Vann & Ors v Ocidental-Companhia De Seguros SA

Under Portuguese law, a driver must adjust speed to the road, visibility, traffic and other relevant circumstances, including the foreseeable presence of pedestrians. A driver who approaches a poorly visible road section, a descent and a place where pedestrians may be present should reduce speed accordingly.

Where pedestrians begin crossing when it is safe to do so, they are not contributorily negligent merely because an approaching vehicle later becomes visible. The court must consider the speed of the vehicle, the time available to react and whether the pedestrians had a realistic opportunity to avoid the collision.

The claim arose from a road accident in Portugal. June and Martin Vann were struck while crossing a road after leaving a restaurant. Mrs Vann suffered serious injuries and Mr Vann subsequently died. Their family members brought claims against the insurer of the driver, Odilon Profeta de Sà.

Portuguese law governed liability and contributory negligence. The defendant disputed the driver's liability and alleged that Mr and Mrs Vann had failed to keep a proper lookout, crossed when it was unsafe, and were affected by alcohol. The issues were whether the driver was liable and whether the deceased and injured claimant were contributorily negligent.

1. Liability. The claimants succeeded on liability. The court found that the vehicle was travelling at approximately 53 to 64 mph, with a mean speed of 58.5 mph, close to or exceeding the speed limit. In the circumstances, including poor visibility, the road layout, the descent and the possibility of pedestrians, the driver was travelling too fast and should have slowed down.
2. The driver should have seen the pedestrians from approximately 60 metres away. At a speed of about 43 mph he could have stopped and avoided the collision. His speed and the force of the impact supported the conclusion that he had failed to take reasonable care.
3. Contributory negligence. Mr and Mrs Vann were entitled to begin crossing when they did. The court accepted that the crossing was safe at that time and that they had checked before crossing. When the vehicle became visible, it was approaching at high speed and they had only seconds to react. There was no evidence that they were dawdling or failing to keep a proper lookout.
4. The allegation that alcohol affected their perception or ability to act was rejected. The expert evidence indicated low or very low blood alcohol concentrations and, at most, marginal impairment.
5. The defendant's application to rely on further written answers from its own expert was refused. CPR r.35.6(1) did not provide for such questioning, and the application was made too late. Clarification, if required, should have been obtained through oral evidence.
6. There was no contributory negligence. Judgment was entered for the claimants, with damages to be assessed.