In Vann -v-Ocidental  EWCA Civ 572 the Court of Appeal overturned a finding that there was no contributory negligence. There is an interesting discussion about appeals on findings of fact and the inferences that the judge draws from those facts.
The action arose out of a road traffic accident that occurred in Portugal. One pedestrian was killed, the other seriously injured. They were walking in the road. Portuguese law has a concept of contributory negligence similar to that in England and Wales. The trial judge found the defendant liable but with no contributory negligence. The defendant appealed.
- The Court of Appeal could not disturb the judge’s findings of primary fact.
- However there was no evidence to support the inferences that the judge drew from those facts.
- The Court of Appeal was entitled to overturn the finding that there was no contributory negligence.
- Contributory negligence was assessed at 20%.
APPEALING FINDINGS OF FACT OR INFERENCES?
Jacksons LJ stated.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- After weighing up all the circumstances I would apportion responsibility to 80% to Mr de Sà and 20% to Mr and Mrs Vann.
- 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.”