Vann & Ors v Ocidental - Companhia De Seguros SA

A pedestrian who has safely begun crossing a road must continue taking reasonable care for personal safety. This includes keeping a lookout for traffic from both directions, although continuous observation in one direction is unnecessary. Where an approaching vehicle is visible or audible and avoiding action remains possible, the pedestrian should stop or retreat. Continuing across the road without responding to the danger may constitute contributory negligence. An appellate court may review whether a conclusion about reasonable care is a permissible inference from established primary facts. Responsibility is apportioned by weighing the relative fault and causal contribution of the driver and pedestrians.

The claimants sought damages after Mr and Mrs Vann were struck by a car in Portugal. The insurer accepted that the driver was negligent but disputed the finding that the pedestrians bore no responsibility. Under Regulation (EC) 864/2007 (Rome II), Portuguese law governed the claim. The High Court found for the claimants on liability and held that there was no contributory negligence. The insurer appealed, arguing that the pedestrians failed to keep a proper lookout and failed to move from the vehicle’s path. The central issue was whether those findings followed from the agreed accident evidence and the trial judge’s primary factual findings.

1. Appeal allowed. The High Court judgment was varied by apportioning responsibility for the accident 80% to the driver and 20% to Mr and Mrs Vann.
2. Appellate assessment. The Court of Appeal accepted the trial judge’s primary findings and the agreed expert evidence. However, the conclusion that the pedestrians had kept a proper lookout was an inference, not a primary finding of fact. No witness had observed whether they were looking for traffic, so the inference was open to appellate review.
3. Continuing duty while crossing. The pedestrians were entitled to begin crossing when the road appeared clear and could not be expected to look continuously to their right. They were nevertheless required to keep an eye out for traffic from both directions. The car was travelling at 53–64 mph, compared with an agreed safe speed of 43 mph. Its headlights were on and its engine was audible. On the accepted timings, it came into view while the pedestrians were still on the eastern half of the road. They should therefore have noticed it before reaching the centre.
4. Avoiding action. Once the danger became apparent, the pedestrians should at least have stopped and, more realistically, returned to the eastern verge. By continuing towards the opposite side of the road, they failed to take reasonable care for their own safety. Their negligence was a contributory cause of the accident and was contrary to the applicable requirements of the Portuguese Highway Code.
5. Apportionment. The driver remained principally at fault because he was travelling substantially too fast in an area where pedestrians were likely to be present. After weighing all the circumstances, responsibility was apportioned 80% to the driver and 20% to the pedestrians.

• Court of Appeal (Civil Division): [2015] EWCA Civ 572 — appeal allowed and the judgment varied to apportion responsibility 80% to the driver and 20% to the pedestrians.
• High Court of Justice, Queen’s Bench Division: Mr Justice Supperstone, 3 March 2014 — claimants succeeded on liability and the court found no contributory negligence.