Toropdar v D

On 22^nd June 2002 Mr Jewel Toropdar, the claimant, was driving his red Nissan Sunny car in a westerly direction along Cable Street in East London at about 1640. A 10 year old boy, whom I will call “D”, ran out without stopping from the side of the road in front of a stationary bus. The boy was struck by the car and, as a result of the accident, suffered catastrophic brain injury.

In ordinary course the injured party would be the claimant and the alleged tortfeasor the defendant. In this case the roles are reversed. The insurers of Mr Toropdar (“the claimant”) seek, by an action begun in his name, a declaration that he is not liable to D at all. No example has been found of a personal injuries case in which such a declaration has been sought when what are at issue are the core factual questions of breach of duty, causation and damage, as opposed to, for instance, jurisdiction, forum or applicable law (Footnote: ¹). One of the questions that arises is whether it is ever right to make such a declaration, or at any rate whether it would be right to do so in this case.

Mr Toropdar and his wife gave evidence. I am satisfied that Mr Toropdar was an honest witness who was doing his best to give me an accurate account of what happened. In assessing his evidence I have borne in mind that he was, understandably very shocked by the incident, and the natural tendency of anyone who has been involved in an incident such as this to recoil from thinking that he was at fault.

D is not able to give any evidence of the accident. I have, however, heard evidence from two of the three boys with whom he was playing immediately before the accident – Abu Anas and Abu Asad, who are brothers - and from Mr Harish Patel, the bus driver. I have also had the written evidence of the fourth boy, Foad Yahya. All of these witnesses made witness statements in 2002 (as well as later statements). I have also heard the evidence of D’s brother, who did not witness the accident but was close by when it happened; and I have read the evidence of D’s father.

The accident was the subject of a police investigation and I have seen the contemporaneous police report. I have also heard the evidence of former PC Terence Roberts (now retired), who investigated the accident at the time; and read the evidence of PC Carter, who examined Mr Toropdar’s vehicle on 25^th June 2002, and of PC Coombes, who was one of the officers who responded to the incident

Both sides have commissioned accident investigation experts: Mr Sorton in the case of the claimant, and Dr Ashton in the case of D. These experts have helpfully produced a joint report following their meeting, as a result of which it was not necessary for either of them to be called.

The portion of Cable Street with which this case is concerned runs for about 300 metres from Watney Street westwards to Cannon Street Road. The collision took place about 135 metres west of Watney Street. A person driving down Cable Street in a westerly direction would first encounter a zebra crossing. He would then pass, on his right (north) Shadwell Underground Station. Then, still on the north side, there are 3 large blocks of flats – Maddocks House, Richard Neale House and Newton House. The first has 18 flats, the second 51 and the third 55. On the left hand (south side) there are some flats (135-157 Cable Street) followed by some 4 storey houses. After that is what used to be St George’s Town Hall, opposite which the collision occurred.

Cable Street is a quite narrow one way street. On the north side at the east end there is, however, a two way cycle lane. That cycle lane veers to the north at Maddocks House and the cycle way continues on the raised pavement. There was at the time of the accident a series of bollards a short way in from the kerb of the road. To the north of the cycleway there is a row of trees and to the north of that a grassy area.

By 2002 St George’s Town Hall had become an Education Centre (Footnote: ²). At first floor level it has eight windows between columns. At ground floor level, moving from east to west there are four windows. In front of the building is a space bounded by railings running parallel to the pavement. Then there is the entrance to the building. A flight of steps leads up from the pavement to the door. On each side of the steps there is a stone and brick plinth supporting a metal column with a globe shaped light on top. The steps lead up into a portico consisting of two stone columns supporting a small roof which extends outwards in a northerly direction from the line of the building.

In front of the Education Centre is a bus stop. This, at the time, extended from a point roughly in line with the east wall of the Education Centre to a point some 15 metres to the west of its west wall. The stop was divided into sections by a line (or lines) running from south to north. The second section (counting from the west) was marked with a line in such a position that a bus pulling up to stop just before it would be positioned with its nearside front door practically opposite the steps to the Education Centre. On the kerb there is a pole at this point with a sign marking the stop.

The bus stop is the end of the route for the single decker No 100 bus. When the bus starts up again, it retraces its journey back to Blackfriars and Elephant & Castle. On the day in question Mr Patel had driven his No 100 bus and stopped opposite the Education Centre and his passengers got out. At the time of the accident the bus was empty; and there were no passengers waiting to get on.

There is an issue as to how busy Cable Street is generally, and was on the occasion in question. There are undoubtedly a large number of people who live in the 150 odd flats on the north side. These flats back on to the street. On the south side there is residential accommodation. The block of flats just beyond the underground station, where a number of elderly people live, is followed by houses some of which are divided into flats. There is further residential accommodation to the west of the Education Centre. The grassy area to the north of the street is a place where children play; although it is separated from the road by the cycleway and the row of trees. Mr Toropdar’s evidence was that children did not play on the south side of the street. Mr Patel’s evidence was that there were always kids around the Education Centre. I regard his evidence as likely to be correct.

