[1976]

[COURT OF APPEAL]

FROOM AND OTHERS V. BUTCHER

[1973 F. No. 1897]

B
July 7, 8; 21 Lord Denning M.R., Lawton
and Scarman L.JJ.

Road Traffic—Negligence—Contributory negligence—Seat belt not

worn, by plaintiff driver—Defendant driver solely responsible
for accident—Seriousness of plaintiff's injuries increased by
failure to wear belt—Whether plaintiff guilty of contributory
negligence—Apportionment—Law Reform (Contributory Negli- ^
gence) Act 1945 (8 & 9 Geo. 6, c. 28), s. 1 (1)
The plaintiff, who was not wearing a seat belt, suffered head
and chest injuries and a broken finger when the car he was
driving was in collision with a car driven by the defendant.
He was not wearing a seat belt because he did not like, them as
he had seen accidents where the driver would have been trapped
in the vehicle had he been wearing a seat belt. The accident L>
was caused solely by the defendant's negligent driving but the
plaintiff would not have suffered the head and chest injuries
had he been wearing a seat belt. He brought an action for
damages against the defendant, who claimed that the plaintiff's
failure to wear a seat belt amounted to contributory negligence.
Nield J. held that, in the absence of any statutory compulsion
to wear a seat belt, the plaintiff was not negligent but, if he
had been guilty of contributory negligence, the damages would E
have been reduced by 20 per cent.
On appeal by the defendant: —
Held, allowing the appeal, that in determining whether the
plaintiff had been guilty of contributory negligence, the question
was not what was the cause of the accident but what was the
cause of the damage; that since the plaintiff's injuries, except
for the broken finger, had been caused by his failure to wear a „
seat belt he had been guilty of contributory negligence and, r
. the judge's assessment having been accepted by the parties, the
overall reduction in the damages would be 20 per cent.
Pasternack v. Poulton [1973] 1 W.L.'R. 476 approved.
Smith v. Blackburn (Note) [1974] R.T.R. 533; Freeborn
v. Thomas (Note) [1975] R.T.R. 16 and Chapman v. Ward
(Note) [1975] R.T.R. 7 disapproved.
Per curiam. The reduction in damages for failure to wear Q
a seat belt should be 25 per cent, for those injuries which would
have been prevented by wearing a belt and 15 per cent, for
those injuries which would have been less severe. There should
be no reduction if the injuries would have been the same if a
belt had been worn (post, p. 296C-D).
It is so well known that a seat belt should be worn that,
if either the driver or the front seat passenger fails to wear it
and the injuries would have been prevented or lessened in an H
accident, the damages should be reduced (post, p. 296E).
Decision of Nield J. [1974] 1 W.L.R. 1297; [1974] 3 All
E.R. 517 reversed.
 287
1 Q.B. Froom v. Butcher (C.A.)
The following cases are referred to in the judgment:
Challonerv. Williams [1974] R.TJR.221.
Chapman v. Ward {Note) [1975] R.T.R. 7.
Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291; [1949] 1
All E.R. 620, C.A.
Drage v. Smith [1975] R.T.R. 1.
Freeborn w.Thomas (Note) [1975] R.T.R. 16.
B Geier v. Kujawa [1970] 1 Lloyd's Rep. 364.
Glasgow Corporation v. Muir [1943] A.C. 448; [1943] 2 All E.R. 44, H.L.
(Sc).
James V. Parsons (Note) [1975] R.T.R. 20.
/ones v. Livox Quarries Ltd. [1952] 2 Q.B. 608, C.A.
Lertora\. Finzi [1973] R.T.R. 161.
Margaret, The (1881) 6 P.D. 76, C.A.
McGee v. Francis ST/aw & Co. Ltd. [1973] R.T.R. 409.
C O'Connell v. /acfoo* [1972] 1 Q.B. 270; [1971] 3 W.L.R. 463; [1971]
3 All E.R. 129, C.A.
Parnell v. Shields (Note) [1973] R.T.R. 414.
Pasternack v. Poulton [1973] 1 W.L.R. 476; [1973] 2 All E.R. 74.
Smith v. Blackburn (Note) [1974] R.T.R. 533.
Swadling v. Cooper [1931] A.C. 1, H.L.(E.).
Timms v. Biernacki (unreported), March 20,1975.
D Toperoff v. Mor (Note) [1973] R.T.R. 419.
Vaughan v. Menlove (1837) 3 Bing.N.C. 468.
The following additional case was cited in argument:
Nance v. British Columbia Electric Railway Co. Ltd. [1951] A.C. 601;
[1951] 2 All E.R. 448, P.C.
E APPEAL
On November 19, 1972, the plaintiff, Harold John Froom, was driving
a Jaguar XJ6 motor car when he collided with a car driven by the
defendant, Brian James Butcher. The plaintiff suffered injuries and con-
sequential loss. The plaintiff's wife, a front seat passenger in the car and
his daughter, a rear seat passenger were also injured. The plaintiff and
P his family brought actions for damages for personal injuries against the
defendant, who admitted liability for the accident but claimed that the
plaintiff's injuries were largely the result of his failure to wear a seat belt
and that the damages ought to be reduced accordingly. Nield J. held
that the plaintiff was not negligent and awarded him £1,792 damages.
