Marien V Gardlin Case Study

Emily Crawford

Thursday 2-4

Word Count: 1742

Marien v Gardiner [2013] NSWCA 396

New South Wales Court of Appeal.

Before: Macfarlan JA, Meagher JA, Emmett JA

Material Facts:

1. 5am, 3 February 2009, Mr. Gardiner (respondent) was struck by Ms. Marien’s (appellant) vehicle on Centenary Avenue.

2. Mr. Gardiner was dressed in dark clothing and walking along the road in conditions not conducive to clear vision.

3. Ms. Marien was driving with her lights on low beam and her car struck Mr. Gardiner causing him serious injuries.

Procedural History:

Mr. Gardiner (respondent) brought proceedings against Ms. Marien (appellant) in the New South Wales District Court (NSWDC). Respondent claimed negligence on the basis of the appellant’s failure to be vigilant. Handed down 31 January 2013.

NSWDC found that:

1. The appellant was negligent in not using high beam headlights;

2. There should be a reduction in the respondent’s damages should be reduced by 50% due to contributory negligence.

Legal Issues Facing the Court: Marien v Gardiner [2013] NSWCA 396 [26]

1. Was it a condition of the collision that the appellant had failed to keep a proper lookout?

2. Was the appellant negligent for not having her headlights on high beam?

3. Did the primary judge err in assessing a 50% reduction in damages due to contributory negligence?

Ratio decidendi

1. Expert opinion that is not objected to or contradicted should inform the finding of a judge. [Ibid 32] (Meagher JA)

Expert opinion was given on the ability of the appellant to keep a careful lookout in the circumstances of the incident. Given that this information was not contradicted, and there was no compelling reason to find otherwise, that evidence should have informed the finding...

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...dividuals from themselves. Moreover, a failure to anticipate the potential negligence of other individuals, particularly where the harms are potentially quite high as is the case in motor vehicle accidents, is probably a failure of the duty of care that one holds for one’s self. A reasonable person would probably anticipate and take precautions against these harms and it is important that the legal system is consistent in the application of the principles of reasonable precautions.

In conclusion, contributory negligence recognises the complex relationships between the actions of plaintiffs and defendants and how those relationships can sometimes lead to harm. In those cases, individuals should be held accountable only for the quantum of harm that they are culpable for. A system of justice that does not recognise this relationship cannot be said to truly be just.