On the afternoon of the accident the Education Centre was closed. Behind the Education Centre there is a play area called St George’s Gardens, where children play football, and a swimming pool. But this is some way from the road. It is not clear how many people were around at the time of the accident, not least because the police closed the road after it had taken place so that the contemporary photographs of the scene show no one except police officers. Photographs taken on a wet afternoon in May show little activity on the street.

What can be said is that Cable Street is an inner city street in a residential area where pedestrians, among them children, might well be present, including in the vicinity of the Education Centre, as they were on this occasion. The claimant should have appreciated that this was or was likely to be so. Mr Patel confirmed D’s brothers evidence that Cable Street is known amongst bus drivers to be a hazardous street because of the presence of children, schools and the park; and that there are posters at work which show this. That said, there is no evidence that there were more than four children near the Education Centre at the time of the accident; and the game that was being played (see para 15 below), although involving noise, does not appear to have involved the boys moving in a pack. The speed limit at the time was 30 mph. It was later reduced to 20 mph, a change which is likely to have been influenced by the accident and reflects the dangers that a driver familiar with the area could reasonably be expected to appreciate.

The four boys to whom I have referred were playing in the vicinity of the steps of the Education Centre. Mr Patel (a patently honest witness) saw them standing on the steps alongside the bus. Abu Anas’ evidence was that they were on the third step from the bottom. Mr Patel’s contemporaneous statement described them as “shouting and playing” and “screaming”. D and Foad Yahya were 10. Abu Anas was 9 ¾ Abu Asad was 11. They had previously been playing football on the grassy area on the north side of the street. In the light of the evidence of Foad Yahya, the accuracy of which was in part corroborated by Abu Anas, the likelihood is that the game which they were playing involved the boys hiding an item whilst one of them had his eyes closed. That boy would then have to try and find the hidden item. The boys who have hidden it then say “hotter” or “colder” depending on the proximity of the seeker to the item hidden. Just before the accident the three boys other than D hid some form of card or sticker behind a poster on one of the double doors of the Education Centre, leaving a tiny portion of it sticking out from behind.

Mr Toropdar has a clean driving licence, and has had, apart from the accident in suit, no other motoring accidents then or since. There was nothing wrong with his car. On that day he was the driver and his wife was in the rear seat immediately behind him. There was no one else in the car, which had a child seat in the front passenger seat. Mr Toropdar’s aunt lives at No 216 Cable Street. This is about 80 metres to the west of the Education Centre on the same side of the street. He used to drop his son off at his aunt’s every day during the week and knew the area very well.

Mr Toropdar and his wife had been with his aunt for lunch. After that they went to do some shopping. On the way back they stopped at a grocery store in Watney Street, where he parked the car in front of the post office. It was a sunny day. Having put the groceries in the boot, he drove off; stopped at the junction of Watney Street and Cable Street and, having seen that there was nothing coming in either direction, pulled out into Cable Street and drove over the pedestrian crossing. Immediately after doing that he changed from first into second gear and thereafter into third gear, in which gear he drove down Cable Street towards the Education Centre. He never got into fourth. He was aiming to go back to his aunt’s house beyond the Education Centre and was looking for a parking place.

Behind Mr Patel’s bus – to the east – there was a further 12 metres of bus stop, in which there was nothing parked. Behind that there were 3 parked vehicles – a saloon, what looks like some form of camper van, and another saloon. Because of the presence of the three vehicles and the bus, Mr Toropdar’s ability to see the area of the steps of the Education Centre was limited. Exactly when he would have been able (if looking) to see the area around and to the east of the steps would depend on where he was placed in the road (i.e. how far to the north or south). But he would probably not have been able to do so until he reached at least somewhere between 1/3^rd and 1/2 way along the first (i.e. the easternmost) of the parked vehicles. There would then be a moment when he could have seen the area around the steps and the pavement to the east of the Education Centre. But thereafter his view would have been obscured by the nearside corner of the bus.

No useful purpose is served by attempting to assess where exactly Mr Toropdar would have been when he was able and then ceased to be able to see the area around the steps to the Education Centre. The experts are agreed that, on the assumption that he was travelling at 27.5 miles per hour his potential opportunity to see that area would have lasted for about a second. In that time – as the joint report puts it – he would have to observe the children and determine what they were doing.

D was quite clever at the game. He started looking for the item with his friends saying “hotter” or “colder” until, after about two minutes he found it. He then ran off “really fast” (per Foad Yayha) across the street in front of the stationary bus. His likely speed is agreed to be in the range of 3.9-4.7 m/s (Footnote: ³). He was seen to run by the other three boys and Mr Patel. As appears from the sketch which Mr Patel made at the time, D ran across the street in front of the bus at a diagonal angle. The boys, who had seen the red car, shouted a warning. But D either could not or did not hear it.

