustaining a serious brain injury and as a result it is common ground that she cannot have had the seatbelt across her chest, even loosely, since, had that been the case, her head would not possibly have gone far enough forward to strike the fascia. Thus she had the upper part of her body effectively unrestrained with the seatbelt off the left shoulder at the moment of impact.

The Issues

[13]Up until the first morning of the trial of liability issues there were essentially two distinct sets of issues: (i)Whether the Klunk Klip device was a defective product within the meaning of that expression in the Consumer Protection Act 1987 (“the Act”) and if so, whether it was the (or a) cause of the Claimant’s injuries and/or whether there was negligence in its design, testing and marketing. (ii)Whether Mrs Tina Palmer was herself at fault - the so called Hunt -v- Severs Issue. In broad terms, three faults were alleged against Mrs Palmer by the Second Defendant: that she let her daughter be driven by her husband when she knew, or ought to have known, that he was unfit to drive; that she placed the Claimant in the front seat rather than the rear seat; and that she failed to ensure that the seatbelt was tight.[14]In the event, on the first day of the trial I was informed by the parties that the so called Hunt -v- Severs Issue had been resolved and therefore the trial proceeded on the first set of issues alone, issues where the Claimant and First and Second Defendants made common cause against the Third Defendant.[15]Although there are two allegations of breach namely that the Klunk Klip was a defective product for the purposes of the Act and in negligence, it is common ground that the real question in this case is the former. It is hard to see how an allegation in negligence adds anything since if the product was defective under the Act then the Third Defendant is strictly liable and if it was not then it is hard to see how the Third Defendant can have been negligent and in breach of any common law duty to the Claimant. In the event that breach is established, there is then the question of whether the Klunk Klip was the, or a, cause of the Claimant’s severe injuries.

The Law

[16]There is no dispute between the parties as to the relevant law. The Act provides as follows: 2 (1)“Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom sub section (2) below applies shall be liable for the damage.” (2)This subsection applies to - (a)The producer of the product; (b)Any person who, by putting his name on the product or using a trademark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; (c)Any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another 3 (1)“Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.” 3 (2)`“In determining for the purposes of sub section (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including - (a)The manner in which, and purposes for which, the product has been marketed, its get up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product; (b)What might reasonably be expected to be done with or in relation to the product; and (c)The time when the product was supplied by its producer to another; and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question” The Evidence[17]The Court has had the benefit of hearing oral evidence from Mrs Palmer as to the circumstances in which the Claimant came to be a front seat passenger and as to the steps which she took to fasten the Claimant’s seatbelt and from Kelly Yeates, an eye witness to the accident. In addition, the Court has had the benefit of reading a number of witness statements made by other eye witnesses to the accident. They are to be found in bundle 3 and include Abul Basar, Polly Basar, Susan Taylor, Roy Walker, Gregory March and Nigel Morris.[18]Mr Andrew Oxley, a Director of the Third Defendant company, gave evidence as to the background to the introduction of the Klunk Klip in the late 1970s and its marketing thereafter and the steps taken to ensure its safety. There are also witness statements from a Mr Brophy and Mr Mason who are involved in companies which distributed the Third Defendant’s products and from Donald Webster of the Metropolitan Police in respect of which a Civil Evidence Act Notice was served. Frankly their evidence was at best of peripheral importance.[19]Finally, so far as oral evidence is concerned, the Court has had the benefit of hearing from three experts called by the various parties: Dr John Searle, called on behalf of the First and Second Defendants; Professor Mackay, called on behalf of the Claimant; and John Cowan called on behalf of the Third Defendant. Each expert has produced his CV and copies are to be found in the trial bundle.[20]I propose to deal with the evidence by reference to the various issues which fall to be determined Issue 1 - Breach

