B3/2001/0872
Neutral Citation Number: [2001] EWCA Civ 930
IN THE COURT OF APPEAL (CIVIL DIVISION)                    
ON APPEAL FROM EPSOM COUNTY COURT
(His Honour Judge Hull QC)
 
                            The Royal Courts of Justice
                            The Strand
                            London WC2A
 
                                    Friday 15 June 2001
 
Before:

LORD JUSTICE SIMON BROWN
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE DYSON

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Between:

DEBORAH HELEN EAGLING
1st Claimant/Respondent
PETER EAGLING
2nd Claimant

and:

T D G LINKMAN LIMITED
Defendant/Applicant

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel:  020 7404 1400
Official Shorthandwriters to the Court
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MR J PENDLEBURY (instructed by Badhams, 8 Bedford Park, Croydon, Surrey) appeared on behalf of the Applicant

The Respondent did not appear and was not represented
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JUDGMENT
Friday 15 June 2001
1.	LORD JUSTICE SIMON BROWN: This is the defendants' application for permission to appeal from the order of Judge Hull QC in the Epsom County Court on 15 January 2001, holding them 75 per cent vicariously to blame for their driver's negligence with regard to a road traffic accident which occurred on a country road near Crawley in Sussex on 3 October 1995. The first claimant, Mrs Eagling (“the claimant”) was the other driver involved in this accident and she was found 25 per cent to blame for it. She was, alas, very seriously injured. Damages have yet to be assessed.
2.	Put very shortly, the facts were these. The accident occurred on what was, for the defendant's driver (“the defendant”), a gentle right‑hand bend. The tanker he was driving was some 2.5 m wide and the total road width varied between something just under and something just over 5 m. Before the accident he was driving at some 10‑20 mph, intending shortly to turn left, when he saw a jogger approaching on his side of the road and drew out to give the jogger some 6 ft clearance as he passed. That manoeuvre would have put the tanker substantially into the oncoming lane, and that is where the judge found that the claimant in her motorcar first saw it as she approached from the opposite direction at about 45 mph. She applied her brakes sharply and, in the result, skidded across the road and into collision with the front offside of the tanker, which had by then substantially, but not entirely, returned to its own side of the road.
3.	The judge found the defendant 75 per cent at fault for having chosen to pass the jogger on that bend in the particular circumstances of the case, and the claimant 25 per cent to blame for having driven too fast around the bend.
4.	The defendant's case was that he had completed his passing of the jogger and returned to his own side of the road before the claimant could even have seen him. In other words, the jogger had nothing whatever to do with this accident and, in truth, there was nothing whatever to cause the claimant suddenly to slam on her brakes; nothing, that is, save her own fault for having driven too fast, reacted too late and wrongly perceived the oncoming tanker to be on her side of the road, when it was not. So she need never have braked at all. The judge rejected that case and found the defendant still to be returning to his near side when the collision occurred.
5.	That, plainly, is the central finding which the applicant would need to overturn in order to succeed on his proposed appeal. In my judgment he has no realistic prospect of doing so. I regard the finding as wholly unsurprising, given the primary facts of the case.
6.	In refusing permission to appeal when considering this application initially on the documents my Lord, Lord Justice Dyson said this:
“The essential findings of the judge were: (a) [the Defendant] overtook the jogger too close to the bend; (b) he was first seen by the Claimant before he had completed the manoeuvre; and (c) the sight of the lorry giving a wide berth to the jogger caused her to brake hard and skid out of control. The judge was entitled to make these findings of fact. They are not invalidated by either of the two points mentioned at paragraphs (a) and (b) of the Grounds of Appeal.” 
7.	Those two points were (a) the defendant's reliance on the fact that the measurements of the lorry and the road were such that at the point of impact the lorry had to be over the central white lines and (b) their contention:
“. . . that, at the point of first visibility of the articulated vehicle which coincided with the point at which the First Claimant would have reacted so as to cause the skid marks the First Claimant's view of the approaching articulated vehicle would have been such that it would have appeared to block the road. This is due to the road curving to the left from the first Claimant's perspective.” 
8.	Mr Pendlebury, who has now replaced counsel previously instructed on the defendant's behalf, has added three supplementary grounds of appeal, which for present purposes I do not propose to describe. Suffice it to say that nothing in those supplemental grounds, nor in Mr Pendlebury's vigorous and able oral submissions to us this morning, has begun to persuade me that my Lord's initial reaction was wrong, ie that this is not a proper case for appeal.
9.	Mr Pendlebury's submissions, to my mind, were all based essentially on nice calculations as to time and distance which I regard as quite unreal in the context of an accident of this nature. They entirely overlook both the probability that the existence of the jogger indeed had a part to play in this accident and, more particularly, the advantages enjoyed by the judge at first instance.
10.	I would dismiss this application.
11.	LORD JUSTICE DYSON: I agree.
ORDER: Application refused