Toropdar v D [2009] EWHC 2997 (QB)

[2009] EWHC 2997 (QB)Case No HQ07X04068IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONSt. Dunstan’s House133-137 Fleet StreetLondon EC4A 1HDDate Friday, 2 nd October 2009
Before
MR. JUSTICE CHRISTOPHER CLARKE
Between
JEWEL AHMED TOROPDARClaimant“D”Defendant(a minor by the Official Solicitor as his litigation friendDefendant
Digital Transcription of Marten Walsh Cherer Ltd.,Sixth Floor, 12-14 New Fetter Lane, London EC4A 1AG.Telephone No: 020 7936 6000 Fax No: 020 7427 0093 DX: 410 LDEEmail: info@martenwalshcherer.comWebsite: www.martenwalshcherer.com
MR. ALAN JEFFREYS QC (instructed by Messrs. Berrymans Lace Mawer LLP) for ClaimantMR. ALLAN GORE QC (instructed by Messrs. Bindmans LLP) for Defendant
Judgment
[1]At the hearing in March I declined to declare that the claimant, Mr. Toropdar, was not liable for the personal injuries suffered by the defendant (“D”) when his car struck D in a road traffic accident. I held that Mr. Toropdar, who had sought a declaration of non liability, was negligent. It now falls for me to determine whether D was guilty of contributory negligence and, if so, to apportion liability.[2]The facts, as I found them, are set out in my judgment. I do not propose to repeat them extensively but rather to summarise the features of the case that are relevant to what I now have to decide.[3]The accident happened on Saturday 22nd June 2002 in Cable Street, Hackney at about 16:40. D was then a 10 year old boy. He was playing with three other boys aged 9¾, 10 and 11 around the steps outside the Education Centre in front of which there is a bus stop. I accepted Mr. Patel’s evidence that there were always children around there. Cable Street is an Inner City street in a residential area where, as the claimant should have appreciated, pedestrians – including children – were likely to be present. The boys were in a group of four playing a game which, as I explained in paragraph 15 of my judgment, involved one boy finding an item hidden by the others. There was shouting and screaming. At the time the speed limit was 30 miles per hour. Since the accident it has been reduced to 20 miles per hour.[4]Mr. Toropdar knew the area well. He was driving down Cable Street from its junction with Watney Street in a westerly direction. As he drove along he moved from first gear into third. On his nearside as he approached the Education Centre were three parked vehicles followed by part of the bus stop and then a bus which was parked at the stop. He would not have been able to see the area around the steps until he was somewhere between one-third and a half away along the first of the parked vehicles. When he was in a position to see that area, going at the speed at which he was going, he would have had only about a second to observe the children and determine what they were doing.[5]D found the hidden item and when he did so ran off “really fast”, as one of the witnesses put it, across the street in front of the bus at a diagonal angle at a speed of between 3.9 and 4.7 metres per second or 8.5 to 10.4 miles per hour. The boys had seen Mr. Toropdar’s red car and shouted a warning but D either could not or did not hear it. Mr. Toropdar did not see D or the other boys playing. D probably started off from the bottom of the steps at about the same time that Mr. Toropdar lost his view of them. I accepted that Mr. Toropdar was, at the moment of impact, travelling at approximately 27.5 miles per hour and, as he got close to the bus, decelerating so that he had gone faster before. At the speed at which he was travelling when he passed the bus there was nothing that he could have done to avoid the collision. Even if he had been covering the brake and expecting a person to emerge, the impact would have happened within his reaction time.[6]D was struck by the front nearside of the car when between 3.8 and 4.0 metres from the kerb and propelled on to the bonnet. His head made a relatively slight contact with the windscreen. He then fell off on to the kerb and suffered very grievous injury.[7]I held that although he was travelling within the speed limit, Mr. Toropdar was travelling too fast for Cable Street at the time in question. I did so in the following terms at paragraph 55 of my judgment:
“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).”
[8]Mr. Toropdar, as I held, should have been proceeding slower and should have carried out precautionary braking because he was approaching an area in relation to which his line of vision to the Education Centre was obstructed by the three vehicles on the nearside and then the bus because the front of the bus was just the sort of area from which a person might unexpectedly emerge.[9]I accepted Dr. Ashton’s conclusions which were as follows (paragraph 57 of my judgment):
“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.”