The Evidence

[21]Mr Oxley explained how he and his father designed and made various gadgets that could be attached to the seatbelt of their own car to relieve what he described as distracting pressure which made the wearing of the seatbelt uncomfortable and which they had observed had led motorists to improvise using bulldog clips and clothes pegs and the like (their vehicle being one of the first vehicles to be fitted with a rewinding or inertia reel seatbelt). They had concluded that there was a gap in the market for such a product.[22]Further work was undertaken on proto types until Mr Oxley and his father were entirely happy with the device and that it fulfilled their design requirements which included ease of use and fitting, simplicity in design making it easy to understand and to be within easy reach and with a safety feature of self release with any forward movement of the user, allowing the belt to retract as normal after use. They also wanted the device to allow the belt to adjust to different users. Thereafter a patent application was lodged and a number of proto types were manufactured which were distributed to business colleagues, family and friends to try out and test on an informal basis with positive feedback being received.[23]Mr Oxley said that he and his father were concerned about safety issues in connection with the device. They felt that they had a worthwhile product that would encourage seatbelt use but did not know whether it would be acceptable to the authorities and so they wrote to the Department of Transport and sent them prototypes and asked if they would endorse the product. A copy of the Third Defendant’s letter to the Ministry of Transport dated 21 April 1978 is at page 901 in the bundle and the Department of Transport’s response dated 5 October 1978 is at page 900 and includes the following:
“2.Whilst we are aware that the prevailing tension exerted by this type of belt is annoying to some wearers, it does, of course, vary from one belt to another and from one person to another. Even so, it is generally acknowledged that inertia reel type seatbelts are more readily worn than the static type mainly because of their self adjusting and self stowing characteristics. 3.From a safety point of view an inertia reel type seatbelt fitted with one of your devices could be expected to provide at best marginally less protection than the static type having the same amount of initial shock, because the inertia mechanism will not normally lock up in an accident situation until further extension of the seatbelt has occurred. This is normally compensated for by the self adjusting feature mentioned previously, which, unfortunately your device nullifies. 4.Because of this adverse feature therefore, we feel unable to support the use of your device in conjunction with the inertia reel seatbelts even though we accept that it could be welcomed by a minority of seatbelt wearers. 5.However, I should in all fairness point out to you that legal opinion confirms that the recently introduced maintenance requirement for seatbelts in use would nevertheless permit such a device which does not permanently detract from the correct functioning of the seatbelt assembly providing in the so fitting of the device it has not caused any adverse deterioration in the other permanent features of the belt. 6.On the other hand any question of permanent fitment of such a feature to an original equipment safety belt of the inertia type would alter the technical type by definition to that of a manually operated retractor which is not permitted under accepted international and domestic approval requirements mainly for the reasons given in my opening paragraphs.”
It is to be observed that this is hardly a ringing endorsement of the product.[24]During 1980 and 1981 the product was promoted by a company called Anvil Marketing and then by Tonken Auto Products who became the exclusive distributor and in due course sales increased dramatically such that by 1983/84 the Klunk Klip was one of the top 10 selling motoring accessories in the UK.[25]Instructions for the use of the product were included in the packaging and were, Mr Oxley said, based on the instructions vehicle manufacturers used to provide when static belts were fitted. The exact wording of the instructions changed over time and there are a number of examples of different wording in the trial bundle including, in particular, at page 3/744 which appears to be the instructions in use in 1996. They include the following:
“To Use Fasten seatbelt in the usual way. Place one hand flat on chest beneath the belt. This will extend the belt sufficiently to relieve the tension. Lift wedge to lock the belt. You may now drive freely without tension. Any forward movement of the body or a slight pull will release the Klip and the belt will return to its retracted position. Each time the belt is used Klunk Klip should be set as advised being careful to avoid introducing excessive slack. Klunk Klip will not impair the automatic functioning of the seatbelt if used as directed.”
The instructions include a warning triangle and the words “safety first, follow the instructions, do not introduce excessive slack to the seatbelt” in bold type.[26]In 1991 a now deceased Consulting Engineer and Metallurgist, Alexander Parthenis, was commissioned to produce a report on the Klunk Klip and a copy of that report is at pages 3/904 in the bundle and includes the following:
“This attachment, designed to adjust the seatbelt to personal needs, was installed, on 6 November 1987 in an Austin Princess car. The attachment was fitted to the driver’s seatbelt in accordance with the instructions on the package. The fitting instructions are very easy to follow and should present no difficulty, even to the most unmechanically minded motorist. The vehicle used for testing the attachment has, over the past months, covered both urban and motorway journeys. Under suitable and safe conditions the vehicle was also subjected to emergency stops, thus enabling the seatbelt to function. The behaviour of the attachment was perfect and no malfunctioning has so far been detected. Static tests were also carried out with the vehicle stationary and the driver throwing himself forward causing the seatbelt to operate. Such tests were carried out frequently and again no malfunctioning of the attachment was observed. The attachment possesses adequate mechanical strength for its intended duty and is ductile enough to stand a certain amount of abuse which may be encountered due to misuse of the seatbelts. A 45 degree bend test about the central minor axis of the principle plane, reveal the complete absence of cracks. The tests carried out so far have shown that the attachment fulfils all the claims stated on the package.”
[27]Mr Oxley also suggested that the Klunk Klip had been independently tested by a well known seatbelt manufacturer, Autoliv, and indeed had been fitted for a number of years to production vehicles made by Volvo in Mexico for the US market and suggested that Volvo would not have used the product in that way had it considered it to be in any way dangerous.[28]This latter evidence was put forward by Mr Oxley in the final paragraph of a very recently drafted witness statement (dated 12 January 2006) in response to expert evidence produced on the Second Defendant’s behalf (Dr Searle).[29]For the Claimant and the First and Second Defendants, both Professor Mackay and Dr Searle were critical of the Klunk Klip and of the steps taken by the Third Defendants to test their product and to provide users with appropriate instructions. By way of example, Professor Mackay at page 1/302 expresses the opinion that the absence of any instructions for correct use being available to Mr & Mrs Palmer illustrates a major shortcoming in the design and marketing of the device and he points out the importance of the instructions and the risks associated with incorrect use which, as he highlights, were emphasised in a number of documents in the trial bundle.[30]He is critical of the absence of any proper testing of the Klunk Klip’s function in collision circumstances and of how it might degrade seatbelt performance and of the absence of any investigation of how users actually use the device. He would have expected sample groups to be monitored to see how they would install and use the device with and without sight of the instructions and he concludes as follows:
“The basic fact is that it changes the function of an inertia reel seatbelt which is a critical safety item in the car. The manner in which the Klunk Klip device actually changed seatbelt performance was not examined either experimentally or by monitoring how it was used by car occupants. In my opinion, such a process during the design and marketing of such a product should have been performed. Those omissions represent an absence of good engineering practice and an absence of due care principles in marketing such a product.”
