In cases involving road traffic collisions, an opposing insurance company will always consider whether those bringing the claim against them were wearing a seatbelt at the time of the collision.
The reason for the insurance company to consider whether a seatbelt was being worn relates to the potential effect of having not worn a seatbelt on the amount of compensation the insurer may have to pay.
If a driver or passenger in a vehicle has failed to wear a seatbelt then it permits the insurance company to allege contributory negligence against that person.
What is Contributory Negligence?
The principle was established under The Law Reform (Contributory Negligence) Act 1945, in which section 1 (1) states:-
“Where any person suffers damage as a result partly of his fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the persons suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant’s share of responsibility for the damage”.
In summary, the principle of contributory negligence enables the opposing insurance company to argue that the person bringing the claim should accept a certain percentage reduction in their compensation to reflect the part their actions or failings had in contributing to their injuries and resulting losses.
The approach if you were not wearing a seatbelt
The leading law in this area comes from the case of Froom v Butcher [1976] where Mr Froom failed to wear a seatbelt. Mr Froom suffered injuries to his head and chest. Although the defendant was deemed to have caused the collision, it was established that the injuries to Mr Froom’s head and chest would have been avoided if he had been wearing a seatbelt.
The judge in the case, Lord Denning Master of the Rolls, stated:
“Everyone knows, or ought to know, that when he goes out in a car he should fasten the seatbelt. It is so well known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it, and an accident happens – and the injuries would have been prevented or lessoned if he had worn it- then his damages should be reduced”
The paying insurer is not automatically entitled to a reduction in the amount of compensation paid. Instead, it has to be assessed whether the injuries sustained would have been less severe or avoided altogether if a seatbelt had been worn. Evidence is usually obtained from medical experts to help inform this assessment. Depending on the outcomes of the assessment, the amount of compensation deducted for contributory negligence is usually:
- If the belt would have made no difference at all to the injuries, then no deduction is made.
- If the belt would have reduced the injuries, then a deduction of 15% is made.
- If the wearing of a belt would have avoided the injuries completely then a deduction of 25% is made.
Children and vehicle restraints
It is a criminal offence to drive a motor vehicle if a child passenger under the age of 14 is not wearing a seatbelt (Road Traffic Act 1988). It is the responsibility of the driver to ensure that children under 14 are wearing a seatbelt or a child restraint
If a child aged above 14 suffers an injury and was not wearing a seatbelt then the approach set out in Froom v Butcher applies. This means that the amount of compensation recovered on behalf of the child will be reduced by the appropriate percentage amount.
However, if a child is under the age of 14 and was not wearing a seatbelt at the time of injury, the driver of the car the child is a passenger in will be held partially at fault for the injuries. This approach serves to protect children under the age of 14 as it means the child does not suffer a reduction in the amount of compensation they receive.
It is worth noting that children under the age of 14 must wear a suitable restraint with different regulations depending on age and height of the child
What is the consequence of a finding of Contributory Negligence?
Where a percentage amount of contributory negligence is assessed by the Court or agreed upon between the parties, then that will usually be the end of the issue in the case. In practice, it is usually agreed upon between the parties out of Court and it means the case can continue to focus on other issues such as assessing how much the case is worth.
Contributory negligence will mean, however, at the end of the case any amount awarded in compensation will be reduced by the agreed-upon or Court assessed percentage. For example, if the parties agreed to 15% contributory negligence and the compensation on a 100% basis is assessed at £1,000,000, then the person bringing the claim would receive £850,000 in compensation.
How can Moore Barlow LLP help?
In a case where there is an allegation against the person bringing the claim that they have not worn their seatbelt, it will be important to fully investigate this issue.
The first step is to establish the evidence around whether or not a seatbelt was worn which may include viewing any dash cam/CCTV footage, police report, fire report, paramedic record, viewing any bodycam footage from the first responders, and speaking with any witnesses. Another consideration is whether there was any evidence of a seatbelt mark on the injured person.
The second step is to consider whether an investigation is required from a forensic engineer to review the evidence gathered in the first step. A forensic engineer may look at whether there is any evidence of the seatbelt clasp being in the “stork” and also calculate the forces involved in the collision.
The final step is to obtain expert evidence from a medical professional, usually in the discipline of Accident & Emergency, to give an opinion as to the severity of injury likely sustained had a seat belt been worn or not.
Having investigated the issue, the injured person will then be in a position to respond to any allegations made by the insurer as to a seatbelt not having been worn.
How Moore Barlow can help
If you have suffered a serious injury as a result of a road traffic collision then contact our specialist Solicitors on 0800 157 7611.
Our Serious Injury Team are rated as Tier 1 by Legal 500 and Band 1 by Chambers & Partners. Our Team is also listed on the legal panel for Road Peace, the national road safety charity, Headway the national adult brain injury charity and CBIT the national child brain injury charity.
Authors: Partner, Matthew Claxson, and Senior Paralegal, Georgie Beckers, in Moore Barlow LLP Serious Injury Team.