The defendant appealed on the ground that the judge had erred in not
holding that the plaintiff's failure to wear a seat belt amounted to con-
G tributory negligent.
The facts are stated in the judgment of Lord Denning M.R.
Kenneth Jupp Q.C. and Michael Lewer for the defendant. What ought
the reasonable driver do to take care for his own safety when setting out
on a journey? A reasonable driver must take account of the possibilities
JJ of an accident: O'Connell v. Jackson [1972] 1 Q.B. 270. The injured
party is under a duty to take reasonable care of himself: Davies v. Swan
Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291 and Nance v. British Columbia
Electric Railway Co. Ltd. [1951] A.C. 601. The advice contained in the
288
Froom v. Butcher (C.A.) [1976]
Highway Code to fit seat belts and use them is declaratory of the sensible
practice generally accepted by road users. The Highway Code is not just A
for motorists; passengers, even if they are non-drivers, must be taken to
know as much as anyone about the danger of the road.
It is impossible to lay down an absolute standard for all cases; clearly
forgetfulness and inadvertence are not acceptable excuses. In practice the
matter can be settled comparatively easily: the plaintiff must show why he is
not wearing a seat belt and medical reports can be agreed. Even a contrary B
but honestly held opinion cannot override the basic principle. A man is
free to act on his opinion but must take his share of the responsibility if
increased damage results.
The position of a passenger is considered in Pasternack V. Poulton
[1973] 1 W.L.R. 476, where it was held that a passenger could be guilty
of contributory negligence if she ought reasonably to have foreseen the
possibility of injury to herself. ^
Simon Brown as amicus curiae. It cannot be strongly argued that there
can never be a finding of contributory negligence consisting of non-user of
seat belts. In Freeborn v. Thomas (Note) [1975] R.T.R. 16 Sir George
Baker P. held that an injured party who was not wearing a seat belt was
not guilty of contributory negligence.
The question arises whether the subjective attitude of a particular £>
plaintiff to the efficacy of a seat belt should be taken into account. It must
be accepted that there are occasions when a person might be worse off if
a seat belt is worn.
In James v. Parsons (Note) [1975] R.T.R. 20, 24, Kilner Brown J. said
that there is a duty on a driver to bring to the notice of a passenger that
there is a seat belt fitted and that if he does not use it he should accept the
consequence of his failure. In Chapman v. Ward (Note) [1975] R.T.R. 7,13, E
Stocker J. considered what the risk was which was reasonably foreseeable so
as to give rise to the duty to take care and whether accidents were so
common that there was inevitably a duty to take care.
It was argued that it is only necessary to wear a seat belt on occasions
involving high risk: for example, driving on a motorway in fog. Such
statistics as are available do not reveal a higher risk, for example, in the p
countryside than in town and to adopt a " high risk " test would be unwork-
able. There is a wide divergence of opinion among the decided cases and
uncertainty should be reduced.
Judge William Stabb in Drage v. Smith [1975] R.T.R. 1 held that a pas-
senger in the front seat of the car contributed to her injuries by not wearing a
seat belt. The judge considered that had she worn a seat belt she might not
have suffered any injury at all. The difficulty of a standard deduction of 10 G
or 20 per cent, is that where there is a failure to wear a seat belt it would
only operate on that part of the damage due to non-user of the seat belt.
There • is no previous Court of Appeal decision on the question.
O'Connell v. Jackson [1972] 1 Q.B. 270 was a Court of Appeal decision
but it can be distinguished because it was concerned with a motor cyclist's
protective head gear and not with seat belts. There can never be a case JJ
in which the motor cyclist's failure to wear a helmet reduces rather than
aggravates his injury. In short, the novel point for determination in the
present appeal is whether the court should find contributory negligence
 289
1 Q.B. Froom v. Batcher (C.A.)
established in respect of an omission, namely, the failure to wear a seat
belt, which omission in certain circumstances could save the plaintiff from
worse injury.
The principle as to whether or not it is negligent not to wear a seat belt
must be certain, but the court should consider degrees of blameworthiness
in any particular case. There are two relevant questions in the present case:
to what extent seat belts would have saved the injuries and the degree of
B blameworthiness of the driver.
Cur. adv. vult.

