The Claimant was one of five passengers in a car being driven late at night by the Defendant. The car was involved in a collision, causing serious brain damage to the Claimant. Primary liability was admitted and the key issue was contributory negligence. The Claimant had been sharing the front passenger seat with another passenger and neither of them had been wearing a seatbelt. Experienced road accident safety engineers reached agreement that a properly worn seatbelt would probably have been beneficial in reducing the severity of the injury suffered. At first instance the Judge declined to reduce the damages for contributory negligence on the grounds that, despite this, it had not been shown that a belt, if worn, would sufficiently have reduced the injuries suffered.

Held: The Judge had to decide whether the evidence showed, on the balance of probabilities, that a seat belt would sufficiently have reduced the injuries to require a reduction for contributory negligence. The Court of Appeal held that this decision was a fine one and she was entitled to say that the issue of causation had not been proved.

Comment: This case is an important reminder that, when seeking to argue contributory negligence for not wearing a seatbelt, it is vital that there is clear expert evidence that a seatbelt would have reduced the severity of the injury. This evidence should come from an appropriately qualified medical expert. Only once causation has been proved will a court decide whether a reduction of 15% or 25% for contributory negligence should apply.

The decision is also the latest in a long line of attempted challenges to the guidance set out by Lord Denning in Froom v Butcher [1976]. Given the Court of Appeal’s findings, it was not necessary for the Court of Appeal to review Froom v Butcher in detail. However, in a clear endorsement of this decision, Lord Justice Hughes stated that no indication should be taken “that I would otherwise have welcomed the opportunity to re-visit the judicial anticipation of modern public attitudes which underlay Froom v Butcher.”

What would it take for Froom v Butcher to be overturned? As the Court of Appeal pointed out in this most recent decision, there is a powerful public interest in there not being an enquiry into fine degrees of contributory negligence, but this would not necessarily prevent the figures of 15% and 25% being increased. It is clear that there is judicial resistance to any changes being made. However, that is not to say that if an insurer picked the right case, and collated strong evidence from appropriate experts, another challenge could not be made.