Smith v Bailey

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)).

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 2014. On 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.

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 daughter. It is a two story six bedroom property with some 23 steps to the front door. The Claimant accepts that he will only have access from the back door and will not be able to access the first floor, as in his current rented accommodation. Mr Valentine prepared a second report, dated 8 August 2013, which concluded that this property met the Claimant’s disability needs at reasonable cost with adaptation work estimated to cost some £229,000 leading to betterment of £20,000. The Report was sent to the Defendant’s advisers on 2 September 2013 and in October 2013 they indicated that their expert would visit the property, but this does not seem to have occurred.

The Claimant agreed to purchase the property for £340,000, subject to contract. This was the state of affairs and of the evidence until shortly before the commencement of the interim payment application hearing on 17 April 2014. On 11 April 2014 the Defendant served a witness statement form his solicitor, Ms Castell, in which she said that it had not yet been possible to obtain a finalised accommodation report, but that the Defendant’s accommodation expert disagreed with Mr Valentine as to the space required by the Claimant and as to the suitability of 81 Upper Gungate. These views were then set out in a letter from the expert, Mr Smallwood, sent to the Claimant the day before the hearing. In the letter Mr Smallwood expressed the following views:

This evidence was before the Master and before me without objection. The Master cited the leading authority of Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409 and applied it by reference to the first stage. He decided that the Claimant was likely to recover by way of a lump sum capital award at least £710,000 comprising (1) general damages of £160,000; (2) past losses of £125,000; (3) care and case management costs to the date of trial £125,000; and (4) accommodation costs of £300,000.

There is no challenge to his decision in relation to the first three. In relation to accommodation costs, he had the evidence of Mr Valentine and Mr Smallwood, to which I have referred, together with the Claimant’s Schedule of Loss. There was no Schedule from the Defendant. The Claimant’s Schedule of loss claimed a total of some £414,000 which comprised:

The Master reduced these figures to reach a total of £300,000 as that which on a conservative estimate he thought the Claimant was likely to be awarded as a capital sum for accommodation. Of the total likely recovery of £710,000 he awarded an interim payment of £500,000 as a reasonable proportion, taking into account that the Defendant had made voluntary interim payments totalling £105,000.

Mr Davis submits that the Master ought not to have taken into account any sum in respect of accommodation costs and that in doing so he made several errors of law in misapplying the principles in Eeles.

It is convenient to set out the principles which I take to be established by Eeles and the previous authorities which it sought to summarise:

Mr Davis’ first ground of challenge was that the Master had erred in treating accommodation costs as falling within stage one on the basis of the evidence before him. He submitted that the accommodation evidence was at a relatively early and underdeveloped stage, and it could not be said with any degree of confidence that the trial judge would not want to consider awarding accommodation costs as part of a PPO on the footing that the Claimant’s needs were reasonably to be met by renting rather than purchasing a property. If that was a possibility, the Court could not conclude that the trial judge would be bound to award accommodation costs as a capital sum, and to do so as part of an interim payment would fetter the trial judge’s discretion.

This raises the question of what may bring a case outside the normal rule established in Eeles that accommodation costs are “usually” to be included at stage one. In my view the answer is to be found in the language of the Court in identifying the approach to future losses at stage two. Accommodation costs are usually to be included in stage one on an application for an interim payment because the Court can have a high degree of confidence that they will be awarded as a capital sum despite including future losses. If, however, the Court cannot have that high degree of confidence, they can not be included in a conservative assessment of a final judgment which the Claimant is “likely” to recover, within the meaning of CPR r 25.7(4) and the Court will be fettering the trial judge’s discretion to deal with them by way of a PPO if it includes them in the amount in respect of which an interim payment is made.

I accept, as I think ultimately Mr Latimer-Sayer did, that there may be rare cases in which on the appropriate evidence a trial judge might conclude that a claimant’s accommodation needs should reasonably be met by renting rather than buying a property, and be dealt with by a PPO rather than a capital sum. But this is not one of them. The Master cannot 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, as do I. This is so for essentially three reasons.

First, whenever there is serious injury, it will very rarely be reasonable to require a claimant to rent rather than buy a property. In Oxborrow v West Suffolk Hospitals NHS Trust Tugendhat J said at para [12]:

“There is of course no reason in principle why the future accommodation needs of a claimant should not be met by renting a property. But in practice there are obvious difficulties. It is unlikely that adaptations would be modest, and if they were to cost a significant sum, there would be no assurance that a claimant would only have to pay them once. A claimant would not have security of tenure for the full expectation of his life and thus may have to move from one rented property to another, paying for the adaptations in each case. Indeed the situation may be worse, because as Mr Hopkins reminded the court, in such a situation the claimant may even have to pay for the reinstatement of the property which he is leaving to put it back into the condition in which it had been before the adaptations had been made.”