[10]In those circumstances I was satisfied that Mr. Toropdar’s failure to adjust his speed and carry out precautionary braking was causative of D’s injury and if he had done either of those things the accident would either have not occurred or D’s injuries would have been minor ones. On that hypothesis Mr. Toropdar would or should have noticed that there was some form of boisterous activity going on and that would or should have led him to increase the braking that he had begun to start or to start it if he had not already done so.[11]In the light of those facts there can be no doubt that D’s actions in running out in front of Mr .Toropdar’s car contributed to his injuries. He ran into the road without stopping or looking in Mr. Toropdar’s direction from a hidden position behind the bus.[12]In determining whether D was at fault it is necessary to judge what he did by the standards to be expected of a 10 year old boy. In Honnor v. Lewis [2005] EWHC 747 Silber J referred to the following passages in the authorities. “54. In Gough v. Thorne [1966] 1 WLR 1387, Lord Denning MR explained at page 390 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.’55. Salmon LJ expressed it slightly differently in the same case at page 1391, when he said that: ‘The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13 could be expected to have done any more than this child did. I did say “any ordinary child”. I do not mean a paragon of prudence; nor do I mean a scatterbrained child; but the ordinary girl of 13.’56. In Mullins v. Richards [1988] 1 WLR 1304 at 1308 to 1309, Hutchison LJ cited what Salmon LJ had said, as well as the statements in the Australian case of McHale v. Watson [1966] 115 CLR 199, that: ‘The standard of care being objective, it is no answer for him [that is the child] any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow witted, quick tempered, absent minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.’ (Kitto J at page 213-214).” Then, “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’ (Owen J at page 234).”[13]D was of an age at which he could be reasonably be expected to take precautions for his own safety. He must have appreciated, if he thought about it, the dangers involved in running out into a City street which carried traffic from behind the front of parked bus. He was plainly at fault in acting in this way in contravention of the Green Cross Code and the basics for pedestrian safety. At the same time he could not be expected to have the same ingrained approach to safety and self-preservation as an adult or even a teenager.[14]In determining what reduction it is just and equitable to make on account of D’s contributory negligence, it is necessary to evaluate the relative degree of blameworthiness and causative effect of the acts and omissions which constitute negligence on the part of him and Mr. Toropdar respectively. As to that, D’s running out fast into the street without stopping or looking was heedless of his own safety to which he must have given no thought. It gave Mr. Toropdar almost no time to do anything about it. At the speed at which Mr. Toropdar was in fact driving he only had, as I have said, about a second to see D and his friends playing. He was prevented from seeing D because D ran off from the steps at the same time as he passed from possible view. His view of D was obscured by the bus until he cleared the front of the vehicles on the nearside and then he had too little time to avoid the accident. This is therefore a case in which a substantial degree of blame is attributable to D and that for which he is to be blamed was directly causative of the accident.[15]Mr. Toropdar’s actions did not consist of the elementary disregard for his own safety characterised by D’s running out into the road. He was travelling within the speed limit but too fast and he did not engage in precautionary braking. At the same time the reason why these two matters were faults was because in the area in which he was – an inner city street in a residential area which he knew well, where pedestrians, including children, might well be present – he should have anticipated the possibility of someone coming out from behind the bus, particularly a child with no road sense. The effect of his not taking these precautions was that an accident occurred with devastating effect.[16]Every case depends on its own facts and limited guidance is to be found in the apportionment determined in other cases with different facts. At the same time, some guidance may be drawn from the approach which the court has taken in cases with features similar to the present. Counsel have helpfully assembled what seem to be the cases that have some similarity to the present and have addressed me upon them.[17]Cases may be found in which the court has assessed the injured boy’s contributory negligence at a very high level. 