Vann & Ors v Ocidental-Companhia De Seguros SA [2014] EWHC 545 (QB)

[2014] EWHC 545 (QB)Case No HQ12X05411
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 March 2014
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
(1) MRS JUNE VANNClaimants(2) MR ALEX VANNClaimant(On his own behalf and as an executor of the estate ofClaimantMr Martin Vann (Deceased))Claimant(3) MRS JULIA PLAPPERTClaimant(On her own behalf and as an executor of the estate ofClaimantMr Martin Vann (Deceased))ClaimantOCIDENTAL-COMPANHIA DE SEGUROS S.A.Defendant
Gerard McDermott QC and Tom Poole(instructed by Messrs Penningtons Manches LLP) for ClaimantsPierre Janusz (instructed by Messrs Irwin Mitchell LLP) for DefendantHearing Hearing dates: 17 & 18 February 2014
JudgmentMr Justice Supperstone :Introduction
[1]In September 2010 June Vann was on a family holiday in the Algarve Region of Portugal with her husband, Martin Vann, together with their son, Alex and his partner, Nicola Hockett, and Julia and Nicholas Plappert, their daughter and son-in-law.[2]On 7 September 2010 they went for dinner at the Restaurante Agostinhos on the outskirts of Quarteira. The restaurant was located at the side of the EN396 road. It is a road with one lane of traffic in either direction.[3]At around 11.30pm the group left the restaurant and proceeded to cross the road back to their car which was parked on the opposite side. Mr & Mrs Vann were at the rear of the group as they crossed the road. The others made it across, they did not. They had crossed one carriageway but before they reached the other side they were struck by a car driven by Odilon Profeta de Sà who was insured by Ocidental-Companhia de Seguros S.A., the Defendant.[4]Mrs Vann sustained a traumatic brain injury as a result of the accident, and complex fractures to her legs. Mr Vann died on 25 September 2010 due to the severity of the injuries he sustained in the accident.[5]Criminal proceedings were commenced against Mr de Sà in Portugal following the accident. They have not, as yet, been concluded.[6]Liability is disputed by the Defendant. At this hearing there are two issues for determination. First, whether the Defendant is liable to the Claimants. Second, whether Mr & Mrs Vann were contributorily negligent and, if so, to what extent.

The applicable law

[7]The parties are agreed that Portuguese law applies to the assessment of liability and contributory negligence (see Regulation (EC) No.864/2007, Article 4(1)).[8]Mr Antonio da Costa Basto, a Portuguese lawyer instructed by the Claimants, prepared a report dated 24 June 2013. Dr Herculano Lima, a Portuguese lawyer instructed by the Defendant, prepared a report dated 26 June 2013. They prepared a joint report dated 18 December 2013.[9]The material legal principles are not in dispute. Mr Pierre Janusz, for the Defendant, summarises them in his written submissions as follows:
“4. ... There is a presumption of liability without proof of fault on the part of drivers in the case of a road traffic accident such as the present, but this presumption does not apply if the Defendant shows that there was fault on the part of the injured party. If the presumption is rebutted in this way, the injured party is required to prove causally relevant fault on the part of the driver, but if he does so, the driver’s liability can be reduced or excluded altogether having regard to the seriousness of the culpable actions of both parties and their consequences. 5. If there is fault on the part of both parties, the Defendant accepts that the approach to the apportionment of liability is in broad terms not dissimilar to the approach taken by English law in the same circumstances, subject however to the particular importance placed by Portuguese law on the requirement for pedestrians to exercise proper care when crossing a road, as exemplified by specific provisions of the Portuguese Highway Code. These provisions are Articles 99 and 101 which say: (i) 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’ (ii) 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’ (ii) 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.’ ”
[10]Mr Gerard McDermott QC, for the Claimants, notes that the Portuguese Highway Code imposes specific duties on both drivers and pedestrians. He refers in particular to the duties on drivers contained in Articles 24.1 and 25. Mr da Costa Basto summarises them in his report:
“Article 24.1 of the Highway Code (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 of the Highway Code (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)”
[11]On the question of apportionment of liability, the experts agree that Portuguese law does not establish an objective criterion for the distinction between wilful intent and negligence and for apportioning liability between parties. Dr Lima states at paragraph 3.1 of his report that:
“In this area the principle of free assessment of evidence applies. This determines that it is assessed not in accordance with pre-established legal rules but according to the rules of the common experience and free conviction of the judge, in the certainty that a free conviction cannot be arbitrary or subjective, and must therefore be justified.”
[12]Mr McDermott observed that the position under Portuguese law is virtually identical to the assessment of contributory negligence in England and Wales.

