The insurers of a mother of a three year old who was seriously injured in a car accident have been ordered to pay 25% of her daughter’s compensation, despite the blame for the accident itself being entirely attributed to another driver.
In August 2006, Louise Williams was a passenger in a car driven by her mother, which was involved in a collision when another driver, under the influence of drugs and alcohol, swerved onto the wrong side of the road.
The Court of Appeal, in the case of Louise Emma Williams v The Estate of Dayne Joshua Williams (deceased)  EWCA Civ 455 upheld a decision that the mother was at fault for fitting her 3 year old child on a booster cushion rather than using a 5-point harness.
Both the trial judge and the Court of Appeal placed much weight on the manufacturers’ guidelines for the booster seat which included such warnings as “FAILURE TO PROPERLY USE THIS CAR SEAT INCREASES THE RISK OF SERIOUS INJURY OR DEATH IN A SUDDEN STOP OR CRASH. To use this booster seat, your child MUST meet ALL of the following requirements: Without back support (approximately 4 to 10 years old): weigh between 15-36 kg; are between 101 and 145 cm in height; when sitting on the booster seat, your child’s ears are below the top of the vehicle seat cushion/head rest“. The child did not meet two of the criteria: she was only 93 cm tall and was 10 months younger than the 4 years of age that was contemplated in the guidance.
On appeal against the initial decision that the mother was negligent and her insurance company should pay 25% of the damages awarded, it was argued that the trial judge had given too much weight to the manufacturers’ instructions, “elevating them to the status of law and treating them as determinative of liability”. The mother’s insurers also argued that it was not reasonably foreseeable to her when she chose to place her daughter on the booster seat that that would result in materially greater injuries than if she had been placed in the seat with the five-point harness. However, the Court of Appeal dismissed this argument on the basis that there were clear and repeated warnings on the seat that the failure to use it as instructed could result in serious injury or death.
The drunk driver’s insurers relied on expert evidence from an engineer as to the importance for younger children of a seat with a backrest, head rest and side wings to maintain the child in an upright seated posture. In contrast, the expert said, booster cushions have no means of preventing a child moving sideways so that their upper body is no longer restrained by the seat belt. They also relied on evidence from an expert in accident and emergency medicine that the booster cushion had allowed sideways movement which caused injuries which would have been ‘slight only’ in the other seat.
The Court of Appeal found that the booster cushion should not have been used, that the child seat should have been used instead, and that if it had been, the injuries sustained in the accident would largely have been avoided. It upheld the trial judge’s decision that a 25% contribution was just and equitable and appropriately reflected the extent of the claimant’s mother responsibility for her daughter’s injuries.
The decision in this case at first sight appears particularly harsh: the child’s mother was in no way to blame for the accident itself in which her daughter was injured. In addition, using an unsuitable child restraint is something which many parents innocently do without consequence.
What is striking in this case is that the actions of the drunk driver compared to the innocent mistake of the mother are not reflected in the finding that his insurers should pay only 75% of the compensation to the child and the mother’s insurers as much as 25%. The mother’s fault seems slight in comparison to the actions of the drunk driver. But for his negligent and dangerous driving, resulting from intoxication, the child would not have been injured at all.
However, the decision as to the apportionment of liability between the mother and the other driver is in keeping with previous reported cases on the issue of contributory fault in motor accidents. The leading case is Froom v Butcher 2 QB 296 in which Lord Denning MR gave the guidance, in relation to failure to wear seat belts, that there should be a deduction in damages awarded of 10% where the claimant’s failure to wear a seat belt would have reduced the extent of the injury and 25% where it would have avoided injury altogether. What matters is the proportion each party contributed to the injuries rather than their relative blameworthiness.