Vann & Ors v Ocidental - Companhia De Seguros SA [2015] EWCA Civ 572

[2015] EWCA Civ 572Case No B3/2014/1243
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE HONOURABLE MR JUSTICE SUPPERSTONE
HQ12X05411
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/06/2015
Before
LORD JUSTICE JACKSONLORD JUSTICE FLOYDDAME JANET SMITH
Between
(1) MRS JUNE VANNClaimants/(2) MR ALEX VANNRespondents(3) MRS JULIA PLAPPERTRespondentOCIDENTAL - COMPANHIA DE SEGUROS S.A.Defendant/
Mr Gerard McDermott QC and Mr Tom Poole (instructed by Pennington Manches) for Claimants/RespondentsMr Christopher Wilson Smith QC and Mr Pierre Janusz (instructed by Irwin Mitchell LLP) for Appellant/DefendantHearing Hearing date: 6 th May 2015Judgment
[1]This judgment is in five parts, namely: Part 1. Introduction Paragraphs 2 to 7 Part 2. The facts Paragraphs 8 to 15 Part 3. The present proceedings Paragraphs 16 to 25 Part 4. The appeal to the Court of Appeal Paragraphs 26 to 30 Part 5. Decision Paragraphs 31 to 43

Part 1. Introduction

[2]This is an appeal by the defendant in a personal injuries action against a finding that there was no contributory negligence. The issue in this appeal is whether two pedestrians, who were knocked down by a speeding car, were taking reasonable care for their own safety. The trial judge held that the pedestrians were taking reasonable care. The defendant contends that the judge erred in so holding.[3]The road traffic accident, which had fatal consequences, occurred in Portugal. It is therefore necessary to have regard to the provisions of the Portuguese Highway Code (“the Highway Code”).[4]The Highway Code includes the following provisions:
“Article 24.1 (general principle of speed): the driver must adjust the vehicle speed such that, in view of the characteristics and condition of the road and of the vehicle, the load being transported, the meteorological or environmental conditions, the amount of traffic and any other relevant circumstances, he or she can safely carry out the manoeuvres needed to anticipate and, specifically, stop the vehicle in the free space visible to the front. Article 25 (managing speed): notwithstanding the set maximum speed limits, the driver must specifically manage his or her speed in the following circumstances: - in places or on streets bordered by buildings (Article 25.1.a) - when approaching a group of people (Article 25.1.d) - in places of reduced visibility (Article 25.1.f) … Art.99 – (1) Pedestrians must walk on the pavements, footpaths or crossings intended for them, or in their absence, on grass verges. (2) Pedestrians may however walk along the highway with care and in a manner which does not impair the movement of vehicles … when crossing them … Art.101 – (1) Pedestrians must not cross the highway without previously making sure that, taking into account the distance that separates them from vehicles travelling on it and the respected speed, they can do so without risk of an accident. (2) The highway must be crossed as quickly as possible.” (1) Pedestrians must walk on the pavements, footpaths or crossings intended for them, or in their absence, on grass verges. (2) Pedestrians may however walk along the highway with care and in a manner which does not impair the movement of vehicles … when crossing them (1) Pedestrians must not cross the highway without previously making sure that, taking into account the distance that separates them from vehicles travelling on it and the respected speed, they can do so without risk of an accident. (2) The highway must be crossed as quickly as possible.”
[5]Under Portuguese law when a vehicle driver causes a road traffic accident, the injured party is entitled to sue the driver’s insurer direct, without any need to join the errant driver as a party. The insurer of the negligent driver in this case is Ocidental-Companhia De Seguros S.A, a Portuguese insurance company based in Lisbon. I shall refer to it as “Ocidental”.[6]In this judgment I shall refer to Regulation (EC) 864/2007 of the European Parliament and of the Council as “Rome II”. I shall use the abbreviation “mph” for miles per hour.[7]After these introductory remarks, I must now turn to the facts.