The pleadings

[13]It is the Claimants’ case that the accident was caused or contributed to by the fault and/or negligence and/or breach of duty of Mr de Sà in that(a) he drove too quickly in all the circumstances;(b) he failed to stop, slow down, swerve, steer or otherwise control the vehicle so as to avoid contact with Mr & Mrs Vann;(c) he lost control of the vehicle;(d) he drove into collision with Mr & Mrs Vann; and(e) he failed to exercise such skill and care as could be expected of a reasonably competent driver in all the circumstances (Particulars of Claim, para 6).[14]The Defendant denies liability and avers that Mr de Sà was not at fault and that he exercised all reasonable skill and care. Further and alternatively the Defendant alleges that the collision was wholly caused or contributed to by the negligence of Mr & Mrs Vann in that they each:(i) failed to keep any or any proper look out;(ii) failed to notice and/or heed the presence, position and/or approach of the vehicle;(iii) attempted to cross the road when, by reason of the presence, position and/or approach of the vehicle, it was unsafe so to do;(iv) failed to keep out of, or get out of, the path of the vehicle;(v) attempted to cross the road when their perception and/or ability to act with due regard to their own safety was affected by alcohol; and(vi) by reason of the above; failed to have due regard to their own safety and/or were in breach of the Portuguese Highway Code (Amended Defence, para 7).[15]The Claimants responded to these allegations of contributory negligence at paragraph 3 of the Re-Amended Reply. In particular: i) it is denied that Mr & Mrs Vann failed to keep any or any proper lookout. They and all members of their group looked both ways before crossing the road. No oncoming vehicles were observed or heard. Mr & Mrs Vann and their group were satisfied that it was safe to cross, hence they crossed the road. ii) Mr & Mrs Vann were unable to take any avoiding action or get out of the path of the vehicle. The first the group were aware of the vehicle was when they heard a screech of brakes. This was immediately before the vehicle struck Mr & Mrs Vann. iii) It is denied that the perception and/or ability of the Mr & Mrs Vann to act with due regard to their safety was affected by alcohol. iv) It is denied that they failed to have due regard to their own safety and/or were in breach of the Portuguese Highway Code. v) In so far as it is alleged that Mr & Mrs Vann dawdled across the road and that this caused the accident, this is denied. They and their party crossed the road at a normal walking pace.

