Cowdell v R.D.C. Cross

A proposed appeal may be arguable where it accepts the trial judge’s primary findings but alleges a failure to draw liability-relevant inferences from them. The Court of Appeal’s reluctance to reverse factual findings does not prevent scrutiny of the legal inferences drawn from those findings. Permission may be granted even where the claimant appears substantially responsible for the accident and any successful claim would be reduced for contributory negligence.

The claimant sought permission to appeal from a decision of the Northampton County Court, given by Mr Recorder Gosmark, concerning injuries sustained in a water-skiing accident. Permission had initially been refused on paper. The renewed application relied on alleged failures by the respondent to give an adequate warning and to keep a proper lookout for two swimmers. The central issue was whether those arguments challenged factual findings, or instead challenged the inferences drawn from the trial judge’s primary findings.

The application for permission to appeal was allowed. The Court of Appeal did not determine liability or the amount of damages.

1. The accident occurred when the claimant was swimming with a friend in a lake plainly used by water skiers. The trial judge considered that the claimant had largely caused his own misfortune.
2. The first proposed ground concerned an apparent breach of the water-ski club’s rules. The respondent had allegedly failed to sound his klaxon or horn at a sufficient distance from the accident area. An earlier warning might have alerted the swimmers or enabled them to signal their presence.
3. The second proposed ground concerned lookout. The respondent’s son, who was looking ahead from the boat, could see two swimmers. The respondent saw only one swimmer and altered course to avoid him, without appreciating that the claimant was also in the boat’s path.
4. The proposed appeal did not primarily seek to reverse the trial judge’s findings of primary fact. It criticised the failure to draw inferences from those findings which might support liability. Although the full court would not generally reverse factual findings in a case of this kind, an arguable challenge to the inferences drawn from established facts could justify permission.
5. The apparent strength of the contributory-negligence case did not prevent permission being granted. If the appeal succeeded, the claimant’s damages would likely be substantially reduced on that ground. The merits remained for determination on the appeal.

• Court of Appeal (Civil Division): On a renewed application, Lord Justice Potter allowed permission to appeal from the Northampton County Court decision of Mr Recorder Gosmark. The merits of the appeal were not decided.