Moreover unless security of tenure in a rented property were available for the entirety of the claimant’s life, it would be difficult to fashion a PPO in terms which would meet these uncertainties. Indexation of rent alone would not provide the answer.

There are further considerations. Paragraph 16-017.1 of Kemp & Kemp on Quantum of Damages contains the following:

“Renting as an alternative to purchasing property

In practice, almost all claimants will wish to purchase their own property. There can be several reasons for this.

First, many claimants will have been living in a property they owned prior to the accident. They wish to carry on, as near as they are able, as before and that will mean purchasing another property, suitable for their disability-related needs.

Secondly, there is a long-standing culture of owning property in this country. That may be changing as more and more people struggle to enter the housing market. But traditionally it is considered a safe and sensible decision to pay a mortgage rather than rent. It can be cheaper and it means that the claimant has a stake in the property market and the opportunity to make money if the property increases in value, something denied to the claimant who rents.

Thirdly, it can be very hard to find a long-term rental property which either is suitable or can be made suitable for the claimant’s needs. Landlords can be fickle and may not welcome wholesale changes being made to their properties, even if the claimant agrees to reinstate the property at the end of the tenancy.

Fourthly, claimants will very often seek the security that comes with knowing they own their property, can do to it what they will and do not face the ongoing risk of eviction.”

Neither counsel was aware of any case in which a claimant had been required to rent rather than buy, and a PPO made, although Mr Davis told me that his instructing solicitors were aware of cases in which that had been agreed by way of settlement; and paragraph 49 of Tugendhat J’s judgment in Oxborrow refers to a note purporting to record Mackay J approving such a settlement.

Accordingly, where a Claimant wishes to buy a property, it will only be in exceptional circumstances that it would be appropriate to deal with accommodation costs by a PPO on the basis that a claimant should reasonably have his needs met by renting rather than buying. That such a case would be exceptional is recognised by paragraphs 36 and 43 of Eeles.

Secondly, there are compelling reasons in the case of this Claimant for permitting him to buy rather than rent. In particular:

Thirdly, 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, is wholly speculative and devoid of any evidential basis. Mr Davis does not say that that will be the Defendant’s position at trial, or that there is currently available evidence to support such an approach. He submits simply that the Court must acknowledge the possibility because the accommodation evidence is at too early a stage to rule it out. I disagree. If a defendant wishes 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 that there will be an issue to that effect at trial. In this case the Defendant could have adduced evidence of the availability of suitable rental properties on a long term basis if it existed. Instead, Mr Smallwood makes no reference to the existence of such properties; nor does he suggest that the Claimant’s accommodation needs could reasonably be met by renting rather than buying.

In this context it is relevant that the Defendant has made two offers, one of £1.45m and one, since the hearing before the Master, of £1.6m, in each case of a simple lump sum in full and final settlement. These did not propose a PPO as any part of the settlement. Mr Davis criticised the Master for taking the first of these into account, and submitted that they were no more than “commercial offers” which were irrelevant in the light of the Claimant’s pleaded desire for a PPO. The criticism is misplaced. The Master correctly used the first as reinforcing his conclusions on the figures he took as the amounts likely to be recovered. They are, however, also relevant to the Defendant’s argument that the Court might wish to order a PPO in respect of accommodation needs, because they reinforce the conclusion that this is no more than an opportunistic argument fashioned for the purposes of the interim payment application without evidential foundation.

I did not derive assistance from the two decisions to which Mr Davis referred me in support of his submission that a cautious approach was required. Each turns on its particular facts which are not comparable to those of the instant case. In Crispin v Webster [2011] EWHC 3871 (QB) Haddon Cave J was concerned with an application for an interim payment where the amount involved depended largely on whether the trial judge would make an award based on a particular property, so that the application was effectively a preliminary issue as to whether the trial judge would award accommodation costs by reference to that particular property: see para 17. In Wilson v Dummitt (unreported 17 August 2011) the claimant was a locked in tetraplegic who had not to date been able to be cared for outside hospital despite one unsuccessful attempt, where there was a 70% settlement of liability and acute difficulty in predicting life expectation. The caution of the judge, HHJ Seys Llewellyn QC, in relation to a capital accommodation award was fact specific.

