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Toropdar v D, High Court, 20 March 2009

7 April 2009
The issues

Road traffic – negative declaration of liability – speed limit – appropriate speed in inner city residential area.

The facts

On the 22nd June 2002 Mr Toropdar was driving his car in a Westerly direction along Cable Street, East London at about 4.40pm. A 10 year old boy, the Defendant, ran out without stopping from the side of the road in front of a stationary bus. The boy was struck by the car and suffered catastrophic injury.

The claim had been asserted on behalf of the boy but not brought. The Defendant, through his insurers sought a declaration from the Court as to Mr Toropdar’s non-liability.

The decision

Mr Toropdar had not seen D or the other boys playing. It had not impacted on his mind that there was a gap behind the bus. Both experts accepted that Mr Toropdar’s speed had been 27½ mph at the time of the impact. If that was right, D would have started off from the bottom of the steps, where he was before running out, at about the same time that Mr Toropdar lost his view of those steps.

At that stage a collision was almost inevitable. At the speed he was going there was nothing that he could have done, or should have done which would have averted the accident.

However, the speed was not a reasonable speed. It was too fast for the street at the time in question. To drive at a speed close to the legal limit on a street and a location in a street such as this on a summer Saturday afternoon fell, in the Court’s judgment, short of the standard of the careful driver who needed to drive with the safety of children in mind at a speed suitable for the conditions, particularly when driving past bus stops (See Highway Code paragraphs 181 – 182).

Mr Toropdar should, as he approached the gap behind the bus, have been proceeding slower and should have carried our precautionary braking whether or not he saw the boys playing when they came within his line of vision. Had he been driving at 25mph or slower, which is the sort of speed which he should have been driving, and had carried out precautionary braking, he would have stopped before the point of collision. The Claimant in this action, Mr Toropdar, was not therefore entitled to a declaration that he was not liable to D, the Defendant in this action. On the basis of the decided cases a series of principles with regard to the granting of negative declarations could be derived.

D had asserted a claim but had so far declined to bring it. The effect was that Mr Toropdar’s insurers had to continue to reserve for the claim and Mr Toropdar himself had an allegation of negligence hanging over him for an indefinite period. It was entirely legitimate for both of them to seek to have the Court decide whether or not Mr Toropdar was under any liability to the Defendant.

The approach to a declaration was pragmatic.

The question had to be a real and not a theoretical question and the person raising it had to have a real interest in raising it. It had been said that a party against whom a right had not been asserted should be allowed to commence his own proceedings at a time and in a manner of his own choosing. This principle however, which derived from Wyko Group Plc v Cooper Roller Bearings Ltd, was no longer appropriate. It should not be the case that a party against whom a right had not been asserted was in all circumstances immune from all proceedings for a negative declaration. In Wyko there were reasons appropriate to that case that supported the proposition. However, there might be cases in which a party could legitimately seek a declaration of non-liability, even if the person against whom the declaration had been sought was not someone against whom any relief was sought or had not in terms asserted the contrary.

Whilst it had been said in the past that a declaration would hardly ever be made, the Court emphasised that this was not the same as never. Careful scrutiny had to be applied but there was no valid reason for taking an adverse view of negative declarations, whose use had expanded over recent years, and, subject to the exercise of appropriate circumspection, there should be no reluctance in their being granted when it was useful to do so.

The consequences and effect of the Limitation Acts did not mean that an injured party had an entitlement to postpone any determination of whether he had a claim up to the last day of the limitation period. It was not the case that an application for negative declaration was a collateral attack on the policy behind the law of limitation as regarded children. The Court’s approach to the exercise of its discretion in this regard was intensely pragmatic. It had to consider whether a negative declaration should be made by reference to the particular circumstances of the individual case. The declaration of non-liability might 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. The dispute might otherwise remain in the air until the expiry of the limitation period., which, if the party lacked capacity, might never expire.

The Court should not be understood to be saying that insurers were, generally speaking, entitled to seek negative declarations in personal injury actions. Such a course should remain unusual. An attempt to seek a negative declaration might give rise to an injustice which the Court would not countenance because the injured party could not find funding, so that they would be unrepresented or inadequately represented at any Trial or because success might depend on finding further information which might be forthcoming but was not yet to hand or because the case was not otherwise ready for Trial. Moreover, the Court would be unlikely to be sympathetic to a claim for a negative declaration in circumstances where a claim had never been seriously canvassed.

The person raising the issue should be able to point to someone presently existing who had a true interest to oppose the declaration sought.

The Court should take into account justice to the Defendant and the Claimant.

The Court should take into account whether there were any special reasons why the Court should grant the declaration or otherwise.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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