July 21. LORD DENNING M.R. read the following judgment.

The facts
C Mr. Harold Froom, the plaintiff, is the managing director of a firm
of contractors. He lives in Hertfordshire and has a Jaguar motor car.
On November 19, 1972, he was driving home from Southend with his wife
beside him and his daughter behind. The car was fitted with seat belts
for the front seats. But neither the plaintiff nor his wife was wearing
them. He gave his reason:
D " I do not personally like wearing seat belts. I have seen so many
accidents on the road when, if seat belts are worn, then the driver
would never have got out of the vehicle that had been in the smash;
and, secondly, with a man of my age [he is 57] we do not have to
go roaring round the countryside, we just stick to our normal speed."
On this day he was driving along Gravel Lane, Chigwell. He was going
E carefully on his near side of the road at his normal speed of 30 to 35
miles an hour. There was a line of traffic coming in the opposite direc-
tion. Then a car pulled put to overtake. It was going fast on the wrong
side. It struck the plaintiff's car head-on. The driver, the defendant, was
afterwards convicted of careless driving.
The plaintiff, his wife and daughter were all injured. The plaintiff
F was forced up against the steering column. He had a broken rib and
bruises on his chest. He had abrasions on his head. He would probably
have been saved from these injuries if he had worn a seat belt. He also
had a broken finger, but the seat belt would not have saved that. These
injuries were not at all severe. He was back at work next day. The
judge assessed his general damages at £450. Mrs. Froom was also injured
Q but the seat belt would not have saved her from her injuries.
The question that arises is whether the plaintiff's damages are to be
reduced because he was not wearing a seat belt. The judge held they
were not. The defendant appeals to this court.
This is the first case to reach this court about seat belts. But there
have been a dozen or more cases in the lower courts and they have dis-
TT closed a remarkable conflict of opinion. Half of the judges think that if
a person does not wear a seat belt he is guilty of contributory negligence
and his damages ought to be reduced. The other half think that it is
not contributory negligence and they ought not to be reduced.
290
Lord Denning M.R. Froom v. Butcher (C.A.) 11976]
The previous decisions
It is interesting to glance shortly at the decisions. I will take them in
order of the date on which the decisions were given. In Geier v. Kujawa
[1970] 1 Lloyd's Rep. 364, a German girl was a passenger in a car. She
had never before seen seat belts and did not know what they were for.
Brabin J. held that she was not guilty of contributory negligence. In
Toperoff v. Mor (Note) [1973] R.T.R. 419, two young men went out in a
car. The driver told the passenger to do up his seat belt, He did so, They B
stopped to buy ice-cream. The passenger then failed to do up his seat
belt. There was afterwards an accident owing to the driver's negligence.
The passenger was thrown out and injured. He would not have been so
severely injured if he had been wearing his seat belt. Judge Dean on
November 28, 1972, held that he was guilty of contributory negligence
and reduced his damages by 25 per cent. In Lertora v. Finzi [1973] Q
R.T.R. 161, on December 4, 1972, Judge Edgar Fay thought that failure
to wear a seat belt could amount to contributory negligence but that it
had not been established in that case, and, in any event, that it would
not have saved the injuries. In Pasternack v. Poulton [1973] 1 W.L.R.
476, a young woman undergraduate was a passenger on a short trip in
Bristol. The car was driven by a fellow student. He drove into a lamp post
and she was severely injured in the face. Judge Kenneth Jones on February D
12, 1973, held that if she had worn a seat belt it would have saved her
from her injuries. He held it was contributory negligence and reduced her
damages by 5 per cent. In Parnell v. Shields (Note) [1973] R.T.R. 414, a
motor car was driven with absolute folly into a motor van, spun round,
so that the driver of the van was thrown out and killed. He would have
been saved if he had worn the seat belt. Wien J. on February 21, 1973, -
held that his failure was contributory negligence and reduced the damages
to the widow by 20 per cent. In McGee v. Francis Shaw & Co. Ltd.
[1973] R.T.R. 409, a car was driven into the back of a stationary vehicle.
The driver was wearing a seat belt and was not injured. The passenger
was not wearing one. He was a man of ample girth and found it uncom-
fortable. He deliberately decided not to wear it. He was thrown on to
the windscreen and would have been saved if he had worn the seat belt. F
On April 17, 1973, Kilner Brown J. reduced his damages by 33£ per cent.
Thus far the decisions were mostly that it was contributory negligence
not to wear a seat belt. There then followed cases the other way. In
Challoner v. Williams [1974] R.T.R. 221, a passenger had his neck
broken in a collision. Shaw J. on April 3, 1974, found on the evidence
