Melvyn Smith (Claimant Respondent) v Richard Bailey (Defendant Appellant)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell,The Hon. Mr Justice Popplewell: |
| Judgment Date | 28 July 2014 |
| Neutral Citation | [2014] EWHC 2569 (QB) |
| Docket Number | HQ14X00720 |
| Court | Queen's Bench Division |
| Date | 28 July 2014 |
[2014] EWHC 2569 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
7 Rolls Building, Fetter Lane
London, EC4A 1NL
The Hon. Mr Justice Popplewell
HQ14X00720
QB/2014/0305
Andrew Davis (instructed by Berrymans Lace Mawer LLP) for the Appellant
William Latimer-Sayer (instructed by NewLaw Solicitors) for the Respondent
Hearing dates: 22 nd July 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant was seriously injured through the Defendant's negligence in a road traffic accident on 15 April 2012. This is an appeal by the Defendant from an order of Master Yoxall dated 29 April 2014 by which he awarded the Claimant an interim payment of £500,000. The grounds of appeal challenge the way the Master approached the issues of contributory negligence and accommodation costs.
The Court has power to award an interim payment where it is satisfied that if the claim went to trial the Claimant would obtain judgment for a substantial amount of money against the Defendant (CPR r. 25.7(1)(c)). The Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment (r. 25.7(4)); and must take into account contributory negligence (r. 25.7(5)).
Contributory Negligence
The Claimant was riding his motor cycle along the A5 Watling Street near Cannock. The Defendant was travelling in his car driving in the opposite direction to the Claimant. The Defendant attempted to turn right on a green light at a junction. In doing so he cut across the path of the Claimant causing the collision. The Defendant pleaded guilty to careless driving at Walsall and Aldridge Magistrates court on the 21 September 2012.
Proceedings were commenced on 20 February 2014 in order to make the application for an interim payment, which was issued on 11 March 201On 20 March 2014 the Defendant served a defence which did not admit liability and advanced a plea of contributory negligence that the Claimant was travelling too fast, failed to keep a proper lookout, failed to heed or observe the Defendant's vehicle and failed to stop, slow down, or take any avoiding action.
The evidence before the Master of the circumstances of the accident is contained in a police investigation report. It contains photographs of the junction as a fairly wide and open one. It records the Defendant's account of the accident as follows: "I was on the A5 heading from Norton. I got to the junction, lights on green, turning right. To me it looked like there was nothing coming. I had a bit of glare from the sun. I turned right – the motorcyclist came from nowhere. I couldn't get out of the way." There is no further evidence from the Defendant about the incident. The Claimant has no memory of what happened. The report records that there was nothing in the scene evidence or witness information to suggest that the Claimant had been travelling at more than 40 mph; and that at that speed he would have been visible to the Defendant for some 8 seconds. The report concluded that the accident was the fault of the Defendant.
The Master rejected the Defendant's submission that contributory negligence was a factor to be taken into account. He stated that the burden of proof was on the Defendant and that on the material before the Court there was no evidence which could justify a finding of contributory negligence.
Mr Davis, who conducted the appeal on behalf of the Defendant with conspicuous skill, criticised this aspect of the judgment on two grounds. First he submitted that the Master was wrong to treat the burden of establishing contributory negligence as resting on the Defendant: on an interim payment application the burden is on the Claimant to establish the amount which he is likely to be awarded, after taking into account the possibility of reduction of damages for contributory negligence. Secondly he submitted that on the evidence available there was a real prospect of a reduction for contributory negligence on the basis that if the Claimant was visible to the Defendant for 8 seconds, the reverse must be true, and the Claimant potentially had that time to take avoiding action.
