LAWS1006 Case Note - Marien v Gardiner 2013

Citation:
Marien v Gardiner [2013] NSWCA 396

Court:
Macfarlan, Meagher and Emmett JJA, panel of judges of the New South Wales Supreme Court of Appeal

Material Facts:
Shortly after five o’clock in the morning on 3 February 2009, Mr Gardiner was walking on Centenary Avenue with his back to oncoming traffic, approximately four to six metres from the southern kerb. There was an absence of natural light, and only one streetlight, which Mr Gardiner had already passed [5]. On the same morning, Ms Marien was driving along Centenary Avenue with her lights on low beam, which illuminated the roadway ahead of her for less than twenty-eight metres [6]. ozb Travelling at 50km/h, the applicable speed limit, Ms Marien’s car struck Mr Gardiner at a point past the streetlight, causing him serious injuries [6].

Procedural History:
Gardiner and H J Heinz Company Australia Ltd brought negligence suits against Marien in the District Court of NSW [8]-[9]. On 31 January 2013, Delaney DCJ found that Marien had been negligent and awarded Gardiner damages of $191,865.07 [3], [23]. In Heinz’ claim against Marien, Delaney DCJ again found Marien to be negligent and awarded Heinz damages of $58,650.62. Marien appealed and both Gardiner and Heinz cross-appealed to the New South Wales Supreme Court of Appeal, which handed down its decision on 27 November 2013 [25].

Legal Issues:
The legal issues faced in this case were (1) whether the appellant’s failure to keep a proper lookout a necessary factor of the collision under the Civil Liability Act 2002 [26], (2) whether the appellant’s failure to use high beam lights in the circumstances surrounding the collision breached the duty of care that drivers of motor vehicles owe pedestrians, per McHugh J in Vairy [26] and (3) whether the contributory negligence of the first respondent needed to be reassessed in consideration of the relative responsibilities of driver [26].

Ratio Decidendi
(1) No it was not. Despite the negligence of the appellant in failing to keep a proper lookout, it was found that this negligence did not extend to the causation of harm [28]. Originally, unchallenged expert evidence asserted that the appellant “could not have seen the plaintiff and stopped if driving with low beam at 50km per hour” [28]. Meagher JA asserted that the matters addressed in the first case did not contradict the aforementioned evidence, nor did they provide any basis for a finding to be made to the contrary [32]. Thus, it was found that the primary judge had failed to address the evidence correctly, which was clear and not objected to [32]. Consequently, the appellant’s failure to keep a lookout did not contribute to the harm of the first respondent.

(2) Yes it did. As established by McHugh J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 [33], “the driver of a motor vehicle has, to all users of a roadway, a duty to exercise reasonable care for their safety in consideration of all the circumstances of the case”, The objective and impersonal standards used in determining whether the appellant was negligent in not switching to high beam lights comprised of foreseeability, significance and what precautions a reasonable person would take, a holistic examination of which found that the appellant’s failure to switch to high beam lights was a breach of the ‘reasonable care’ that drivers of motor vehicles owed to pedestrians [34].
a) Meagher JA judged that because the appellant was aware that the particular section of the roadway upon which they were driving, was frequently used by locals due to the impracticality of the grass footpath, there most definitely existed both a foreseeable and significant risk of harm to a pedestrian [41].

b) In regards to the precautions a reasonable driver would take, Meagher JA reasoned that a fairly competent and experienced driver would appreciate the relationships between speed, visibility, stopping time and stopping distance, and that in this case, the compromise on stopping time and distance due to the “pitch black” visibility could be mitigated by the simple activation of a high-beam switch [42]. Further, under Rule 218 of the Road Rules 2008, high beam lights were not prohibited unless the driver was less than 200 metres behind another vehicle travelling in the same direction or less than 200 metres from an oncoming car [43]. A reasonable driver would have observed a lack of traffic in the vicinity and understood that the use of high beam lights would not be prohibited [43].
Thus, because the appellant failed to take reasonable care based upon the aforementioned standards, it was found that the primary judge did not err in his conclusion [47]. Consequently, the appellant was negligent in failing to switch her headlights to high beam [47].
(c) No it did not. It was established in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, that because the task of apportioning responsibility involved the consideration of “subjective matters about which like minds may differ,” it was not appropriate for an appellate court to interfere unless an error of principle or fact was found, or unless the apportionment was “plainly wrong” [51]. In considering the grounds on which the appellant sought appeal, Meagher JA found that despite the gross misconduct and inaction of the first respondent, the evidence provided did not considerably warrant a need for change [56]. Thus, the primary judge did not err in assessing the respondent’s contributory negligence at fifty per cent [57].
Obiter Dicta:
1. A driver is not expected to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable precautions, nor are they required to required to be in a position to react to everything which may happen [36]-[37].
2. Even if the respondent was wearing a light coloured singlet and pants as opposed to dark coloured clothing, the appellant would not have seen him earlier if she had kept a proper lookout [55].