The evidence

[16]Mr de Sà has not attended to give oral evidence. He made a statement on 7 December 2012 which has been admitted under the Civil Evidence Act on the ground that he is “beyond the seas”. However as Mr McDermott observes the Defendant has not indicated whether it has made any attempt to obtain his attendance in person or by video link. It appears that Mr de Sà is of Brazillian origin and that he lived and worked in Quarteira at the time of the accident. (See Report of the Road Traffic Accident). In his statement Mr de Sà said:
“On 7 September 2010, at approximately 23:30hrs, in EN396, Loulé, I was involved in an accident which occurred in the manner I shall now describe. I was travelling in the direction of Faro-Quarteira at no more than 80km/h, probably 70km/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 four persons on the scene but one was leaving the scene. My visibility was poor, I braked but I could not avoid the accident. I called for an ambulance.”
[17]A record of a police interview of Mr de Sà on 20 October 2010 included the following:
“(d) On being questioned, the Accused stated that at the place where the accident occurred visibility was poor, since it was round the bend. (e) The Accused stated that the weather was good. (f) On being questioned the Accused did not remember whether there was any speed limit sign, thinking that the speed at which he was allowed to drive in that locality was between 70 and 90km/h. (g) On being questioned the Accused stated that when he was aware of the presence of people on the road, he braked hard in an attempt to avoid crashing. After braking hard the vehicle skidded and three of the people were knocked down in the same place. (h) On being questioned the Accused stated that at the time he was travelling at approximately 70km/h. (i) On being questioned the Accused stated that he braked to avoid crashing, the fact being that at that point if it had been possible to veer to the right he would have knocked down a further three pedestrians in addition to those who were run over, whilst if he veered to the left he could have landed in the opposite lane, probably causing another accident. He also stated that since the vehicle had already skidded on braking, it was no longer possible to steer straight ahead. … The Accused also stated that on analysing the skid mark made by the vehicle, the skid took place very quickly and there would be detritus (soil) on the road from the works in the immediate vicinity. Moreover, the fact was that the Accused was a little nervous because the vehicle had been behaving rather strangely for some as the brake pads had recently been replaced.”
[18]There is no evidence from Mr & Mrs Vann. In Mrs Vann’s case, the effects of her injuries are such that she has no memory of the accident or the events leading up to it.[19]The other four members of the group crossed the road immediately before the accident. They did not witness the impact itself but gave evidence of their crossing the road and events after the collision.[20]Mrs Julia Plappert said that they parked directly opposite the restaurant on a forecourt, in front of either a shop or a restaurant that was closed. There was no pavement on either side of the road, and there was also no zebra crossing. She described the visibility as being fairly clear in both directions as they reached the road. The area was quite well lit. The restaurant they went to has a bright sign under it and she believed there were some street signs.[21]She said her mother was wearing a lime green top and white linen trousers, and sandals. Her father was wearing light coloured chinos and a blue short sleeved top.[22]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]She said she believed the car must have been travelling at a high speed. There was a huge amount of noise at the time of the accident and very long skid marks. Her parents were both thrown a long way by the impact. She cannot understand why the driver did not see them, given the lighting in the area and the clothing they were wearing. She said that if he had been properly concentrating and travelling at a safe speed, he should have been able to stop, or at least swerve to avoid the collision. She said that her parents were in good health before the accident.[24]Mr Alex Vann said that he knew the road. He does not drive, but they had driven on the road before. He said that you could see some way down the road from the restaurant as it was pretty straight, although there was a small bend, which he described as a slight kink.[25]When they left the restaurant he said that they were in a group. He remembered stopping at the corner of the road, checking and crossing, not loitering. His brother-in-law and his partner were ahead of him. His sister was within touching distance of him as he started to cross the road. They crossed in pairs.