Part 2. The facts

[8]In September 2010 Mr Martin Vann and his wife June Vann were on a family holiday in the Algarve region of Portugal. They were staying in a villa. They had with them their daughter Julia Plappert, their son Alex Vann, their son-in-law Nicholas Plappert and Nicola Hockett, who was Alex Vann’s girlfriend. In the narrative that follows I shall refer to Martin and June Vann collectively as “Mr and Mrs Vann”. I shall refer to the younger generation by first names.[9]On the evening of 7th September 2010 the family group went out for dinner at the Restaurante Agostinhos on the outskirts of Quarteira. The restaurant stands at the side of the E396 road. That is a road with one line of traffic in each direction. The group travelled in one car. They parked in the forecourt of premises which were opposite the Restaurante Agostinhos.[10]At about 11.30 p.m. the family group left the restaurant and headed back to their car. They proceeded to cross the road in pairs. Alex and Nicola went first. Julia and Nicholas went next. Julia fell slightly behind her husband as she was talking to her parents. Finally Mr and Mrs Vann proceeded to cross the road.[11]Meanwhile Mr Odilon Profeta de Sà was driving a Citroen Xsara car in a south west direction along the E396 road. As he approached the Restaurante Agostinhos he saw a pedestrian or pedestrians in the road. Mr de Sà applied his brakes, but to no avail. His car struck both Mr and Mrs Vann. Julia turned round when she heard the screech of tyres. She saw the impact send both her parents flying down the road.[12]Mr Martin Vann suffered fatal injuries. He was taken to hospital, where he subsequently died. Mrs June Vann suffered multiple fractures and injuries, including frontal lobe damage. She has survived the accident, but with disabilities and cognitive impairment.[13]The Portuguese police investigated the accident. They prepared a plan showing the skid marks and where Mr de Sà’s car had come to rest. That was a short distance beyond the point of impact and on the right hand verge of the road. The skid marks from the left wheel of the car were 37.5 metres long. The skid marks from the right wheel were 28.4 metres long. The plan showed the probable point of impact on the right hand side of the road. In other words Mr and Mrs Vann had almost crossed from the eastern side to the western side of the road when the accident occurred.[14]The police interviewed Mr de Sà on 20th October 2010. He said that he had been driving at about 70 kilometres per hour and that he had braked hard as soon as he saw the pedestrians.[15]The Vann family took the view that the accident had been caused by Mr de Sà’s negligent driving. Accordingly they commenced the present proceedings.

Part 3. The present proceedings

[16]By a claim form issued in the Queen’s Bench Division of the High Court on 16th December 2012 June Vann (by her litigation friend Nicholas Plappert), Alex Vann and Julia Plappert claimed damages in respect of the accident on 7th September 2010 against Ocidental as the insurers of Mr de Sà. June Vann claimed damages for her extensive personal injuries. Alex Vann and Julia Plappert claimed damages for the psychological injuries which they had suffered as a result of witnessing the accident. They also claimed damages as executors on behalf of their father’s estate.[17]Pursuant to article 4.1 of Rome II this action fell to be determined in accordance with Portuguese law. Accordingly the claimants joined Ocidental as the sole defendant to the action.[18]On 21st February 2013 Master Cook ordered that liability be determined as a preliminary issue. Given the size of the claimants’ claims, this was clearly a sensible way to proceed.[19]The parties instructed experts on Portuguese law to advise about the applicable legal principles. These are not controversial. When a motor vehicle hits a pedestrian there is a presumption that the driver is liable, unless the driver shows that the pedestrian was at fault. Where both parties are at fault, the court apportions liability applying principles which are essentially the same as our law of contributory negligence.[20]The parties also instructed expert accident investigators to establish the facts and circumstances of the accident. Both experts visited the scene. They provided reports and subsequently produced a helpful joint statement. That statement provided data to assist the judge in determining the speed of the Citroen car. The joint statement also set out the following agreed facts: i) To the north east of the Restaurante Agostinhos there is a hill. If the headlights of the Citroen were on, they would first have entered Mr and Mrs Vann’s field of vision when the Citroen reached the crest of that hill. The engine of the Citroen would have become audible at that time, but not earlier. ii) The crest of the hill was approximately 115 metres from where the Vann family were crossing the road. iii) There were street lights only on the western side of the road and the quality of the lighting was generally poor. iv) At night time a motorist driving south west down the E396 would first see pedestrians crossing outside the Restaurante Agostinhos at a distance of about 60 metres. In order to be able to stop within that distance, as required by article 24.1 of the Portuguese Highway Code, the motorist should not be driving faster than 43 miles per hour. v) If Mr and Mrs Vann were walking at a normal speed, it probably took them between 4.8 and 5.8 seconds to walk from the eastern verge to the point of impact. vi) Soon after Mr and Mrs Vann stepped onto the road, the Citroen’s headlights would have been in their field of vision and the sound of the approaching car would have been audible.[21]The action came on for trial before Mr Justice Supperstone on 17th and 18th February 2014. Four factual witnesses gave evidence. They were Nicholas and Julia Plappert, Alex Vann and Nicola Hockett. Mrs June Vann did not give evidence because she had no recollection of the relevant events as a result of her head injuries.[22]The witnesses stated that Alex and Nicola crossed the road first. Nicholas and Julia Plappert followed, with Julia lagging behind her husband. Mr and Mrs Vann followed at the back. The only family member who actually saw the accident was Julia Plappert. The main part of her evidence, as summarised by

the judge was as follows:

“When they left the restaurant she said they all walked to the road together. They had driven down the road on several occasions and she was aware of the slight bend in the road. She said she remembered looking along the road from the left to right to see if she could cross the road and seeing it was clear to cross. She did that twice, then walked. She thought they crossed at slightly different times when they considered it safe to cross. She thought that her husband stepped off with her, after her brother and his partner. Her husband then went ahead of her. She hung back a little as she was talking to her parents as they crossed the road. She was, she thought, an arms length in front of her mother and at one point she turned around and over her left shoulder said something to her. She had just reached the edge of the road when she heard a huge screech of tyres and turned around to see a car hit both her mother and father, sending them flying down the road. She said that the car passed very close to her and she was very lucky not to be hit. She did not hear the noise of the car engine as they approached the road or as they were crossing it. She did not see any headlights either. She said she is extremely road conscious and all of them walked across the road at a normal speed. She said that she had no recollection of seeing any headlights; if she had, she would not have carried on crossing the road.”
[23]Mr de Sà did not give oral evidence. Instead he provided a written statement, which the court received pursuant to the Civil Evidence Act 1995, on the basis that Mr de Sà was “beyond the seas”. Mr de Sà stated:
“I was travelling in the direction of Faro-Quarteira at no more than 80 km/h, probably 70 km/h. I was travelling on my side of the road. It was almost dark and there were trees on both sides of the road. Immediately before the location of the accident there was a slight ascent followed by a descent. It was at the start of the descent that I hit the pedestrians. The pedestrians only came within my view just before I hit them, but my judgment was that there was only one person and it was my impression that only one figure was involved. I was then told that one or two persons had been crossing the road and had left the road without anything happening to them. After the collision I saw that there were 4 persons on the scene, but one was leaving the scene. My visibility was poor, I braked but I could not avoid the accident.”
My visibility was poor, I braked but I could not avoid the accident.”[24]The judge handed down his reserved judgment on 3rd March 2014. He held that the claimants succeeded on liability and there was no contributory negligence. I would summarise the judge’s findings and conclusions as follows: i) Mr de Sà was driving at 53 to 64 mph (with a mean speed of 58.5 mph). That was close to or in excess of the speed limit (90 kilometres per hour or 56 mph). ii) Mr de Sà was driving too fast for the conditions. iii) When Mr de Sà reached the crest of the hill, he should have slowed down. He ought to have realised there may be pedestrians in the road. iv) If Mr de Sà had been keeping a proper look out, he would have seen Mr and Mrs Vann at a distance of 60 metres. If he had been travelling at 43 mph (the safe and proper speed according to the experts) he would have been able to stop before the impact. v) Mr de Sà had his headlights on. Nevertheless the judge accepted the evidence of Nicholas and Julia Plappert, Alex Vann and Nicola Hockett that none of them saw the car’s headlights. vi) It was safe for all members of the Vann family to cross the road when they did. vii) Although Mr and Mrs Vann had drunk some alcohol during dinner, they were not affected by alcohol. viii) Mr and Mrs Vann did not fail to keep a proper look out. They were already crossing the road when the Citroen car became visible. They were faced with an emergency when the car appeared. They cannot be criticised for failing to get out of the path of the vehicle.[25]Ocidental is aggrieved by the judge’s decision. Accordingly it appeals to the Court of Appeal.

Part 4. The appeal to the Court of Appeal

[26]By an appellant’s notice filed on 16th April 2014 Ocidental appealed against the judge’s decision on the grounds that Mr and Mrs Vann were negligent in that they failed to keep a proper look out or to move away from the path of the oncoming car. Therefore the judge erred in holding that there was no contributory negligence. There is no challenge to the judge’s finding that Mr de Sà was negligent.[27]Mr Christopher Wilson-Smith QC on behalf of the appellant submits that the judge’s finding that the Citroen headlights were on (contrary to the claimants’ contention) is a critical feature in the case. Having made that finding the judge was obliged to conclude that Mr and Mrs Vann ought to have seen the Citroen car in time to avoid the accident.[28]Mr Gerard McDermott QC on behalf of the respondents reminds this court that the judge has heard the oral evidence, whereas we have not. The Court of Appeal should not disturb the judge’s finding that Mr and Mrs Vann were keeping a proper look out. Mr McDermott accepts that Mr and Mrs Vann were obliged to continue looking out for traffic while they were crossing the road. That does not mean, however, that they should have been continuously looking to the right. He submits that by the time Mr and Mrs Vann in fact became aware of the car they were in an emergency situation with very little time available. They cannot be blamed for failing to take effective action.[29]Both counsel proceeded on the basis that the matters agreed between the experts were correct and that the judge’s findings of primary fact must stand. There was some debate as to whether the finding that Mr and Mrs Vann were keeping a proper look out was a matter of primary fact and whether that finding was open to challenge.[30]Having summarised the rival arguments, I must now come to a decision.