[31]Dr Searle is equally critical (2/314) pointing out that the Klunk Klip device interferes with the performance of the seatbelt in three ways. First of all, the whole object of the device is to make the seatbelt a less snug fit around the wearer so that it no longer applies any small force to the wearer’s body. That inevitably creates slackness in the fit of the seatbelt particularly where loose clothing is left uncompressed. The instructions warn to be careful not to introduce slack into the seatbelt but that must be the inevitable result, he says, if the device is to have any effect at all.[32]The second problem which, he says, it introduces is relevant to a two door car such as the Micra in this case, where a lower outboard end of the webbing terminates on a slider rail. The operation of the slider rail depends upon there being tension in the seatbelt. When an occupant puts on the seatbelt, the tension generated by the reel pulls the lower end of the webbing to the forward end of the slider rail. The reel takes up any spare webbing. If a Klunk Klip device is fitted the end of the webbing may remain at the rear end of the slider rail; that is in its stowed position or part way along. Only on impact will the end of the webbing slide forward on the slider rail so that the effect can be to introduce a very substantial measure of slack into that lap portion of the belt.[33]The final problem which, he says, is introduced by the Klunk Klip results from non use of the instructions. As he points out, very few members of the public have any idea about crash mechanics or about the harmful effect on seatbelt performance brought about by introducing slackness.[34]Mr Cowan was cross examined about the adequacy or otherwise of the testing undertaken by the Third Defendants and was asked whether he disagreed with Dr Searle and Professor Mackay’s conclusions. His response was that he would qualify them by saying that in 1978 he felt that different criteria would have been applied which were less certain but nevertheless he would have had difficulty in saying that what was done was adequate.[35]The trial bundles are littered with documents in which concerns are raised about the Klunk Klip and similar devices. I have already made reference to the Department of Transport letter of 5 October 1978.[36]At bundle 3/882 there is a letter from the Automobile Association dated 9 August 1982 written following the Third Defendant’s application for a Seal of Approval which includes the following:
“In fact, however, this product has been considered by the Seal of Approval Board and is not acceptable. The reasons for this are that whilst it can often be used without adversely affecting the seatbelt’s effectiveness, there is the possibility that some users will wear the shoulder belt too loose. It will be appreciated that the seatbelt legislation specifies the amount of forward travel permissible with a particular layout, which is often quite difficult to achieve in practice. Anything which increases the travel of the occupant could, with some vehicle layouts, lead to failure to comply.”
[37]On 27 July 1979 the RAC’s Chief Engineer wrote the following (bundle 3/789):
“I agree that this device does enable one to introduce a slight amount of slack into an inertia reel seatbelt, which prevents the requisite tightening up of the belt under normal motoring conditions, which often occurs. However, I am somewhat concerned as to the possible dangers of the device if misused. One of the major drawbacks with static seatbelts is, of course, the fact that they can be badly adjusted and it is well known that if a seatbelt incorporates too much slack, then its effectiveness is significantly reduced. Admittedly with an inertia reel seatbelt the risk of injury, which applies with a static seatbelt in a slack condition, may not be so great, but I do think there could be problems. If, for example, the wearing of seatbelts ever becomes compulsory, a device such as this could be used by people who strongly object to the wearing of seatbelts and they could wear their seatbelts in an extremely slack position whilst still on the face of it be complying with the law.”
[38]Jeffrey Miller, Chief Counsel at the US Department of Transportation wrote the following in 1985 (bundle 3/930):
“The agency is concerned that a belted occupant could use your product to reduce the effectiveness of the upper torso belt by moving the belt so close to the edge of the shoulder that the occupant could rotate out of the upper torso belt in a crash. Likewise, your product could be used to introduce excessive slack in the upper torso belt which also reduce its effectiveness. The instructions you provide with the Klunk Klip do include information about how much slack to introduce into the belt and warns users not to introduce excessive slack. The instructions for the Super Klip contain no information or warnings on belt slack. We urge you to include a warning in both your instructions to advise belt users about the consequence of introducing too much slack in the belt.”
[39]Professor Mackay gave evidence that he was unaware of Volvo fitting a Klunk Klip to any of its vehicles and said that he had made a telephone call to Volvo’s Chief Safety Engineer who confirmed that so far as he was aware Volvo had never manufactured cars at all in Mexico and that in his position he would have known about it if any part of Volvo was intent upon fitting a Klunk Klip type device. When it became clear that Mr Oxley might not be referring to cars, Professor Mackay again spoke to Volvo’s Chief Safety Engineer who said that he could not rule it out in respect of Volvo trucks.[40]Dr Searle, for his part, was aware of what he described as gossip that Volvo had a problem with trucks in America on rough roads and the use of the Klunk Klip device might have been a temporary way out of the problem.[41]In the light of this evidence, Mr Oxley produced some limited documentation to support his contentions (bundle 3/955(a) onwards) and he was cross examined at some length about that evidence. That documentation is, however, incomplete and the manner of its introduction highly unsatisfactory and raises more questions than it answers. By way of example, it was not clear in what vehicles the Klunk Klip was fitted by Volvo, for what purpose they were fitted and how difficult was the balance between that purpose and any appreciable loss of safety, whether it was fitted in cars or trucks, what testing (if any) Volvo did on the product and what view it formed of the results and why Volvo stopped buying the product.[42]During the course of drafting this Judgment, I was supplied by Counsel for the Third Defendant, with the concurrence of Counsel of the Claimant and the First and Second Defendants, with some further information from Professor Mackay which I record for the sake of completeness as it answers some of those questions. It is an e-mail from a contact of Professor Mackay at Autoliv and includes the following:
“I have some information to share with you on this subject as follows: - Yes, we shipped these “Comfort Klip” sub assemblies from Autoliv North America to Volvo Trucks for approximately two years (‘98-‘99). - The total volume was fairly high (>60,000 pieces) - The devices were for Comfort on both suspension and non suspension seats for heavy trucks - We did not install them into any production cars in North America - Most, if not all, heavy trucks sold in North America have these devices (ie not just Volvo) - We were responsible to run FMVSS 209 testing only... Apparently Volvo ran internal vehicle level testing - We lost the business after two years to Indiana Mills MFG Inc (IMMI) because our retractors did not have a suitable heavy truck vehicle sensor.” - Yes, we shipped these “Comfort Klip” sub assemblies from Autoliv North America to Volvo Trucks for approximately two years (‘98-‘99). - The devices were for Comfort on both suspension and non suspension seats for heavy trucks - Most, if not all, heavy trucks sold in North America have these devices (ie not just Volvo) - We were responsible to run FMVSS 209 testing only... Apparently Volvo ran internal vehicle level testing - We lost the business after two years to Indiana Mills MFG Inc (IMMI) because our retractors did not have a suitable heavy truck vehicle sensor.”
[43]It has to be said that Mr Oxley’s evidence on this point in particular but more generally was unsatisfactory. It is difficult to believe that Mr Oxley was not aware of the nature and extent of the “Volvo” business and in particular that it related to trucks, not cars, and his choice of vocabulary in his witness statement was, in my judgment, deliberately vague. Moreover, it is clear in my judgment that the Third Defendant took no proper steps to investigate the safety aspects of the Klunk Klip either prior to the launch of the product or, indeed, subsequently, notwithstanding the number of concerns raised over the years by the various interested parties to which Mr Oxley refers. I entirely endorse the criticism of Professor Mackay in particular in this regard and conclude that the Third Defendant’s purported reliance on what I have characterised as informal testing and on the so called report of Mr Parthenis falls lamentably short of what should have been done to test both the product and equally importantly the efficacy and accessibility of user instructions.

