Goodman v Keeves

In a contributory-negligence assessment involving seat-belt non-use, a court may separate injuries where their effects can be identified and assess the consequences injury by injury. An overall reduction remains appropriate where separation is impossible. The usual reductions associated with Froom v Butcher and Owens v Brimmell are guides, not inflexible tariffs. A trial judge may depart from them where the evidence and circumstances justify it, including the availability of the belt and the claimant’s age and control over events. Appellate interference with such apportionment is rare. A renewed permission application was not a suitable vehicle for reconsidering the continuing rule in Froom v Butcher.

The claimant, aged 16, suffered serious injuries as a rear-seat passenger in a car driven by the defendant after drinking. She was not wearing an available seat belt. The Cambridge County Court accepted medical evidence that the head injury would have occurred even with a belt, but found that other injuries would have been avoided. It reduced damages by 15 per cent for seat-belt non-use in respect of those injuries and by 10 per cent for knowingly travelling with a drinking driver. The defendant renewed an application for permission to appeal, challenging causation, separate assessment and the percentages. The central issue was whether the recorder’s findings and apportionments were open to him.

The renewed application for permission to appeal was refused. Lord Justice Tuckey considered each ground advanced on behalf of the defendant.

1. Causation. There was a clear conflict between the medical experts. The recorder was entitled to accept the treating neurosurgeon’s evidence that the claimant’s closed head injury resulted from acceleration and deceleration forces and would have occurred whether or not she was restrained. The fact that an unrestrained body was thrown forward did not compel the conclusion that the injury would have been avoided by a seat belt.
2. Separate assessment of injuries. The preference in Froom v Butcher for an overall assessment did not prevent separate findings where the effects of the injuries could logically be separated. An overall reduction is required where that separation is impossible, but it is necessarily a rougher assessment.
3. Apportionment. The usual reductions referred to in Froom v Butcher and Owens v Brimmell were not rigid tariffs. Apportionment was primarily a matter for the trial judge, and the Court of Appeal seldom interfered where adequate reasons were given. The belt’s lack of ready availability justified departing from the usual 25 per cent reduction. The claimant’s youth and the fact that older companions had led her on and controlled events justified the 10 per cent reduction for travelling with a drinking driver rather than the 20 per cent benchmark.
4. Reconsideration of the seat-belt rule. The unreported settlement in Hitchens v Berkshire County Council did not make this a suitable case for revisiting Froom v Butcher. In J (A Child) v Wilkins [2001] PIQR 179, the issue had at least been considered and the court had stated that Froom v Butcher still represented the rule.

Order: application for permission to appeal refused.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 800, Lord Justice Tuckey refused the renewed application for permission to appeal.
• Cambridge County Court: Mr Recorder Brunner QC found contributory negligence and reduced damages by 15 per cent for seat-belt non-use in respect of the separable injuries and by 10 per cent for knowingly travelling with a drinking driver.