The front nearside of the car (just above and to the offside of the nearside light) struck D. At this stage D was between 3.8 and 4 metres from the kerb (Footnote: ⁴). He was propelled on to the bonnet, causing a slight indentation in it, and towards the windscreen. Mr Toropdar saw D’s hands and face coming towards him. His evidence is that D’s head made contact with the windscreen. I think that Mr Toropdar is unlikely to be mistaken as to whether there was any such impact; but it is likely to have been relatively slight. The windscreen showed no sign (e.g. a cleaning mark) of impact. D then fell off the car and on to the kerb. The spot where he fell is marked by a pool of blood which appears in photograph F 5 and is just below the kerb on the north side about 15 metres to the east of the Education Centre.

When he saw D Mr Toropdar braked immediately. Then as he slowed to a halt he took his foot off the brake. He was able to see in his rear view mirror the other boys running across the road from the same direction as D. As he was rolling to a halt Mr Toropdar, who was by now very shocked, handed his mobile telephone to his wife in order for her to alert the emergency services.

The car came to a halt. There is an issue as to whether or not its initial and final resting place was as shown in photo F4 or whether that is its final but not its initial resting place. PC Roberts measured the rear of the car as being 28.4 metres west of the front of the bus. No tyre marks were left on the road, so the Claimant did not brake to the limit of adhesion.

Mr Toropdar’s evidence is that when the police arrived one of the policeman started to move the vehicle but another policeman stopped him and told him to keep it in the same place. In consequence the position in which the car appears in the photograph was slightly forward from its original position.

I accept this evidence. I do not think that Mr Toropdar is likely to be wholly wrong on this detail. I have not forgotten that Mr Roberts, who arrived on the scene at approximately 1800, was told by Acting Sergeant Shaddock that the bus and car had not been moved since the accident. I do not, however, regard this second hand evidence as invalidating Mr Toropdar’s evidence. It seems to me entirely possible that the fact that the car had been moved slightly forward initially did not reach all the police officers concerned.

It was Mr Toropdar’s evidence that after impact he veered off the straight line to his nearside. He may have instinctively steered to the nearside as D appeared in front of him. But I am not convinced that he did so to any significant extent.

Mr Torobdar’s consistent evidence has been that he was driving at between 25 and 30 miles per hour (Footnote: ⁵). At the time of the accident he was in third gear and decelerating because, being unable to park in one of the spaces occupied by the three cars, as he had hoped, he intended to park in a parking space which he had spotted beyond the bus stop (as marked in photograph B 75).

PC Roberts measured the distance from the front of the bus to where the blood was found as being 15.6 metres. Using this measurement, and a co-efficient of friction of 0.65 he concluded, having fed those data into the computer, that the Nissan Sunny was likely to have been travelling at the point of impact at somewhere between 26-35 m.p.h. He expressed the opinion that the car was more likely to have been travelling at approximately 30 miles per hour.

Two things need to be said about those calculations. Firstly, 15.6 metres does not accurately represent the distance that D was thrown. The distance is likely to be somewhat less because D was running diagonally across the road and not at right angles to the bus and so would not have been in line with its front at the moment of impact. Secondly the range of figures is taken from various studies of the relationship between the speed at which someone is travelling and the throw distance. The results of these differ according to (a) the study and (b) the type of individual under consideration e.g. one of the studies is of a child. Obviously the lighter the individual the further he or she will travel for the same speed. It is to be noted that D was described by Mr Patel as “the skinny one”.

In paras 13.4.7-8 of his report Dr Ashton cites studies which indicate that at a projection distance of 12.5 metres, which is his estimate of the distance over which D would have been projected if he had been crossing the road at an angle, Mr Toropdar’s speed at impact would have been in the range 25-29 mph. The experts were content to take Mr Toropdar’s speed as being 27.5 miles per hour i.e. the mid-point between Mr Toropdar’s 25 and 30 mph estimate for the purpose of their calculations as to what opportunity Mr Toropdar had to see what was happening. That seems to me an acceptable estimate of his approximate likely speed as he went past the bus and approached the collision site. Mr Toropdar’s evidence, which I accept, was that as he got close to the bus he was decelerating, in which case his speed must have been higher before then.

Against that background three questions arise:

As to that both experts have made some calculations, the mathematics of which are, upon the assumptions upon which they are made, agreed to be correct.

On the assumption:

If Mr Toropdar had been travelling at 20 mph and had seen D before he went out of sight and then carried out precautionary braking, a collision probably would not have occurred because the car would have stopped before it reached the collision site.

If Mr Toropdar had been going at no more than 20 miles per hour as he was going past the bus and had not slowed at all prior to impact the severity of D’s injuries would have been considerably reduced and he would probably only have sustained relatively minor injuries.

On the assumption that Mr Toropdar either had not seen the boys or, having seen them had not carried out precautionary braking, Mr Sorton calculated that, if the vehicle was at an angle of 45º to the road Mr Toropdar would have to have been travelling at no faster than 18 mph for a collision not to have occurred.

