Accidents resulting from the choice of car seats and liability for defective children’s car seats
Parents take the safety of their children incredibly seriously expecting that all products designed for children fulfill the legal requirements of manufacture and comply with the highest of safety standards. With many parents and those looking after children relying on travel by car, children’s car seats are an essential consideration to ensure a child is adequately protected should an accident occur. Where manufacturers fall below the standard required by regulation and a child is injured due to a defective car seat, parents are entitled to pursue a claim for compensation against those who are responsible for the injury.
In 2013 in the UK several car seat manufacturers and retailers, including brand leaders Toys R Us and Maxi-Cosi, were forced to recall car seats due to various safety problems including locks becoming loose and buckles having defective restraints. Throughout the past year in the US and Canada, a continual stream of child seats have been recalled by brand leader Graco for having buckle issues. Currently the recall is at 4.2million which has been reported as the fourth-largest recall in US history .
The current UK law states that children travelling in the front or rear seat of any car, van or goods vehicle, must use a child car seat until they are 12 years old or 135cm tall with the particular type of seat being weight dependent. The following is required:
- – Babies up to 13kg require rear-facing baby seats
- – Children from 9 to 18kg require forward or rear-facing baby seats
- – Children from 15 to 25kg require forward facing child car seats (booster seats)
- – Children over 22kg require booster cushions.
Furthermore, the child car seats must be EU approved with a orange label indicating a capital ‘E’ in a circle to be compliant with the law. Different laws are applicable when travelling on buses, coaches and minibuses.
Safety Regulations imposed on Manufacturers
Manufacturers must ensure that the child seats listed above conform to the United Nations standard, ECE Regulation 44.04 or R 44.03.
The latest European wide standard specifically for child car seats ‘i-size’ is being phased in between 2013 and 2018 to run in addition to the existing R44/04 legislation. The new standard provides increased support for the child’s head and neck and better protection in the event of frontal and side-impact, ensuring a child stays in the seat even in a roll-over accident.
Furthermore, the focus is on a child’s height rather than weight which will make it easier for parents to judge if the seat is suitable for their child.
The European Product Safety Directive (2001/95/EC) was implemented by the UK through the General Product Safety Regulations 2005 which imposes safety laws on businesses producing consumer goods. The responsibility for product safety falls on producers including manufacturers, importers and businesses that customise or service products. The regulations require those responsible to ensure products are safe by:
- – Warning customers about potential risks of the car seat
- – Providing information to help customers understand the risks involved in using the car seat
- – Monitoring the safety of the products
- – Taking necessary action if a safety problem is found with any of the seats
Therefore those responsible under the Regulations need to take a proactive approach to preventing any accidents and the safety of a product will be assessed given the specific risk to children when using the product.
In the event of an accident and a child is harmed by an unsafe product, those responsible for product safety could be sued in negligence. Furthermore, under the Consumer Protection Act 1987, manufacturers are strictly liable for death, injury, loss or damage caused by defective products which means that a manufacturer will be liable where damage is caused regardless of whether they were at fault or not.
The Court of Appeal in 2013 upheld a decision made by the High Court that a mother of a three year old child was negligent and partially responsible for the injuries her child suffered when involved in a road traffic accident. The child was a rear seat passenger and placed onto a booster seat rather than a five-point harness restraint, a safer option available in the car. The child suffered multiple and severe injuries including a spinal cord injury as a result of the accident. The Court of Appeal found that whilst there was no dispute the driver of the other car was liable for the accident, there were clear and repeated warnings in the instruction manual of the booster seat that stated materially greater injuries could be suffered in the event of an accident when using a backless booster seat as opposed to using a five-point harness seat. Consequently, the Court of Appeal dismissed the appeal by the mother and found that the mother had contributed to the injuries suffered and was ordered to pay 25 per cent of the damages due to her child.
This case demonstrates that warnings by manufacturers as to the extent that a child seat will protect a child from injury in an accident will be a significant factor in considering whether the parent’s choice was reasonable and whether it contributed to their child’s injury.
Car seats can be both compliant with regulations and not part of a product recall, however safety will be compromised if a backless booster seat is chosen over safer alternatives. A recent survey by Which? revealed that of 1,000 parents, 55% of 4-12 year olds use backless booster seats which provide inferior protection compared to a seat offering back support. Given the courts willingness to see this as a contributory factor to a child’s injury, a more supportive child seat should always be chosen.
Bringing a claim
It is extremely important that you consider making a compensation claim for the injuries suffered by your child in the event of an accident. Road traffic accidents can have devastating consequences on a child, and substantial medical expenses may accrue which should be recovered from the person liable for the injuries.
The general rule under the Limitation Act 1980 limits any claim of personal injury for compensation to be made within three years from the date of the accident, or from the date you knew your child’s injury was linked to the original accident, (whichever is latest) otherwise a claim can be time-barred. Furthermore, the Consumer Protection Act provides a longstop period in which claims under the Act must be brought within 10 years from the date that the specific product was put into market circulation.
However special rules apply for children where the limit for bringing a claim is three years, but this three year period does not start until the child reaches the age of 18. Alternatively, if the circumstances require a claim to be brought immediately, then the court will allow a ‘litigation friend’ to bring a claim on the child’s behalf. Normally this person will be one of the child’s parents or guardians. In the case of the child Emma Hughes discussed above, as her mother was involved in the proceedings for contribution, the most appropriate litigation friend was her aunt as otherwise her mother would have had a conflict of interest between her and her daughter.
The litigation friend must be able to demonstrate to the court that they can act fairly and competently on behalf of the child and that they have no conflict of interest in acting for the child. The litigation friend must also undertake to the court that they will pay any costs that the child is ordered to pay in connection with court proceedings, however this can be reimbursed through the child’s assets.
 Emma Hughes (a Child by her Aunt and Litigation Friend Anne Marie Armstrong) v The Estate of Dayne Joshua Williams deceased and Louise Emma Williams  EWCA Civ 455