Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396

 

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.
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 

Meagher JA with whom MacFarlane and Emmett JA concurred:

33. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.

 

34. The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).

 

35.  Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], “reasonable attention to all that is happening on and near the roadway that may present a source of danger”. That in turn requires “simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle’s path”.

 

36.  The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

 

37.  Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the “limits of visibility and control” so as to be able to react to whatever ventures into the vehicle’s path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.

 

38.  In considering whether the appellant was negligent in not using high beam the primary judge focused on two matters. They were the absence of natural light and effective street lighting ([125]) and the fact that the appellant was travelling at about 50km/h. Those factors meant that, with a maximum head light throw of about 28m, the appellant was restricted in her ability to detect objects in her path: [126]. The reference to “ability to detect” must, I think, be understood to be to the appellant’s ability to detect and react to objects in the path of the vehicle. Taking those matters into account the primary judge considered that high beam should be engaged where a motorist “cannot see obstacles in his or her path using low beam at the speed they are travelling, and high beam is not contraindicated”. That conclusion also is to be understood as turning on the position being that the motorist cannot see and react to obstacles in his or her path.

 

39.  Underlying that conclusion, expressed as it is in absolute terms, is the proposition, rejected by this Court in Cole at [61], that the exercise of reasonable care requires a driver to travel at a speed where he or she can react to whatever ventures into the path of the vehicle. The decision in Cole also is inconsistent with that being a correct statement of what the standard of care requires. In that case the driver was held not to have been negligent even though she was driving at night at a speed which meant that she could not stop or manoeuvre her vehicle to avoid a collision with Ms Cole who was standing on the roadway.

 

40.  The question for the primary judge was whether the appellant was exercising reasonable care in the circumstances as they presented to her. Under s 5B(1)(c), which reflects the position under the common law, that question was to be answered by reference to what a reasonable person in her position would have done by way of response to any foreseeable risk of harm to a user of the roadway: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [192].

 

41.  The appellant was aware that the stretch of Centenary Avenue on which she was driving was used by locals who walked on either side of the roadway at different times of the day and night when going between their homes and places in and around the Hume Highway intersection and beyond. The roadway itself had residences on one side and, after 5.00am, especially on a weekday, people might be expected to start moving about. Viewed prospectively, the probability of the appellant coming across a pedestrian using the roadway at that time in the early morning, and particularly one who was walking out from the kerb in the same direction as the oncoming traffic and with his back to it, would have been regarded as unlikely. Nevertheless it was one which could not be dismissed as never likely to happen, even at that early hour; and the driver must take account of the possibility of inadvertent and negligent conduct of a pedestrian: see McLean v Tedman [1984] HCA 60; 155 CLR 306 at 311; Clarke v Freund [1999] NSWCA 197; 29 MVR 361 at [15]. This is particularly so where any collision could result in serious injury or worse to the pedestrian. In my view, in the language of s 5B(1) and (2), the risk of harm to a pedestrian on the roadway was foreseeable and not insignificant. It was therefore something which the driver was required to take reasonable steps to avoid.

 

42.  That being the position, what precautions would a reasonable driver in the appellant’s position have taken? That driver would have observed that it was “pitch black”, that the roadway was not illuminated other than by the vehicle’s headlights and that on low beam they illuminated the roadway only a relatively short distance in front of the vehicle. That driver would not have known the time it takes to react to seeing an object in the path of the vehicle or, taking that reaction time into account, the relationship between the speed of the vehicle and the distance in which it could be brought to a stop. However, a reasonably competent and experienced driver would appreciate that there is a relationship between speed, stopping time and stopping distance and that at night the ability to know what is happening in the vicinity of the vehicle and react to it is limited by the available lighting – street and other lighting and the vehicle’s lights – and the speed at which the vehicle is travelling. He or she would also appreciate that the vehicle’s lights included high as well as low beam, that the former could, as in this case, nearly double the distance of roadway in the path of the vehicle which was illuminated and that this could be done by the flick of a switch.

 

43.  That driver also would have observed that there was no oncoming traffic and that the use of the high beam would not cause any difficulties either to vehicles travelling in a north-south or south-north direction on the Hume Highway or, if it be relevant, to residents in the houses on the southern side of Centenary Avenue. The street was very wide and those houses were set back behind a row of trees. The use of high beam in that street was not prohibited by Rule 218 of the Road Rules 2008. That Rule only prohibits the use of headlights on high beam if the driver is driving less than 200m behind a vehicle travelling in the same direction or less than 200m from an oncoming vehicle. That rule came into effect on 1 July 2008. The equivalent rule which preceded it, and which was in the same terms, was Rule 218 of the Australian Road Rules, which applied in New South Wales between 1999 and 2008. Thus, as Mr Griffiths noted, the road rules allowed the use of high beam in a residential area with poor street lighting, and had done so for some time.

 

44.  The evidence did not suggest any other reason why the appellant could or should not have switched the lights to high beam. When asked, she said that she had not switched them on because she was “still in [a] residential area” (Black 62). That answer was not pursued by further cross-examination. The fact that the appellant was driving in a residential area did not constitute a good reason for not using her high beam and she was not prohibited from doing so.

 

45.  The exercise of care requires that the driver take reasonable steps when controlling the speed and direction of the vehicle to be in a position to know what is happening or might happen in its path in time to take reasonable steps to react to those events: Manley v Alexander at [12]. It also requires that the driver take such reasonable steps when using the vehicle’s headlights. Here, in my view, the reasonable and proper response to the “pitch black” light conditions, the relatively short throw of the vehicle’s low beam, the risk of a pedestrian on the roadway and the fact that the vehicle was travelling at or near the speed limit of 50km/h was to activate the high beam as, or shortly after, the vehicle turned right into Centenary Avenue.

 

46. The circumstances of the present case are different from those in Cole, where the allegation was that Mrs Lawrence was negligent because her speed was too high. As Ipp AJA said at [60] in that case:

“There was no reason to expect pedestrians in the vicinity and Mrs Lawrence’s speed was below the legal limit. There was no particular reason for her to slow down to an even lower speed. There was no particular perceivable risk which Mrs Lawrence should have taken into account but did not.”

 

47.  The primary judge did not err in finding that the appellant was negligent in not switching her lights to high beam. Had she done so there was no issue but that she would have observed the respondent in time to avoid any collision with him.

 

David Cormack – Brisbane Barrister.

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