Child pedestrians and contributory negligence

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