Hughes v Williams and Williams [25.04.12]
Mother must contribute 25 per cent to claim; booster cushion was used for three year old when child seat was available.
There are two key issues to be considered in cases such as this:
- The appropriateness of the car seat for the particular child, taking into account his age, weight and height. These issues should be considered on a case by case basis.
- The nature and extent of the instructions and warnings that were available.
If a breach of duty is established, it is important to remember that there is a second limb to the test for contributory negligence. The court must be satisfied that, but for the negligence, the claimant’s injuries would have been avoided altogether or would have been less serious.
Expert evidence should be obtained in relation to both limbs of the test. This also applies to cases involving failure to use a seatbelt. An accident reconstruction report should be obtained to deal with the issue of negligence. If the report is supportive, a further report from a medical expert within the appropriate field is necessary, in order to establish causation in relation to the claimant’s injuries.
The third party, Louise Williams, is the mother of the Claimant, Emma Hughes. On the evening of 19 August 2006, Ms Williams was driving home with Emma. Ms Williams had fitted a Mamas & Papas five-point harness child seat on the rear offside seat of her car. On the nearside rear seat, she had fitted a Graco booster cushion, without back support. She had bought the booster cushion shortly before the accident because she did not think Emma looked comfortable in the child seat.
On the evening of the accident, Emma was seated on the booster cushion, restrained by the adult seat belt adjusted to shoulder height. The Defendant, who was aged 18 at the time of the accident, was driving along the road in the opposite direction and lost control of his car, which swerved into the path of Ms William’s car. As a result, the Defendant died and Emma sustained severe injuries. It was accepted that the Defendant was entirely to blame for the accident.
The Defendant sought a contribution from Ms Williams for failing to ensure that Emma was properly secured in an appropriate child seat.
At the time of the accident, Emma weighed approximately 15kg and was estimated to be 93cm tall. The instructions for the seats provided that they were designed for children as follows:
- Mamas & Papas child seat - weight 9kg to 18kg, age approximately nine months to four years old.
- Graco booster cushion - weight 15kg to 36kg, height between 101 and 145cm, age approximately four to 10 years old.
Mr Justice Blair held as follows:
- It was negligent to put Emma on the booster cushion. The child seat was definitely the most appropriate of the seats available. Emma did not meet the requirements for the booster cushion. The manufacturers’ instructions were explicit, both as to requirements for use and consequences in case of misuse.
- If Emma had been seated in the child seat her injuries would largely have been avoided.
- A contribution of 25 per cent was appropriate, following the rules laid down in Froom v Butcher , as interpreted in these circumstances in Jones v Wilkins .