Mr Allan Gore, QC, for the defendant, submits that it would be wrong for this court to make any declaratory relief (whatever its view on the evidence) and that, in any event, it cannot be proven on the balance of probabilities that Mr Toropdar (on whom the onus lies) is blameless. I propose to address the second submission first

Mr Gore submits that the likelihood is that Mr Toropdar either saw the group of children playing on or close to the steps of the Education Centre and took no precautions, or should, at the speed at which he claimed to have been travelling, have seen this group of children. He knew the area very well (because he used to drop his son off at his aunt’s house every day of the week) and should have had in mind the conditions on a Saturday afternoon.

The children were within sight of the claimant for enough time for him to see them and determine what they were doing or might do. He should have appreciated the risk of one of the children darting into the road and should have moderated his speed, and prepared to stop if one of them did so. His alleged failure to see and respond to the children’s presence shows that he was not exhibiting the required level of care and attention while driving.

Further, on Dr Ashton’s calculations, the accident would have been entirely avoidable at a driving speed of 20 mph. If the shallower angle at which the Defendant ran into the road adopted by Mr Sorton (45º) was used by Dr Ashton, his calculations would show that the Defendant would have been in view for longer and the Claimant could have avoided the Defendant even when driving at higher speeds than those estimated and agreed.

Mr Sorton originally estimated that at a speed of 18 mph the accident would have been entirely avoidable (see para 36 above). But this is an under estimation of the speed at which the accident could have been avoided for three reasons: (i) the calculation is based on the claimant’s car coming to a complete stop prior to the impact point. This would not have been necessary to avoid the severity of the accident; (ii) Mr Sorton now agrees that D was running faster than the speed used in his original calculations (Footnote: ⁷); and (iii) the calculations are made on the basis that the claimant did not see the children playing on the Education Centre steps.

For all those reasons, but for the speed at which the Claimant was travelling, it is more probable than not that the Claimant could and should have avoided the collision or in the alternative, avoided causing the Defendant the injuries he suffered. (Footnote: ⁸)

Mr Gore draws attention to the following provisions of the Highway Code as in force at the time:

“124.

Adapt your driving to the appropriate type and condition of road you are on. In particular

Mr Alan Jeffreys, QC, for the claimant, submits that the evidence establishes the non-liability of the claimant to the defendant.

The evidence, taken as a whole, shows, he submits, that there is nothing to gainsay the claimant’s assertion that his speed at the material time was 25 – 30mph.

It is always possible to say in any case that if the speed of a vehicle was lower, an accident would not have occurred. But a speed of that nature upon Cable Street at that time was reasonable and does not fall below the standard of the reasonable prudent motorist. D’s run would have afforded the claimant no opportunity of avoiding impact when travelling at 27.5 mph. The same can be said of 25 mph.

The opportunity of the Claimant to see the boys is correctly described as a “potential opportunity”. It lasted about 1 second, and was not within the natural field of view of a driver who is driving down Cable Street and looking for a place to park. It is unlikely that, even if the Claimant happened to look that way for the whole second, he could have distinguished any activity other than presence. There is no reason to think that D would have been within view.

If the boys had been seen in the minimal opportunity available, it was not incumbent on the claimant to carry out “precautionary braking” merely because of the fact of their presence.

Whether injuries would have been less at a speed below 20mph cannot be determined on the evidence available. It is known that the Defendant sustained a head injury. There is no physical evidence of his head hitting the windscreen whereas there is evidence, namely the blood found immediately adjacent to the kerb, that he struck that. His striking the kerb is likely to be the cause of his injuries; if so, whether the claimant was driving at 20 or 27.5 mph is not likely to have made any difference.

I accept Mr Toropdar’s evidence that he did not see D or the other boys playing. It is apparent to me from his evidence that the fact that there was a gap behind the bus (which he must have seen) did not really impact on his mind either.

If Mr Toropdar was travelling at 27.5 - 30 mph. Dr Ashton is of the view that D would probably have started off from the bottom of the steps at about the same time that Mr Toropdar lost his view of those steps. I accept that as likely to be correct.

By that stage a collision was almost inevitable. D had not seen Mr Toropdar nor had Mr Toropdar seen him. The period during which D would potentially have been in view (coming from in front of the bus) prior to the impact occurring is of the order of 0.40 - 0.45 to 0.77 seconds. The 0.77 figure assumes that D had come out at a 45º angle to the line of the road (and at Mr Sorton’s original speed of 3.7 m/s). The lower figures assume that D came out at a 60º angle and at a speed in the range 3.9-4.7 m/s. Mr Sorton in the joint report was content to adopt the travelling speed used by Dr Ashton. The angle at which D ran out is uncertain although in Mr Patel’s drawing it is roughly 45º. But, in the light of Foad Yayha’s evidence D is likely to have been running at the higher end of the speed range. Accordingly the period is likely to have been toward the middle or lower end of the 0.40 – 0.77 range.

