Marien v Gardiner; Marien v H J Heinz Company Australia Ltd

Court of Appeal (NSW)|2013-11-08|Before: Macfarlan JA, Meagher JA, Emmett JA

Sheridan Marie Marien (Appellant) Kim Joseph Gardiner (Respondent)

Sheridan Marie Marien (Appellant/Cross-Respondent) H J Heinz Company Australia Ltd (Respondent/Cross-Appellant) Representation: Counsel:

K P Rewell SC (Appellant) E G Romaniuk SC, R J M Foord (Respondent)

K P Rewell SC (Appellant/Cross-Respondent) P A Rickard (Respondent/Cross-Appellant) Solicitors: Curwoods Lawyers (Marien) Farrell Lusher Solicitors, Wagga Wagga (Gardiner) Stiles Lawyers (H J Heinz Company Australia Ltd) File Number(s): 2013/58768 2013/58771 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-01-31 00:00:00 Before: Delaney DCJ File Number(s): 2009/339823

Judgment 1MACFARLAN JA: I agree with Meagher JA. 2MEAGHER JA: This is an appeal from a decision of Delaney DCJ finding the appellant negligent in not using her high beam headlights when driving along a dark residential street in Tarcutta at 5.30 in the morning: Gardiner v Marien (unreported, Delaney DCJ, 31 January 2013). That finding, although requiring the application of standards of reasonableness, remains one of fact, as is emphasised in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. See also Turkmani v Visvalingam [2009] NSWCA 279; 53 MVR 176 at [27] per Hodgson JA (Beazley and McColl JJA agreeing). 3Before identifying and dealing with the specific issues raised in this appeal it is necessary to introduce the circumstances in which those issues fell to be considered.

The collision between vehicle and pedestrian 4Tarcutta is a small town in southwestern New South Wales with a population of about 400. One of its main streets, Centenary Avenue, runs in an east-west direction and at the time of the accident in February 2009 at its western end formed a "T" intersection with the Hume Highway. About 270m back from that intersection Bent Street, which runs in a north-south direction, forms a "T" intersection with Centenary Avenue on its northern side. The stretch of bitumen road between those intersections is exceptionally wide, at about 19m, with curb and guttering on its southern and northern sides. The vertical profile of that part of the roadway is initially a downhill grade of about 4.5 per cent, which reduces to about 1.3 per cent after about 150m, and becomes level just before the Hume Highway intersection. 5Shortly after 5 o'clock in the morning on Tuesday 3 February 2009 the respondent (Mr Gardiner) set out on foot from his home to collect his car, which was parked in the carpark of the local hotel on the other side of the Hume Highway. He 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 about 4m to 6m or so from the southern kerb with his back to the oncoming traffic. The one streetlight on that part of Centenary Avenue was on its southern side between Bent Street and the Highway. It did not provide any additional light to the driver of a car, who remained entirely reliant on headlight throw to detect the presence of a pedestrian or other object on the roadway. At the time there was no natural light so that, as the appellant later described it, the night was "pitch black" (Black 61). 6A short time later the appellant (Ms Marien) drove down Bent Street and turned right into Centenary Avenue. Her lights were on low beam and illuminated the roadway for a distance of less than 28m in front of her car. After travelling approximately 150m along Centenary Avenue, and just past the street light, the appellant's car struck the respondent causing him serious injuries. The evidence did not enable the exact location on the roadway where the collision occurred to be identified. It indicated that at the time of impact the respondent was walking in a westerly direction, with his back to the oncoming vehicle, somewhere between 4m and 6m from the southern kerb line. The point of impact was the front right side of the vehicle approximately in line with the driver's seated position. The primary judge found that the appellant was travelling at about 50km/h, which was the applicable speed limit. (The appellant said her speed was between 45 to 50km/h. The experts estimated her speed at about 40km/h.) The appellant did not see the respondent until the point of collision. 7The respondent said that it was not practicable to walk on the grass verge on the southern side of Centenary Avenue because of the trees which one would have to "weave in and out of" (Black 31). He had crossed to that side of the roadway because the only street lamp was along that side (Black 31). After doing so he had turned and seen the appellant's car lights coming down Bent Street. He did not see them turn into Centenary Avenue and did not look back again before the accident happened (Black 33-34).

The proceedings 8The respondent brought proceedings against the appellant in the District Court. The pleaded particulars of negligence included failing to keep any or any proper lookout. On the first day of the hearing those particulars were amended to add failing to use the high beam of the vehicle when travelling along Centenary Avenue. 9At the time of the accident the respondent was employed by H J Heinz Company Australia Ltd (Heinz) and had undertaken training as a process worker and forklift driver. His first day of work following that training was to be 3 February 2009. Heinz also brought proceedings against the appellant under s 151Z(1)(d) of the Workers Compensation Act 1987 (the WC Act) to recover an indemnity in respect of compensation paid under that Act. That claim was heard with the respondent's claim.

