Toropdar v D

A negative declaration in a personal injury dispute is an unusual discretionary remedy, but it is not inherently inappropriate merely because the potential claimant has not issued proceedings or remains within the limitation period. The court must assess the particular circumstances, including whether there is a real dispute, a proper contradictor, equality of arms, a useful purpose, and any risk of procedural injustice.

In assessing negligence, a motorist must adapt speed and braking to visibility, pedestrian risk and the possibility that a person may emerge from an obscured area. A speed below the statutory limit may nevertheless be excessive. Where precautionary braking and a suitable speed would probably have avoided the collision or materially reduced injury, the failure is causative.

The claimant’s insurers brought proceedings in his name seeking a declaration that he was not liable for catastrophic brain injuries suffered by D, a ten-year-old child, when he ran into the claimant’s car from in front of a stationary bus.

The court considered whether the claimant had driven negligently by travelling too fast, failing to brake precautionarily and failing to keep a proper lookout. It also considered whether negative declaratory relief should be available while D remained within the limitation period and had not brought a personal injury claim.

1. Merits. The claimant was travelling at approximately 27.5 to 30 miles per hour in a residential urban street, approaching a bus stop and an area where parked vehicles and the bus obstructed his view. That speed was excessive in the circumstances, although it was below the applicable speed limit.
2. The claimant should have reduced speed and carried out precautionary braking when approaching the obscured area, whether or not he had actually seen the children. The front of the bus was a place from which a person might unexpectedly emerge. This was the standard of the reasonably competent motorist, not a counsel of perfection.
3. The collision was probably inevitable once D emerged. Nevertheless, if the claimant had been travelling at a suitable speed and had braked precautionarily, the collision would probably have been avoided or D’s injuries would probably have been minor. The failure to adjust speed and brake was therefore causative.
4. The court accepted that a driver exercising reasonable care cannot be expected to focus attention in several directions at once, as stated in Ehrari v Curry [2007] EWCA Civ 120. That principle did not assist the claimant because the speed at which he was travelling was itself unreasonable.
5. Negative declaration. A declaration of non-liability is discretionary and unusual, but the court should not be reluctant to grant one where it serves a useful purpose and justice is achieved. Relevant considerations include justice to both parties, a real and sufficiently defined dispute, a proper contradictor, the parties’ interests and representation, funding and equality of arms, the availability of evidence, limitation issues, and whether the declaration would resolve rather than prolong the dispute.
6. The fact that a child remains within the limitation period does not confer an entitlement to postpone determination until the last possible date. Nor is a party against whom a right has not been asserted immune in every case from negative declaratory proceedings. In the circumstances presented, the declaration would have been appropriate had the claimant proved that he was not liable.
7. Although Talbot v Berkshire County Council [1994] QB 290 applied the rule in Henderson v Henderson [1843] 3 Hare 100 to personal injury claims, special circumstances would have made it unjust to prevent D bringing a later damages claim merely because he had not counterclaimed in these unprecedented proceedings and lacked equivalent funding to do so.
8. The claim for a declaration that the claimant was not liable was dismissed on the merits. The court invited the parties to consider whether it should determine contributory negligence.