Clunk-Click: The legal consequences for tour operators and their clients in failing to fasten seatbelts

The benefits of seatbelt use was promoted in the 1970s by telling people to Clunk-Click. Today in the UK most people belt up instinctively, but whilst on holiday, things don’t always work out that way.

In my 20 years as a travel lawyer, I have dealt with at least 20 fatalities arising from overseas road traffic accidents, and the same number for serious spinal injuries, many resulting in paralysis. In each of those cases the passengers involved were not wearing seatbelts. Based on the medical and accident reconstruction evidence, I am confident that all of those deaths and serious injuries could have been avoided if seatbelts had been worn.

The British Medical Association still regard the use of seatbelts as one of the most important preventative measures for protecting drivers and passengers in road traffic accidents. Through the effective use of legislation, compulsory seatbelt use is growing around the world. Local law is therefore increasingly likely to prescribe the compulsory use of seatbelts in a variety of vehicles such as cars, taxis, minibuses and in some cases coaches. Yet despite this growing trend, curiously there are still a surprisingly high number of overseas travellers who opt not to wear them.

In reality most accidents are due to human error of the driver. Rarely is the cause attributable to poor vehicle or road maintenance or unconnected third parties. The most serious accidents I have dealt with include:

• Head on collisions at speed whilst overtaking.
• Rear end shunts. One astonishing case involved a coach slamming into the back of slow moving vehicle carrying a gigantic crane painted orange.
• Falling asleep at the wheel. In one horrific case a minibus collided with an entire checkpoint and a stationary vehicle in Egypt killing four people.
• Drunk driving.
• Cornering too fast causing the vehicle to roll.
• Skidding on wet/poor roads resulting in complete loss of control.
• Loss of control due to excessive speed.

Under a conventional package holiday covered by the Package Travel Regulations 1992, tour operators will be liable for the acts and defaults of their independent subcontractors in the event of their customers sustaining loss and damage arising from road traffic accidents. Unless the tour operator can rely upon one of the established defences, e.g. where the cause was due to a third party vehicle or force majeure (rarely applied with any success it has to be stated), it will be obliged to compensate its injured customers, employees and the dependents of any deceased. Irrespective of any requirements to provide seatbelts at local law, the operator will bear the primary liability.

But what is the legal position when the customers’ injuries are far more severe due to their failure to wear seatbelts provided? Where passengers fail to wear seatbelts thus exposing themselves to a greater risk of injury, damages may be adjusted downwards if the failure had a material effect on the extent of the injuries sustained. These principles were established by Lord Denning as long ago as 1976 in the case of Froom v Butcher which despite several challenges, still applies today.

In that case, Mr. Froom’s damages were reduced by the court as his failure to wear a seatbelt resulted in him sustaining more severe injuries that would have been otherwise avoided or lessened had the belt been worn. The court held that the failure to wear the seatbelt amounted to contributory negligence on Mr. Froom’s part.

The court issued guidance to deal with cases where the wearing of a seatbelt would have made a difference. If the medical evidence demonstrates that failure to wear a seatbelt made no difference to the injuries sustained, then damages would not be adjusted. However, often enough the medical evidence will show that an inevitable injury (irrespective of seatbelt use) would have been a good deal less severe had a seatbelt been worn. In those cases the court held that damages would be reduced by no more than a modest 15%. Where the medical evidence demonstrated that an injury would had been avoided altogether had a seatbelt been worn, the court held that damages would be reduced by a maximum of 25%.

The charismatic Lord Denning stated: “Everyone knows, or ought to know, that…he should fasten the seatbelt”. “If such passengers do not…their own lack of care for their safety may be the cause of their injuries”.

Pausing for thought, the rules are therefore very favourable to claimants, especially in preventable catastrophic injury cases where the damages are in the millions, where the maximum reduction will be no more than 25%.

So whilst a defendant tour operator may be able to reduce the damages by up to 25%, it must nevertheless bear the primary liability for causing the accident (at least 75%), even where the injury could have been prevented by seatbelt use.

However, the depressing fact remains that despite improvements in vehicle and seatbelt technology, the law and campaigns, drivers will inevitably continue to fall asleep at the wheel, drink drive or generally do daft things. A fair proportion of daft passengers will also refuse or forget to wear seatbelts, despite in many cases being asked to do so. And what can tour operators do in response? In short they and their suppliers must endeavour to ensure that seatbelts are provided in the vehicles they use and do all they reasonably can to ensure that customers Clunk-Click, every trip.

Ian Hopkinson is head of travel litigation at mb LAW. For further information please contact him at ian.hopkinson@mb-law.co.uk

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.