75% was taken by the Court of Appeal in Foskett v. Mistry [1984] RTR 1 where a boy of 16½ ran out into what appeared to have been a stretch of open road from adjacent park land. He collided with the nearside pillar of the car which was in about the centre of its half of the road and there was about 10 feet between the kerb and its nearside. The trial judge had found the defendant not to be liable at all. There was no complaint of the speed with which the defendant was driving although his exact speed is not apparent from the report. But the defendant should have spotted the boy and sounded his horn.[18]The same percentage was taken by the Court of Appeal in Morales v. Eccleston [1991] RTR 151 where again the trial judge had found that there was no liability. At 5.15 p.m. on a May afternoon in rush hour traffic, an 11 year old boy who was following a ball, crossed over the centre line of the road (going from east to west) when he was struck by the front offside of the defendant’s car which was travelling in a northerly direction at about 20 miles per hour. The boy had not been running but he had been bouncing the ball and he had gone into the road to bring it under control on two occasions. The speed limit in the area in question was 30 miles per hour.[19]Similarly, in Curry v. Ehrari [2007] EWCA 120 (Civ) the claimant, a schoolgirl of 13¾ crossed Brentford High Street from behind the rear of a car and was hit by the nearside wing mirror of the defendant’s truck. The defendant had been travelling at 20 miles per hour and his negligence lay in not spotting her although she was in front of him for only a second, and in not blowing his horn, braking or swerving in which case the accident would have been avoided. It was held that she should bear 70% of the responsibility.[20]Mr. Allan Gore QC for D observes that a unifying feature of these cases may be found in the fact that there was no criticism of the driver’s speed, the two known speeds being only two-thirds of the 30 miles per hour limit. Further, the cases had been ones in which negligence was far from obvious. As I have said in the first one the trial judge found there was none. In the second the Court of Appeal had not found it easy to find a basis upon which the judge’s finding that the defendant was negligent could be upheld but in the end accepted that the defendant had failed to keep a proper look out. In the third the trial judge described the case as succeeding by a small margin and said that Mr. Curry’s driving was “beyond criticism except for his momentary inattention”. Further, the children were aged between 11 and 16½.[21]In other cases a substantially lesser reduction has been made. Thus in Armstrong v. Cottrell in 1992, the plaintiff who was 12¾, was with a group of girls attempting to cross a busy dual carriageway. The defendant driver saw them when they were some 400 metres ahead of her “hovering” at the nearside of the road which, at the place of the accident, was a three-lane carriageway. She then saw the plaintiff and another girl hesitating in the middle of the three lanes on one side of the central reservation. The plaintiff then darted into the third offside lane in which the defendant was driving when the defendant was very close. The defendant was held to be negligent because although she had decelerated sharply from the 65 to 70 miles per hour at which she had been travelling when she saw the girls hesitating, she had done this when she was about 100 yards away and had decelerated to 18 to 20 miles per hour. It was held that she should have slowed down much earlier. The plaintiff’s contributory negligence was assessed at one-third.[22]Russell LJ at page 112 said this:
“In my judgment, in those circumstances, there was presented to this defendant a situation which, as it developed, was fraught with potential danger. Four girls, obviously intent on crossing this busy highway hovering, for want of a better word – it is a word used by the defendant herself – undecided when to cross and in the case of the plaintiff and her friend, Miss Malby, hesitating for a second time in the middle lane. In those circumstances, with such a lapse of time available to the defendant to make a decision as what best to do, it was plainly incumbent upon her, as the driver of the motor car, to make her presence felt, not simply to slow down in anticipation that the girls would let her pass. In my view a reasonably careful and competent driver in this situation would have sounded the horn to bring home to the girls the real danger to which they were exposing themselves. Furthermore, for my part, I am satisfied that this defendant should have reduced her speed so as effectively to prevent this accident. That did not necessarily involve emergency braking. It would have involved moderate braking during the 400 yards or metres which were available to her from the moment that she saw the girls in a vulnerable position to the moment when the impact took place. In a sentence, in my view, this is an accident which should not have happened, and would not have happened had the motorist been exercising a reasonable standard of care.”