Discussion

[44]The defect alleged against the Klunk Klip was neatly encapsulated by Counsel for the First and Second Defendants in the expression “the Klunk Klip was a trap for the unwary”. Put simply, it was by its design and instructions liable to be misused so as to introduce slack. That defect should have been obvious to the Third Defendant but it is quite clear that they never adequately turned their mind to the problem notwithstanding the views expressed by the AA, the Consumer Association, the BSI and others - some, but only some, of which I have already referred to.[45]The instructions supplied with the packaging to the product were inadequate and, of course, on the facts of this case, would never have been seen by Mrs Palmer in any event. They left out the crucial advice to disengage the Klunk Klip, restoring the seatbelt to its normal pre-use status before doing anything else. The first step envisaged by the instructions is fitting the tongue on the latch plate to the buckle. That should have been the second stage.[46]It is common ground that the effect of the Klunk Klip is that while it is engaged it will convert an inertia reel seatbelt into a static seatbelt and that if a seatbelt user engages the Klunk Klip with any excessive slack in the seatbelt system then this will render the seatbelt less effective to prevent injury and is therefore potentially dangerous. The Third Defendant’s case, however, is that in order for the Claimant to prove a defect under the Act, she must also prove that the Klunk Klip is unsafe in that it has a tendency to induce members of the public to introduce excessive slack into the seatbelt and it is said that this represents the difference between the parties both in principle and as to the issues that the evidence has addressed.[47]It is said on behalf of the Third Defendant that the most important point is that there is absolutely no evidence in fact of any unsafe tendency on the part of the Klunk Klip to induce seatbelt users to introduce slack into the seatbelt since: (a)Between 4 and 5 million of these devices have been sold, most of them in the UK since 1978, peaking in the mid 1980s; (b)None of the expert witnesses were aware of any instance in which a Klunk Klip had ever, or was ever suggested to have, caused injury whether because of such slack or otherwise; (c)No claims have been brought against the Third Defendant, and (d)Whilst conceding it was possible that such injuries had happened there was no suggestion of any pattern of the same.[48]Moreover, it was suggested that it would be absolutely remarkable, given the apparent disapproval of various user groups, if there had been such instances, or any pattern of the same, without it being observed and therefore in evidence before the Court and, therefore, says Counsel for the Third Defendant, the proof of this particular pudding is in the eating.[49]The difficulty with this approach is, of course, that as Counsel himself conceded there always has to be a first case and moreover there may be various reasons why claims have not to date been made. In many cases where the Klunk Klip was in use and a crash occurred, the precise configuration and operation of the seatbelt will be irrelevant. Indeed, that was initially the Third Defendant’s case in this action since they pleaded that the crash impact was such that no seatbelt, however applied, would not have made any difference. In many cases there is a clear and easily identifiable tort feasor to blame such that there is no need to look elsewhere and insurers may not think they have the knowledge to seek to implicate the Klunk Klip. Moreover, people are not necessarily going to report incidents where the Klunk Klip introduces slack where there is an accident even if they notice the slack.[50]There would be more substance too, to the Third Defendant’s submission, if the product had been properly tested and found in conditions of foreseeable use not to introduce slack in the way alleged. As against that there is the unanimous view of the experts and the interested groups that the product does have this tendency.[51]In my judgment, the Klunk Klip does indeed have the tendency to induce some members of the public to introduce excessive slack. Its very purpose is to introduce some slack. Moreover, in fitting it an adult must sit in his seat and having inserted the latch plate of an inertia reel seatbelt into its buckle, place his hand on his chest to measure out the “appropriate” amount of slack and then, with the hand still in place, the adult must reach back with his left hand to fix the Klunk Klip in place. Unless he is to do this blind, he must turn round, rotating his upper body to the left so that he can do so, a manoeuvre which, as it seems to me, is highly likely to introduce more slack. Once the Klunk Klip is engaged, and whilst it remains engaged, the seatbelt is converted into a static belt, the very type of belt which was known to be liable to be used with inappropriate slack in it hence the introduction of the inertia reel seatbelt.[52]The instructions, even if available to a user and they simply were not in this case, fundamentally failed to notify the user of the need to disengage the Klunk Klip at the outset and, as it seems to me, any failure to disengage the Klunk Klip at the outset will also have the tendency to induce, at least some members of the public to introduce excessive slack.[53]It is a further cause for concern that the instructions themselves point out the inadvisability of introducing excessive slack whilst failing to give any indication of what might be meant by the term “excessive” slack. In this context, it is clear from the Zuppichini paper (bundle 2/397) that what may seem to a user to be safe and reasonable in terms of slack may in fact be life threatening given the way in which slack translates into a much greater degree of forward movement in an impact.[54]In my judgment, the Klunk Klip is liable to misuse even if the instructions were retained since the instructions themselves were incomplete in the manner in which I have highlighted; it compromises the operation of an essential safety feature, the safety belt, and does so in an insidious fashion in circumstances which amount to a breach both of the Act and of the duty owed by the Third Defendant at common law and is a defective product within the meaning in the Act. Issue 2 - Causation Factual Evidence of Mrs Palmer

