Evison v Conco Ltd & Anor

Permission to appeal requires a reasonable prospect of success before a full appellate court. The Court of Appeal is particularly reluctant to interfere with trial findings of fact based on competing expert evidence. Evidence available at trial will not ordinarily be admitted on appeal. A witness statement may properly be excluded where its material contents have not been tested by calling the witness for cross-examination. Peripheral criticisms do not justify an appeal where the trial judge’s primary finding independently determines the assessment.

The claimant brought a workplace personal injury claim arising from an accident affecting his knee. Liability was not disputed, but the parties disagreed about the seriousness of the injury and the resulting period of lost earnings. His Honour Judge Heath, sitting in the Great Grimsby County Court, accepted the evidence of Mr Fagg rather than Mr Stoffelen and awarded damages based on three months’ loss of earnings.

The claimant sought permission to appeal. He challenged the treatment of expert evidence, the exclusion of a statement from Mr Payne, aspects of the assessment of his employment prospects, and the refusal to admit further evidence. The central issue was whether any proposed ground had a reasonable prospect of success before a full court.

1. Permission to appeal refused. The claimant could not demonstrate a reasonable prospect of success before a full Court of Appeal. The trial judge had made findings of fact after considering competing expert evidence, and such findings are difficult to reverse on appeal.
2. The judge’s acceptance of Mr Fagg’s evidence provided the decisive basis for the assessment of loss of earnings. The evidence was that the injury caused approximately three months’ absence from work. Complaints about the claimant’s employment prospects, his status as a single parent, and the possible effect of other persons entering the labour market could not affect the result unless the judge had first concluded that loss of earnings extended beyond that period.
3. No criticism could be made of the ruling excluding Mr Payne’s statement. The statement was tendered to support the claimant’s account of severe pain at the time of the accident. The judge was entitled to require Mr Payne to attend so that the relevant evidence could be tested by cross-examination. Mr Payne was not called.
4. The proposed further evidence could not justify permission. Mr Payne’s evidence had been available at trial and was therefore inadmissible in the Court of Appeal. The taxi driver’s statement had already been before the trial judge and was not further evidence capable of being introduced on appeal.
5. The application for permission to appeal was dismissed. The formal order was: application dismissed.

• Court of Appeal (Civil Division): Lord Justice Waller refused permission to appeal from the county court judgment. [2001] EWCA Civ 674.
• Great Grimsby County Court: His Honour Judge Heath assessed damages following the claimant’s workplace knee injury claim on 15 August 2000.