CN attaches to pedestrian, despite speed.

(1) JUNE VANN (BY HER LITIGATION FRIEND NICHOLAS PLAPPERT) (2) ALEX VANN (EXECUTOR OF THE ESTATE OF MARTIN VANN, DECEASED) (3) JULIA PLAPPERT (EXECUTOR OF THE ESTATE OF MARTIN VANN, DECEASED) v OCIDENTAL-COMPANHIA DE SEGUROS SA (2015) A judge had erred in finding that there was no contributory negligence on the part of two pedestrians who had been knocked down by a car. Although the car driver had been driving substantially too fast for the conditions, the pedestrians had failed to keep a proper lookout because the car would have been audible and clearly in view as they walked across the first half of the road. An insurance company appealed against a decision that there had been no contributory negligence on the part of two pedestrians (M and J) who had been knocked down by a car. M and J were a married couple and the accident took place when they were on a family holiday in Portugal. They had been out for dinner with their adult children and their partners. After leaving the restaurant, it was necessary for them to cross the road to reach their car. The car driver saw them in the road as he approached. He applied his brakes, but his car struck both M and J. M died and J survived, but was left with disabilities and cognitive impairment. J claimed damages for her personal injuries. Her two children claimed damages for the psychological injuries which they had suffered as a result of witnessing the accident. They also claimed as executors on behalf of M’s estate. Under Regulation 864/2007 art.4(1), the action had to be determined in accordance with Portuguese law. Where both parties were at fault, the applicable principles were essentially the same as the English law of contributory negligence. The judge found that the driver was driving too fast for the conditions and that although the car headlights were on, none of the family had seen them. He held that it had been safe for the family to cross the road when they did, and that they had not failed to keep a proper lookout. The insurance company accepted that the driver had been negligent, but submitted that having found that the driver’s car headlights were on, the judge should have concluded that M and J ought to have seen the car in time to avoid an accident. HELD: The instant court had to proceed on the basis of the findings of primary fact made by the judge below, namely that the car was travelling substantially too fast and had its headlights on. However, the finding that M and J were keeping a proper lookout was not a finding of primary fact. It was an inference from primary facts and it had not been a permissible inference. On the basis of the experts’ assessment of speed, M and J could only just have stepped into the road when the car came into view. As they walked across the first half of the road, the car would have been clearly in view if they had looked in that direction. Even if they had not looked in that direction, the sound of the approaching car should have alerted them to the danger. In those circumstances, M and J ought to have noticed its approach before they crossed the centre of the road. If they had been keeping a proper lookout, they would have become aware of the approaching car whilst they were still on the first half of the road. In fact, they remained oblivious to the risk and simply kept walking across the road. An obvious explanation was their daughter’s evidence that they were engaged in conversation as they walked over the road. That probably distracted them from looking out for traffic. Their negligence was a contributory cause of the accident. However, the driver was principally at fault. Liability would be apportioned 80 per cent to the driver and 20 per cent to M and J (see paras 31-43 of judgment). Appeal allowed