Goodman v Keeves

1. LORD JUSTICE TUCKEY: This is a renewed application by the defendant for permission to appeal from a decision of Mr Recorder Brunner QC sitting in the Cambridge County Court against findings of contributory negligence which he made against the claimant.

2. The claimant was a back-seat passenger in the 22-year old defendant's car when it crashed into a railway bridge in the small hours of 22nd May 1999. The car went out of control. The defendant was driving too fast and had had too much to drink. The claimant, who was 16 at the time, was not wearing a seat belt. There had been one available for her use, but she would have had to fish it out from under the back seat. She sustained a serious closed head injury, which has resulted in considerable permanent disability and loss.

3. The judge had to resolve an issue at trial as to whether this injury would have been avoided altogether or been less serious if the claimant had been wearing a seat belt. The defendant's expert, Dr Hobbs, with much experience in these things, said that it would. The Consultant Neurosurgeon from Addenbrooke's Hospital in Cambridge, who also had much experience of closed injuries of this kind, and who treated the claimant, Mr Kirkpatrick, said that it would not. The judge accepted Mr Kirkpatrick's evidence for reasons which he spelt out clearly in his judgment.

4. It was common ground that the other muscular skeletal injuries which the claimant sustained would have been avoided altogether if she had been wearing a seat belt. After referring to the well-known case of Froom v Butcher, the judge decided that a 15 per cent reduction was appropriate in respect of these injuries, because of the claimant's age and the fact that the seat belt was not readily available.

5. The claimant and two friends had been with the defendant and other men that evening when they had visited a pub and a club. The judge found that the claimant was aware in broad terms that the defendant had been drinking consistently that evening and that he had no business driving a car.

6. After referring to the case of Owens v Brimmell[1977] 1 QB 859, the judge decided that the claimant's damages should be reduced by 10 per cent to take account of this aspect of her contributory negligence. In making this finding he again took into account her age and the fact that she was egged on by others who were older than her and were more in control of events that evening than she was.

7. The effect of the judge's findings is that the claimant is to recover 90 per cent for the closed head injury and its consequences and 75 per cent for the other injuries.

8. On this renewed application Mr de Navarro QC, who has as ever put his points forcefully and succinctly, says firstly that the judge's finding that the closed head injury would not have been avoided by the wearing of a seat belt was illogical and not supported by the evidence. Because the claimant was not wearing a seat belt, the head injury must have been caused by the trauma of being thrown forward and striking some fixed structure in the car because she was not wearing a seat belt.

9. Dr Hobbs' opinion was that the injury had been caused when the claimant's head itself struck the body of the car. The judge rejected this evidence because no external injury was found when the claimant's skull was examined. Mr Kirkpatrick's view was that the injury had been caused by the acceleration/deceleration force of the impact, and that such injuries are commonly caused whether or not seat belts are worn. Mr de Navarro submits that this was not to the point. As no seat belt was worn the injury was not caused in this way and his conclusion that it would have occurred in any event was not open to him on the evidence. It was speculation which trial judges are exhorted not to indulge in in cases of this kind.

10. I do not accept this submission. It seems to me given the clear issue between the experts, that it was perfectly open to the judge to reach the conclusion which he did. True it was that the acceleration and deceleration must have resulted from the way in which the claimant's unrestrained body was thrown forward when the car hit the bridge. But it does not follow that the judge was not entitled to conclude that she would have suffered that injury even if she was restrained by a seat belt. That was Mr Kirkpatrick's evidence based on his own experience and the nature of the injuries which had been sustained by the claimant.

11. Next Mr de Navarro complains that the judge should not have made separate findings in relation to the head injury and the other muscular skeletal injuries. Froom v Butcher required an overall assessment and that should have been followed by the judge in this case, given Lord Denning's clear statement that this was preferable to a more detailed injury by injury assessment. Overall assessments could be predicted and gave certainty to the profession and those who are involved in having to settle cases of this kind.

12. I do not accept this submission. It seems to me there is nothing to prevent a judge dealing with a case like this in the way in which the judge did. It is logically the fairest and most accurate way of dealing with a case where the effect of the injuries can be separated out, as the judge thought they could be here. Where this is not possible an overall reduction has to be made, but this will inevitably be a more rough-and-ready process. I see nothing in what the judge said here which cuts across the general rule laid down by Lord Denning which requires this court to consider the matter.

13. Then Mr de Navarro attacks the judge's apportionments both as to the failure to wear the seat belt, where he says that the judge following Froom v Butcher should have made the full 25 per cent reduction in this case, and in relation to the claimant's knowledge of the fact that the defendant had been drinking, where he says that there was no reason to apportion anything less than the 20 per cent as in Owens v Brimmell. He says that there is no reported case of any lesser reduction. Indeed, many of the cases show that courts have made greater reductions than 20 per cent.

14. But in making those submissions Mr de Navarro accepts that apportionment is very much a matter for the trial judge, and so it is. This court seldom interferes with such assessments for very obvious reasons. Here the judge gave reasons why he was departing from the 25 per cent and the 20 per cent respectively, which it seems to me are compelling and do justify his reduction.

15. Mr de Navarro submits that age should not be a good enough reason, because 16-year olds must now be conscious of the fact that they are required to belt up, and that message should go out loud and clear. If one starts to reduce the normal reductions laid down in these cases, again one is introducing an unwelcome element of uncertainty.

16. It seems to me that there may be some justification for the argument based on age alone. But in this case in relation to the seat belt the judge took account of the fact that it was not readily available. That, it seems to me, is a perfectly good reason of itself for departing from the general rule. So far as the drink is concerned, the judge took account of the fact that because she was younger the claimant was led on by her older companions and not really in charge of the course of events which led to her eventually getting into this car and being involved in this crash.

17. Finally Mr de Navarro exhorts me to grant permission so that the Froom v Butcher guidelines can be revisited, since there is some uncertainty about whether they should still stand given that it is now compulsory to wear seat belts and that uncertainty has been compounded by the fact that this court in the case of Hitchens v Berkshire County Council (21st June 2000, unreported) seems to have approved a settlement for an infant where a reduction of 50 per cent was made for not wearing a seat belt.

18. I have some sympathy for the submission, but it does not seem to me that this case is a suitable vehicle for any reconsideration of the rule in Froom v Butcher because, although the point may not have been very fully considered, it was at least visited in the case of J (A Child) v Wilkins[2001] PIQR 179 when the court said that Froom v Butcher still represents the rule.

19. For those reasons, like Kennedy LJ who refused permission on paper, I do not think that this is a case for permission. Accordingly permission to appeal is refused.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)