Issue 2 - Causation

[55]It is right that I record at the outset that Mrs Palmer has difficulty with written documents. She has difficulty reading and writing. She has over the course of time since the accident given a number of statements setting out her recollection of what she did on the morning of the accident. That evidence has been at times inconsistent. The various statements made by Mrs Palmer prior to trial are to be found at bundle 1/108; 1/119: 2/554; 2/558; 2/559; 2/563 and 2/575.[56]In her oral evidence to this Court she confirmed the accuracy of her witness statement which included the following passages at paragraphs 60 - 61 and 70 - 75:
“60.The seatbelts in the front were exactly the same. Both of them had a device at the top of the seatbelt which allowed you to adjust the seatbelt. For example, if you were very big you could unclip the device and pull it down so you had more room. You would then clip it in place. If you were smaller you could unclip the device and pull it up so that it was tighter against you. You would then clip it down again. 61.I can remember when Kevin (Mr Palmer) used to drive the car because he was quite a big man. It would never be suitable for me and I would have to unclip the device, let the seatbelt up and then clip it so that it was tight for myself. 70.On the day of Kylie’s accident, Kevin drove myself and Kylie first up to Rathbone Market in Canning Town where I was going to go shopping. I remember we stopped besides St Margaret’s Roman Catholic Church on Barking Road E16. 71.The arrangement was that Kevin and Kylie were going to go to a tropical fish shop, I can’t remember which one but I am guessing now that it was probably one in Romford and then Kevin was taking Kylie to his brother’s, who lived in Dagenham. Kevin’s brother had a daughter, Jenny, who was about one and a half year’s older than Kylie. Kylie’s bike was in the boot of the car because Kevin’s brother was going to take them both cycling in a park in Barking or Dagenham and Kylie was going to stop over there for the evening. This would have been the first time that she had slept over anywhere. 72.Kevin would have left her at his brother’s and then picked her up the following day. 73.Kylie was in the back seat when we were travelling up to Canning Town. The car had doors to the driver and front seat but no doors to the back passenger. I got out of the car and Kylie asked to go in the front. We let down the seat and she came round and got in the front as she wanted to be in the front with her dad. Carena (Kylie’s sister) would either sit in the middle of the back or because she was older and bigger, sit in the front. 74.I remember unclipping the device on the seatbelt so that the seatbelt fitted securely round Kylie. I would have then clipped the device. I would not have allowed my husband to drive off if there had been slack in the seatbelt. 75.Anyone in my family will tell you that ever since I learned to drive and passed my test I have been very strict about seatbelts and will never let the children or anyone in my car travel without the seatbelts being secured. Nor would I let the children travel when the seatbelt was obviously My emphasis inadequately attached or loose. So far as I was concerned the seatbelt, with its attachment, was safely and securely attached before I let Kylie be driven away.”
[57]She confirmed that the Klunk Klip devices had already been installed when she first obtained the car but that she had never seen any packaging for the devices nor any warnings about the safe operation of them. The extent of her knowledge of the use of the device came from her driving instructor who had previously owned the car and who had taught her how to drive in it. She had told him that the belt felt loose and he had told her just to pull up the lever and this she subsequently did automatically. It did not occur to her that she needed any warning. Putting on a seatbelt was a formality which she did not think about and which she did automatically.[58]During cross examination on behalf of the Second Defendant, she indicated that she had to tighten it for Kylie and said she had to Klunk Klip it putting it in (demonstrating this by reference to her left hand down by her hip). On being asked how she adjusted it, she repeated the answer but demonstrated it by reference to her right hand adjusting the Klunk Klip first and then moving her left hand down by her hip to buckle it in (during the course of cross examination by the Third Defendant). She confirmed that when she put the belt on Kylie she ensured that it fitted snugly. She said that she had to tighten it.[59]By using the Klunk Klip she was, she said, under the impression that she was making the seatbelt safe as that was what the Klunk Klip was supposed to do.