The experts are agreed that if Mr Toropdar had been covering or applying the brake as he went past the bus and had been alert to the possibility that a pedestrian might emerge from the front his reaction time, i.e. the time which it would take for him to react in order to do anything at all, would have been about ½ second. If Mr Toropdar had not been covering the brake and expecting a person to emerge his reaction time would probably have been about 1 second. The experts estimate that at the time when Mr Toropdar could have seen D he would have been between 30 (Mr Sorton) and 35 (Dr Ashton) metres from the collision site.

In those circumstances I am satisfied that, on the assumption that Mr Toropdar was not at fault in travelling at the speed at which he was travelling when he passed the bus, there was nothing that he could and should at that stage have done which would have averted the accident. Even if he had been covering the brake and expecting a person to emerge, the impact would have happened within his reaction time.

I do not, however, accept that 27.5 mph was, in all the circumstances, a reasonable speed. It was in my view too fast for this street at the time in question, as was, whatever was the greater speed the claimant was travelling at before then. As the claimant was approaching the Education Centre the three vehicles on his left (particularly the van in the middle) obscured his view of who might be at or around the Education Centre; and the bulk of the bus obscured his view of who was or might be at the side or in front of the bus. The bus was empty, save for the driver, and appeared to the claimant to be so. But he had no way of knowing who was in front of the bus or along its nearside at the front. In the words of the Code he should have adjusted his speed as a precaution. To drive at a speed close to the legal limit on a street, and a location in the street, such as this on a summer Saturday afternoon falls, in my judgment, short of the standard of the careful driver, who needs to drive with the safety of children in mind at a speed suitable for the conditions, particularly when driving past bus stops (Highway Code paras 181-2).

In my judgment the claimant, as he approached the gap behind the bus (i) should have been proceeding slower and (ii) should have carried out precautionary braking, whether or not he saw the boys playing when they came within his line of vision. This is because he was approaching an area on his near side in relation to which his line of vision to the Education Centre was initially obstructed by the three vehicles on the nearside and then by the bus, and, particularly, because the front of the bus (which he could not see) was just the sort of area from which a person might unexpectedly emerge. I do not regard my conclusion as representing a counsel of perfection but a reflection of the standard required of the reasonably competent motorist in the prevailing circumstances.

Dr Ashton concluded that, if the claimant had been driving at 27.5 mph (i.e. higher than what I regard as acceptable) and had carried out precautionary braking before D went out of sight behind the bus (at which stage the claimant would probably have been in line with somewhere in the front half of the westernmost car) the collision either would not have occurred, because D would have cleared the path of the car, or his injuries would have been minor ones. A fortiori this would have been so if C was driving at 25 mph or slower, which is the sort of speed at which he should have been driving. According to Dr Ashton, if the claimant had been driving at 20 mph, and carried out precautionary braking, the car would have stopped before the collision site. I accept these conclusions.

In those circumstances I am satisfied that the claimant’s failure to adjust his speed and carry out precautionary braking was causative of D’s injury.

Dr Ashton also concludes, and I accept that, if the claimant had been travelling at no faster than 20 mph as he was going past the bus and had not slowed at all prior to impact, D would probably have sustained relatively minor injuries. Dr Ashton’s calculations do not indicate what (if any) is the speed above 20 mph at which only relatively minor injuries would have been suffered even if there was no breaking.

I decline to hold that 20 mph is the precise speed above which at the time in question the claimant would have been negligent in driving along Cable Street, although it does seem to me to be the sort of speed at which the claimant should have been driving by the time he reached the stationary bus.

On the hypothesis that 27.5 mph was a reasonable speed the claimant submits that he cannot be regarded as negligent for failing to spot the boys on his left. I accept that “a driver exercising reasonable care cannot be expected to focus his attention in a number of different directions when driving in a busy high street” – per Pill, LJ in Ehrari v Curry [2007] EWCA Civ 120.

But, as I have indicated, I do not accept that 27.5 mph was a reasonable speed. If the claimant had been driving slower and had applied precautionary braking, I am satisfied, as I have said, that the accident would either not have occurred or his injuries would have been minor ones. Further it seems to me likely that, on that hypothesis, the claimant would or should have noticed that there was some form of boisterous activity occurring on his near side, which should have led him to increase the braking that he had begun, or to start it if he had not already done so.

There is an issue as to whether the windows of the car were open before the accident. Mr Toropdar’s evidence is that he drove with then closed because he is asthmatic. In the photographs taken after the accident the passenger window is half open and the offside rear window is open. Although it is not clear why exactly the windows should have been opened after the accident, I accept the claimant’s evidence that they were not open when the impact took place.

It follows that I have not been persuaded that the claimant is entitled to a declaration that he is not liable to the claimant.

In those circumstances anything that I say about whether or not it would have been appropriate to grant declaratory relief if I had reached a different conclusion will be obiter. Since, however, I have heard extensive argument on the topic I propose to set out my views. In order to do so it is necessary to set out some of the history of these proceedings.

