PROVING THINGS 8: DEFENDANT MUST PROVE THAT FAILURE TO WEAR A SEATBELT MADE A DIFFERENCE

February 15, 2016 · by · in Civil evidence, Civil Procedure, Damages, Expert evidence, Uncategorized, Witness statements

The defendant bears the burden not only of proving contributory negligence but also establishing its causative relevance. The law in Syred -v- Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB) (Mr Justice Soole) was complex, however one key point concerned evidence and the burden of proof and the need to prove that admitted contributory negligence contributed substantially to the injuries.

KEY POINTS

  • In a case where the court was applying Polish law the burden was on the defendant to establish the causative relevance of contributory negligence.
  • Given that the contributory negligence (the failure to wear a seat belt) caused injuries which were relatively minor the appropriate deduction in the current case was 5%.

THE CASE

  • The claimant (who was English) was injured in a road traffic action in Poland.
  • He brought the action against the insurers and the defendant driver.
  • Polish law applied.

PROVING FOREIGN LAW

  1. By virtue of the provisions of ‘Rome II’[1] the issues of contributory negligence (Art.15(a) and (b)) and quantum (‘the existence, the nature and the assessment of damage…’ : Art. 15(c)) fall to be determined by Polish law. However the burden of pleading and proving that foreign law differs from English law falls on the party seeking to rely on the foreign law, in this case the Defendants. Determination of foreign law is a question of fact for the Court. Matters of evidence and procedure are governed by English law (Art.1(3)).

PROVING CONTRIBUTORY NEGLIGENCE

It was admitted that the claimant was not wearing a seat belt. The judge found that Polish law recognised the concept of contributory negligence. However the judge found that under the Polish civil code the burden of proof lay on the defendant