The Expert Evidence

[60]As I have already recorded, the Court has had the benefit of hearing evidence from three expert witnesses. They are respectively Professor Mackay, Professor Emeritus of Transport Safety at the Birmingham Accident Research Centre, University of Birmingham whose professional resume appears at bundle 2/ 305 and who has produced one report at page 290 and following; Dr John Searle, whose qualifications appear at page 2/424, instructed on behalf of the First and Second Defendants who has produced two reports at 2/306 and 2/423 and following and a letter at 2/440; Mr Cowan of Geoffrey Hunt and Partners, Consulting Engineers and Scientists, whose CV appears at 2/511 and who has produced a main report at 2/472 and a supplementary report at 2/518a instructed on behalf of the Third Defendant. Each of the experts has also contributed to a joint statement which appears at 2/536.[61]Those experts in turn have made use of material produced by Professor Harley, Professor Emeritus of Geomatic Engineering at University College, London (2/441) whose area of expertise is the measurement of dimensions by means of a photogramatic analysis of the police photographs and Mr Neades (2/459) whose evidence went to the likely speed of the car (which in the event is non controversial).[62]For the sake of completeness, I should also record that the Third Defendant also relies on two written reports from Mr Sherriff, a Consultant in Accident and Emergency at Addenbrooke’s Hospital in Cambridge in which he comments on the nature of the Claimant’s injuries and on a number of questions relating to the position of the seatbelt and his supplementary report he reviews the engineering evidence of Mr Cowan. In the event, and in the light of the engineering evidence, I do not consider it necessary to refer to the evidence of Mr Sherriff further.[63]In summary, drawing on their extensive expertise both Professor Mackay and Dr Searle consider that the probability is that the Klunk Klip was responsible for the amount of extended belt which led to the Claimant’s injuries. By contrast, Mr Cowan opines that there are a number of alternative circumstances that could have led to the injuries suffered by Kylie, associated with the probable behaviour of a six year old child undertaking a reasonably long journey. He suggested it is highly improbable that Kylie did not move or fidget during the course of the journey and it must therefore be assumed that the Klunk Klip device, and hence the position of the webbing strap, were not those set by Mrs Palmer at the start of the journey. He suggests that, given that the seatbelt did not provide the expected protection, further factors must be involved, namely Kylie moving in or from her seat during the immediate period before impact.[64]Professor Mackay having identified those injuries suffered by the Claimant which were relevant when considering the biomechanical and kinematic relationships between the injuries and the motion of the Claimant during the collision and then the extent of any intrusion into the passenger side went on to consider at 2/294 and following the remains of the passenger’s seatbelt and sets out various measurements.[65]He pointed out the deformation to the slider bar which is bent upwards in the centre by approximately two centimetres. This deformation, he opines, relates specifically to a predominantly upward belt loading and is not the result of any deformation occurring at the mounting points and goes on as follows at 2/296:
“Some further support for the proposition that the outer end of the belt was in the centre of the slider bar in the accident comes from some marks on the inner surface of the belt, in a zone some 6-8 inches from the reference point... Those marks suggest that the belt was snagged behind the seat back adjustor cover and followed a lie from the junction between the seat base and the back, upward and then angled inward across the child. That is consistent with the load being applied to the centre of the slider bar, given the seat base position shown in police photograph 10.”
[66]Professor Mackay then went on to consider the amount of slack in the seatbelt system at the point of collision and disagreed with Dr Searle as to the amount of forward motion of the child necessary to take out the slack because in his opinion the webbing loop was positioned approximately mid way along the slider bar which had the effect of moving the effective outboard position of the belt rearward by some 4½ inches (11 centimetres) and reducing the amount of slack in the seatbelt system by about 3 inches and he concluded that the lower outboard end of the belt going down to the slider bar in the accident became routed across the top of, or behind, the seatback adjustor cover.[67]He went on to conclude that there were two possibilities to explain the injuries to the Claimant’s head:
“The first possibility is that the child in the journey of some 12 miles or so from her getting into the front seat to the accident moved the shoulder belt, either placing it behind her back or under her arm... In the impact, if the child had moved so that the shoulder belt was either under the arm or off the shoulder, as the car decelerated in the crash, the upper torso of the child arced forward so that the shoulder belt aligned to a path close to that of the lap section of the belt. Belt loads increased, and there was some transfer of webbing from the shoulder belt into the lap section. The child, however, had a head trajectory similar to that which occurs with a lap only seatbelt, which allows a much greater forward motion of the head as the body jack-knifes, in comparison to a lap and shoulder belt which limits that forward excursion. The second possibility is that when Mrs Palmer attached the latch plate and adjusted the Klunk Klip device, the lower outboard end of the seatbelt remained at the rear end of the slider bar. Either at the time of the accident or during the immediate 12 mile journey prior to impact, because of the child moving about, the belt moved from the rear to the mid position consistent with the deformation to the slider bar due to belt load. Under this condition there would have been enough slack going into the lap belt and working through into the shoulder belt for the belt to move off the shoulder and for the jack knifing kinematic motion to occur... To produce the facial injuries and also the focal and diffuse injuries to the brain, without a fracture of the skull, requires a high energy contact with a relatively yielding structure such as the surface of the instrument panel. Some restraint clearly came from the seatbelt as evidence by crash loads resulting in the imprinting of the seatbelt fabric into the plastic coating on the latch plate. Plus the belt effect caused the head to arc forwards and to some degree downwards. Given that kinematic path, the loading of the chest most likely came from the anterior aspect of the upper chest contact in the more vertical part of the fascia, causing the widening of the mediastinum and the other thoracic injuries.”
[68]In Professor Mackay’s view there was clearly a lot of slack in the seatbelt system at the time of the collision and in his view the Klunk Klip device remained engaged right up until the moment of impact. He did not think it likely that any of the impacts of the vehicle with the kerb, described by the various eye witnesses, would have had the effect of releasing the Klunk Klip since if the Klunk Klip had been released in this way, then the normal retraction mechanism would have come into play and wound the webbing back, unless, of course, (which he considered highly unlikely) the Claimant herself in some way kept the webbing from retracting.[69]In his first report, Dr Searle examined the evidence of how much slack was in the seatbelt system at the moment of impact by reference to the webbing measurements and provided a series of photos showing the results of his investigation. Photo 10 on 2/336 shows the extent of the slack, albeit that it is all in the shoulder part, for demonstration purposes, and he concluded that a bodily forward movement by the Claimant of some 10 to 15 centimetres would be needed to take up the slack.[70]Using information supplied by Professor Harley he concluded that there was no possibility of the Claimant’s head making a forward movement to contact the fascia unless the seatbelt operation had been severely compromised and that the most likely cause, in his view, would appear to be that the seatbelt had been clamped using the Klunk Klip for the previous occupant of the seat and as a result when the collision occurred the Claimant was inadequately restrained and went forward to such an extent that her face made a violent contact with the fascia of the car.[71]In his supplementary report Dr Searle investigated Professor Mackay’s theory that the Claimant’s seatbelt had been snagged on the seat and concluded that the effect of any snagging was of relatively small effect. Subsequently in his letter of 18 January 2006, at 2/ 440, he felt himself able to discount Professor Mackay’s snagging theory in its entirety as a result of the nature of the damage to the slider bar as follows: ... If the webbing did become snagged, then any upward pull would not be at the middle of the slider bar but towards the front end at the two thirds point. On the other hand, the bend in the bar is at the middle, where one would expect it to be if it has simply buckled due to the attachment points moving. ... When one compares Kylie Palmer’s slider bar with an undamaged one, the attachment holes are indeed found to be slightly closer together. That again indicates that the bar has buckled as a result of the attachment points having moved slightly closer together as the vehicle crashed.[72]Mr Cowan agrees with Dr Searle on the slider bar issue and for the reasons set out by Dr Searle I too prefer his analysis on this aspect to that of Professor Mackay.[73]Mr Cowan in his report, at 2/472 and following, reviews the reports of Mr Sherriff and Dr Searle and concludes that there is no evidence which directly links the Klunk Klip to the accident. Whilst he accepts that the Claimant to have struck her head on the fascia as she did, the seatbelt cannot have been correctly positioned at the time of the accident, he puts forward a number of possible reasons, the principal cause being that the Claimant had moved within her seat and seatbelt such that whether or not the seatbelt was properly adjusted at the beginning of the journey and whether or not the Klunk Klip device was fitted, such movement would have impaired the protection that the Claimant would receive in the event of an accident. In short Mr Cowan posits the first possibility referred to by Professor Mackay (which of course Professor Mackay himself discounts).[74]In Mr Cowan’s view, by the time the car hit the barrier, the Claimant’s seatbelt was fully tensed and by the time the car hit the nearside kerb the belt was extended with the amount of slack subsequently discovered after impact. He believes that this slack was introduced by the Claimant close to the time of the first impact with the kerb and that by this time the Klunk Klip had already been disengaged and the seatbelt had retracted before the Claimant herself further extended it, a likely explanation for which being that the Claimant’s body movement had the effect of releasing the Klunk Klip, a theory which, it has to be said, calls for a great deal of speculation as to the Claimant’s movements.

