Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396
Hearing dates:
8 November 2013
Decision date:
27 November 2013
Before:
Macfarlan JA at [1]; Meagher JA at [2]; Emmett JA at [60]
Decision:
In proceedings CA 2013/58768 (Marien v Gardiner):
(1) Dismiss the appeal and cross-appeal.
(2) Appellant pay the respondent's costs of the appeal and cross-appeal.
In proceedings CA 2013/58771 (Marien v H J Heinz Company Australia Ltd):
(1) Dismiss the appeal.
(2) Allow the cross-appeal.
(3) Set aside the judgment in favour of the respondent against the appellant in the sum of $58,650.62 together with interest of $9,026.43.
(4) Judgment for the respondent against the appellant for $117,301.24 together with interest of $18,052.86, that judgment to take effect on 21 February 2013.
(5) Appellant pay the respondent's costs of the appeal and cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORTS - negligence - motor vehicle accident - car being driven with headlights on low beam in dark conditions collided with pedestrian walking on roadway with back towards oncoming traffic - whether primary judge erred in finding accident avoidable with headlights on low beam if driver keeping proper lookout - whether primary judge erred in finding driver negligent in not activating high beam - whether primary judge erred in assessment of contributory negligence of pedestrian
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Marien v Gardiner [2013] NSWCA 396
Case
[2013] NSWCA 396
Decision Date
CaseChat Overview and Summary
In proceedings CA 2013/58768, the appeal and cross-appeal between Marien and Gardiner were dismissed, with Marien ordered to pay Gardiner's costs of the appeal and cross-appeal. In proceedings CA 2013/58771, the appeal by Marien against H J Heinz Company Australia Ltd was dismissed, but the cross-appeal was allowed. The judgment in favour of H J Heinz Company Australia Ltd against Marien for $58,650.62 plus interest was set aside, and judgment was entered for H J Heinz Company Australia Ltd against Marien for $117,301.24 plus interest, taking effect on 21 February 2013. Marien was also ordered to pay H J Heinz Company Australia Ltd's costs of the appeal and cross-appeal.
The legal issues before the court concerned a motor vehicle accident where a car, driven with headlights on low beam in dark conditions, collided with a pedestrian walking on the roadway with their back to oncoming traffic. The court was required to determine whether the primary judge erred in finding that the accident could have been avoided if the driver had maintained a proper lookout, whether the driver was negligent in failing to activate high beam headlights, and whether the primary judge erred in assessing the contributory negligence of the pedestrian.
The court applied principles of negligence and contributory negligence in the context of road safety. The reasoning focused on the duty of care owed by drivers to pedestrians and vice versa, particularly in conditions of reduced visibility. The court considered the adequacy of the driver's lookout and the potential benefit of using high beam headlights to improve visibility. It also assessed the extent to which the pedestrian's actions contributed to the accident. The court ultimately upheld the primary judge's findings regarding the driver's negligence and the pedestrian's contributory negligence, but adjusted the quantum of damages in the proceedings against H J Heinz Company Australia Ltd.
Orders
Orders of the court
In proceedings CA 2013/58768 (Marien v Gardiner):
(1) Dismiss the appeal and cross-appeal.
(2) Appellant pay the respondent's costs of the appeal and cross-appeal.
In proceedings CA 2013/58771 (Marien v H J Heinz Company Australia Ltd):
(1) Dismiss the appeal.
(2) Allow the cross-appeal.
(3) Set aside the judgment in favour of the respondent against the appellant in the sum of $58,650.62 together with interest of $9,026.43.
(4) Judgment for the respondent against the appellant for $117,301.24 together with interest of $18,052.86, that judgment to take effect on 21 February 2013.
(5) Appellant pay the respondent's costs of the appeal and cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]