PI Brief Update

The Duty to Secure Young Children In Proper Child Restraint Seats - Jonathan Watt-Pringle QC

10/06/13. The decision in Williams v. Estate of Dayne Joshua Williams [2013] EWCA Civ 455 has confirmed that the well-known principles in Froom v Butcher [1976] QB 286 apply equally to contribution proceedings against parents who fail to secure their children in appropriate child restraint seats.

The facts of this sad case were unusual. On 19th August 2006 the defendant, who had consumed alcohol and illegal drugs, was speeding along the A528 at Overton, Wrexham, when he lost control of his car. He veered on to the wrong side of the road and collided with a car driven by Ms Williams, the Third Party. Her driving was faultless and there was nothing that she could have done to avoid the collision. Fortunately, she sustained relatively minor physical injuries. In the back of the car her young daughter Emma, aged just 3 years 2 months, was seated on a Graco booster cushion, with an adult seatbelt holding her in position. Sadly, she sustained multiple injuries, the most serious of which were a brachial plexus avulsion, cervical root avulsion from C6 and C7 and a spinal cord contusion at C1-2. The defendant admitted liability to both Ms Williams and her daughter in respect of their injuries, and in due course compensation will be assessed.

What makes the case legally interesting is the contribution claim which was brought by the deceased defendant’s insurer against Ms Williams on account of her breach of the duty of care owed to her daughter. Unusually, there were two child restraint seats in the back of the car: the Graco cushion on which Emma was actually seated, and a Mamas & Papas seat with a five-point harness, which she had used until shortly before the accident. The defendant’s case was that Emma was too young and too small to be placed on the Graco cushion, and that the explicit warnings and instructions in the Graco manual made that very clear. These included the following:

“Weight and Height Limits ! 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: ...

(approximately 4 to 10 years old):

• weigh between 15-36 kg, and

• are between 101 and 145 cm in height ….”

Emma was 3 years 2 months old and just 93 cm tall, and thus failed to meet two of the stipulations. Though there was some inconsistency as to her weight in the medical records, Blair J accepted that she weighed 15 kg at the time, i.e. at the bottom of the range of requirements.

The Regulations and the duty of care

1. At the time of the accident the Motor Vehicles (Wearing of Seat Belts) Regulations 1993 contained provisions for children aged three or more. These did not impose an absolute requirement for a child to be carried in a child seat or on a booster cushion, but permitted the child to be restrained by a seat belt only, if no car seat or booster cushion was available in the vehicle. Shortly after the accident, the law was amended in the Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006. These required children between 3 and 11 years of age, but less than 135cm in height, to be secured with a child restraint appropriate for their height and weight in the rear of motor vehicles, provided there was an adult belt in place to secure the child restraint.

2. Blair J found that the Regulations provided limited assistance in determining whether the duty of care had been breached. That was because there were two forms of child restraint fitted in the rear of Ms Williams’ car, and the question was whether or not it was negligent to use the Graco booster cushion instead of the Mamas & Papas seat.

3. On appeal, the Appellant sought to rely upon European Regulations and a Directive, which had not been put before the trial judge, in order to argue that weight was the crucial factor in determining the suitability of particular child restraints; but the Court of Appeal was satisfied that both the European Directive and our domestic Regulations are concerned with age and height, as well as weight; and the Judge had accepted expert evidence that it was reasonable for manufacturers to set age and height requirements according to the detailed design of their product.

4. Breach of duty

5. Apart from the Regulations, it was common ground that a parent owes a duty of care to her/his child to take reasonable steps to ensure that the child is secured with an appropriate child restraint when travelling in a car.

6. So far as the standard of care was concerned, the Appellant’s case was that she had made a reasonable choice in placing Emma on the Graco booster cushion, albeit that it may have proved to be a mistake with hindsight. Her evidence was that she had read the Graco manual and had not had any difficulty understanding it; but she regarded it as containing guidance, rather than legal requirements. Blair J accepted that manufacturer’s instructions “should not be blindly treated as determinative of liability questions”, but he rejected the submission that Ms Williams was entitled to disregard the explicit warnings and stated limits in the manual and to form her own judgment as to which of the two child restraints was the more suitable.

7. “Absent some special circumstances, it seems to me that 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. ... [P]remature graduation of a child from a harness seat to a booster seat or a seat belt is a common problem, and one which plainly can have very serious consequences. This makes it particularly important that the requirements stated for use of the device are followed.” [70]

8. In the circumstances, Blair J held that Ms Williams had been negligent in placing Emma on the Graco cushion, though he accepted that she was in general an excellent and caring mother.

