Court of Appeal 30th April 2013
Hughes (a child) v Williams deceased and Williams
Ms Williams, the child’s mother appealed against the finding of partial responsibility, previously assessed at 25%. Her Appeal was based on whether she was in breach of duty to her daughter at all by placing her on a booster seat and using the car seat belt, rather than using the other available seat, fitted with a five point harness. Also questioned was what contribution was truly applicable given that injuries would likely have been sustained, had the child been seated in a 5-point harness system.
The Appellant argued that any reasonably careful parent would not appreciate how far reaching the effects of not sitting a child in the appropriate seat would be – it was argued that the Judge had used the benefit of hindsight, and had relied too heavily on the booster seats manufacturers guidelines in his Judgement. Also, that the mother had noted that the child’s weight was sufficient to allow her to travel sitting on a booster seat but that it was her height that was the issue. It was argued that again, a reasonably careful parent would not be expected to anticipate such dire consequences to occur, and in fact that it is commonplace for many parents to transport their children in booster seats if their weight was commensurate with the manufacturer’s guidelines.
The Court of Appeal rejected these arguments in turn, referring to the similar case of Jones v Wilkins (2001) found against a mother who had placed her child on her lap with an adult belt around them. A contribution of 25% was determined in this case, in line with Froom –v- Butcher, despite expert evidence stating that an ordinary person would not have understood the risks and possible consequences of such an action.
In addition, the Court of Appeal maintained the view that despite what other ‘reasonably careful’ parents might do, the instruction manual and guidelines for child seats contain explicit warnings as to the dangers of placing a child in an unsuitable seat, particularly in relation to height and weight ratios, of which the Appellant had confirmed she had not only read but had been left in no doubt that failure to follow the instructions could give rise to serious injuries. She had also admitted previously that she was aware that the Claimant did not meet all the criteria necessary to safely use a booster seat, as per the manufacturers guidelines.
Returning to the contribution element, whilst the Court acknowledged that the Appellant was an excellent and caring mother, the case law of Froom –v- Butcher was good law and provided a robust guideline to the Courts in relation to contribution cases. The Court of Appeal reminded those involved that it was not deemed to be in the public interest to become involved in “prolonged or intensive enquiry” into “fine degrees of contributory negligence”.
Regardless of blame for an accident occurring, the duty of care to a child rests firmly with the parent or carer. It is clear that the inference that ‘reasonably careful’ parents do not appreciate the risks and that the ‘common’ practice of using booster seats outside of the clear safety guidelines, is not a consideration that the Court is willing to take into account. In instances of this nature, where guidelines are explicit, consideration of that evidence will be seen as being of paramount relevance. It is interesting to see the principles laid down in Froom –v- Butcher in relation to passenger restraint cases (seat belts), now extends to cases involving child passengers and the consideration of the actions of their parents/carers.
Hughes (a child) -v- Williams deceased and Williams April 25th 2012
First and foremost, please note that the two ‘Williams’ in this case are unrelated. The 25% contributory negligence contribution will be funded by the second Defendants Insurers.
Some certainty and reassurance to Insurers, Reinsurers and lawyers, this case maintaining and underpinning the principles contained in leading case law Froom -v- Butcher (1976), relating to contributory negligence deductions made when considering the failure of a Claimant to wear a seatbelt or appropriate restraint. Pivotal to this case, and the reason for making any deduction at all, is down to whether the injuries sustained could have been lessened or indeed prevented completely should the correct restraint have been used.
This particular case examined the mothers duty towards her child to place the three-year-old in an appropriate and available child car seat and whether her decision to place the child on a booster seat instead of the available 5-point harness was negligent. As detailed above, the overriding issue was whether this decision, combined with the tragic sequence of events and subsequent severe injuries sustained would have been lessened or prevented if the 5-point harness had been used.
It was found, after considering unanimous expert evidence that the booster seat was inappropriate and that the 5-point harness was appropriate, given the child’s age, height and weight, and that her injuries would have been largely avoided or been of slight severity if the 5-point harness had been used.
Whilst the First Defendant (deceased) was solely responsible for the accident , having lost control of his vehicle, swerving and colliding with the car driven by the Second Defendant, the key issue was to consider the cause, or causes of the injuries.
A sensitive case to deal with, particularly given the issues of recoverability in relation to gratuitous care by the mother which she had been required to provide to the Claimant given her severe injuries. The Defendant Insurer gave an undertaking that a finding would not deprive the Claimant and her mother of compensation payable in respect of past and future care provided by the mother.
As a handler, this case highlights the need for early and appropriate intensive investigation into liability and causation issues and the need to obtain eminent robust expert evidence to narrow the issues when preparing for a difficult, emotive and contentious case such as this.