[26]He estimated that they had all been walking at a normal and sensible pace. He did not hear a vehicle at all before the sound of the impact; neither did he see any headlights. He heard a screech of tyres and then a thud. At that time he had his back to the road and he did not know what was going on. In his witness statement made on 16 May 2013 he said that he heard his sister screaming and as he turned around saw his mother on the road a few metres from the car, and after a few seconds he saw his father, further down the road, with a lot of blood around him. When he was interviewed by the police in Portugal on 14 December 2010 he is recorded as saying that “the vehicle that knocked his parents down was stationary beside his father, it was at his side”. He thought that the statement he gave the police was pretty accurate.[27]He said that they should have been clearly visible because of the street lamps. He did not believe that the driver could have had his headlights on. If he had, they would immediately have seen them and waited before crossing the road.[28]It was Ms Nicola Hockett’s first time in Portugal. She does not drive and had only been on the road a couple of times before. She described how when they left the restaurant and were at the edge of the road she was at the right hand end of the group as she knew that there was a slight bend and hump in the road. She said that she looked to the right and the left before crossing. She thinks she was probably the first to cross. She presumed she looked up and down the road as she was crossing.[29]She said she was the first to reach the other side of the road. They were all proceeding at a normal walking pace. Almost immediately behind her was Alex and then Nick. She was at the back of the car before she heard anything. She heard a bang and then she heard Julia scream. When she turned round she saw Julia dropping a bottle of water.[30]She said that prior to the accident she did not see any headlights or hear anything at all. She did not see the headlights on after the impact.[31]Mr Nicholas Plappert said that he was pretty familiar with the road. He said that he had driven along this particular stretch of road in both directions on numerous occasions because the restaurant is close to the area where they usually stay. He was the driver of the group that evening.[32]He said that as they left the restaurant they were together in a bunch. He was probably nearer the front but he could not recall who was to his side. He said that he stopped and looked to the left and the right to see if it was clear and then crossed. He was aware of the bend and the dip in the road to their right, as they crossed the road to return to their car. At the edge of the road where they crossed he said that they were able to see in both directions without difficulty. They didn’t cross in a cluster; as they crossed they split up. His recollection was that Alex and Nicola went first; they were a few feet in front of him; he followed with Julia. He then went ahead of his wife. He walked normally as he was crossing the road.[33]He said that he heard a scream, turned round and saw bodies going through the air. The first thing he did was to look at his wife and saw that she was very close to being hit. He went straight to her.[34]He recalls that there was street lighting and that the area immediately outside the restaurant was well lit. He said that from what Mr & Mrs Vann were wearing they should have been easily visible to drivers.[35]He did not hear a car approaching and he also did not see any vehicle headlights as he crossed the road. When he took a photograph of the car, at his wife’s suggestion, about 10 minutes after the collision, because they were concerned that the driver might try to make a run for it, the headlights were off.[36]Mr Philip Mottram, instructed by the Claimants, and Mr Robert Hawthorn, instructed by the Defendant, visited the collision site and prepared collision reconstruction reports. The report of Mr Mottram is dated 28 June 2013 and that of Mr Hawthorn is dated 26 June 2013. They produced a joint statement dated 15 August 2013.[37]The experts did not give oral evidence. However during the hearing Mr Janusz applied to adduce in evidence written answers to questions put in writing to Mr Hawthorn seeking to clarify certain points in the joint statement. I refused the application. My reasons are as follows: first, as Mr Janusz accepts, neither CPR r.35.6(1) nor any other rule provides for a party to put questions to their own experts. Second, it was not until 30 January 2014 that the Defendant’s solicitors first raised the matter with the Claimants’ solicitors. By letter dated 6 February 2014 the Claimants’ solicitors stated that they would oppose any attempt to rely upon this additional evidence at trial. This application is, in my view, made much too late. Third, I accept Mr McDermott’s submission that if there is a need for clarification that should be done by oral evidence, and the Defendant should have agreed to experts giving oral evidence.[38]The speed limit on the road was 90km/h, which is approximately 56mph. In their joint statements the experts concluded that the speed of Mr de Sà’s car on its approach to the restaurant was between 49mph and 64mph. Where the actual speed falls in that range depends on the coefficient of friction at the site and whether the car stopped at the end of the skid marks.[39]Paragraph 2.14 of the joint report states:
