Passenger Safety and Seat Belts: Statistics and Legal Requirements, Lecture notes of Law

Download Passenger Safety and Seat Belts: Statistics and Legal Requirements and more Lecture notes Law in PDF only on Docsity! Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 14 Passenger claims and seat belts 1 Introduction a. Vulnerability Unlike pedestrians, vehicle passengers, with the exception of motorcycle pillion riders, are generally much less vulnerable in a road accident. This is because, to a large extent, they are protected inside a metal structure and in cars, they will usually have the added protection of seat belts, head restraints and airbags. b. Casualty statistics The table below shows the casualty figures for passengers in cars, goods vehicles and buses and coaches (motor cycle passengers are omitted) from 2002 to 2006 [Source: Department for Transport – Road Accidents Great Britain 2007.] Year Killed Killed or seriously injured All severities 2002 347 3550 31,499 2003 373 3344 30,167 2004 348 3138 28,895 2005 337 2655 27,323 2006 321 2700 26,464 c. Seat belt statistics Statistics about whether or not a casualty was wearing a seat belt at the time of an accident are no longer collected by the Department for Transport. The current form used by the police for compiling accident statistics about casualties [MG NSRF/C] indicates where a casualty was sitting but there is no provision on this form for seat belt information, although the police officer might comment in other parts of the road accident report. It is understood that these statistics were not regarded as reliable. The first thing that happens after a crash is that occupants undo their seat belts and try to get out of the vehicle. By the time the emergency services arrive, casualties may not remember anything or if they do, they are unlikely to admit not wearing a seat belt. 2 The driver’s duty of care a. The general duty of care Basically, there is no difference between the duty of care owed to passengers from that owed to pedestrians. The ‘neighbour’ principle applies equally to all road users. b. The Highway Code There are some additional rules for drivers in respect of child passengers: Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 15 § The driver must ensure that all children under 14 in cars, vans and other goods vehicles wear seat belts or sit in approved seat restraints [100] § Drivers carrying children in the above vehicles must ensure that [102]: - children should get into the vehicle at the door nearest the kerb; - child restraints are properly fitted; - children do not sit behind the rear seats in an estate car or hatchback unless a special child seat is fitted; - child safety locks are used when children are in the vehicle; and - children are kept under control c. Drunken passengers In Griffiths v Brown (1998), The Times, 23 October, the claimant, who was inebriated, was hit by another car when crossing the road after alighting from a taxi. The High Court judge said that once the passenger has alighted, the contract was at an end and the taxi driver was under no obligation. There was no duty on a taxi driver to assess the sobriety of a passenger before setting him down. d. Ex turpi causa non oritur actio This maxim, literally translated, means that no action can be brought where the parties are guilty of illegal or immoral conduct. In Thackwell v Barclays Bank plc [1986] 1 All ER 676, it was said that the test involves two questions: § Whether there has been illegality of which the court should take notice; and § Whether it would be an affront to public conscience if the court was seen to be assisting or encouraging the claimant in his criminal act. The application of this maxim arose in Pitts v Hunt [1990] 3 All ER 344, where the claimant pillion passenger encouraged the rider to drive in a reckless and dangerous manner after they had been drinking together. The Court of Appeal upheld the trial judge’s decision that the motor cycle rider owed no duty of care to the claimant, since both were jointly engaged in committing a criminal offence. A similar view was taken in Ashton v Turner [1980] 3 All ER 870, where the injured person was escaping after committing a crime. It should be stressed that courts may be reluctant to deprive a claimant of damages in this way unless both driver and passenger were jointly engaged in a criminal act of a serious nature. The maxim is unlikely to be of assistance where, for example, a passenger condones the driver exceeding the speed limit. However, there may be contributory negligence where a passenger knowingly consents to travel with a drunken driver. Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 18 4 Seat belts and contributory negligence a. General principles of contributory negligence The text of s.1(1) of the Law Reform(Contributory Negligence) Act 1945 is quoted in 4 a. of these notes. It is important to appreciate that damages may be reduced having regard to the claimant’s share of blame for the damage. As Lord Denning so succinctly observed in Froom v Butcher [1976] 3 Al ER 520: ‘Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man’s carelessness in breach of duty to others. Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself . . .’ b. The decision in Froom v Butcher In this case, the claimant was driving his car when it collided with the defendant’s vehicle. The defendant was wholly responsible for the accident. The claimant was not wearing his seat belt and the injuries to his head and chest would have been avoided had he done so. He also suffered a broken finger, which would not have been avoided. The appeal was concerned solely with the issue of contributory negligence. Until the Court of Appeal heard this case in July 1975, there had been conflicting decisions in the lower courts as to whether the failure to wear a seat belt was tantamount to contributory negligence. One view was that insurers should not be relieved of paying proper compensation where a driver has been negligent. But Lord Denning said that this was not the correct approach. He said: ‘The accident is caused by bad driving. The damage is caused in part by bad driving of the defendant, and in part by the failure of the claimant to wear a seat belt.’ At that time it was compulsory for seat belts to be fitted to all cars first registered since 1965, but it was not compulsory to wear them. However, the Highway Code had, since 1968, advised motorists to make sure seat belts were used and the claimant should have known this. The Government had also spent £2.5m in advertising telling people to wear them. The Government had also introduced a Bill into Parliament to make wearing of seat belts compulsory, but it had been delayed. Lord Denning said that meanwhile judges should say plainly that it is the sensible practice for all front seat occupants to wear seat belt at all times. He said this about the situation at the time: ‘Seeing that it is compulsory to fit seat belts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seat belt. Everyone is free to wear it as he pleases. Free in the sense that if he does not wear it, he is free from any penalty from the magistrates. Free in the sense that everyone is free to run his head against a brick wall if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.’ Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 19 As to the share of responsibility, Lord Denning repeated his comments made in Davies v Swan Motor Co and added: ‘This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.’ ‘Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if the seat belt had been worn. In such cases, the damages should not be reduced at all.’ ‘At other times the evidence will show that the failure made all the difference. In such cases I would suggest that the damages should be reduced by 25%.’ ‘But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would have still been some injury to the head. I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15%.’ The trial judge in this case had made a 20% reduction and, bearing in mind that the finger would have been broken anyway, the Court of Appeal decided not to interfere with this. c. Discussion It is now more than 30 years since the judgment in Froom v Butcher and it is understood that no court has so far gone through the ‘glass ceiling’ of 25% in seat belt cases. The lower courts seem to have interpreted Lord Denning’s words as a binding authority. But are they? The use of the words ‘I suggest’ in relation to the 15% and 25% reduction seems to infer guidance, rather than strict compliance. In the preceding paragraph, a reference to ‘the great majority of cases’ may infer that some departure from the norm may be justified in order to ensure a ‘just and equitable share of responsibility’ (as required by s.1(1) of the 1945 Act). Notwithstanding these question marks, the glass ceiling seems to be impervious to several attempts to breach it by insurers who are keen to reduce their share of damages, especially in multi-million pound compensation cases. Some of the more notable challenges are discussed below. d. Subsequent challenges In Eastman v South West Thames Regional Health Authority, CA, [1991] RTR 389, the claimant was travelling in an ambulance with her mother-in-law, a patient. She was sitting on a crew seat which was not equipped with a seat belt, although other seats were equipped and a notice in the ambulance advised passengers to wear the belts provided. The attendant, who was also in the back of the ambulance, neither suggested that she should wear a seat belt nor drew attention to the notice. The ambulance driver had to brake suddenly due to an incident that was not his fault, and the claimant was thrown from her seat and suffered serious injury. The Court of Appeal said that the defendants had provided seats with belts and she chose not to use them. There was no general duty of exhortation in regard to the wearing of seat belts and the defendants were not liable. Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 20 In J (a child) v Wilkins [2001] PIQR P12, the claimant was a very young child, under three years of age, travelling on her mother’s knee in the front passenger seat. The lap belt was secured around the mother and child but the diagonal strap passed across the mother only. A single joint expert concluded that if the claimant had been wearing an approved seat restraint (as required by the 1993 regulations), the risk of serious injury would have been almost entirely eliminated. The car was in a head-on collision and the child suffered catastrophic injuries. The defendant in the other vehicle admitted negligence but alleged negligence by the mother and her aunt (who was driving the car) for failing to secure the child in a suitable seat restraint. The child’s mother and aunt were joined by the defendant in Part 20 proceedings, seeking a contribution from them. In the Court of Appeal, Keene LJ said that the same approach was appropriate between Part 20 defendants as between claimant and defendant. He also said that at the time of Froom v Butcher, it was not