Capps v Miller

Where a claimant’s breach of a statutory safety requirement causally worsens injuries caused by another’s negligence, contributory negligence may arise even though the claimant was wholly innocent of causing the accident. The court must assess the claimant’s share in responsibility for the damage, considering both causative potency and blameworthiness. The defendant’s exceptionally blameworthy conduct does not extinguish the claimant’s responsibility. The Froom v Butcher guidelines ordinarily provide a practical basis for assessment where the precise medical effect cannot be measured. A properly worn but unsecured helmet may justify a smaller reduction than no helmet at all.

A seriously injured moped rider sued the driver of a car which had struck him from behind. The driver admitted responsibility for the accident and had been convicted of driving with excess alcohol. The trial judge found that the claimant’s helmet was on his head but not fastened, that it came off before his head struck the road, and that the brain injuries were probably less severe had it remained in place. The judge nevertheless rejected contributory negligence because the defendant’s conduct was overwhelmingly blameworthy.

The defendant appealed from the decision of Henry J in the Queen’s Bench Division. The central issues were whether the claimant’s failure to secure the helmet was causative contributory negligence and, if so, the appropriate reduction in damages.

1. Appeal allowed. The trial judge erred by concentrating on responsibility for the accident rather than responsibility for the damage. Section 1 of the Law Reform (Contributory Negligence) Act 1945 required an assessment of the claimant’s share in responsibility for the damage once his breach had causally contributed to the injuries.
2. The claimant’s failure to secure the helmet breached regulation 4(3) of the Motor Cycles Protection (Helmets) Regulation 1980. The requirement served to prevent or lessen head injuries. The claimant’s expectation that he would not suffer a serious accident was irrelevant. The defendant’s complete responsibility for the collision did not remove the claimant’s causative contributory negligence.
3. The practical guidelines in Froom v Butcher applied to an effectively secured crash helmet. Where the protective equipment would have made no difference, there should be no reduction; where it would have prevented the injuries altogether, a 25 per cent reduction was indicated; and where it would have made the injuries materially less severe, a 15 per cent reduction was ordinarily appropriate. The guidelines were not inflexible, but should ordinarily be followed.
4. Glidewell LJ and May LJ distinguished the present case from O’Connell v Jackson because a helmet had been worn, although improperly fastened, whereas no helmet had been worn in that case. That difference reduced the claimant’s blameworthiness. The appropriate reduction was 10 per cent. Croom-Johnson LJ would have preferred 15 per cent but agreed with the 10 per cent figure.
5. Damages were reduced by 10 per cent. The appeal was allowed with costs payable by the Legal Aid Fund.

• Court of Appeal: Allowed the defendant’s appeal from the decision of Henry J, finding contributory negligence and reducing damages by 10 per cent: [1988] EWCA Civ 5.
• High Court, Queen’s Bench Division: Henry J found the accident entirely the defendant’s fault and rejected contributory negligence.