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PI and Civil Litigation

Law - practice - procedure

14 AUG 2014

Melvyn Smith v Richard Bailey [2014] EWHC 2569 (QB)

Melvyn Smith v Richard Bailey [2014] EWHC 2569 (QB)
Interim Payments – Accommodation Costs – Road Traffic Accident – Contributory Negligence

High Court, Queen’s Bench Division
 Mr Justice Popplewell
 28 July 2014


 The defendant claimed that the court was wrong to award the claimant an interim payment of £500,000 and challenged the approach taken in dealing with the issues of contributory negligence and accommodation costs.

 On 15 April 2012, the claimant, a 70 year old motorcyclist was seriously injured when the defendant who was driving in the opposite direction turned right across his path. As a result the claimant sustained a complete spinal cord injury leading to paraplegia and he would be wheelchair dependent for the rest of his life. The claimant’s rented accommodation whilst satisfactory had not been fully accessible and he sought to purchase a suitable property. On 29 April 2014, Master Yoxall awarded the claimant an interim payment of £500,000 on the basis that this amount was a reasonable proportion of the likely final award. The defendant appealed this order challenging the Master’s approach to the issue of contributory negligence and accommodation costs and lost.

 The defendant had filed a defence not admitting liability and advancing a plea of contributory negligence. The evidence before the Master was contained in the police investigation report, which concluded that the accident was the fault of the defendant. Based on this evidence, the Master rejected that contributory negligence was a factor to be taken into account and he stated that the burden of proof was on the defendant.

 The defendant submitted that the Master was wrong to treat the burden of establishing contributory negligence as resting on the defendant. The defendant also submitted that on the evidence available there was a real prospect of a reduction for contributory negligence. The defendant also submitted that the Master ought not to have taken into account any sum in respect of accommodations costs and that in doing so he made several errors of law in misapplying the principles in Eeles v Cobham Hires Services Ltd [2010] 1 WLR 409.

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It was held that the legal and evidential burden of proving contributory negligence at trial is on the defendant. On an interim payment application, there was an evidential burden on the defendant to put before the court material raising an issue of contributory negligence. The Master was right to reject the possibility of a finding of contributory negligence on the evidence before him. No allegation of contributory negligence had been raised in the two years since the accident, prior to the defence.

 The court decided that the Master could not be faulted for treating accommodation costs in this case within stage one of the Eeles test. He can properly have had a high degree of confidence that the trial judge would award a capital sum in respect of accommodation needs. There were essentially three reasons for this, firstly whenever there is a serious injury it will very rarely be reasonable to require a claimant to rent rather than to buy a property. Oxborrow v West Suffolk Hospitals NHS Trust [2012] EWHC QB 1010 referred to. Secondly there were compelling reasons for permitting the claimant to buy rather than to rent; and finally the defendant’s submission that the trial judge might treat the claimant’s accommodation needs as reasonably met by rental for which a PPO would be appropriate was wholly speculative and devoid of any evidential basis. It was held that if the defendant wished to argue that accommodation costs should not be dealt with as is usual under stage one of Eeles, it is incumbent upon him to adduce some evidence upon which to base such a submission and to satisfy the court. Campbell v Mylchreest [1999] PIQR Q17 and Stringman v McArdle [1994] 1 WLR 1653considered.


 This case highlights that the courts will award an interim payment to fund accommodation costs as these are often awarded as a lump sum, even including those that relate to future running costs as opposed to a PPO without fettering the trial judge’s discretion.