compulsory to wear seat belts but the court was aware of the contemplated legislation. He said that a reading of the judgment shows that the 25% was not put forward as an absolute and immutable ceiling in every case, but the court clearly wished to give guidance for the vast majority of cases. It follows that there could be exceptional cases but one would expect them to be rare. An exceptional situation might exist where a contribution claim is made because an adult deliberately carried someone on their lap with no seat belt or other restraint applied. In this case, the mother did not leave the child wholly unrestrained. In fact what she had done actually made the situation worse, but neither the mother nor the aunt was aware of this. The blame attached to them must be limited by their lack of understanding of the risk – a lack they shared with much of the public. In the circumstances the appeal court upheld the trial judge’s apportionment of 75% to the defendant driver of the oncoming car and 25% to the Part 20 defendants. Hitchens v Berkshire County Council, 13 October 1999, QBD (Winchester) (judgment available on Lawtel) was a Fatal Accidents Act claim where the deceased, a taxi driver, was killed in an accident on the A4. There were no other vehicles involved and it seems that he lost control of the car, which hit a tree. He was not wearing a seat belt and was thrown out of the car. This section of the road was icy and had not been adequately gritted by the defendant authority, nor had any warning about the slippery surface been given. The agreed expert evidence was that if the deceased had been restrained, he would have suffered only minor injuries. There was no suggestion that the deceased had been negligent in any respect other than his failure to wear a seat belt. In his judgment, HH Anthony Thompson QC held that the defendants were liable for failing to properly carry out their winter maintenance plan. At that time, taxi drivers were allowed certain dispensations from having to wear a seat belt when on business, but the deceased had been returning home from work so he should have been wearing his seat belt. The judge said that if he had been free to approach this case without regard to the authority in Froom v Butcher, he would have applied a very substantial discount for contributory negligence, certainly no less than 50%. But he was bound by the authority and reduced the damages by 15%. The judge suggested that perhaps it was time for the Court of Appeal to look afresh at this issue as times had changed: failing to wear a seat belt was now a criminal offence and attitudes had changed towards the wearing of them. Leave to appeal was granted but the parties agreed a settlement on terms which amounted to a 50% reduction for contributory negligence. (See further comments on this settlement in Gawler below.) The latest attempted challenge was in Gawler v Raettig [2007] EWHC 373 (QB), 1 March 2007, Mr Justice Gray. The 24-year-old claimant was a front seat passenger in a car driven by the Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 23 The judge said that whether this principle can be relied upon successfully is a question of fact and degree in the circumstances of each case. As to the share of responsibility he said: ‘. . . the degree of blameworthiness is not, in my opinion, equal. The driver, who alone controls the car and has it in him, therefore, to do whilst in drink, great damage, must bear by far the greater responsibility.’ He decided that in this case, the claimant’s contribution should be 20%. The burden of proving contributory negligence rests on the defendant (see Malone v Rowan [1984] 3 All ER 402). b. Booth v White [2003] EWCA Civ 1708 The issue of ‘knowledge’ established in Owens v Brimmell requires some kind of assessment by the passenger of whether or not he thinks it safe to travel with the driver. What is the extent of the enquiries that are reasonably to be expected of the claimant? The facts in Booth were that the claimant and defendant went for a lunchtime drink in a pub, where the defendant drank one pint of lager and after this he went to play football. The claimant stayed in the pub where he drank many more pints during the afternoon. At about 5pm the defendant returned to the pub and later got into his car to take the claimant home. The claimant passenger, Mr Booth, sat in the front seat with his seat belt fastened. On the way home, the defendant driver, Mr White, lost control of the car, which went off the road, seriously injuring the claimant. The defendant was found to have consumed nearly twice the legal limit for alcohol. The defendant contended that the claimant should have known (or would have known if he had not been so drunk) that there was a significant risk that Mr White had drunk excess alcohol. He should have asked him how much he had drunk before getting into the car. The trial judge had relied on the evidence of Mrs Booth, who had been to the pub and had seen her husband in a drunken state but she said that Mr White appeared fit to drive. The defendant chose not to give evidence. The Court of Appeal held that there was no contributory negligence on the part of the claimant. Brooke LJ said: ‘In my judgment, the law would take a wrong turning if we were to require an interrogation in this type of case of the type that [defendant’s counsel] has suggested.’ Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 24 6 The tired driver who blames his employer Eyres v Atkinsons Kitchens and Bedrooms Ltd [2007] EWCA Civ 365 The claimant had not been wearing a seatbelt (a factor which contributed substantially to his injuries) and had been driving while tired which resulted in him falling into a micro sleep. His employer was in the vehicle at the time and whose philosophy was variously ‘eating is cheating’ and ‘you can sleep when you’re dead’. Nevertheless, despite the most vigorous arguments for 75% contributory negligence, it was awarded at 33% which utilised the ‘conventional’ figure of 25% for the seatbelt and a further 8% for driving while tired. 7 Compulsory insurance restrictions a. Road Traffic Act 1988 The liability of a defendant motorist at common law to his passengers may, in some instances, be modified by the legislation relating to compulsory motor insurance or, if the driver had no insurance, by the Motor Insurance Bureau (MIB) Uninsured Drivers Agreement 1999 (UDA). In a situation where the defendant has third party motor insurance that was in force at the time of the accident; and covered the vehicle, the driver and the use of the vehicle at the time, the above liability restrictions do not apply. The ‘contractual insurer’ should deal with the claim under the terms of the policy. But if the insurer has issued a certificate of insurance and certain conditions have not been observed (e.g. the vehicle was being driven by someone not permitted to do so), the insurer is still obliged to satisfy a judgment under s.148 of the 1999 Act. In these circumstances, the insurer is referred to as RTA insurer and certain passenger claims are excluded. In some limited circumstances, where a certificate of insurance has been issued but s.148 does not apply, the insurer may still be required to satisfy a judgment because of an internal arrangement with the Bureau, known as Article 75. The effect of this is that the ‘Article 75 insurer’ stands in the shoes of MIB and operates the UDA. If there is no insurance at all, the MIB has an obligation, as a body of last resort, to satisfy a judgment, subject to the strict conditions precedent to liability contained in the UDA. The difference between the obligations of an RTA insurer and an Article 75 insurer or MIB is important because the exclusions of passenger liability in the latter situations are more extensive than under the RTA. But in any event there is an overriding requirement that there should be what is called relevant liability. This means that the obligation to satisfy a judgment applies only where there is a requirement to have third party motor insurance under s.143(1)(a) of the 1988 Act. This requirement arises out of the use of a motor vehicle on a road or other public place. For example, the obligation would not apply if the accident had occurred in a car park which was not for the use of the public at large. b. Attempts to avoid certain liability to passengers Section 149(2) of the 1988 Act makes any agreement to restrict or negative passenger liability of no effect. This would apply, for example, to any contract terms or notices which purport to claim that passengers travel at their own risk. It also negatives conditions on liability (e.g. that bus passengers must retain a valid ticket). Motor claims update_MGB, PNG, PEN_(RAW, ACH) 11/08 25 Section 149(3) does not allow the fact that a person has willingly accepted the risk as removing liability. This effectively rules out the defence of volenti non fit injuria in passenger claims where the RTA applies, although it does not rule out the defence of ex turpi causa. c. The duty of an insurer to satisfy a judgment under the 1988 Act The duty of an insurer under s.151(2) of the Act is subject to what is called an excluded liability. Section 151(4) says that ‘excluded liability’ means liability to passengers for injury or damage whilst: § At the time of the relevant event – § They allow themselves to be carried in or on the vehicle – § And knew or had reason to believe – § That the vehicle had been stolen or unlawfully taken But this exclusion will not apply if the passenger: § Did not know of, or had no reason to believe this until after they started the journey; and § Could not reasonably have been expected to alight from the vehicle. In McMinn v McMinn and anr. [2005] EWHC 827 (QB), the insurers had issued a fleet policy which restricted driving to those aged 25 or over and who were licensed or permitted to drive. The claimant was seriously injured in a van being driven by the first defendant, who satisfied none of the above conditions. The court held that the claimant knew that the van belonged to the driver’s employers and that they would not have allowed the first defendant to drive it. Therefore it had been unlawfully taken within the meaning of s.151(4) and the insurers were not required to satisfy the judgment. d. Excluded passenger liability under the UDA 1999 Claims by certain passengers are excluded [Clause 6.1(e)] if they knew or ought to have known that the vehicle: § Had been unlawfully taken; § Was uninsured; § Was being used to commit a crime; or § Was being used to escape from the police The burden of proving knowledge rests with MIB [Clauses 6.3 and 6.4]. This has always been a contentious provision which goes much further than the ‘excluded liability’ where an RTA insurer is involved. Some of the relevant case law is summarised below. In Akers v Motor Insurers Bureau [2003] EWCA Civ 18, a passenger was killed in a motor accident when the 19 year-old driver lost control of the car at speed. There were two other passengers in the car and the court ruled that the deceased was present when the driver