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... ... middle of paper ... ...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.
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
This case commentary discusses the different approaches used to be taken in Victoria and NSW, presuming that the admissibility of the Evidence in ss 97, 98 and 101 is of the same decision, not separate decision .
The reason being, the Supreme Court found that the expert evidence was not only useful, but was required to have a more in-depth understanding of the issues surrounding battered women. The rationale was, without expert testimony most people would be ignorant to spousal abuse. It was thought that without expert testimony, jurors would make assumptions about the stereotypes that may have been popularized by society as well ignore the importance of previous events that led up to the incident. Moreover, the trial judge charged the jurors properly, explaining that as long as there is some admissible evidence to establish the foundation for the expert 's opinion, he cannot subsequently instruct the jury to completely ignore the testimony. The judge also warned the jury that the more the expert relies on facts, not proven in evidence the less weight the jury may attribute to the opinion. Furthermore, expert evidence does not and cannot usurp the jury 's function of deciding whether, in fact, the accused 's perceptions and actions were reasonable. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear that
The respondent (Zaluzna, plaintiff) entered the foyer of a supermarket owned by the appellant (Australian Safeway Stores, defendant), of which due to wet weather conditions, the flood had become, “wet or moist”. The respondent slipped and fell on the floor, causing injuries to the respondent. The respondent sued for damages resulting of negligence, and a breach of the general duty of care, and the special duty of care owed by an occupier to an invitee.
The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pa...
As a general rule, expert opinion evidence is inadmissible in court; ‘Where a person is called as a witness in any civil proceedings, his opinion on any relevant matter ...
Your Honour, I make reference to the case of Crown v Cunningham (1957), the citation of this case is written in the skeleton arugement placed before you. In relation to Crown v Cunningham,
According to the Federal Rule of Evidence 703, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opini...
At the hearing of the appeal there was a conflict of evidence as to whether the car was being driven by the appellant or by a lady seated by his side in the car. The quarter sessions, without deciding whether the appellant was himself driving the car, dismissed the appeal, finding as facts that if the lady was driving she was doing so with the consent and approval of the appellant, who must have known that the speed was dangerous, and who, being in control of the car, could, and ought to, have prevented
Negligence, as defined in Pearson’s Business Law in Canada, is an unintentional careless act or omission that causes injury to another. Negligence consists of four parts, of which the plaintiff has to prove to be able to have a successful lawsuit and potentially obtain compensation. First there is a duty of care: Who is one responsible for? Secondly there is breach of standard of care: What did the defendant do that was careless? Thirdly there is causation: Did the alleged careless act actually cause the harm? Fourthly there is damage: Did the plaintiff suffer a compensable type of harm as a result of the alleged negligent act? Therefore, the cause of action for Helen Happy’s lawsuit will be negligence, and she will be suing the warden of the Peace River Correctional Centre, attributable to vicarious liability. As well as, there will be a partial defense (shared blame) between the warden and the two employees, Ike Inkster and Melvin Melrose; whom where driving the standard Correction’s van.
In our given scenario we are asked to discuss legal principles influencing the likelihood of any successful action against Steve in the grounds of negligence. Steve’s negligent driving caused a series of events that caused losses to the other people presented in the scenario and they take actions against Steve in the grounds of negligence. At first we must understand what negligence is. The tort of negligence provides the potenti...
Negligence is a concept that was passed from Great Britain to the United States. It arose out of common law, which is made up of court decisions that considered whether a defendant had an obligation to act with greater care. It is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm and involves a failure to fulfill a duty that causes injury to another. Many torts depend on whether there was intent but negligence does not. Negligence looks to see whether the person had a duty to act with care. It emphasizes the need for people to act reasonably in society. This is important because accidents will happen. Negligence helps the law establish whether these accidents could have been avoided, if there was a breach of duty to act reasonably, and if that breach was the cause of injury to that person. By focusing on the conduct rather than the intent of the defendant, the tort of negligence reflects society’s desire to
On Tuesday, February 5, 2013 at approximately 1325 hours a unit was dispatched to the scene of a two car property damage collision reported. It was located at the intersection of Red Street and Yellow Boulevard in the Town of Campbell, NY. Upon arrival both drivers were interviewed and are the only witnesses present at the scene. Ms. Steering accounts that her direction of travel was southbound on Red Road, where she stopped at the intersection controlling the intersection with Yellow Boulevard. She then began to make a right turn and was struck in the east lane by Mr. Dormant's vehicle that was travelling east on Yellow Boulevard. Mr. Dormant account was that Ms. Steering was in the wrong. He makes the argument that she didn’t adhere to traffic rules and pulled out in front of him. He states he had the right of way and was obeying the traffic rules/signs 30mph. Ms. Steering states she stopped at the stop sign and that Mr. Dormant was speeding. But there are no other witnesses available. Both vehicles came to rest in the middle of the intersection. Ms. Steerings’ vehicle had to be towed from the scene by We Hook It Towing to their facility located in Campbell, NY and Mr. Dormant drove away from the scene. An important element to consider in traffic collisions is roadway
A month later, while driving in rainy downtown Columbus, Georgia on a 4-lane divided street, I experienced an accident in the Porsche. The right lane was stopped, and the left lane was moving slowly. Without warning, a car crossed our path, and though slamming on the brakes, I struck the left rear fender. The woman came out of her car screaming about her baby in the backseat. Fortunately, the baby was not harmed. I was only traveling about 15-20 MPH, but there were effectively no brakes as my tires just slid on the wet road.