Eagling & Anor v T D G Linkman Ltd

Permission to appeal should be refused where the proposed appeal has no realistic prospect of overturning the trial judge’s central findings of fact. The Court of Appeal will respect findings reached from the primary facts and the first-instance judge’s advantage in assessing the accident evidence. Detailed calculations of time and distance will not justify an appeal where they overlook the surrounding circumstances and the trial judge’s evaluative advantage.

The defendant applied for permission to appeal from an order of Judge Hull QC in the Epsom County Court dated 15 January 2001. The judge held the defendant’s driver 75 per cent vicariously liable for a road traffic accident and the first claimant 25 per cent responsible.

The accident occurred when the driver of a wide tanker moved substantially into the oncoming lane to pass a jogger on a bend. The claimant braked sharply after seeing the tanker and skidded into collision. The proposed appeal challenged the findings that the tanker was still returning to its own side when the collision occurred and that the jogger’s presence contributed to the accident.

1. Application refused. The defendant had no realistic prospect of overturning the central factual finding that the tanker was still returning to its near side when the collision occurred.
2. Per Lord Justice Simon Brown, the trial judge’s finding was wholly unsurprising in light of the primary facts. The judge was entitled to reject the contention that the tanker had completed passing the jogger before it became visible to the claimant, and that the jogger therefore had no part in causing the accident.
3. The Court of Appeal accepted the essential findings identified by Lord Justice Dyson: the driver overtook the jogger too close to the bend; the claimant saw him before the manoeuvre was complete; and the tanker’s movement in giving the jogger a wide berth caused the claimant to brake hard and skid out of control.
4. The defendant’s reliance on measurements showing that the tanker must have been over the central white lines at impact did not undermine the findings. Nor did the argument that the curvature of the road would have made the tanker appear to block the road. These matters did not provide a realistic basis for appellate intervention.
5. The proposed appeal was founded on detailed calculations of time and distance which were unrealistic in the context of the accident. They overlooked both the likely significance of the jogger and the advantages enjoyed by the first-instance judge.
6. Lord Justice Dyson agreed with Lord Justice Simon Brown. The order below therefore stood, with damages yet to be assessed.

• Court of Appeal (Civil Division): On 15 June 2001, permission to appeal from the Epsom County Court order of 15 January 2001 was refused.
• Epsom County Court: His Honour Judge Hull QC apportioned responsibility for the accident, holding the defendant vicariously 75 per cent liable and the first claimant 25 per cent responsible.