that he was in fact wearing a seat belt, and also that even if he had not Q
been wearing it, his injuries would have been just the same. But he
said, even if he had found the facts otherwise, his opinion was that a
failure to wear a seat belt was not contributory negligence. In Smith v.
Blackburn (Note) [1974] R.T.R. 533, a man and his wife were driving on a
one-way road on a fly-over when a man drove madly up it in the opposite
direction, and ran into them. O'Connor J. on May 17, 1974, found that „
the injuries would have been just the same, even if they had been wear-
ing seat belts. But he said that, even if a seat belt would have prevented
some injury, he would unhesitatingly have held that failure to wear seat
 291
1 Q.B. Froom v. Butcher (C.A.) Lord Denning M.R.
belts did not amount to contributory negligence calling for any feduc-
A
tion in damages. In Freeborn v. Thomas (Note) [1975] R.T.R. 16, a man
and his wife were driving along the middle lane of a three-lane road when
another car, coming in the opposite direction, pulled out in the middle
lane. They usually wore their seat belts, but on this occasion they forgot.
The wife was badly injured. Sir George Baker P., on May 23, 1974,
found that the injuries would not have been any less even if she had
B worn a seat belt. But he also held that she was not negligent. If he
had done so, he said that the proportion would certainly not be more
than 10 per cent. Next was our present case, Froom v. Butcher [1974]
1 W.L.R. 1297, where on June 21, 1974, Nield J. held that omission to
wear a seat belt did not amount to negligence, but if he was wrong, he
would reduce the damages by 20 per cent. In Chapman v. Ward (Note)
[1975] R.T.R. 7, two ladies were driving along a country road when the car
C left the road and collided with a telegraph pole. They were not wearing
their seat belts. The passenger sued the driver. They were going to
the doctor's, they were a little late, it was difficult for her to fit the seat
belt. So she did not bother to wear it. Stocker J. on October 7, 1974,
found that some of her injuries would have been reduced if she had
worn a seat belt, but he found that she was not guilty of contributory
jy negligence and he did not reduce the damages. In James V. Parsons
(Note) [1975] R.T.R. 20, two young men were taking a high-powered car
out for a speed test. They came to a hump-backed bridge and the car left
the road. The passenger was injured in the face. He sued the driver.
His injuries would have been prevented if he had worn a seat belt. Kilner
Brown J. on October 16, 1974, exempted the passenger from contributory
negligence because neither of these young men gave seat belts a single
E thought, and so the driver could not allege against the passenger any
degree of contributory negligence. In Drage v. Smith [1975] R.T.R. 1,
a young couple, newly married, were driving on a:short trip when they
collided with an estate car which was solely responsible for the collision.
The wife was the passenger and was severely injured in the face. She
might not have been injured at all if she had worn a seat belt. On
p November 14, 1974, Judge Stabb held she had been guilty of contributory
negligence and reduced her damages by 15 per cent. Finally, in Timms
V. Biernacki (unreported) Phillips J. on March 20, 1975 thought that failure
to wear a seat belt was not contributory negligence. Those decisions
disclose a variety of reasons which I will consider later. But first the
principles.
G Contributory negligence
Negligence depends on a breach of duty, whereas contributory
negligence does not. Negligence is a man's carelessness in breach of duty
to others. Contributory negligence is a man's carelessness in looking
after his own safety. He is guilty of contributory negligence if he ought
reasonably to have foreseen that, if he did not act as a reasonable prudent
JJ man, he might be hurt himself: see Jones v. Livox Quarries Ud. [1952] 2
Q.B. 608. Before 1945 a plaintiff, who was guilty of contributory negligence,
was disentitled from recovering anything if his own negligence was one
of the substantial causes of the injury: see Swadling v. Cooper [1931]
292
Lord Denning M.R. Froom v. Butcher (C.A.) 11976J
A.C. 1. Since 1945 he is no longer defeated altogether. He gets reduced
damages: see Davies v. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291. A
The present law is contained in section 1 (1) of the Law Reform
(Contributory Negligence) Act 1945, which provides:
"When any person suffers damage as the result partly of his own
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 person suffering the damage, but the damages recover- "
able in respect thereof shall be reduced to such extent as the court
thinks just and equitable having regard to the claimant's share in
the responsibility for the damage."
Section 4 provides:
" ' fault' means negligence, breach of statutory duty or other act Q
or omission which gives rise to a liability in tort or would, apart
from this Act, give rise to the defence of contributory negligence."
Those provisions must be borne in mind as we take our consideration
further.

