Seatbelts and contributory negligence
We’re all aware that everyone (with a few very limited exceptions) in a car should wear a seatbelt, whether they’re in the front or back seat. In fact, it’s been an offence not to wear a seatbelt if one is fitted since January 1983, with a fixed penalty fine of £100 – rising to £500 if the matter goes to court. It’s not just a fine you need to worry about: If you’re injured in an accident and you aren’t wearing a seatbelt, it might have a significant impact on your personal injury claim.It’s almost certain that your compensation will be reduced by 25 per cent to reflect this issue, which the court considers to be contributory negligence.
In other words, your failure to wear a seatbelt means that you are partly responsible for your injuries.
Bases of contributory negligence
The leading case on this issue is Froom v Butcher , which was heard in the Court of Appeal. The claimant was not wearing a seatbelt and suffered severe head injuries when his head struck the windscreen. In his judgment, Lord Denning set out the bases on which contributory negligence should be considered. He identified three situations:
- Those in which damage would have been avoided altogether if a seatbelt had been worn. In those cases, compensation would be reduced by 25 per cent;
- Cases in which injury would have been less severe if a seatbelt had been worn. Here, compensation would be reduced by 15%;
- Cases in which wearing a seatbelt would have made no difference to the injuries suffered. Then, compensation should not be reduced at all.
Clearly, it will be a matter of medical evidence as to whether wearing a seatbelt would have made any difference to the injuries suffered but the starting point for defendant insurers will be to apply the 25 per cent reduction if the injured party was not wearing a seatbelt. The onus will then be on the claimant to argue against this.
The application of the guidance in Froom v Butcher is challenged periodically. In Pearson v Anwar , the claimant appealed the decision of the judge at first instance to apply the 25 per cent reduction. Mr Pearson was travelling in a taxi and was not wearing a seatbelt. As a result of the accident, he struck his head on the A-post of the car and was rendered tetraplegic. At the initial hearing, the judge found that, had Mr Pearson been wearing a seatbelt, he would still have suffered an injury but this would probably have been a three to six month whiplash-type injury. On this basis, the claimant appealed the trial judge’s finding that a 25 per cent deduction should be applied, as he would have suffered injury in any event, even though those injuries would have been much less severe.
However, it was found that it was the claimant’s striking his head on the A-post that led to the catastrophic injuries and this would have been avoided if he had been wearing a seatbelt. As a result, the Court of Appeal refused leave to appeal the trial judge’s findings and the 25 per cent deduction stood.
It is therefore clear that deductions for contributory negligence for failing to wear a seatbelt will be routinely applied and the court will take a great deal of persuasion before it disapplies those deductions.
Posted on Jul 30th, 2019 by Lyons Davidson