The Law of Tort – Contributory Negligence

Whilst we all know we should wear seat belts when in a car, how often have you or someone you know driven off while still fiddling to secure the belt? Alternatively, have you ever had to ask your passengers “Have you got your seat belt on?” after the journey has started?

As a driver you might be acutely aware of your responsibilities when it comes to children travelling with you, but what about older passengers? Where does legal responsibility rest – on the driver to insist that belts are put on, or on the passengers to look out for themselves?

As far as the passenger is concerned, the legal ramifications of not wearing a seat belt are clear – look after yourself or potentially face fines, penalty points and deductions to any claim (based on the principles of contributory negligence). All these reasons should encourage compliance, but in truth it is common to become complacent if you are taking a regular short journey not far from your home – 30% of accidents occur within a mile of home, 65% within five miles.

All of these questions recently crossed my mind after my teenage son was in a car accident. He was a passenger in the back of the car and was the only one to suffer serious injuries. While the driver and other passenger walked away with barely a scratch, my son managed to get a broken nose, lost a tooth, gained an impressive scar and suffered a concussion. I think you can guess who was not wearing his seat belt. He was trying to locate the buckle – at least that is what he told me as the paramedic was treating him – but does that mean he was not at fault? Obviously, as his parent I wanted my son to be blameless, but the lawyer in me knew better.

At age 17, he was legally responsible for telling the driver not to move off until his seat belt was in place. Being under 18 would not help him duck this responsibility as the Highway Code makes it clear the age of legal responsibility for wearing a seat belt is 14. He also had the possibility of facing a criminal charge, which carries a £500 fine and 2 points put on his provisional driving licence. Fortunately the police decided not to prosecute him. In terms of his civil law responsibilities, he should have protected himself by belting up, and his real “punishment” will be in how the law interprets his fault in the accident. If you have studied ILSPA’s Legal Secretaries Diploma course, you will be aware that the idea of fault is very much at the centre of the law of tort. In my son’s case, he will be affected by the concept of ‘contributory negligence’.

The law of contributory negligence arising from a failure to wear a seat belt was developed in the seminal High Court case Froom v Butcher (1976). In this case the driver of the vehicle was not wearing his seat belt and suffered head and chest injuries. The judge, the late Lord Denning stated:

“Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat belt. It is so well known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it and an accident happens – and the injuries would have been prevented or lessened if he had worn it – then his damages should be reduced. If such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries.”

Lawyers now use the principles set out by Lord Denning as second nature in road-traffic-related claims. Some of these principles include:

  • An obligation on individual adults travelling in a car to wear a seat belt. In other words, it is not the driver’s duty to insist that passengers wear a belt (although of course they should!). Since the Froom case, the wearing of seat belts was made compulsory.

  • Where the injury would have been prevented by the wearing of a belt, damages should be reduced by up to 25% (i.e. the claimant is held to be 25% contributorily negligent).

  • Where the injury would have been significantly less severe if a belt had been worn, the damages should be reduced by 15% (i.e. the claimant is held to be 15% contributorily negligent).

  • Where the injury would not have been prevented, the damages will not be reduced (i.e. there will be no contributory negligence).

These principles are very much the norm, and this was confirmed by the Court of Appeal in Stanton v Collinson (2010). In the Stanton case, the judge made it clear that any departure from this approach (and presumably the reduction in damages ranging from 15%-25%) would very much be the exception. In deciding what is just and equitable, the courts do find drivers carry the main responsibility. While every case of a passenger failing to wear a seat belt might not “deserve” to have their claim reduced by the full amount of 25%, the law is very much in favour of trying to encourage those travelling in vehicles to look after their own safety.

None of this will be good news as far as my teenage son’s RTA claim is concerned, but the lawyer in me knows that it is only right that he carries his share of the blame for his injuries. Certainly it will be an expensive life lesson for him, but as I told him, on the bright side, he has recovered well, he did not get points on his licence (before he even passed his test) and he will always remember to belt up before he drives off.

Seamus Ryan, ILSPA Tutor