The cause of the damage j)

In these seat belt cases, the injured plaintiff is in no way to blame
for the accident itself. Sometimes he is an innocent passenger sitting
beside a negligent driver who goes off the road. At other times he is an
innocent driver of one car which is run into by the bad driving of
another car which pulls out on to its wrong side of the road. It may
well be asked: why should the injured plaintiff have his damages
reduced? The accident was solely caused by the negligent driving of
the defendant. Sometimes outrageously bad driving. It should not lie
in his mouth to say: "You ought to have been wearing a seat belt."
That point of view was strongly expressed in Smith v. Blackburn (Note)
[1974] R.T.R. 533, 536 by O'Connor J.:
" . . . the idea that the insurers of a grossly negligent driver should be
relieved in any degree from paying what is proper compensation for F
injuries is an idea that offends ordinary decency. Until I am forced
to do so by higher authority I will not so rule."
I do not think that is the correct approach. The question is not what
was the cause of the accident. It is rather what was the cause of the
damage. In most accidents on the road the bad driving, which causes
the accident, also causes the ensuing damage. But in seat belt cases the ^
cause of the accident is one thing. The cause of the damage is another.
The accident is caused by the bad driving. The damage is caused in part
by the bad driving of the defendant, and in part by the failure of the
plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing
a seat belt, the damage is in part the result of his own fault. He must
bear some share in the responsibility for the damage: and his damages n
fall to be reduced to such extent as the court thinks just and equitable.
In Admiralty the courts used to look to the causes of the damage: see
The Margaret (1881) 6 P.D. 76. In a leading case in this court, under
 293
1 Q.B. Froom v. Butcher (C.A.) Lord Denning M.R.
the Act of 1945, we looked to the cause of the damage: see Davies v.
A
Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291, 326. In the crash
helmet cases this court also looked at the causes of the damage: see
O'Connell v. Jackson [1972] 1 Q.B. 270. So also we should in seat belt
cases.