CONSIDERATION OF THE ISSUE OF CONTRIBUTORY NEGLIGENCE

  1. I turn to the question of whether the Defendants have established that wearing a seat belt would have made a difference to the extent of injuries suffered. For this purpose I must consider the evidence of the accident and the injuries in some detail.
Contributory negligence: the facts
  1. At about 5 p.m. Mr Syred and Ms Cieslar, were rear seat passengers in the Fiat being driven by her brother. Ms Cieslar was sitting in the right-side seat; Mr Syred was either in the centre seat or the left-side seat. The right and left-side seats had belts with both lap and diagonal straps. The centre seat belt had just a lap strap. Neither was wearing a belt.
  2. The Fiat was driving along the northbound carriageway of the DK-81 road, near Skoczow. The BMW was driving in the opposite direction. The Fiat turned left, across the path of the BMW, in order to enter Wislanska Road. The front of the BMW struck the right-hand side of the Fiat, causing it to rotate in a clockwise direction. The collision ejected Mr Syred from the car. The position where he ended up was probably on the kerb adjacent to a Stop sign near the junction.
  3. By their Joint Statement the engineering experts (Mr Jennings; Mr Jowitt) agreed that the maximum crush to the Fiat was in the region of the rear right hand door. A video taken by a bystander is consistent with that conclusion. The impact pushed in the right rear door some 65 cms. They agreed that the overall closing speed between the two vehicles was probably about 100 km/h (62 mph); that the effect of the impact would have been for the Fiat to have changed its velocity by around 45-50 km/h (c. 30 mph); and that in terms of motion this velocity change would result in Mr Syred being propelled (relatively to the car) towards the window of the right rear door; and that an unbelted occupant would then be at risk of being ejected through that window, whose glass would have been shattered by the original collision.
  4. The experts also agreed that, if Mr Syred had been restrained by a lap and diagonal seat belt, it is likely that on impact he would have been restrained by the lap part; but that he would have been ‘at risk’ of sliding sideways out of the diagonal part. If so, this would result in his upper torso moving towards the intruding rear door, but also ‘hinging’ about his pelvic area such that his head followed a trajectory towards the intruding door panel, rather than to the window above. If he had been in the centre seat wearing the lap belt then his head and upper torso would have moved more easily towards the right rear door.
  5. In their final paragraph they agreed that if restrained within the vehicle
“…as a matter of probability… he would have been at a high risk of his head colliding forcefully with the intruding door frame, which would entail a considerable risk of serious head and/or neck injury.”
and that he probably would have been exposed to a low risk of serious chest injury; to a risk of lower spinal injuries due to forceful bending of the spine around the restrained pelvis; and the lap belt could also cause some abdominal injuries.
  1. They agree that seatbelts are most effective in frontal collisions; and of lesser benefit in side collisions, especially when the side intrudes towards the occupants. They had no points of disagreement.
  2. These conclusions reflected the expert reports, notably Mr Jowitt’s statement that Mr Syred “…was at risk of head injury as a restrained non-struck side passenger as a consequence of the very high level of lateral intrusion. In my opinion the potential for a serious head injury, and some associated cervical spine injury, was high, and potentially at a higher level than actually occurred, given the magnitude of the DeltaV and the relatively unforgiving nature of the potential contact surfaces.’ (para.4.38).
  3. On the basis of this evidence Mr Syred contends that, at least in respect of this most serious injury, the wearing of a seat belt would have made no material difference; and/or that the Defendants have failed to establish the contrary.
  4. The Defendants elected not to seek permission to call Mr Jowitt. However his report was in evidence without objection and in any event pursuant to CPR 35.11. The Defendants relied on the evidence of Mr Korab-Karpinski, the Consultant Traumatological Orthopaedic and Spinal Surgeon, who gave comments (letter 27.2.14) on the seat belt issue. These included the opinion that, restrained by a seatbelt “… it is probably unlikely that the accident would have given rise to damage to the thoracic aorta and neither would he have suffered bruising to the forehead.”
  5. In cross-examination, Mr Korab-Karpinski explained that he had not seen Mr Jowitt’s report when writing his letter. He agreed that it would be possible to slip out from a diagonal belt; agreed with Dr Jowitt’s conclusions included that cited above; and agreed that a deceleration injury could occur whether or not restrained. He accepted the engineers’ Joint Statement as ‘a very good summary’; but from an orthopaedic point of view the injuries suffered were very diverse and would have been different if Mr Syred had been restrained. My conclusion is that his evidence ultimately gave no support to the Defendants’ case in respect of the head injury.
  6. In cross-examination of Mr Jennings, Mr Palmer investigated whether Mr Syred could have been ejected through the rear window. Mr Jennings accepted that this was a possibility but considered that it was considerably less likely than the only other candidate for his exit, namely the side window. Ejection through the back window would be difficult unless the seat back had collapsed or otherwise failed and there was no such evidence.
  7. Mr Jennings considered that the likely course of events would have been that the collision forces would have propelled Mr Syred along the line of the arrow in Mr Jowitt’s diagram (5/16/349), i.e. in the direction of the driver’s seat; that the rotational forces would have ejected him through the window; and that Ms Cieslar’s position to his right would have not impeded his exit.
  8. Given the different type of seat belt in place, the question of whether Mr Syred was seated in the centre seat or the left hand seat was potentially relevant. The evidence is exiguous, being limited to the Verdict in the Polish Regional Court determining Mr Cieslar’s criminal liability for his careless driving which included the finding that Mr Syred was ‘in the middle of the back seat’. The decision refers to statements which have not been before this Court. The engineering experts worked on that factual assumption and its consequence that the absence of restraint from a diagonal strap would have made it easier for Mr Syred’s head and torso to move towards the intruding right door. Mr Palmer submitted that it was inherently more likely in this small car that Mr Syred would have been in the left seat; alternatively that it would have been negligent to sit in the centre seat with its more limited restraint.
  9. My conclusion is that Mr Syred was probably sitting in the centre seat, closer to his girlfriend, Ms Cieslar, than to the left side; and that the effect of the collision and rotational forces was essentially as postulated by the engineering experts. Thus, he was ejected via the shattered side window, not the rear window, and so suffered his head and other injuries when he struck the roadway.
  10. My conclusion as to the consequence if he had been belted, and whether in the centre or left seat, is that he would probably have struck his head in the way postulated by the engineering experts. Contrary to Mr Palmer’s submission, I do not consider that the effect of the engineering expert’s evidence is that this was merely a possible risk.
  11. I also reject the submission that Mr Syred would have been negligent to use the belt provided at the centre seat, i.e. a belt which only had a lap strap. The contributory fault in Polish law stems from the legal obligation to wear a seat belt. There is no suggestion that the law required the belt to have both a lap and diagonal strap.
  12. The next question concerns the extent of injuries if Mr Syred’s head had struck the intruding rear door. Dr Mort had originally opined that Mr Syred would have been protected from head injury of the severity that had occurred. However he resiled from that view on the basis that he had not taken account of the mechanism postulated by the engineering experts. In cross-examination he said that, given the intrusion, it was even possible that head injury would have occurred if Mr Syred had remained upright, i.e. had not slipped out of a diagonal strap.
  13. I conclude that the likely consequence of that collision of his head with the intruding door would have been at least as severe as that which occurred; and in any event the Defendants have failed to discharge the burden of establishing that the head injury would have been less severe. Equally I am satisfied that the life-threatening aortic tear, which was a deceleration injury, would probably have occurred in any event.
  14. As to the orthopaedic and urological injuries to be discussed in detail below, I note the evidence of the engineering experts as to the risk of chest, spinal and abdominal injuries if restrained; and bear in mind the burden of proof. However the experts’ evidence on this aspect is speculative. I consider that the likelihood must be that, if Mr Syred had been restrained by a seat belt and thus not ejected from the vehicle, these other injuries would have been avoided.
  15. In applying the ‘Judge’s law’ of Article 362, my conclusion is that there should be no reduction in relation to the head injury or the aortic tear or their consequences; but there should be a deduction in respect of the other injuries and their consequences. I will return to the assessment of the overall reduction for contributory negligence after I have reached my conclusions on quantum.

THE LEVEL OF CONTRIBUTORY NEGLIGENCE

Contributory negligence : the deduction
  1. If all the injuries and their consequences would have been avoided, my deduction from the total award, applying the Judge’s law of Article 362 and taken account of the experts’ guidance on Polish law and practice, would have been 25%. However it is clear that the overwhelming predominant injury is to the brain; and the Defendants have not established that that injury would have been avoided or lessened if a seat belt had been worn. Furthermore the largest items of loss, i.e. past and future loss of earnings, past and future case management and future care are entirely attributable to that injury and it plays the entire or a substantial part in many other heads of award. The aortic tear was a very serious injury but on my findings causes no distinct pecuniary loss.
  2. I have considered whether to try and make an individual calculation against each head of loss but have concluded that the right approach, consistent with Polish law and practice, is to have an overall percentage which reflects the predominance of the brain injury. Taking all these considerations into account I conclude that the overall deduction for contributory negligence from the total award should be 5%.
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