The terms and circumstances in which the defendant had conceded liability in relation to a fatal road traffic accident precluded a later application to amend the defence to plead contributory negligence on the part of the deceased by not wearing a seat belt.Appeal by the defendant ('D') from a decision of Master Eyre refusing leave to amend the defence to plead contributory negligence. In March 1999, a car driven by D collided with another car. Both drivers and the rear seat passenger in the other car ('G') died. In June 2002, Master Eyre gave an interlocutory judgment for the first claimant and noted that D admitted duty and breach of duty but did not concede that the breach caused any damage in respect of the second claimant, who claimed as G's alleged dependant. By that time, the claimants had disposed of the car in which G had been travelling having advised D that they would do so unless D asked for the vehicle to be preserved. D subsequently applied to amend the defence to plead that G had not been wearing her seat belt at the time of the accident and hence had negligently contributed to her death. That application was based on the witness statements from the attending police officer, the front seat passenger in G's car and a number of members of the public who had assisted at the scene of the accident. Master Eyre held that if permission to make the amendment was granted, the prejudice to the claimants would be greater as the disposal of the car meant that they were effectively unable to rebut the new case that D wished to advance.HELD: (1) It was for D to prove that the Master's decision was "wrong", ie unsustainable. (2) Viewed in isolation the merits of D's application were strong; however, it remained that D had conceded liability in terms which had given no hint that it would be argued that any award of damages should be discounted for contributory negligence. (3) The court declined to interfere with the Master's exercise of discretion.Appeal dismissed.

[2003] EWHC 1104 (QB)

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