B3/2014/3685 
Neutral Citation Number: [2015] EWCA Civ 1011
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER DISTRICT REGISTRY 
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE PLATTS) 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Wednesday, 22 July 2015
 
B e f o r e: 

LORD JUSTICE KITCHIN 

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Between: 
PEARSON 
Claimant

v 

ANWAR 
Defendant 
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Mr C Melton QC and Mr D Knifton (instructed by Slater & Gordon) appeared on behalf of the Claimant

The Defendant was not present and was not represented
 
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J U D G M E N T
1.	LORD JUSTICE KITCHIN: This is an application by the Claimant for permission to appeal against the decision of His Honour Judge Platts sitting as a judge of the High Court in Manchester on 14 October 2014 and his consequential order by which he held that the damages recoverable by the Claimant should be reduced by 25 per cent as a result of his contributory negligence.  
2.	Permission to appeal was refused on the papers by Dame Janet Smith on 15 January 2015.  The Claimant has requested that this decision be reconsidered at an oral hearing, which has come on before me today.  At this hearing, the Claimant has been represented by Mr Christopher Melton QC and Mr David Knifton, as he was before the judge.  
3.	For the purposes of this application, the background may be summarised as follows.  In January 2010, the Claimant, who was 23 years old, was a front seat passenger in the Defendant's taxi.  After less than a minute, the Defendant attempted to overtake parked vehicles on the nearside, but lost control of the taxi, skidded on ice and collided with an oncoming vehicle.  The combined speed of the two vehicles on impact was between 50 and 70 miles per hour.  The Claimant was texting a friend and was not wearing a seat belt, but concerned about the Defendant's speed, was at the moment of impact endeavouring to put his seat belt on.  
4.	The drivers of both vehicles were injured, but the Claimant's injuries were by far the most serious of all.  He suffered a fracture dislocation of the cervical spine, which has rendered him tetraplegic.  The experts agreed that the probable cause of the injury was that as a result of the sudden deceleration of the taxi, he was thrown forward and to the left so that the back of his head struck the pillar to the nearside of the windscreen.  It was the impact of the Claimant's head against that pillar which caused a hyperflexion of the neck and this in turn caused the fracture dislocation of the spine and permanent damage to his spinal cord.  
5.	The result has, in the judge's words, been catastrophic.  The Claimant has no sensation or voluntary movement in his arms, chest, abdomen, legs, bladder or bowels.  He is wheelchair dependent and will require 24‑hour care and assistance for the remainder of his life.  
6.	The judge also found that had the Claimant been wearing a seat belt, there would still have been some forward flexion and then rebound extension of his neck as a result of the vehicle coming to a sudden halt and that he would probably have suffered a modest whiplash injury for about 3 to 6 months.  
7.	The judge directed himself first of all by reference to the guidance given by this court in Froom v Butcher [1976] 1 QB 286.  There Lord Denning, the Master of the Rolls, explained that sometimes the evidence will show that the failure made no difference.  The damage would have been the same even if a seat belt had been worn.  In such a case, the damages should not be reduced at all.  This was Lord Denning's first category.  
8.	At other times, the evidence will show that the failure made all the difference and that the damage would have been prevented altogether if a seat belt had been worn.  In such cases, Lord Denning suggested that the damages should be reduced by 25 per cent.  This was his second category.  
9.	Finally, there will be some cases where the evidence will show that the failure made a considerable difference.  Some injuries would have been a good deal less severe if a seat belt had been worn, but there still would have been some injury.  In such cases, Lord Denning suggested that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent.  This was his third and final category.  
10.	The judge also referred to the decision of this court in the more recent case of Stanton v Collinson [2010] EWCA Civ 81.  In that case, the trial judge, Cox J, refused to make any reduction for contributory negligence on the grounds that the Defendant had not, by evidence, shown that the Claimant's failure to wear a seat belt probably made a considerable difference.  
11.	On appeal, this court held that the judge had properly directed herself and that where a seat belt would or might have made a lesser difference to the injury as distinct from a considerable difference or so that the injuries would have been a good deal less severe, the court was not required to investigate the extent of the difference with a view to ordering a reduction of less than 15 per cent.  
12.	The judge then applied these principles to his findings of fact and held that had a seat belt been worn, the injury, in respect of which the Claimant was seeking compensation, would have been prevented altogether.  Accordingly, there should be a reduction of 25 per cent.  
13.	On this application, Mr Melton submits that the notional whiplash injury which the Claimant would have suffered had he worn a seat belt cannot be disregarded.  Further, he continues, it is not appropriate to compare the value of the claim for the injury actually sustained, which is clearly very substantial indeed, with the potential value of the claim for a whiplash injury.  In other words, Mr Melton continues, the difference in value may depend upon factors almost entirely unrelated to the effects of the failure to wear a seat belt upon the injury sustained.  
14.	Further, says Mr Melton, a case should only be regarded as one falling within the second category of Froom v Butcher where the damage would have been prevented altogether if a seat belt had been worn.  Mr Melton accepts that there is a very considerable difference between a whiplash injury lasting for up to 6 months and permanent tetraplegia, but he contends that this does not take the case outside the third category of Froom v Butcher.  
15.	Mr Melton also submits that it was a matter of remote chance that the Claimant should have sustained such a severe injury when a slight difference in the angle of impact would have led his head to collide with the relatively forgiving structure of the windscreen.  
16.	In short, says Mr Melton, having regard to the reasoning of this court both in Froom v Butcher and Stanton v Collinson, the injury in this case would not have been prevented altogether had the Claimant worn a seat belt and so the reduction ought to have been 15 per cent.  
17.	Attractively though these submissions have been presented, I do not believe that an appeal would have a real prospect of success.  The judge rightly observed that this is a claim for damages in respect of tetraplegia, a catastrophic injury caused by damage to the spinal cord as a result of the fracture dislocation of the spine.  As I have said, this injury would have been avoided if the Claimant had worn a seat belt. I, of course, accept the finding of the judge that it is likely that the Claimant would nevertheless have suffered a whiplash injury, but this would have been trivial compared to the injury he in fact suffered and of a wholly different nature in terms of its impact upon the Claimant.  In my judgment, Dame Janet Smith put the matter with great precision in saying, as she did, that the judge was right to treat the notional injury as de minimis as compared with the actual injury.  This is a case in which the failure to wear a seat belt did, to all intents and purposes, make all the difference.  The judge was, therefore, plainly right to hold that this case fell within the second category of Froom v Butcher and I am satisfied that an appeal against this finding would not have a real prospect of success.  
18.	I should also mention the second ground of appeal, namely that the judge ought to have treated this as an exceptional case because, in terms of blameworthiness, a 25 per cent reduction did not fairly reflect the respective roles of the Claimant and the Defendant.  Here, Mr Melton submits, and the judge found, the Defendant was plainly far more blameworthy than the Claimant and, so Mr Melton continues, the judge ought to have taken this into account.  
19.	Again, I do not believe that this argument would have a real prospect of success on appeal.  The judge was entitled to find, as he did, that this is not an exceptional case and to point to the importance of observing and following the Froom v Butcher guidelines.  Again, there is no real prospect of this court interfering with that conclusion on an appeal.  
20.	Mr Melton has put forward his submissions on behalf of the Claimant this morning persuasively and fairly and he has said everything that could have been said on behalf of the Claimant, but all for the reasons I have given, I am satisfied that this application must be dismissed.