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

The case of Marien v Gardiner was an appeal from the District Court of New South Wales in which the appellant was found negligent for not using her high beam headlights when driving along a dark residential street in the town of Tarcutta, New South Wales at approximately 5.30am on 3 February 2009.

The Facts

Shortly after 5am on 3 February 2009, the respondent set out on foot from his home to collect his car, which was parked in the car park of a local hotel located on the Hume Highway. The respondent was wearing dark shorts and a dark sleeveless singlet. He walked down Bent Street, crossed Centenary Avenue, and proceeded to walk along the roadway towards the Hume Highway with his back to the oncoming traffic. There was one streetlight in the vicinity of the accident, however this did not provide any additional light to the driver of a car. The respondent argued that he walked along the roadway because, he said, it was easier than weaving in and out of the trees on the grass verge.

While the respondent was walking along Centenary Avenue, the appellant drove down Bent Street and turned right into Centenary Avenue. The respondent had her lights on low beam which illuminated the roadway for a distance of less than 28m in front of her car. After travelling approximately 150m along Centenary Avenue, the appellant’s car struck the respondent causing him serious injuries.

Issues on Appeal

The Court of Appeal had to consider whether:

  1. The appellant’s failure to keep a proper lookout was a necessary condition of the collision.
  2. The appellant was negligent for not having her lights on high beam as she drove down Centenary Avenue.
  3. The primary judge erred in assessing the reduction of damages for contributory negligence at 50 per cent. The appellant argued that reduction should have been at least 75 per cent. By cross-appeal, the respondent argued that it should have been no more than 25 per cent.


  1. Whether the appellant’s failure to keep a proper lookout was a necessary condition of the collision

The unchallenged expert evidence from two engineers in a joint report was that the appellant “could not have seen the plaintiff and stopped if she was driving with her lights on low beam at 50km per hour?.

The primary judge acknowledged the expert evidence but found that had the appellant kept a proper lookout with her lights on low beam she would have been able to take some action to avoid the accident. The Court of Appeal said that the expert evidence was clear and not objected to nor contradicted, and that based on the expert evidence the primary judge had erred in his finding.

  1. Whether the appellant was negligent for not having her lights on high beam

The Court of Appeal reiterated that 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.

Meagher JA said that the 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. His Honour said that in his 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.

The Court held that the primary judge therefore did not err in finding that the appellant was negligent for not switching her lights to high beam. Had she done so, she would have observed the respondent in time to avoid any collision with him.

  1. Whether the primary judge erred in assessing the respondent’s contributory negligence of 50 per cent

The Court of Appeal found that the evidence did not support a finding that there were grassed areas available on either side of Centenary Avenue on which it would have been practicable for the respondent to walk in the “pitch black? conditions. However, the Court said that it is plain that the respondent should have been walking much closer to the kerb, and preferably on the other side of the road and towards the oncoming traffic. The respondent also should have been alerted to the noise and lights of the car as it came round Bent Street.

The Court found that the primary judge did not err in assessing the respondent’s contributory negligence at 50%.