A letter of claim was sent on 17^th January 2003 by D’s solicitors – Bindman & Partners, a reputable firm of experienced solicitors. On 7^th February 2003 liability was denied. The police report has been available to both sides since February 2003. Dr Ashton was instructed by May 2004. A detailed letter before action was sent on 27^th April 2005. D’s solicitors declared an intention to issue proceedings by letters of 16^th June and 9^th August 2005 and in a telephone conversation on 25^th September 2005.

There then followed a detailed investigation of the claim and a consultation with leading counsel. On 10^th October 2006 the Defendant’s solicitors proposed mutual exchange of lay witness and expert evidence. In the same letter, they said:

“In the meantime you are aware that we recently attended a meeting with Leading Counsel, Frank Burton QC on Friday 6^th October 2006. Counsel remains confident that our client has reasonable prospects of succeeding in this case. Counsel continues to act on a Conditional Fee Basis. Counsel has advised our client to issue proceedings in due course should this prove necessary”.

In a letter dated 18^th October 2006 D’s solicitors returned to the suggestion of an exchange of lay and reconstruction evidence.

The claim form was issued in the County Court on 19^th December 2006, supported by Particulars of Claim dated 15^th December. The action was transferred by consent to the High Court on 5^th October 2007.

On 17^th July 2007 Bindmans informed Berrymans, the claimant’s solicitors, that they had been instructed by Mr D in respect of his son’s personal injury claim against Mr Toropdar and notified them that the potential claim was funded by a CFA and supporting ATE insurance. Bindman’s also confirmed that Mr Toropdar’s subsequent claim for declaratory relief did not fall within the ambit of the CFA and ATE insurance. Bindman’s later obtained LSC funding to resist the claim for declaratory relief, as they informed Berrymans by letter of 5^th October 2007.

On 30^th January 2008 a CMC took place before Master Foster who was asked, but declined, to order a preliminary issue as to whether there was jurisdiction to grant negative declaratory relief in a personal injury action where the injured victim was still within time to issue proceedings. On 4^th March 2008 Eady J gave D permission to appeal on the ground that the appeal raised a novel point and enjoyed a realistic prospect of success.

On 16^th April 2008 McCombe J, dismissed the claimant’s appeal from that refusal. He took the view that the issue for him was whether it was just and convenient to allow the action to proceed to trial now; and whether the ends of justice, informed by the principles of the CPR, were served by permitting the action for a negative declaration to proceed.

CPR 40.20 provides

“The court may make binding declarations whether or not any other remedy is claimed”

The principles guiding the grant of negative declaratory relief were set out in the judgment of Lord Woolf MR in Messier-Dowty Limited v Sabena SA [2000] 1 WLR 2040, paragraphs 41 and 42;

“The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the courts should not be reluctant to grant such declarations.”

The unusual nature of the negative declaration justifies caution, but,

“…subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so”.

In Financial Services Authority v Rourke [2002] C.P. Rep. 14 Neuberger J (as he then was) said:;

“It seems to me that, when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration.”

Mr Gore submits that declaratory relief is not appropriate for two principal reasons. Firstly D is a child. By virtue of section 28 of the Limitation Act 1980 he is entitled to bring an action for damages for personal injuries within 3 years of reaching the age of 18. It is further submitted that he is entitled not to have to bring an action (whether by way of claim or counterclaim) and face the risk of an adverse costs order unless and until (within the limitation period) he chooses to do so. Although proceedings have been threatened, none have been commenced. That is his right. If he is to take on an adverse costs risk it should be at a time of his own choosing.

Secondly, the commencement of proceedings by (in effect) insurers is apt to embarrass injured parties such as D. Legal Aid is no longer available for personal injury claims, whether by way of claim or counterclaim, and the injured party may not be able to get alternative funding. He may, like D and his father, be impecunious and have no legal expenses insurance to cover his own costs. He may be unable to make a conditional fee agreement or get ATE insurance. If so, there will be inequality of arms between the opposing sides. In the present case D has the benefit of a CFA and ATE insurance. But that is only available to him if he is a claimant in personal injury proceedings. It is not available to him if he is the counterclaimant.

As it happens D obtained LSC funding to defend the claim. That is, I assume, because of the novel nature of the present case. If, however, he were to counterclaim for damages, he would lose the right to such funding because of the provisions of section 6 (6) of the Access to Justice Act 1999 which provides that “The Commission may not fund as part of the Community Legal Service any of the services specified in Schedule 2”. That Schedule provides that the services which may not be funded include:

“Services consisting of the provision of help (beyond the provision of general information about the law and the legal system and the availability of legal services) in relation to:

(a)

allegations of personal injury or death….”

It is, no doubt, because of the existence of LSC funding, and the fact that, in the event of a counterclaim it would be withdrawn, that the ATE insurers have not assumed the risk of brining a counterclaim.