“We do not agree on the likely coefficient of friction between the car’s front tyres and the road surface as the tyres skidded. Mr Hawthorn considers that it was probably between about 0.55 and 0.65, because there was a propensity for vehicle tyres to squeal on the surface when negotiating a curved path such as a roundabout or when making a left or right turn. This is not something that generally occurs on British roads and it indicates to Mr Hawthorn that the tyre/road coefficient is probably marginally lower than that normally experienced in this country. Mr Mottram considers that a coefficient of friction range of about 0.6 to 0.7 is reasonable, even taking into account the road’s downward slope towards the collision point. To assist the Court we have included both of these ranged in our agreed calculations, shown in the table below.”
A coefficient of friction of 0.55 to 0.65 [Mr Hawthorn] A coefficient of friction of 0.6 to 0.7 [Mr Mottram] The speed of the car on its approach to the restaurant, if the car stopped at the end of the skid marks. 78.9 to 93.2 km/h 21.9 to 25.9 m/s 49 to 58 mph Mean speed: 53.5 mph 82.1 to 96.2 km/h 28.8 to 26.7 m/s 51 to 60 mph Mean speed: 55.5 mph The speed of the car on its approach to the restaurant, if there was a gap of between about 3.0 and 6.0 metres between the ends of the skid marks and the rear of the car in its final position. 82.1 to 100.4 km/h 22.8 to 27.9 m/s 51 to 62 mph Mean speed: 56.5 mph 85.2 to 103.1 km/h 23.7 to 28.6 m/s 53 to 64 mph Mean speed: 58.5 mph[40]In the criminal proceedings against Mr de Sà the Defendant applied to adduce a technical report from Mr Manuel Pereira, a Portuguese expert, dated April 2012 for the purposes of determining the speed at which Mr de Sà’s vehicle was being driven, Mr Pereria adopts a friction coefficient between the tyres and the ground of 0.7.[41]The police sketch plan of features and measurements relating to the accident shows the approximate site where Mr Vann was found when the Republican National Guard arrived as being by the side of the car. On 14 December 2012 Mr Alex Vann told the police that he:
“Ran to the place where he saw his mother lying on the ground and about 10 to 15 metres from his mother was his father, also lying on the ground. … The vehicle which knocked his parents down was stationary beside his father, it was at his side.”
[42]The experts agreed that Mr de Sà’s visibility distance towards the pedestrians was probably about 60 metres (para 2.6). Using a perception and response time of 1.5 seconds, which they consider to be reasonable for the circumstances, they agreed a visibility distance of 60 metres relates to a “stopping in the distance that can be seen to be clear” speed of about 43mph (about 69km/h) (para 2.16).[43]Mr Mottram and Mr Hawthorn estimated that Mr and Mrs Vann were probably in the road for approximately 4.8 to 5.8 seconds (para 2.17). If it took them about 4.8 seconds to reach the impact point, the headlights of the approaching car could have been out of their field of view below the crest of the hill when they started to cross the road if the car’s speed was about 54mph or more. Similarly, if it took them about 5.8 seconds to reach the point of impact, the car could have been out of their field of view when they set off if its approach speed was about 44mph or more (para 2.18). Soon after Mr and Mrs Vann entered the road, the car’s headlights would have been in their field of view to their right and the sound made by the approaching car would have been audible. The maximum range of Mr & Mrs Vann’s view of the car’s headlights would have been approximately 115 metres (2.8). When they were about half way across the road the car would have been around 60 metres or so to their right and its presence would have been clear (para 2.21).[44]The experts were agreed that Mr de Sà is unlikely to have driven towards the scene of the accident with his car’s headlights switched off, because of the dark, un-illuminated area to the north east of the bend in the road would have made it very difficult for him to see where he was going if the headlights were switched off (para 2.5).