I cannot accept either of these submissions. The legal and evidential burden of proving contributory negligence at trial is on the Defendant. On an interim payment application, there is an evidential burden on the Defendant to put before the court material raising an issue of contributory negligence. The task of the Court is to apply the relevant legal test to the evidence before it. There may be cases in which such material can not reasonably be expected to be available to a Defendant at the time of the application, but this is not one of them. No suggestion of contributory negligence had been raised in the two years since the accident prior to service of the Defence. The Defendant could have sought the police investigation report at any time over those two years. It was served on the Defendant exhibited to a witness statement of the Claimant's solicitor on 3 April 2014, a fortnight before the hearing of the interim application on 17 April 2014 (which was in fact adjourned part heard and resumed on 29 April 2014). The Defendant had ample opportunity to adduce whatever evidence he wished upon which Court had to decide the interim payment application, including any further evidence of his recollection of what happened. The task of the Master was to decide the likely amount of an award of damages by reference to the allegations of contributory negligence on the evidence which was before him. On that evidence he was right to reject the possibility of a finding of contributory negligence. The Claimant was entitled to assume that a car turning right across him at traffic lights would give way unless and until he was alerted to the possibility that it would not. The Claimant did not have 8 seconds or anything like it to take avoiding action. There was no evidence from the Defendant that the manner in which he turned at the junction should have alerted the Claimant to his negligent driving in time to allow the Claimant to take evasive action. Mr Davis submitted that the Defendant might be able in due course to advance expert evidence of reconstruction to support such a case. Such speculation cannot assist the Defendant. Mr Davis was unable to point to any evidence from the scene, such as skid marks, upon which any expert evidence could properly be founded without an account from the Defendant of the way he manoeuvred at the junction. The evidential burden was on the Defendant to put such evidence before the Court on the application, as he could have done if there were an arguable case of contributory negligence. In the absence of such evidence, the Master was justified in treating the likely award of damages to be on the basis of full liability.
Accommodation
The Claimant is now 70. As a result of the accident he sustained a complete spinal cord injury at the level of T10 leading to paraplegia, an unstable fracture of the spinal column at T11/12, orthopaedic fractures and a right pneumothorax and rib fractures. He is wheelchair dependant and will be for the rest of his life. The evidence of his spinal expert is that his reduced life expectancy is now about 11 years from today.
Prior to the accident the Claimant lived for 33 years in his own two storey, three bedroom, semi detached property in the centre of Tamworth, Staffordshire. Following the accident he was admitted to Queen Elizabeth Hospital in Birmingham where he underwent internal fixation. He had a long stay in the hospital and was then transferred to Oswestry Spinal Cord Injury Unit for a period of specialist rehabilitation on 3 June 2012 and remained in the unit until he was discharged on 12 December 2012.
In the meantime, in August 2012, a report was prepared by Mr Valentine, an accommodation expert instructed on behalf of the Claimant, which concluded that his house was unsuitable for a wheelchair user and could not be made suitable. There is no challenge to that conclusion. In that report, Mr Valentine estimated the cost of suitable alternative accommodation at £410,000 with adaptation costs of some £187,000 and relocation costs of some £25,000, giving rise to betterment of £15,000.
Once discharged from the spinal unit the Claimant moved in to rented accommodation on the edge of Tamworth. Some adaptation was made to the rented property in order for it to be made suitable for the Claimant's needs. This involved expenditure of about £7,000 on adaptations to the bathroom. The rented property is on two floors. The upper floor is inaccessible to the Claimant. In his first witness statement, the Claimant's solicitor, Mr Obery, describes this rented accommodation as "ideal" once the bathroom adaptations had been made and as being appropriate for the Claimant until he can move into his own property which he would like to purchase. Mr Latimer-Sayer, who conducted the appeal with no less conspicuous skill on behalf of the Claimant, but did not appear before the Master, told me on instructions that there were aspects of the rented accommodation which were not ideal, but he did not resile from the proposition that it was not unsuitable pending a move to his own property.
In the summer of 2013 the Claimant found a property in Tamworth, 81 Upper Gungate, which he regarded as suitable and which he wished to buy. It was on the market for £360,000. He regards it as in an ideal location in that it is very close to the centre of Tamworth and to his...
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