Toropdar v D (A Minor)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE |
| Judgment Date | 20 March 2009 |
| Neutral Citation | [2009] EWHC 567 (QB) |
| Docket Number | Case No: HQ07X04068 |
| Court | Queen's Bench Division |
| Date | 20 March 2009 |
[2009] EWHC 567 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Christopher Clarke
Case No: HQ07X04068
Alan Jeffreys QC (instructed by Berrymans Lace Mawer) for the Claimant
Allan Gore QC & Mr Paul Spencer (instructed by Bindmans) for the Defendant
Hearing dates: 9 th & 10th February 2009
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 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.
The witnesses
Factual
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
Experts.
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.
Cable Street
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 (135-15Cable 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 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 3/4 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...
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Phethean-Hubble v Coles
...number of the authorities that are relevant to this issue of contributory negligence can be found collected helpfully together in Toropdar v D [2009] EWHC 2997. In considering authorities in this context, however, it is important to remember that every case depends upon its own facts and th......
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Charlotte Rainford (A Protected Party, by her Father and Litigation Friend Ian Rainford) v Kay Lawrenson
...adult but that reasonably to be expected of a child of the same age, intelligence and experience": see Toropdar v D (a Minor by the Official Solicitor as litigation friend) [2009] EWHC 2997at [12] where Clarke J (as he then was) quoted from a series of earlier judgments which distilled the ......