Findings of fact

[45]I do not accept Mr de Sà’s statement to the police that at the time he was travelling at approximately 70km/h, or his statement in his witness statement that he was travelling at no more than 80km/h.[46]I find that the speed of the car on its approach to the restaurant was 53 to 64mph (with a mean speed of 58.5mph). He was driving at a speed close to or in excess of the speed limit.[47]My reasons for so finding are as follows: i) Mr Hawthorn’s opinion is that the tyre/road coefficient is probably marginally lower in Portugal than that normally experienced in this country. However, that view is not supported by the figure adopted in the report of the local Portuguese expert who has knowledge of local conditions. He stated that the “road surface is asphalt and worn by traffic, for which we attribute a maximum friction coefficient for these conditions, at a speed of over 50km/h (0.7)”. This figure supports Mr Mottram’s calculation of the coefficient of friction as being 0.6 to 0.7. There is no basis for the suggestion that Mr Pereira’s figure may have been influenced by the purpose for which the report was being produced. I prefer the evidence of Mr Mottram to that of Mr Hawthorn on this issue. ii) I accept the evidence of Mr Alex Vann as to where the car stopped (see para 41 above). He was not challenged on his statement to the police which was that his father was by the side of the car when it came to a stop after knocking down his parents. I reject the suggestion that the car came to a stop at the end of the skid marks and was then driven on to the side of Mr Vann. There is no evidence to support this suggestion.[48]In my judgment Mr de Sà was driving his car too fast for the conditions.[49]Mr de Sà told the police that visibility was poor at the place where the accident occurred, since it was round the bend. In his statement of 7 December 2012 he repeated that visibility was poor. He was conscious of the fact that immediately before the location of the accident there was a slight ascent followed by a descent. He also said that he was a little nervous because the vehicle had been behaving rather strangely as the brake pads had recently been replaced. Having regard to all these factors he should have slowed down. He ought to have expected that there may be pedestrians in the road.[50]In his statement to the police Mr de Sà said that “three of the people were knocked down in the same place”. He also said that if he had veered to the right “he would have knocked down a further three pedestrians in addition to those who were run over” (see para 17 above). In his later witness statement, made for the purpose of these proceedings, he said that “[his] judgment was that there was only one person and it was [his] impression that only one figure was involved”. He added that, “After the collision [he] saw that there were four persons on the scene but one was leaving the scene” (see para 16 above). It is difficult to reconcile these two accounts. On the basis of what he told the police he saw all six members of the group, he thought that he had knocked down three, and he feared that if he veered to the right he would have knocked down the other three. This is despite the fact that the other three, having crossed the road, were already a little distance away, two of them by their parked car. If Mr de Sà had been keeping an adequate look out he would have seen Mr & Mrs Vann at a distance of 60 metres before the impact. On the agreed expert evidence if he had been travelling at 43mph he would have been able to brake and avoid the collision entirely.[51]Mrs Plappert saw the car hit her parents and “send them flying down the road”. Mr Plappert saw the bodies going through the air. Ms Hockett said that the noise of the impact was really loud. Again, these descriptions suggest the car was travelling at quite some speed at the point of impact.[52]On the balance of probabilities I find that Mr de Sà did have his headlights on. I accept the evidence of the experts that for the reasons they have given it is “unlikely” that he did not. At the same time I accept the evidence of Mr & Mrs Plappert, Mr Alex Vann, and Ms Hockett that they never saw the car’s headlights on and they believed they were not. That is supported by the fact that when the photograph was taken of the car some minutes later the headlights were not on. However, I am not satisfied that Mr de Sà had been driving without his headlights on. He does not say in his statement to the police or in his witness statement that his headlights were on. However, at the time those two statements were made he may not have known of the allegation that he was driving without his headlights on. Mr Alex Vann says in his witness statement that he told the police that he did not believe the driver had his lights on. However, that is not in the record of his statement to the police. In those circumstances the allegation may not have been put to Mr de Sà. I further note that the allegation that he did not have his lights on does not form part of the Claimants’ pleaded case. By contrast there is reference in the Defence to his headlights being on (para 6(ii) of Amended Defence).[53]I am left in no doubt that it was safe for Ms Hockett, Mr Alex Vann and Mr & Mrs Plappert to start crossing the road when they did. I accept their evidence that they checked before crossing, that it was safe to do so and that they would not have crossed if they have seen Mr de Sà’s car (or indeed any car) travelling in their direction. I also accept that on a balance of probabilities they continued to check that it was safe to proceed as they were crossing the road and that they did not, at any time, in advance of the collision, see Mr de Sà’s car.[54]I am equally satisfied that it was safe for Mr & Mrs Vann to start to cross the road when they did. They were just behind their daughter. It was not suggested on behalf of the Defendant to Mrs Plappert (or to any of the Claimants’ witnesses) that it was not safe for them to start crossing when they did.[55]It was also not suggested by Mr Janusz that they should not have crossed the road at the point where they did. Mr Janusz accepted that it would be unrealistic to suggest that they should have walked to the nearest designated crossing which was some distance away.[56]Similarly I can deal very shortly with the pleaded allegation that they were affected by alcohol. That allegation was made on the basis of evidence that by the time of the joint statement of Dr Skett, a pharmacologist instructed on behalf of the Defendant, and Dr Taberner, a toxicologist instructed on behalf of the Claimants, was no longer relied on. In their joint statement dated 19 September 2013 they state that in the case of Mr Vann his blood alcohol concentration at the time of the incident would have been very low; accordingly it was unlikely that any noticeable effect would have been seen in him at the time of the incident. They also agreed that in the case of Mrs Vann that her blood alcohol concentration at the time of the incident would have been low; and her functional impairment is likely to have been marginal. Mr Janusz asked no questions about alcohol consumption that evening, and made no closing submission on this issue. I entirely reject the allegation that Mr & Mrs Vann were affected by alcohol.[57]That leaves one matter. Did Mr & Mrs Vann fail to keep a proper lookout and to keep out of, or get out of, the path of the vehicle?[58]In circumstances where their decision to cross the road was not unsafe and they were already crossing the road when the vehicle would have become visible, they were faced with what Mr McDermott describes as “an emergency situation”. The agreed expert evidence is that the maximum range of Mr & Mrs Vann’s view of the approaching car’s headlights would have been approximately 115 metres and when they were about half way across the road, the car would have been about 60 metres or so to their right and its presence would have been clear. However the car was coming towards them at a high speed. It was travelling, as I have found, at a speed of 53 to 64mph (with a mean speed of 58.5mph). They had very little time to react or get out of the path of the vehicle. They had no more than seconds to respond. There is no evidence that they were dawdling or not keeping a proper look out. The evidence relating to the damage to the car indicates that it was the right front part of the vehicle that struck Mr and Mrs Vann (see Mr Hawthorn’s report at paragraph 9.5). That suggests that they were almost across the road at the point of impact.[59]The Defendant has not, in my view, shown a lack of reasonable care by Mr & Mrs Vann for their own safety.

Conclusion

[60]In my judgment, for the reasons I have given,(1) the Claimants succeed on liability, and(2) there was no contributory negligence. Accordingly, judgment shall be entered for the Claimants with damages to be assessed.