Road traffic accidents pose a significant threat to children, often resulting in severe injuries that can have lasting effects on their physical and emotional well-being. Although liability in such cases is often easy to establish, given that drivers are responsible for ensuring the safety of any passengers under 14 years, especially concerning the use and fitting of seatbelts and child restraints, the issue of contributory negligence often arises in children’s RTA personal injury cases. Expert witnesses can provide extensive assistance to the Court when it comes to establishing whether or not contributory negligence is a factor in a particular case.
Proving contributory negligence in Children’s RTA Personal Injury Cases
In RTA personal injury cases where the Claimant is a child, the defendant driver often argues the issue of contributory negligence. In Hughes v Williams (Decd) JPI. Law 2012, 3, C158-C163, a mother (W) was driving home with her three-year-old daughter (S). An 18-year-old man was driving along the road in the opposite direction. He lost control of his car, which swerved into the path of W’s car. She could do nothing to avoid a collision. The male driver was killed, and S suffered severe injuries, including right frontal cerebral contusions (from which a full recovery was made), a brachial plexus avulsion (an “avulsion” in this context is a tearing away of the nerve from the spine), and cervical root avulsion at C6 and C7 from the spinal cord, a spinal cord contusion at C1–2, a fractured left humerus, a ruptured liver and bruising over the left pelvis.
The deceased man was entirely to blame for the accident. However, contributory negligence was brought up due to concerns regarding S’s car seat.
Before starting their car journey, W strapped S into a child restraint seat equipped with a five-point harness with a booster cushion installed. This type of cushion is designed for children who have outgrown forward-facing child seats.
During the accident, S occupied the booster cushion, secured by the adult seat belt adjusted to shoulder height. However, S did not meet the booster seat’s age, height, or weight criteria. The manufacturers’ instructions stated that not fitting the booster seat correctly per the child’s size could increase the risk of severe injury or death. A forward-facing car seat would have been more suitable for a child of S’s size. The Defendant argued that S’s injuries would not have been as severe if she had been adequately restrained by W and, therefore, W was negligent. Contributory negligence of 25 per cent was sought.
The Court was reliant on evidence from several experts. One noted that to evaluate injury causation in traffic collisions, the crucial factor is the velocity change encountered by the injured individual within the vehicle, which is directly tied to the velocity change experienced by the vehicle overall. The estimated velocity change for W’s car was 24 mph.
With regards to S’s injuries, an expert stated at trial that serious injury:
“…is associated with sub-optimal child restraints in motor vehicles. Had [S] been placed in a seat with a 5-point harness, the loads in a predominantly frontal impact (as occurred in this case) would have been applied by the lap belt and shoulder belts of the harness. As he put it, the five-point harness seat distributes the force of an impact over a larger area symmetrically, and the child is held in place. Furthermore, provided the harness was correctly adjusted, it would not have been possible for her to have been significantly “out of position” in the seat. Since there was no significant damage to the car’s rear passenger compartment, it would have been unusual for a correctly restrained rear seat occupant to sustain serious injury. [W] did not meet the requirements for the Graco booster cushion. There was a suitable Mamas & Papas seat for her use in the back of the car.”
This conclusion was supported by academic studies, including one from Australia, which found:
“…all child occupants aged 2–8 years that attended a particular hospital, who sustained significant injuries in a car crash were sub-optimally restrained, while no optimally restrained occupant sustained such injuries.”
From the evidence presented, the Court concluded that on the balance of probabilities, if S had been restrained correctly, her injuries would have been largely avoided. Thus, contributory negligence of 25 per cent was appropriate.
How Expert Reports can help
At Expert Court Reports, we have several paediatric experts in the following disciplines who have extensive experience appearing as expert witnesses and drafting reports in RTA personal injury cases involving children:
Child and adolescent psychiatrist
Dr Aarti Datta
Paediatric orthopaedic surgeon
Mr David Bryson
Dr Kshitij (Kish) Mankad
Dr Allameddine Allameddine
Mr Martin Leyland
If you would like to find out more about how our Expert Witnesses can assist you in an RTA personal injury claim, please call us on 01865 587865, email firstname.lastname@example.org, or request a call by completing our online form.