[23]Then in dealing with the question of apportionment the learned

judge said this:

“I bear in mind however the age of the plaintiff. Of course one can assume that she would be familiar with at least the basic elements of the Highway Code and the need for the pedestrians themselves to have regard for their own safety. But in my judgment, in the light of all the circumstances of this case, the culpability of the plaintiff is not to be realistically compared with the culpability of the defendant driver. I regard the driver as much more to blame, when one bears in mind that she was driving a motor vehicle. I would discount the damages on account of the contributory negligence of this particular plaintiff in these particular circumstances by one-third.”
[24]An identical reduction was arrived at in Melleney v. Wainwright, Court of Appeal, Wednesday 3rd December 1997. In that case three boys, obviously together, one of them being the 11 year old plaintiff, ran across what was described as a major artery of Milton Keynes with a single carriageway in each direction and a speed limit of 60 miles per hour. The plaintiff ran from east to west. The defendant who was driving in a southerly direction had decelerated to 30 miles per hour (that is to say half the relevant limit) when he had seen the first boy run across the road and the second one on the central reservation. He was covering the brake. The plaintiff darted out into the path of the defendant when the defendant was all but level with him and despite heavy breaking the defendant struck the plaintiff. His negligence lay in not sounding his horn and in not slowing down substantially more than he did in circumstances where he could and should have appreciated that there was danger ahead and slowed down accordingly. The judge, whose apportionment the Court of Appeal did not disturb, held that the plaintiff had actually foreseen that the plaintiff might cross the road and certainly should have done.[25]At page 10 of the judgment the Vice Chancellor said this:
“I do not think it can be overstated that when motorists are driving near to a group of young children, and especially young boys, a very high standard of caution indeed is required. Here were three 11 year old lads, two had crossed the road, their companion, the plaintiff, was left stranded on the side from which they had come. The risk of him doing something silly in order to rejoin them ought to have been foreseen as a very high risk. The precautions the defendant did take were simply not adequate, in my view, to discharge his duty as the driver of a motor vehicle approaching the situation that he had seen.”
[26]Mr. Gore points out that in this case the 11 year old plaintiff had seen the approaching vehicles and taken a deliberate risk. Nonetheless the reduction was of only one-third.[27]Similarly in Lunt v. Khelifa [2002] EWCA 801 (Civ) the Court of Appeal did not disturb the trial judge’s finding of one-third responsibility when an adult plaintiff who was 3.5 times over the limit for drink driving, stepped out into Kennington Park Road from the central refuge when the driver, who was driving at about 25 miles per hour in a 30 miles per hour area, was about 20 to 25 yards away. He was hit by the oncoming car having taken no account of or seen it. Latham LJ said at paragraph 20:
“It seems to me that it may well be that the judge in this case was generous in his approach to the liability of the appellant; for it seems to me that the appellant undoubtedly must bear a substantial burden for this accident. He was the one who created the dangerous situation by stepping out as he did into the carriageway when the respondent's vehicle was so close. But nonetheless, bearing in mind the fact that this court has consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon, I find it difficult to see how I could properly categorise the judge's apportionment in this case as plainly wrong.”
[28]Brooke LJ said at paragraph 25:
“Like Lord Justice Latham, I would not necessarily have reached the same conclusion myself. But it was certainly a conclusion which the trial judge was entitled to reach, bearing in mind always that a motor car is a potentially lethal instrument.”
