Smith v Bailey

On an application for an interim payment, the defendant bears the evidential burden of raising a properly evidenced issue of contributory negligence. The court assesses the likely damages on the evidence available at the application hearing and does not act on speculation about evidence that may later emerge.

Accommodation costs will usually fall within the first stage of the Eeles approach because there is ordinarily a high degree of confidence that they will be awarded as a capital sum. Renting rather than purchasing should be contemplated only in exceptional cases and on evidence capable of supporting that course. The risk of creating an unlevel playing field is a factor in the discretion, not an absolute bar.

The claimant suffered catastrophic injuries in a road traffic accident caused when the defendant turned right across his motorcycle. The defendant pleaded guilty to careless driving. The claimant applied for an interim payment and the Master awarded £500,000.

The defendant appealed, challenging the treatment of contributory negligence and accommodation costs. The principal issues were whether the evidence raised a sufficient prospect of contributory negligence, and whether the likely accommodation award could properly be included at the first stage of the Eeles approach, despite the possibility of renting rather than purchasing a property.

1. Appeal dismissed. The Master was entitled to assess the likely damages on the basis of full liability. At trial the legal and evidential burden of proving contributory negligence rested on the defendant. On an interim payment application, the defendant had an evidential burden to place before the court material raising the issue. The defendant had ample opportunity to obtain and adduce such evidence. The suggestion that expert reconstruction might later support contributory negligence was speculative. The evidence did not show that the claimant had sufficient warning of the defendant’s negligent manoeuvre to take evasive action.
2. The court endorsed the principles derived from Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409. The likely final judgment must be assessed conservatively. The first stage includes heads of loss which the trial judge is bound to award as capital sums, while avoiding any improper fetter on the trial judge’s discretion to make periodical payments.
3. Accommodation costs usually fall within stage one because the court can ordinarily have a high degree of confidence that they will be awarded as a capital sum. A case in which a claimant’s needs should reasonably be met by renting rather than purchasing is rare. The claimant’s long-term ownership of his previous home, his wife’s position, the insecurity of the existing tenancy and the absence of evidence of suitable long-term rented accommodation justified including accommodation costs here.
4. The defendant’s offers of lump-sum settlement reinforced the conclusion that the proposed periodical-payment argument lacked evidential foundation. The possibility that the chosen property might later be found unsuitable did not create a real risk that the trial judge would be inhibited. In any event, an unlevel playing field is a factor in the discretion, not a bar to an interim payment.

• High Court (Queen's Bench Division): appeal from an order of Master Yoxall dated 29 April 2014 awarding the claimant an interim payment of £500,000; appeal dismissed.