At first instance the trial judge was required to have regard to the relevant provisions of the Portuguese Highway Code and to apply Portuguese law to determine the issue of contributory negligence, though the principles were essentially the same as the English law of contributory negligence.
The trial judge found for the claimants. The driver was speeding. He also accepted witness evidence that nobody had heard the car or saw the headlights before the crash. He found that there was no contributory negligence because the pedestrians did not fail to keep a proper look out, where they were already crossing the road when the car appeared and faced with an emergency and could not be criticised for continuing. The defendant appealed.
On appeal, Jackson LJ found that the trial judge had erred in holding that there was no contributory negligence. Whilst unable to disturb primary findings of fact, the judge’s finding that the pedestrians were keeping a proper look out could not be a primary finding of fact as there was no evidence in this regard.
Jackson LJ found the trial judge’s inference to be impermissible on the facts. He said the pedestrians would have taken around 4.4 seconds to cross the road and so can only have just stepped on to the road when the car came into view. If they had been keeping a proper look out, they would have become aware of the approaching car, either through sight or sound, and were probably distracted by the conversation with their daughter. Whilst sympathetic to the tragedy of the situation, Jackson LJ found that the pedestrians did not take reasonable care as they were crossing the road, failed to keep a proper look out and failed to take avoiding action when it was possible. The court apportioned fault 80/20% in favour of the claimants.
The judgment on appeal in relation to contributory negligence is not, sadly, surprising having regard to the accident circumstances.
Adam Dyl & Louise Taylor, Anthony Gold