Part 5. Decision

[31]I accept that we must not disturb the judge’s findings of primary fact. This court must proceed on the basis of the agreed facts and the judge’s findings of primary fact. On that basis the Citroen was proceeding at 53 to 64 mph (with a mean speed of 58.5 mph), which was substantially too fast. Indeed it was 36% faster than what the experts have agreed and the judge has held to be a safe speed. The Citroen car came into view, with its headlights on, soon after Mr and Mrs Vann stepped out into the road. The sound of that car was audible as soon as it came into view. Mr and Mrs Vann took between 4.8 and 5.8 seconds to walk from the eastern verge to the point of impact, which was near to the western verge.[32]The judge’s finding that Mr and Mrs Vann were keeping a proper look out (a finding expressed in the form of a double negative) is not in my view a finding of primary fact at all. For obvious reasons neither Mr nor Mrs Vann gave evidence. No witness gave evidence that he or she saw whether Mr and Mrs Vann were keeping a proper look out. The judge’s finding on this issue must be an inference from the primary facts.[33]I regret to say that I do not think the judge’s inference was permissible. As Mr McDermott points out, on the basis of the judge’s assessment of speed the Citroen car would have taken 4.4 seconds to travel from the crest of the hill to the point of impact. Indeed the time would be slightly longer if one factors in the slowing down when Mr de Sà applied his brakes. On that basis Mr and Mrs Vann can only just have stepped into the road when the Citroen car came into view. As they walked across the eastern half of the road, the car was clearly in view, if they had looked in that direction. Even if they did not look in that direction, the sound of the approaching car should have alerted them to the danger.[34]I accept that Mr and Mrs Vann could not be expected continuously to look to their right as they crossed the road. On the other hand they ought to have been keeping an eye out for traffic coming from both directions. If Mr and Mrs Vann had been keeping a proper look out, they would have become aware of the approaching car whilst they were still on the eastern half of the road. In fact they remained oblivious to the risk. They simply kept on walking across the road.[35]It is clear from the evidence that no-one in the Vann family group noticed the Citroen car before they heard the screech of tyres. During argument Mr McDermott frankly conceded that he could not gainsay this. The screech of the tyres would have coincided with the beginning of the skid marks. At that stage the car was so close to the point of impact, that Mr and Mrs Vann had no opportunity to escape.[36]The car had its headlights on and the engine was audible. In those circumstances Mr and Mrs Vann ought to have noticed its approach before they crossed the centre of the road.[37]The court does not need to decide why Mr and Mrs Vann were not keeping a proper look out. Nevertheless an obvious explanation emerges from Julia Plappert’s evidence. It appears that Julia Plappert and her parents were engaged in conversations as they walked over the road. That probably distracted the parents from looking out for traffic. It also distracted Julia, because at no point before the accident did she see the car’s headlights.[38]I can well understand how this happened as the Vann family were returning, probably in a relaxed mood, after a pleasant dinner together. The sad fact is that all human beings fail on occasions to live up to the standard of reasonable foresight and care both for self and for others, which the law demands. Usually no harm results. Tragically, in this case it did.[39]What would have happened if Mr and Mrs Vann had become aware of the approaching car whilst they were on the eastern half of the road? At the very least they ought to have stopped to let the car go past. More realistically they would probably have stepped back onto the eastern verge. By pressing on and walking towards the other side of the road Mr and Mrs Vann were acting without due care for their own safety, contrary to the Highway Code.[40]Let me now draw the threads together. Proceeding on the primary facts as found by the judge, it must follow that Mr and Mrs Vann did not take reasonable care as they were crossing the road. They failed to keep a proper look out and they failed to take avoiding action while that was still possible. Therefore the negligence of Mr and Mrs Vann was a contributory cause of the accident.[41]I turn now to apportionment. Mr de Sà was principally at fault. He was driving far too fast in an urban area, where pedestrians were likely to be present. That was plainly dangerous driving. Mr and Mrs Vann stepped into the road when it was safe to do so and when there was no traffic in sight in either direction. Mr de Sà’s dangerous driving put Mr and Mrs Vann in a situation where they had to take evasive action, namely to stop in their tracks or, better still, retreat to the eastern verge.[42]After weighing up all the circumstances I would apportion responsibility to 80% to Mr de Sà and 20% to Mr and Mrs Vann.[43]If my Lord and my Lady agree, this appeal will be allowed and the judge’s judgment will be varied to the extent of apportioning responsibility for the accident to 80% to Mr de Sà and 20% to Mr and Mrs Vann.[44]I agree.

Dame Janet Smith:

[45]I also agree.