In addition Mr Gore submits that a series of principles or propositions may be derived from the decided cases as to how the court’s discretion is properly to be exercised. I set these out below:

Mr Jeffreys does not dispute that the propositions set out in the previous paragraph are potentially applicable. He submits, however, that, in the present case, if I was satisfied that there was no liability on the part of the claimant towards the defendant there was no reason why I should refuse to declare as much and good reason why I should.

I agree that the propositions relied on are relevant, subject to two qualifications.

Firstly the observation of Lord Sterndale that “….a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made” must now be regarded as largely of historic interest. As Lord Woolf observed in Messier-Dowty there is no valid reason for taking an adverse view of negative declarations, whose use domestically has expanded over recent years. “Subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so”.

As to that, D (or rather his advisors) have asserted a claim but have so far, declined to bring it. The effect of that is that the claimant’s insurers must continue to reserve for this claim and the claimant himself must have an allegation of negligence hanging over him for an indefinite period. It is entirely legitimate for both of them to seek to have the Court decide whether or not the claimant is under any liability to D.

Secondly, I do not accept that a party against whom a right has not been asserted is, in all circumstances immune from any proceedings for a negative declaration. I can well understand that a court may decline to grant a declaration that a product as yet not manufactured would not breach the defendant’s copyright as in Wyko. But there may be cases in which a claimant can legitimately seek a declaration of non-liability even if the person against whom the declaration has been sought is not someone against whom any relief (other than a negative declaration) is sought or has not in terms asserted the contrary.

The principal policy underpinning the Limitation Acts is that those against whom claims may be made should not have to face them many years after the events which are said to give rise to them. The Acts provide a number of exceptions to the running of time in order to ensure that vulnerable people (such as children or persons under a disability or those who are justifiably ignorant of their entitlement) are not prejudiced by the running of time when they may not be in a position adequately to understand their rights, or the time limits that apply to them, or to assert those rights.

This does not mean that an injured party has an entitlement to postpone any determination of whether he has a claim until an action begun by him at any time up to the last day of the limitation period is concluded (Footnote: ²³). The alleged wrongdoer may in an appropriate case seek a negative declaration. As McCombe J pointed out, in most cases an action for a negative declaration will only be brought where the primary limitation period for bringing an action against the alleged wrongdoer has not expired (Footnote: ²⁴). I reject the submission that an application for a negative declaration is a collateral attack on the policy behind the law of limitation as regards children.

In the present case there is an asserted claim which has never been withdrawn. There is an adequate contradictor. There is no inequality of arms. D is represented by well-known and reputable solicitors and by Leading and Junior Counsel; and has retained his own skilled accident reconstruction expert. D has LSC funding. In those circumstances he has the protection against an adverse costs order if he were to lose provided by the restrictions applicable to the making of costs orders against LSC funded litigants.

There are no grounds to suppose that any further investigation would improve D’s position or any further information of value would become available in the future. The relevant witnesses have for the most part been available to give evidence. Only Foad Yayha did not appear to give evidence but there was a statement from him. The likelihood is that the quality of any oral evidence will worsen as time goes by. Those concerned may become unavailable, untraceable or die. That may prejudice or benefit either party and will not be conducive to a just result. If the matter is not determined now, the parties will be faced with the need to keep contact with material witnesses.

Mr Gore relied on the fact that Mr Toropdar did not ask the insurers to bring this action. It is brought at their instigation, albeit with his approval since he wishes to get the matter over and done with. He is fully indemnified for damages and costs; has suffered no injury loss or damage himself; and has nothing personally to gain in financial terms from the success of this action.

I do not regard those circumstances as ones that would have made the grant of a negative declaration inappropriate. In the present case the interests of the assured and his insurer are not in conflict. The Court is entitled, as it seems to me, to have regard to their joint interests which are to have it declared that an asserted liability, which, if it exists, is a liability of the claimant for which the insurers must indemnify him by paying D, does not exist.

The court’s approach to the exercise of its discretion is intensely pragmatic. It will consider whether a negative declaration should be made by reference to the particular circumstances of the individual case. In this case, having regard to the history, the availability to both sides of the evidence and material necessary to address the issue of the claimant’s alleged negligence, and the fact that each side is represented, it would, in my judgment, have bordered on the perverse, if, having decided that the claimant was under no liability, I had declined, as a matter of discretion, to declare that to be so.

A declaration of non-liability would serve a useful purpose and do justice to both parties since it would resolve, by the Court’s determination, the dispute between them. Its resolution would be consistent with the overall objective which requires – CPR 1.1. (2) – that matters are dealt with expeditiously as well as fairly. The dispute would otherwise remain in the air until the expiry of the limitation period, which, if D lacks capacity may never expire.

If I had declared that the claimant was not liable to D, D would not be able to claim in any subsequent proceedings that he was in fact liable. As between the claimant and D the matter would have been judicially determined. As it is I have reached such a determination but to the opposite effect because I have decided that the claimant does bear a liability to D. That conclusion is binding on D.