[29]It would seem tolerably clear from those observations that if those members of the Court of Appeal had been sitting at first instance they might well have increased the figure but Mr. Gore is entitled to submit that it is difficult to regard D in the present case as more responsible than the plaintiff in that one.[30]In Spiller v. Gordon Brown [1999] LTL 20th July a lady walked out from behind the front of a bus and was knocked over by a vehicle going at 15 miles per hour in a 30 miles per hour limit. The driver had slowed down to go past the bus. The judge had held that the driver was not keeping a proper look out and continued to drive past the bus when his attention was distracted so that he was looking to the right instead of straight ahead, and that he was driving too fast for the circumstances even at 15 miles per hour. He should, the judge held, have been able to stop. But the trial judge had held that there was no contributory negligence, apparently because the lady had nearly reached the other side of the road when the accident happened. The Court of Appeal reversed that and apportioned the responsibility at 50% on the basis that the plaintiff owed herself a duty to make sure it was clear to cross and the defendant owed a duty to keep a proper look out.[31]Mr. Gore submits that if 50% was a proper apportionment in that case, the proper apportionment in the present case must be less when the injured party was a child of 10 and the speed of the driver was nearly two times as much.[32]In Grant v. Dick [2003] EWHC 441 a 14½ year old girl crossed the northbound dual carriageway of the A24 and was knocked down by the defendant who was driving at 55 miles per hour in a 60 or 70 miles per hour area. The defendant had seen two boys dart across the road and ought to have reduced his speed but did not do so and ought to have sounded his horn. Liability was apportioned as to 60% on the driver on the basis that the major part of the blame fell marginally on him. The judge pointed out that the plaintiff was a 14½ year old child and not a child of 11 or 12 who had created a hazard, but that the defendant had had “fair warning of what was likely to unfold” and had failed to exercise proper care to avoid the collision.[33]In those circumstances, Mr. Gore submits, the contributory negligence of a 10 year old child should be less.[34]In Eagle v. Chambers [2003] EWCA Civ 1107 a percentage of 40% responsibility on the part of the victim was substituted in place of 60%. The circumstances there were very different. The 17 year old claimant was struck by a car going at about 30 to 35 miles per hour driven by a defendant (who, himself, was just below the alcohol limit) which was on the offside lane of a dual carriageway at Great Yarmouth along which the plaintiff was walking, upset and emotional. She had been walking along in the middle and then the offside of the carriageway without keeping a proper look out for vehicles coming from behind and had been doing that for some time. She had also ignored warnings from those who had tried to persuade her to stop. The driver was driving needlessly in the offside lane. The plaintiff had been wearing light-coloured clothing and the accident happened after an event at the Winter Gardens had just finished.[35]In giving judgment Hale LJ (as she then was) said this at paragraph 15:
“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 blameworthiness. … 16. We also accept that this court is always reluctant to interfere with the trial judge's judgment of what apportionment between the parties is 'just and equitable' under the 1945 Act. But a finding as to which, if either, of the parties was the more responsible for the damage is different from a finding as to the precise extent of a less than 50% contribution. There is a qualitative difference between a finding of 60% contribution and a finding of 40% which is not so apparent in the quantitative difference between 40% and 20%. It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court 'has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon': Latham LJ in Lunt v Khelifahttp://www.bailii.org/ew/cases/EWCA/Civ/2002/801.html[2002] EWCA Civ 801, para 20.”
[36]In Honnor v. Lewis [2005] EWHC 747 an almost 12 year old boy on the way to school at 8.38 in the morning was struck by a car driving at 30 miles per hour when he walked across the road, which was busy with children, not having seen the defendant’s car. The defendant was held to be negligent in not keeping a proper look out, so that he did not see the plaintiff standing at the road, and in not sounding his horn. If he had kept a proper look out he would have stopped in time. If he had sounded his horn the plaintiff would probably not have crossed the road. The reduction for contributory negligence was fixed at 20%. The judge took account of the fact that the defendant had an unobstructed view of the plaintiff when he was about to cross but somehow failed to see him as he drove some 47 metres to the point where the accident took place. Over that length of road he did not slow down or alter his speed in any way. If he had done so, the plaintiff’s injury would have been avoided or reduced.[37]Mr. Gore submits that most of the 15 factors which Silber J took into account in reaching his 20% figure are applicable to the present case. Silber J had referred to the high burden on the car owners referred to by Latham LJ in Lunt, the fact that at the time of the collision the schools were about to start and the road was busy with children on both sides and that the children were playing tag at or shortly before the accident. He also referred to what the Vice Chancellor had said in Melleney, the fact that the defendant could and should have stopped or slowed down when he saw the plaintiff, and that he did not moderate his speed when, if he had done so, so that the speed had become 20 miles per hour, the risk of serious injury would have been much reduced. He held that the defendant was negligent for giving no warning by horn and not seeing the plaintiff until he was in front of his car and not slowing down prior to the impact.