The sensible practice

B It is compulsory for every motor car to be fitted with seat belts for
the front seats. The Motor Vehicles (Construction and Use) Regulations
1973 so provide. They apply to every motor car registered since January
1, 1965. In regulation 17 (3) seat belts are called, in cumbrous language.
" body-restraining seat belts." A " seat belt" is defined in regulation
17 (9) as
C " a belt intended to be worn by a person in a vehicle and designed
to prevent or lessen injury to its wearer in the event of an accident
to the vehicle "
Seeing that it is compulsory to fit seat belts, Parliament must have
thought it sensible to wear them. But it did not make it compulsory for
anyone to wear a seat belt. Everyone is free to wear it or not, as he
D pleases. Free in this sense, that if he does not wear it, he is free from
any penalty by the magistrates. Free in the sense that everyone is free
to run his head against a brick wall, if he pleases. He can do it if he
likes without being punished by the law. But it is not a sensible thing
to do. If he does it, it is his own fault: and he has only himself to
thank for the consequences.
_ Much material has been put before us about the value of wearing
a seat belt. It shows quite plainly that everyone in the front seats of a
car should wear a seat belt. Not only on long trips, but also on short
ones. Not only in the town, but also in the country. Not only when
there is fog, but also when it is clear. Not only by fast drivers, but also
by slow ones. Not only on motorways, but also on side roads. On
November 15, 1974, the Minister of Transport said in the House of
F Commons:
"In 1973, 41,000 people were killed or seriously injured in the
front seats of cars and light vans. I estimate that a thousand of
these deaths and nearly 13,000 serious injuries could have been
avoided by the wearing of seat belts. . . . In a frontal crash the car
stops very rapidly, but the occupants continue to move forward and
Q strike the part of the car in front of them, frequently causing
injuries to the head. Quite often they are ejected through the
windscreen. Careful study of accident types and injuries led to the
estimate that the risk of death or injury is reduced by 50 per cent, if
a seat belt is worn."
This material confirms the provision of the Highway Code which con-
JJ tains this advice: "Fit seats belts in your car and make sure they are
always used." This advice has been in the Highway Code since 1968,
and should have been known to the plaintiff at the time of his accident
in November 1972. Section 37 (5) of the Road Traffic Act 1972 provides
294
Lord Denning M.R. Froom v. Butcher (C.A.) [1976]
that a failure to observe that provision does not render a person liable to .
criminal proceedings of any kind, but it can be relied upon in civil pro-
ceedings as tending to establish or negative liability. Sir George Baker P.
in Freeborn v. Thomas (Note) [1975] R.T.R. 16, 17 made a comment on
the provision about seat belts. He said:
"that says nothing about passengers, nor does it say 'You must
always wear a seat belt.' It is, if anything, an exhortation to the
driver or the owner." B
I think that the President construed the code too narrowly. The High-
way Code is a guide for all persons who use the road. "Make sure
they are always used " is sound advice, not only for drivers, but also for
passengers.
The Government's view is also plain. During the years 1972 to 1974 _,
they spent L2\ million in advertisements telling people to wear seat belts.
Very recently a Bill was introduced into Parliament seeking to make
it compulsory. In this respect England is following the example of
Australia, where it has been compulsory for the last three or four years.
The Bill here has been delayed. So it will not be compulsory yet awhile.
But, meanwhile, I think the judges should say plainly that it is the
sensible practice for all drivers and passengers in front seats to wear seat D
belts whenever and wherever going by car. It is a wise precaution which
everyone should take.

The effect of failure to wear a seat belt

(i) Majority versus Minority. Quite a lot of people, however, think
differently about seat belts. Some are like the plaintiff. They think that E
they would be less likely to be injured if they were thrown clear than if
they were strapped in. They would be wrong. The chances of injury
are four times as great. Yet they believe it honestly and firmly. On
this account Nield J. thought they should not bear any responsibility.
He recognised that such persons are in a minority, but he thought that
proper respect should be paid to the minority view. He said [1974] 1 „
b
W.L.R. 1297, 1302:
" I do not feel that the courts are justified in invading the freedom
of choice of the motorist by holding it to be negligence, lack of
care or fault, to act upon an opinion firmly and honestly held and
shared by many other sensible people."
I am afraid I do not agree. In determining responsibility, the law G
eliminates the personal equation. It takes no notice of the views of
the particular individual or of others like him. It requires everyone to
exercise all such precautions as a man of ordinary prudence would
observe: see Vaughan v. Menlove (1837) 3 Bing. N.C. 468 and Glasgow
Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. Now-
adays, when we have no juries to help us, it is the duty of the judge to u
say what a man of ordinary prudence would do. He should make up his
own mind, leaving it to the Court of Appeal to correct him if he is
wrong.
 295
1 Q.B. Froom v. Butcher (C.A.) Lord Denning M.R.
(ii) The high risk argument. Other people take the view that the risk
of an accident is so remote that it is not necessary to wear a seat belt on
all occasions: but only when there are circumstances which carry a
high risk, for example, driving on a motorway in condition of fog, ice
or snow; or engaging in road racing activities. This view was forcibly
expressed by Shaw J. in Challoner v. Williams [1974] R.T.R. 221; by
O'Connor J. in Smith v. Blackburn (Note) [1974] R.T.R. 533; and by
B Stocker J. in Chapman v. Ward (Note) [1975] R.T.R. 7. I cannot accept this
view either. You never know when a risk may arise. It often happens sud-
denly and when least anticipated, when there is no time to fasten the seat belt.
Besides, it is easy to forget when only done occasionally. But, done
regularly, it becomes automatic. Every time that a car goes out on the
road there is the risk of an accident. Not that you yourself will be
negligent. But that someone else will be. That is a possibility which a
^ prudent man should, and will, guard against. He should always, if he is
wise, wear a seat belt.
(iii) Mere forgetfulness. Lastly, there are many people who do not wear
their seat belts, simply through forgetfulness or inadvertence or thought-
lessness. Their fault is far less serious than that of the negligent driver
who causes an accident. Some judges have expressed themselves strongly
D
about this. In Freeborn v. Thomas (Note) [1975] R.T.R. 16, 19, Sir
George Baker P. said:
" . . . looking as an ordinary mortal at the drivers of cars, the vast
majority do not wear their seat belts. Must this court say that the
unfortunate plaintiff, having forgotten to put on the seat belt, was
negligent because she failed to do that which so many others do not
E do? I think not and I will not."
I am afraid I cannot share this view. The case for wearing seat belts is
so strong that I do not think the law can admit forgetfulness as an
excuse. If it were, everyone would say: " Oh, I forgot." In order to
bring home the importance of wearing seat belts, the law should say
that a person who fails to wear it must share some responsibility for the
F damages.
Thus far I have spoken only of the ordinary run of cases. There are,
of course, exceptions. A man who is unduly fat or a woman who is
pregnant may rightly be excused because, if there is an accident, the
strap across the abdomen may do more harm than good. But, apart
from such cases, in the ordinary way a person who fails to wear a seat
belt should accept some share of responsibility for the damage—if it
G could have been prevented or lessened by wearing it.