Discussion

[75]The credibility of Dr Searle was questioned by Counsel for the Third Defendant on the basis that he gave the impression of being reluctant to answer any question unless he felt he knew where the line of questioning was going and the answer was in his theory’s best interest. His evidence was, it was submitted, wholly partisan. That here was “a man on a mission”. In support of that submission, Counsel for the Third Defendant relied on points made by Dr Searle in paragraphs 8.4 and 8.5 at 2/315, in particular as to his interpretation of relevant provisions of the MOT inspection manual, a copy of which appears at bundle 3/672.[76]Whilst there is, in my judgment, some justification for Counsel for the Third Defendant’s criticisms of Dr Searle, they are not, in my judgment, sufficient to undermine his evidence on the fundamental issue, particularly in the light of the evidence of Professor Mackay, whose evidence was not, in my judgment, similarly tainted.[77]Whilst on the subject of expert evidence, I should add that an attack was also made on Mr Cowan by Counsel for the First and Second Defendants on the basis that he was not an expert with material expertise and as such his evidence was quite simply inadmissible. In cross examination Mr Cowan admitted that he was not an expert in seatbelts although he was involved in a variety of assignments which required him to apply his engineering, training and knowledge in the road accident arena. He certainly felt himself to be eminently qualified to express the opinions which he did.[78]Whilst I do not accept the submission of Counsel for the First and Second Defendants that Mr Cowan’s evidence is inadmissible, it has to be recognised that the expertise of Dr Searle and Professor Mackay in the two material fields is extensive and where Mr Cowan disagrees with the evidence of both Dr Searle and Professor Mackay I have to say that I prefer their evidence to that of Mr Cowan grounded as it is in many many years of relevant experience and high degrees of expertise.[79]Counsel for the Third Defendant puts forward five propositions on the issue of causation. 1.There is no evidence to link the Klunk Klip device with injuries of this sort. 2.It is inherently unlikely that any parent would have allowed the required amount of slack into the seatbelt. 3.In any case, the Court should accept the evidence of Mrs Palmer as to what she did. 4.In those circumstances the significance of the experts’ speculation is limited to testing whether Mrs Palmer’s evidence is impossible or implausible. 5.In any case, the experts’ evidence cannot justify a finding that on the balance of probabilities there was excessive slack in the system caused by Mrs Palmer’s adjustment of the Klunk Klip.[80]I have already considered the first of these propositions in the context of breach.[81]So far as the second proposition is concerned, whilst it may be inherently unlikely that any parent would have knowingly allowed the required amount of slack into the seatbelt system, that does not gainsay that such a parent may well have inadvertently allowed such amount of slack into the system.[82]The key question is whether or not the evidence of Mrs Palmer should be accepted as to what she says she did in this regard and in particular whether, notwithstanding that evidence, she did in fact, albeit entirely inadvertently, introduce excessive slack into the seatbelt system.[83]It is to be remembered that the underlying event - the putting on of the seatbelt - was one of no significance at the time. It was, as Mrs Palmer herself accepted, an automatic event; the accident happened over 10 years ago and Mrs Palmer herself has gone over what happened time and time again. In those circumstances, it is, as Counsel for the First and Second Defendants submitted, important to identify whether Mrs Palmer is, in fact, recording what she did or what she has subsequently convinced herself she did at the time.[84]In this regard, on the key issues she has given conflicting evidence. How the Claimant came to be in the front seat 85.• “When I got out I had moved Kylie up to the front passenger seat and we had lowered the back seat to enable things to lay flat and be more secure”. (Statement 24.2.96, 2/555 paragraph 8). 86.• “I had strapped the Claimant in the front of the car as she had requested to sit with her Dad”. (Statement 24.2.96, 2/556 paragraph 13. 87.• “I got out of the car and Kylie asked to go into the front. We let down the seat and she came round and got in the front.” (12.12.05 Statement 1/117 paragraph 73). 88.• “She got through the middle to get to the front seat - between the driver and passenger seat”. (Oral evidence in chief). The Method of Adjustment 89.• “I strapped Kylie into the front seat... I fitted the seatbelt across her tummy and put the metal tab into the central fixing. I had already adjusted the Klip.” (24.2.96 Statement 2/555 paragraph 8). 90.• “I remember unlocking the device... so that the seatbelt fitted securely around Kylie. I would then have clicked the device.” (12.12.05 Statement 1/117 paragraph 75). 91.• “You put the Klunk Klip in then adjust it”. (Oral evidence cross examination by Counsel for the First and Second Defendants). 92.• Q - Adjust it then buckle her up? A - “Buckle her up then adjust the Klunk Klip” Oral evidence cross examination by First and Second Defendants. 93.• “I had to tighten it for Kylie”. Oral evidence cross examination by First and Second Defendants. 94.• “You Klunk Klip it... putting it in” (demonstrating this by reference to her left hand down by her hip - ie as if in the driver’s seat). Oral evidence cross examination by Third Defendant. 95.• On being asked how she adjusted it, repeating the answer but demonstrating this by reference to her right hand adjusting the Klip first and then moving her left hand down by her hip - ie as if in the driver’s seat - to put the buckle in; - (Oral evidence - cross examination by Counsel for the Third Defendant). Based on submissions from Counsel for the First and Second Defendant and supported by evidence of Dr Searle, my attention having been taken up making a note such that I missed Mrs Palmer’s demonstration. Why she adjusted it 96.• “I had the adjustor mechanism on the driver side preset for my comfort”. (24.2.96, statement 2/555 paragraph 8). 97.• “You could unclip the device and pull it down so you had more room... pull it up so that it was tighter”. (12.12.05 statement 1/115 paragraph 60). 98.• “Not to make it more comfy but to make it safe”. (Oral examination cross examination by First and Second Defendants). 99.• “My instructor just said ‘make yourself comfortable’”. (Oral evidence cross examination by Third Defendant).

How the Claimant came to be in the front seat

[85]It was submitted on behalf of the First and Second Defendants that it was most unlikely that Mrs Palmer could really remember much about what she did in relation to the seatbelt on that fateful day such that her evidence has to be looked at most cautiously, especially to the extent that it involves any exculpatory element.[86]In my judgment, what she described was an established practice that the Klunk Klip would be left in place by the user only to be adjusted by the next user. In those circumstances it seems to me that it is likely that the need for adjustment would only occur to the user after he or she had got into the seat and therefore it would probably not be released back into the reel. On the morning in question, prior to the Claimant sitting in the front passenger seat, Mrs Palmer had been sitting in that seat. If it was comfy for Mrs Palmer it would be far too loose, and therefore dangerous, for Kylie. Mr Palmer’s description of how Kylie got out, how the contents in the back of the car had to be adjusted and how Kylie got through to the front seat all give plenty of scope for the amount of extended belt to have been unapparent to Mrs Palmer and for the amount of slack to have been concealed during any readjustment undertaken by Mrs Palmer. In this regard I am not persuaded by the argument that such an amount of slack would have been obvious. Moreover, it is a necessary prerequisite to any alternative theory that the Klunk Klip should have been disengaged by Kylie during the course of the journey, but why should she disengage it if it was ‘snug’ and not tight?[87]It is submitted on behalf of the Third Defendant, partly on the basis of the evidence of Mr Cowan, that at some time prior to commencement of the final series of collisions with the near-side kerb, Kylie somehow extended the shoulder portion of her seatbelt either by reaching forward and/or by leaning to her right with the effect that it was extended at the moment of the commencement of that final series of collisions with the near-side kerb and that that could have been for any one of a number of reasons, whether that be the natural desire of children to move belts caused by discomfort (a suggestion discussed by Professor Mackay), her natural excitement, her perception of her father’s fit, and resultant fear or desire to assist, being “bounced around” as a result of the collisions with the kerbs, her own voluntary reaction to the various collisions or to the imminence of the final collision.[88]In support of this submission I was referred to what was recorded as having been said in various medical reports as follows: Gordon MacLellan (Consultant Orthopaedic Surgeon). Report dated 17 December 1997:
“Kylie described trying to shake her father trying to wake him whilst he was at the wheel. I assume therefore that she was not fully restrained by her seatbelt at the time of the crash.”
Dr Peter Harvey, (Consultant Neurologist, Royal Free Hospital). Report dated 28 January 1998:
“I put it to Kylie that she couldn’t remember what had happened in the accident and she told me that she did, she remembers that she was wearing her seatbelt, she remembers that her father was ill and unwell, he said something to her, and that she was trying to turn what I take to be the steering wheel but couldn’t because it was jerking and then she hit her head. She has been told all this and it is highly probable that that which she tells me is what she has been told by people over the years. I understand she was found under the dashboard. Her right leg was broken below the knee in two places, she suffered serious head injuries.”