9. Upholding this conclusion, the Court of Appeal rejected the contention that the Judge had in effect treated the manual as determinative. He had rightly observed that the instructions therein “could not have been more explicit, both as to requirements for use, and consequences in case of misuse”, and that entitled 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.” The Court followed the approach in Jones v Wilkins [2001] R.T.R. 19, in which a parent was held to have been negligent, despite the fact that ordinary members of the public would not have realised her conduct was dangerous.

The consequences of the negligence

The Appellant had some difficulty in obtaining expert evidence as to what the difference in outcome might have been if Emma had been secured in the proper child seat. In the end, she called only one expert in accident investigation. This witness accepted that the Mamas & Papas seat was the “most appropriate” seat for Emma; that the brachial plexus injuries would probably have been avoided had she been in that seat; and that the spinal cord contusion was a possibility that could not be discounted, but would be “extremely rare.” However, the expert also considered that if Emma had met the requirements in the manual (i.e. been 10 months older and 8 cm taller) she would have suffered the same injuries that she did. On the basis of this evidence, the Appellant argued that the Respondent had failed to prove causation.

Giving the lead judgment in the Court of Appeal, Black LJ found this aspect of the case the most difficult, but she was persuaded that it was wrong to approach causation on the basis of “a hypothetical child of different dimensions”. Given that there was a suitable child restraint available for use by Emma, the issue was “whether it was negligent to put this particular child of her particular age and dimensions on the booster cushion.”

The appropriate degree of contribution

In Froom v Butcher [1976] QB 286 Lord Denning held that a person who suffered more severe injuries as a result of the failure to wear a seat belt could be held contributorily negligent, even though it was not obligatory to wear a seatbelt at that time and he was blameless so far as the cause of the collision was concerned. Though the accident was caused by the defendant’s bad driving, the damage was caused in part by the bad driving and in part by the failure to wear a seat belt. In those circumstances, the reduction of compensation would depend upon the difference that a seatbelt would have made (at 296 C - D):

• There would be no reduction where the seatbelt would have made no difference.

• Where the evidence showed that the failure to wear a seatbelt “made all the difference” and “the damage would have been prevented altogether”, then there would be a reduction of 25%.

• Where the evidence showed only that the seatbelt would have “made a considerable difference”, the reduction should be 15%.

These guidelines were applied by the Court of Appeal in Jones v Wilkins [2001] RTR 19, a case in which a mother held her young child on her lap in the front seat and placed the lap part of seatbelt across herself and the child. The negligent driver who had caused the accident obtained a contribution of 25% against the mother and the driver of the vehicle in which she was travelling, because the Court was satisfied that the child’s injuries would have been virtually entirely avoided had she been properly restrained. Keene LJ did point out that the figure of 25% was not an absolute and immutable ceiling in every case; but the guidance would apply in the vast majority of cases and exceptions would be rare: [17] & [18].

In the recent case of Stanton v Collinson [2010] R.T.R. 26, the Court of Appeal emphasised “... the undesirability of a prolonged or intensive enquiry in these cases. ... [T]here is a powerful public interest in there being no such enquiry into fine degrees of contributory negligence, so that the vast majority of cases can be settled according to a well-understood formula and those few which entail trial do not mushroom out of control. Froom v Butcher so states, and is binding”: [26].

In an attempt to escape these guidelines the Appellant relied upon Capps v Miller [1989] 1 WLR 839. In that case, the plaintiff had been riding his moped wearing a crash helmet, but the straps were unfastened, and the helmet came off before his head hit the ground. It was held by the majority of the Court of Appeal that the degree of blameworthiness of someone who wore a crash helmet but failed to fasten it properly was less than that of someone who did not wear a helmet at all, and the claimant’s contributory negligence was assessed at 10 percent. Blair J distinguished this case on the grounds that the trial judge in Capps had not made any finding on the extent to which the claimant’s injuries were worse because his helmet had come off; and further, the issue in the present case was not whether the Graco booster cushion was being used properly, but rather that the appropriate safety restraint (Mamas & Papas) was not used at all. The Court of Appeal approved this approach.

Graham Eklund QC (instructed by Keoghs LLP) represented the Appellant

Jonathan Watt-Pringle QC (instructed by DWF LLP) represented the Respondent

Image cc flickr.com/photos/57391093@N00/3940414848