Results and Orders:
In Marien v Gardiner, Meagher JA dismissed both the appeal and the cross appeal, and ordered that the costs of appeal and cross-appeal incurred by the first respondent be paid by the appellant [59].

In Marien v H J Heinz Company Australia Ltd, Meagher JA dismissed the appeal but allowed the cross appeal, and thus set aside the judgment of Delaney DCJ on 27 November 2013 and in lieu thereof enter a judgment for the second respondent against the appellant [59]. Order the appellant pay damages of $117,301.24 with interest of $18,052.86, to take effect on 21 February 2013 [59]. Order that the appellant pay the costs of appeal and cross appeal sustained by the second respondent [59].

Essay:
The notion of justice has underpinned all legal systems, from the customary law of primitive civilisations to the ever-shifting laws of modern societies. Whilst the modern defence of ‘contributory negligence’ as outlined in Marien v Gardiner1 purportedly promotes fair and accurate apportionment of justice, the reality is that there exist severe limitations that leave a lot to be desired. It is fitting to consider the flaws of contributory negligence in terms of certainty, consistency and efficiency because they not only reflect the widely respected principles in Dicey’s Rule of Law2, they allow us to comprehensively analyse this defence for its merits as well as its flaws. Ultimately, the application of these discrete criteria clearly leads us to the conclusion that contributory negligence is condemnable, and that this legislation should be reworked or abolished.

As Sackville JA posits in Nominal Defendant v Meakes, the tests for contributory negligence are purportedly objective3 but how an individual ascertains the degree to which an individual qualifies these tests is clearly subjective. In Marien, it is implied that it is the reasoning of judges4, and not of ordinary men and women, that is used to assess the degree to which an individual has contributed to the negligence of others, which can lead to biased and inaccurate judgments made by a minority. Assuming that contributory negligence was enacted as a superior alternative to the ‘all or nothing’ negligence rulings, it becomes apparent that in terms of certainty, its superiority is dubitable. Thus, due to the limitations in its accurate measurement and the consequent violation of the certainty axiom of Dicey’s Rule of Law, contributory negligence fails to achieve procedural or substantive fairness and is therefore undesirable.

Consistency remains one of the tenets of the Australian legal system. Despite the primary judge’s adherence to doctrine of stare decisis in establishing contributory negligence in Marien5, achieving full consistency is impossible due to the inherent subjectivity of the determination process as outlined above. Due to the differences in material facts in cases, the subjective views that a judge holds on one particular case cannot effectively be binding on another without compromising the integrity of the proceedings. Due to its excessive subjectivity, contributory negligence is severely limited in upholding the value of consistency advocated in Dicey’s Rule of Law as it simply cannot reinforce that “like cases should be treated alike”. As a result, decisions involving contributory negligence have a high risk of inaccuracy, and a high potential to be unfair. Inherent difficulties lie within the efficiency of determining contributory negligence, which, as referred to in Marien, asserts that all actions of all negligent parties must be subject to examination6. It is clear, then, that the potential for excessively lengthy litigation processes is high, and in extreme cases, litigation costs may exceed the damages sought, severely undermining the efficiency of legal procedure and detracting from procedural fairness. Consequently, this violates Dicey’s view that all individuals should have access to justice7, where financially challenged victims cannot proceed and are thus denied access to justice.

Conclusion:
Contributory negligence is clearly an ineffective way of apportioning justice, and should be amended or abolished in its entirety. A lack of certainty creates issues of procedural inefficiency and inconsistency, which can increase litigation costs to an exorbitant level as well as detract from the accuracy and fairness of judgments. Whilst cases like Marien exhibit these flaws to a minor degree, the potential for justice to be distorted is simply too great and thus, amendments are required.