The Method of Adjustment

[89]It is submitted on behalf of the Third Defendant that these reported accounts do have something of the ring of truth about them and as such can be relied upon to give some support to the suggestion that what they described did happen.[90]Counsel for the Third Defendant submits that whatever might have happened prior to the initial collision with the off-side kerb, that from that point on, Kylie would have started to be “bounced around” and that this is likely to have generated a desire for voluntary movement on her part. Either the collisions with the off-side kerb and/or any such bouncing around itself may initially have prevented the extension of the seatbelt because of the locking devices. However, in the period when the bouncing around had stopped (that is to say after the car moved away from the off-side kerb in its final journey across to the near-side kerb) there would inevitably have been a period of relative calm sufficient to prevent the operation of either locking device. That period of calm would have allowed Kylie to move in her seat (whether or not she had moved prior to this so as to extend the belt temporarily or otherwise and disengage the Klunk Klip). Thereafter Kylie had every opportunity to extend the belt, keep it extended with the effect that it remained so right up to the time when the car hit the near-side kerb and thereafter. Any further movement around by Kylie while the belt was extended and locked would, or at least might, have allowed it to slip off her shoulder and that once the car hit the near-side kerb one or other, or both of the locking devices, would have engaged with the effect of locking the belt and preventing either further extension or retraction such that she was not fully restrained by the shoulder portion of the belt at the point of impact leading to the head on injuries.[91]It has to be said that both Professor Mackay and Dr Searle rejected this theory emphatically both in their joint report (2/536) and in their oral evidence for reasons which seem to me to be compelling (see, for example, paragraphs 6, 7, 10, 11, 21 and 24 of the joint report 2/539 to 2/548. Moreover, there are a number of obvious difficulties with this theory since it involves the Claimant in extending the seatbelt at a time of dire emergency and in so doing:• overcoming the locking mechanism which stops the belt under any sudden pressure• by way of several, separate and effective pulls;• in response to what was happening to her father;• at a time when the car was out of control;• without getting her bottom above the lap strap or by kneeling (her jack-knifed position shows that she must have been seated with legs forward immediately prior to impact) and;• particularly tellingly, without letting go of her teddy bear. and yet at the moment of impact being sitting and facing forward.[92]Frankly this theory is, to say the least, implausible. and in those circumstances my view as to the accuracy or otherwise of the evidence of Mrs Palmer when she suggests that the seatbelt was actually fitted snugly - as opposed to that being her, albeit erroneous, perception is reinforced. Put another way, as it seems to me, the evidence of Professor Mackay and Dr Searle, compelling as it is, demonstrates on the balance of probabilities that Mrs Palmer’s evidence that the Klunk Klip was properly set is implausible and I reject Counsel for the Third Defendant’s fourth and fifth submissions.[93]In my judgment, the most likely explanation is that the degree of slack found to exist at the moment of impact resulting in the horrific injuries to the Claimant was present throughout the journey and was inadvertently introduced by Mrs Palmer, whether because she did not, in fact, adjust the Klunk Klip device for the Claimant or, if she did, because the existence of such excessive slack was in some way concealed from her when she fastened Kylie’s seatbelt. In coming to this conclusion, I emphasise that the introduction of slack by Mrs Palmer was entirely inadvertent for which the Third Defendant’s Klunk Klip device and it alone, and not Mrs Palmer herself, was responsible.

Conclusion

[94]It follows in all the circumstances that breach both of the statutory provisions of the Act and of the common law duty owed by the Third Defendant is established as is its causative relevance to the injuries sustained by the Claimant.[95]Finally, I would like to take this opportunity to thank all three Counsel both for the sensible and sensitive handling of a most unfortunate case and for their very helpful opening notes and closing submissions. Dated this ................ day of ............................... 2006 ...................................................................................111. ADDENDUM112. 1.THIS JUDGMENT IS SENT TO THE PARTIES ON THE STRICT UNDERSTANDING THAT THE PARTIES TREAT ITS CONTENTS AS CONFIDENTIAL UNTIL IT IS HANDED DOWN.113. 2.THE PARTIES SHOULD ENDEAVOUR TO AGREE THE FORM OF THE ORDER AND ANY OUTSTANDING ISSUES AS TO COSTS. IF THEY DO SO AND CONSENTS ARE LODGED IN THE FORM OF AN ORDER FOR APPROVAL, NEITHER PARTIES NOR REPRESENTATIVES NEED ATTEND COURT ON THE DAY FIXED FOR HANDING DOWN THE JUDGMENT.114. 3.IF THE PARTIES CANNOT AGREE OUTSTANDING MATTERS, THEY MUST ATTEND COURT ON THE DAY FIXED AND FILE AND SERVE AT LEAST 48 HOURS BEFOREHAND ANY COSTS SCHEDULES OR OTHER DOCUMENTS UPON WHICH THEY ARE LIKELY TO RELY.