[38]What was different in that case, Mr. Gore accepted, was that the defendant had had an unobstructed view of the plaintiff standing at the kerb about 58 metres ahead and failed to see him as he drove to the point where the plaintiff was and also that the plaintiff had crossed about two-thirds of the way across the road when the collision happened and would have been in the road for about two seconds after stepping off the kerb before the accident.[39]Mr. Alan Jeffreys QC submits that the general principle that can be drawn from these cases is that where the child can be seen in or on the road then a high degree of blame will attach to the driver if he has not taken all reasonable precautions. The contributory negligence of the child is likely to be between 20% and 40% depending on whether the child was walking, as in Honnor or ran, as in Grant. If, however, the child runs into the road in such a way as to give the driver either no or very limited opportunity of avoiding the accident, there will be a very high degree of contributory negligence as in Foskett. Even if the child does not run but the driver is nevertheless allowed the opportunity to observe the child, there will be a high degree of responsibility as in Morales.[40]I do not doubt that the extent of the opportunity for the driver to avoid the accident is a material factor in attributing responsibility as is the activity of the child not least because the extent of that activity may affect the opportunity that the defendant has to avoid the accident. These are, however, only some of what may be several relevant factors. The exercise of apportioning responsibility involves considering all relevant factors and weighing up their relative significance.[41]In the present case the defendant ran across the road without taking any care and gave Mr. Toropdar no real opportunity to avoid the collision at the speed at which he was travelling. But D was only 10, an age which, in my judgment, is markedly different for present purposes, from 12 or over. So the culpability of his heedless dash across the road is reduced, in my view, by his youth.[42]The fact that Mr. Toropdar had no opportunity to avoid the accident and would only have seen D for one and a half seconds or so, even if he had been going slower, distinguishes this case from that of the driver who has or could have had the eventual victim in his sight and fails to take any action either by slowing down, swerving or sounding the horn. It is a circumstance which reduces Mr. Toropdar’s culpability. But, as has been pointed out, a motor car is in one sense a lethal weapon. Its propensity to injure human beings in a traffic accident is obvious. That is why the standard of care required of a driver to prevent harm is likely to be greater than that of a pedestrian.[43]Further, although darting out from behind a bus gives the driver little opportunity to react and although there was no evidence in the present case that there were any more than four children around the Education Centre at the time of the accident, the possibility of someone, whether an adult or a child, coming from behind a bus was something which Mr. Toropdar ought to have taken into account in determining the way in which he drove. He was driving too fast, close to the limit without engaging in any precautionary breaking in an area where particular care was needed and where, as he knew, children were likely to be around as, in the event, they were. If he had taken the care required in those circumstances he would have avoided causing D the injuries which he had suffered whether he had seen D or not.[44]Further, as I pointed out in paragraph 62 of my judgment, on that hypothesis Mr. Toropdar would or should have noticed that there was some form of boisterous activity occurring on his nearside which should have led him to increase the braking that he had begun or to start it if he had not already done so. Driving at a slower speed and braking in a precautionary manner was something that was required to prevent the sort of accident that in the event occurred.[45]In those circumstances it seems to me that the major part of the responsibility must be with Mr. Toropdar. I am confirmed in that view, which I had reached without reference to the cases which have helpfully been cited to me, by an examination of them. It does not seem to me right that there should be a greater reduction in the amount to be recovered in the case of D than was the case in Armstrong, Melleney or Lunt or that when Mrs. Spiller, an adult, was held 50% responsible in circumstances where the driver in that case was momentarily distracted, D should have a similar or greater reduction in circumstances where he was a young child and Mr. Toropdar’s fault was greater.[46]Further, the cases in which there has been a 70% or 75% reduction seem to me to be cases where the driver’s speed in relation to the applicable speed limit was markedly less than in the present case and where the age of the child was greater. I am not therefore persuaded that they provide a guide as to what should be the appropriate reduction in this case.[47]Taking all those matters into account and the circumstances of the case that I have described, I have come to the conclusion that the proper percentage reduction in this case to take account of the contributory negligence of D is one-third and I so determine.[48]I cannot leave this case without expressing my gratitude to the way in which it has been conducted by both counsel which appears to me to be a model of the way in which cases of this kind should be dealt with.

Cited in 2 later judgments