This gives rise to a potential problem. Mr Gore submitted before McCombe, J that Talbot v Berkshire County Council [1994] Q.B. 290 required all issues to be determined in a single action so that if the claimant was allowed to seek a declaration of non-liability D would have to counterclaim and, lacking funding to do so, would be prejudiced by that inability. Mr Gore now resiles from that submission. He submits that ATE insurers who might have underwritten adverse costs in the event of a claim instituted by D had been spared the risk by the peremptory issue of proceedings by the claimant outside the ambit of the CFA and ATE policy then in existence and that they and the lawyers who are party to the CFA can be excused for not assuming risk until these proceedings are concluded. In those circumstances it would be wrong for D to be shut out from making any claim because he has not so far counterclaimed.

The claimant alleges, in para 4 of his Reply, that it is not open to D to reserve the right to bring future proceedings against the claimant for personal injuries based on the matters in issue and that, in effect, he is bound to make any claim in the current proceedings.

Mr Gore submits that the risk that the court might accept these contentions is a reason why it would have been wrong to entertain an application for a declaration of non-liability in the first place.

In Talbot the Court of Appeal decided that the principle of res

So far as the present case is concerned I am satisfied that there are special circumstances which disentitle the claimant from contending that D cannot maintain any subsequent claim for damages for personal injuries because he should have counterclaimed in the present action. The claimant’s claim is unprecedented. The fact that, as it happens, D has LSC funding to resist the declaration of non-liability and that he would lose if he were to claim for personal injuries and has, on that account, no private funding to bring a counterclaim appear to me to be circumstances which, in the present case, would render it unjust to require him to have made a counterclaim in the present action. These circumstances are unlikely to be repeated since, as I apprehend, LSC funding may well not be forthcoming to resist other claims for declarations.

If I had reached a different conclusion I would have considered delaying the entry of judgment with a view to allowing D either to bring a claim or a fresh action (to be consolidated with the present action) for personal injuries.

As it is, I invite the parties to consider agreeing that I should determine whether and, if so, to what extent, D contributed to his own injury.

In those circumstances, had I decided that there was no liability on the part of C, I would have granted a declaration to that effect.

I should not be understood to be saying that insurers are, generally speaking, entitled to seek a negative declaration in personal injury actions. Such a course is and should be unusual. Prima facie it is for the would-be claimant to decide whether or not to make a claim or to start an action against the alleged wrongdoer and to run the risk of an adverse costs order. An attempt to seek a negative declaration may give rise to an injustice which the court will not countenance. This may be because the injured party cannot find funding so that he will be unrepresented or inadequately represented at any trial, or because success may depend on finding further information which may be forthcoming but is not yet to hand, or because the case is not otherwise ready for trial. Further the court is unlikely to be sympathetic to a claim for negative declaration in circumstances where a claim has never been seriously canvassed (even if at one stage asserted).

At the same time the fact that the defendant has not obtained and cannot obtain funding does not necessarily mean that an action for a negative declaration should not be entertained. The availability of funding is in large part dependent on the merits of the claim. In his judgment in this case McCombe J expressed the view that it did not seem right that a claimant should be prevented from bringing to trial an issue that is otherwise ready for proper resolution because the defendant’s potential claim is not strong enough to attract suitable funding for lawyers. “The matter” he said “should not be allowed to fester forever in the hope simply that something will turn up”.

Subject to the qualification that everything depends on the circumstances, I respectfully agree. In the present case the claim for a negative declaration was ready for proper resolution and D was fully represented. In other cases the fact that D has not secured legal representation may not necessarily be a ground for refusing a negative declaration.

There remains for consideration the appropriate procedure in cases where a declaration of non-liability is sought. In the present case Master Foster and McCombe J were asked to order a preliminary issue on what was said to be an issue of principle as to whether a declaration of non-liability could be made. In the result McCombe J ended up, in large measure, determining the issue identified by him without ordering it to be determined preliminarily. That led to the issue being available for re-argument before me, in circumstances where the factors in favour of dealing with, and declaring the merits of, the claim had become more compelling. By then Leading Counsel on both sides had been instructed and the case was ready for trial.

In cases of this kind, as it seems to me, the issue is not whether it can ever be right to grant a declaration of non-liability where the limitation period has not expired. The issue is, as McCombe J described it, whether or not, at the time when the matter is put before the court, it is right to allow the action for a negative declaration to proceed. That issue should be determined having regard to the factors that I have considered in this judgment (and any others relevant to the particular case). In some cases that may lead to the striking out of an action for a negative declaration; in others it may be that a stay is the appropriate remedy. Although a declaration is always a discretionary remedy, in most cases where an action for a negative declaration has been allowed to proceed, there should not then be a further round of argument at the hearing as to whether the court should be entertaining it at all.

I express my appreciation of the highly competent and efficient preparation of the case by both sides and of the true expertise of the expert witnesses which has enabled all the issues to be dealt with in two days, considerably less than the time for trial originally estimated.