Toropdar v D [2009] EWHC 2997
In the May 2009 edition of SMIB we commented on Stewart v
Glaze [2009] EWHC 704. Mr Stewart was a drunk pedestrian who
had wandered in front of Mr Glaze's vehicle. He had consumed
between five and seven pints of beer. He was mobile but stumbling.
He was found wholly to blame. Compare this to Toropdar v D
[2009] EWHC 2997, which dealt with the contributory negligence
of a child injured in a road accident. A slight oddity was that the
driver appears as the claimant, having initially raised an action
seeking a declaration of non-liability. That action failed and Mr
Justice Clarke was asked to consider whether the child, D, was
guilty of contributory negligence and, if so, to apportion
liability.
D was aged ten at the time. He was playing with three other boys
of a similar age outside an education centre adjacent to a bus
stop. The locus was an inner city residential area. Mr Toropdar was
familiar with the area. He was driving towards the education centre
with the bus stop on his left. A bus was parked at the stop. On the
evidence he would have briefly been able to see D and his friends
around the centre had he looked. He did not do so. It was accepted
by Mr Toropdar and experts for both sides that he was travelling
between 25 and 30 mph. Mr Justice Clarke accepted a midpoint at
27.5 mph. He had been travelling faster but was decelerating as he
passed the bus. Meanwhile, D had run from his friends diagonally
across in front of the stationary bus and into the path of Mr
Toropdar. At the speed he was travelling impact was inevitable and
D suffered serious brain injuries.
Mr Justice Clarke conducted a thorough examination of the case
law, accepting that while they provided useful guidance each case
turned on its own facts and circumstances. In the event, he came to
his decision prior to review of the cases but was bolstered by
them. He concentrated on two specific areas.
First, he considered the relevance of D's age. He quoted Mr
Justice Owen in McHale v Watson [1996] 115 CLR 199, where
he said: "the standard by which (a child's) conduct is to be
measured is not that to be expected of a reasonable adult but that
reasonably to be expected of a child of the same age, intelligence
and experience". In Mr Justice Clarke's view ten was an age
which, in his judgment, was markedly different from 12 or over. D's
youth reduced his blameworthiness. He quoted Lord Denning in
Gough v Thorne [1966] 1 WLR 1387 where he said that:
"a judge should only find a child guilty of contributory
negligence if he or she is of such an age as to be expected to take
precautions for his or her own safety; and then he or she is only
to be found guilty if blame should be attached to him or her. A
child has not the road sense nor the experience of his or her
elders. He or she is not to be found guilty unless he or she is
blameworthy."
Secondly, he scrutinised Mr Toropdar's driving. While he was
within the speed limit, the expert evidence was that had
precautionary braking been carried out the accident would either
not have occurred or D's injuries would have been minor. Had Mr
Toropdar been driving at 20 mph and carried out precautionary
braking the car would have stopped before the collision.
Accordingly, Mr Toropdar was driving too fast in the particular
circumstances he faced. He should have appreciated that
pedestrians, including children, were likely to be present. While
he would only have had a second to see D and his friends he ought
to have anticipated the possibility of them entering onto the
roadway in front of the bus, but failed to do so. This was
regardless of the fact that it was accepted that at the speed he
was travelling there was nothing he could possibly have done to
avoid a collision.
In all the circumstances Mr Justice Clarke held that the
majority of the blame lay with Mr Toropdar, but damages were
reduced by one third for D's failure to take care for his own
safety.
This case is in keeping with the line of authority culminating
in Eagle v Chambers [2003] EWCA 1107 where Lady Justice
Hale (as she then was) said that "a car can do so much more
damage to a person than a person can usually do to a car…The
potential destructive disparity between the parties can readily be
taken into account as an aspect of blame worthiness…" A child
with no road sense will not be deemed as blameworthy as a senseless
drunk.
Contributed by Andrew Constable