Mr Davis next submitted that the Master’s inclusion of accommodation costs risks fettering the trial judge’s discretion because the shortfall in the accommodation costs award will require him to “borrow” from heads of future loss by capitalising them rather than awarding them by way of a PPO. Mr Latimer-Sayer advanced two answers to this point. His first was that there is unlikely to be any such risk, because the shortfall is no more than about £160,000 which would be the least sum available as general damages. This argument was flawed on the figures, because it included as a cost to the Claimant only the purchase of the new property, not the cost of adaptations. If the Court could be confident that the adaptation costs would be awarded in full, this would not matter. But the interim payment was properly calculated by the Master on the footing that there might be a significant reduction.

The Claimant’s second answer, however, is a good one. Once it is accepted that the trial judge is bound to deal with accommodation costs on the footing that the Claimant should buy a property, the award will inevitably be calculated in accordance with Roberts v Johnstone. Where there is a shorter life expectancy, this will often result in a shortfall, a problem well known to judges and practitioners alike, for which no wholly satisfactory solution has been found (see, for example the discussion in Kemp & Kemp at 16-017). But that arises out of the situation in which the trial judge would be placed irrespective of any interim payment. The discretion in relation to other heads of future loss remains unaffected by the interim payment. If the interim payment is no more than the capital sum which the trial judge will award for accommodation, there is no question of it fettering his discretion in relation to other heads of future loss. The problem with how to treat such other heads is inherent in the approach required by Roberts v Johnstone.

That is why accommodation costs can usually be treated as within stage one of Eeles without offending the principle, which the Court in that case was keen to emphasise, that the trial judge’s discretion in relation to other heads of future loss must not be fettered. Had the Court thought otherwise in that case, it would have excluded the large category of cases in which the Roberts v Johnstone calculation results in a shortfall.

Finally Mr Davis submitted that to make an award to enable the Claimant to purchase 81 Upper Gungate would be to create a status quo which would result in an unlevel playing field. I cannot accept this submission. It is true that on the basis of the evidence currently before the court it is possible that the trial judge might conclude that 81 Upper Gungate is not a suitable property or too large. But there is no real prospect of the trial judge feeling inhibited in so finding by the fact that the Claimant has used the interim payment to buy 81 Upper Gungate (if that is what happens). The Claimant is fully aware of the risk that 81 Upper Gungate will not be held to be suitable at trial. There is no reason to think that the trial judge will be adversely influenced by the fact of purchase even if the result would be that the Claimant would have to move again.

Moreover even where there is a risk of prejudicing the trial process by creating an uneven playing field, that is not a bar to an interim payment. In paragraph 44 of Eeles the Court stated:

“For this part of the process [stage one], the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection.”

Although this is in unqualified terms, it is apparent from paragraph 4 of the judgment, and the decisions in Campbell v Mylchreest [1999] PIQR Q17 and Stringman v McArdle [1994] 1 WLR 1653 which are there cited with approval, that where the use to which the money is to be put risks the creation of an uneven playing field, that is a factor which may weigh against exercising the discretion to order the interim payment. But it is also apparent from the decisions in Campbell and Stringman that it is no more than that; it is a factor not a bar. There is a powerful countervailing factor, which is that the interim payment represents the minimum amount to which the Claimant is entitled. He is to receive it before trial on the basis that his damages at trial, awarded as a capital sum, will be no less. If and when awarded at trial, he is free to spend his damages as he wishes (subject to supervision by the Court of Protection if not of full age and capacity). Similar freedom should attach to the interim payment, which does no more than ensure that the Claimant does not have to wait longer than necessary for at least part of his damages.

Had I considered that the Claimant buying 81 Upper Gungate might create an uneven playing field, which I do not, it would not be to such an extent that it would justify keeping the Claimant out of money to which he is entitled and which he would be free to spend as he wished if awarded at trial.

Mr Davis pointed to the fact that in paragraph 39 of Eeles, the Court found a real danger of creating an unlevel playing field in that case in allowing the claimant to purchase the desired larger property. But on the facts of Eeles, the interim payment had to be sought as a second stage payment, not a first stage payment, because the likely amount of a capital award (including accommodation) was only £590,000, which left little room for any interim payment after taking account of previous interim payments of £450,000; it left no room for the £1.2m which was being sought as necessary to enable purchase of the larger property: see para 40. It was not therefore a capital sum which the claimant was bound to receive at trial.

Accordingly the appeal is dismissed.