The share of responsibility

Whenever there is an accident, the negligent driver must bear by far
the greater share of responsibility. It was his negligence which caused
the accident. It also was a prime cause of the whole of the damage.
JJ But in so far as the damage might have been avoided or lessened by
wearing a seat belt, the injured person must bear some share. But how
much should this be? Is it proper to inquire whether the driver was
grossly negligent or only slightly negligent? or whether the failure to
296
Lord Denning M.R. Froom v. Butcher (C.A.) [1976]
wear a seat belt was entirely inexcusable or almost forgivable? If such
an inquiry could easily be undertaken, it might be as well to do it. In
Davies V. Swan Motor Co. (Swansea) Ltd. [1949] 2 K.B. 291, 326, the
court said that consideration should be given not only to the causative
potency of a particular factor, but also its blameworthiness. But we live
in a practical world. In most of these cases the liability of the driver is
admitted, the failure to wear a seat belt is admitted, the only question is:
what damages should be payable? This question should not be pro- B
longed by an expensive inquiry into the degree of blameworthiness on either
side, which would be hotly disputed. Suffice it to assess a share of
responsibility which will be just and equitable in the great majority of cases.
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 case the damages should not be reduced at all. At other
times the evidence will show that the failure made all the difference. ^
The damage would have been prevented altogether if a seat belt had been
worn. In such cases I would suggest that the damages should be reduced
by 25 per cent. But often enough the evidence will only show that the
failure made a considerable difference. Some injuries to the head, for
instance, would have been a good deal less severe if a seat belt had been
worn, but there would still have been some injury to the head. In such D
case I would suggest that the damages attributable to the failure to
wear a seat belt should be reduced by 15 per cent. •

Conclusion
Everyone knows, or ought to know, that when he goes out in a car
he should fasten the seat belt. It is so well known that it goes without
saying, not only for the driver, but also the passenger. If either the E
driver or the passenger fails to wear it and an accident happens—and the
injuries would have been prevented or lessened if he had worn it—then
his damages should be reduced. Under the Highway Code a driver may
have a duty to invite his passenger to fasten his seat belt: but adult
passengers possessed of their faculties should not need telling what to do.
If such passengers do not fasten their seat belts, their own lack of care F
for their own safety may be the cause of their injuries. In the present
case the injuries to the head and chest would have been prevented by
the wearing of a seat belt and the damages on that account might be
reduced by 25 per cent. The finger would have been broken any way
and the damages for it not reduced at all. Overall the judge suggested
20 per cent, and the plaintiff has made no objection to it. So I would not
interfere. I would allow the appeal and reduce the damages by £100. G

LAWTON L.J. I agree.

SCARMAN L.J. I agree.

Appeal allowed.
No order as to costs.
Damages reduced by £100. H
Solicitors: Milners, Curry & Gaskell; Treasury Solicitor.
J. W.