Failure To Wear a Seatbelt (or a Cycle Helmet) :- Legal update
Way back in 1976 in case called Froom v Butcher the court was asked to make a finding as to whether or not someone’s damages ought to be reduced if they are involved in an accident which is not their fault but they have failed to wear a seatbelt (in the case of a car) or a cycle helmet (in the case of a cyclist).
Keep in mind, that failing to wear a seatbelt in 1976 was not a legal offence.
The court stated that if the evidence showed that the failure to wear a seatbelt made no difference to the injuries suffered then there should be no reduction from the damages.
If the wearing of a seatbelt would have made a significant difference and the injury would have been prevented altogether then the reduction in compensation should be 25%.
If the wearing of a seatbelt would have made some difference but not significant difference then the reduction from the compensation would be 15%.
Over the last 36 years defendants through their insurance companies have tried to argue these percentages should in increased on the basis that there is a lot more public knowledge about wearing seatbelts now than there was in the mid 1970’s and furthermore, it is now a legal offence not to wear a seatbelt.
The court has consistently however upheld the 1976 decision and it is as applicable today as is was back then.
In a recent case called Hughes v Williams (2012) a mother placed her daughter, who was 3 years and 2 months old, on a child booster seat in the back of the car. Fitted next to the booster seat was a 5 point child restraint seat but the mother took the reasonable decision to use the booster seat because her daughter, who was heavy for her age, preferred the booster seat and would be more comfortable on it. Her daughter’s height was 8cm short of the appropriate range for such a booster seat and she was too young for the seat by a matter of a few months.
Sadly, but perhaps inevitably, there was an accident which was caused by the other motorist (who was tragically killed in the collision) and the mother’s daughter was, unfortunately, seriously injured.
As a father of 3 young children, I can sympathise with the decision the mother made in choosing where to seat her daughter. I am sure that all parents will also sympathise. Is it better to have a content child sitting on a booster seat or a screaming child in the back of the car unhappy with being restrained by the seat belt?
Nevertheless, the Judge in the case just decided said however understandable and well intentioned the mother’s decision was, it still cannot override the child seat requirements and the child’s compensation was reduced by 25%.
Fortunately, the child did not lose out on this compensation because the mother’s Insurance company bridged the gap given that it was the mother who had been negligent not the child.
For all parents I think there is a lesson for us all to heed.
Also, 2 recent cases have considered whether the principles of not wearing a seatbelt ought to apply to a failure to wear a cycle helmet in accidents involving bicycles.
Believe it or not, the wearing of a cycle helmet is still not legally compulsory.
In my humble opinion it ought to be compulsory. However, the wearing of a cycle helmet is merely encouraged by the Highway Code.
In the first claim, the cyclist had struck the ground at more than 12 miles per hour which was too fast a speed for the cycle helmet to have afforded any protection anyway even if he had been wearing one (which he wasn’t). Furthermore, there was no medical evidence to the effect that the wearing of a cycle helmet would have prevented or even substantially reduced the severity of the injuries he suffered. In those circumstances, the Judge stated that the defendant insurance company had failed to demonstrate that the cyclist had been guilty of contributory negligence and there was no reduction in his damages. However, the court made it clear and the reasoning was upheld in the most recent case that if the wearing of a cycle helmet had made a significant difference or reduced the injury by some extent, then the cyclist would be expected to suffer a reduction in his compensation on the same lines as have been expressed in the non- wearing of seatbelt cases.
Are you a cyclist ? Do you always wear a cycle helmet ? Please feel free to provide feedback.
R M Whitaker
Hellewell Pasley & Brewer
19 June 2012