The expert evidence 10Each of the appellant and respondent tendered evidence from an engineer with expertise in relation to motor vehicle accident investigation and analysis. In addition to their separate reports, those experts prepared a joint report which recorded their common or agreed opinion on key issues. Neither was cross-examined on their remaining differences of opinion. 11In that joint report those experts (Mr Griffiths qualified on behalf of the respondent and Mr Keramidas on behalf of the appellant) agreed on the following matters: (1) That having regard to the extent of damage to the vehicle and the injuries sustained by the pedestrian the vehicle's speed at the time of impact was "in the order of 40km/h". (2) That the pedestrian would likely have been detectable using the low beam headlight setting somewhere "between 22 to 28 metres from the point of impact" and at a "distance of at least 55 metres if the vehicle was operating in high beam setting". (3) That within the expected response times for a driver operating within the environment of this accident location the collision would have been unavoidable if the vehicle's headlight beams were set to low beam, whereas if they were being operated on high beam the collision was avoidable by the driver. 12The assumptions and reasoning underlying the third of these opinions were as follows. Empirical studies indicate that the response time of 85 per cent of the driving population to the intrusion of an object into the path of a vehicle is 2.4 seconds or less. The response time of the 85th percentile driver is regarded as at the outer extreme of "normal". The response time of 50 per cent of the driving population in the same circumstances is about 1.8 seconds or less. Assuming a forward low beam light throw of less than 28m, a perception response time in the order of 2.5 seconds and a vehicle travel speed of between 40 to 50km/hr, a driver would have insufficient opportunity to initiate successful crash avoidance action. That is because a vehicle travelling at 40km/hr covers 11.1m per second and would cover the 28m in about 2.5 seconds. A vehicle travelling at 50km/hr covers 13.8m per second and would cover that distance in about 2 seconds. (It is to be noted that these reaction times are longer than those apparently given in evidence in South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113 at [42], [58]; and that the distance of the throw of the lights on low beam is significantly less than was the case for the tow truck vehicle in Manley v Alexander [2005] HCA 79; 80 ALJR 413 at [13].) 13The experts agreed, as is evident from Mr Griffiths' report (which in part replied to Mr Keramidas' first report) that at the time of the accident there was no natural light and that the street lighting would have been of no assistance to the appellant driver. 14They also agreed that the forward throw of the low beam headlights on the appellant's car would have been less than 28m because of the curved vertical profile, or "sag vertical curve", of the roadway. The effect of that curve was to reduce the throw of the headlight beam on the roadway because that beam was pointing down a gentle slope. Mr Keramidas estimated the resultant reduction in the headlight recognition distance as "at least several metres". This phenomenon was also observed by the appellant who said, in a statement made three months after the accident, that because the roadway "slopes down towards the Hume Highway, the car lights seem to miss the dip at the bottom of the hill" (Blue 28).

Centenary Avenue and its use 15Mr Griffiths' evidence was that the typical lane width of a roadway for through traffic in a residential area is in the order of 3m and in higher speed zones in the order of 3.5m. The relevant stretch of roadway was 19m wide. There were no centre line markings or shoulder lines on it. There were, however, wheel tracks in the east and westbound sides of the road. Those on the westbound roadway indicated that vehicles travelling in that direction usually did so with their passenger side between 3.5m and 4.5m north of the southern kerb line. 16On the southern side of Centenary Avenue proceeding in a westerly direction from the Bent Street intersection was the Tarcutta Public School and then eight or so private dwelling houses. Adjacent to the roadway on the southern side was a grass nature strip with fairly closely planted mature trees which made it impracticable for use as a pedestrian thoroughfare. On the northern side proceeding in the same direction was the Paddy Osborne Park, a vacant lot and, at the intersection just before the Highway, the Tarcutta Police Station, which was not open at the time of the accident. On that side of the roadway the grass nature strip was wider and also planted with trees. 17On the western side of the Hume Highway in a position just north of the intersection with Centenary Avenue was a Caltex service station. The lighting from that station was visible when driving in a westerly direction along Centenary Avenue and provided background lighting to the western end of its northern kerb line. It did not provide any background lighting to the roadway in front of the appellant. Just south of that service station, also on the western side of the Highway, was the Tarcutta Hotel, where the respondent's car had been parked overnight. 18The appellant had been living in Tarcutta for about six months prior to the accident. She described Centenary Avenue as "a main road" in Tarcutta (Black 58) which was used by locals as a means of pedestrian access - on the grassed footpath or walking on both sides of the roadway and in the latter case at different times of the day; in the afternoons on the way to sport or the service station or pub (Black 58); and at night to and from the pub (Black 66). 19The appellant did not agree that the locals "habitually" used the roadway to walk rather than the grass strips (Black 58) whereas the respondent maintained that he "always" walked down the road (Black 31, 37). The appellant's partner, who had been living in Tarcutta for about 12 months at the time of the accident, agreed that a "few people" would walk on the roadway when moving between their homes and other places like the hotel (Black 75, 76). 20This evidence is consistent with the observations of a Mr Malone who visited the accident scene to take measurements and photographs. In his report dated 20 May 2009 (Blue 17) he noted: "... during the time the measurements and photographs were being taken of that area ... it was noted that all pedestrians walking westerly in the direction of the Hume Highway were walking along the roadway and bitumen surface, but some metres out from the southern kerb, whilst the pedestrians walking easterly and up the hill of Centenary Avenue were walking along the roadway on the bitumen surface but as near as practical to the north kerb."

The decision of the primary judge 21The primary judge held that the appellant was negligent in not keeping a proper lookout at the time of the collision: [123]. The appellant does not challenge that finding. 22The primary judge then held, addressing s 5D(1)(a) of the Civil Liability Act 2002, that the appellant could have seen the respondent if she had been watching the roadway carefully; that had she done so she would have seen him in time "to take some steps to avoid a collision"; and that she would have taken steps, such as swerving, so as to avoid the accident: [133], [135], [136]. The appellant challenges each of these findings (grounds of appeal 3, 4 and 5). 23The primary judge also found that the appellant was negligent in not using high beam as she drove down Centenary Avenue: [125], [126]. That finding is challenged (grounds of appeal 2 and 6). The primary judge's further finding at [127] that the accident would not have happened if the appellant had been using high beam and keeping a proper lookout is not challenged. 24The primary judge assessed that the respondent's damages should be reduced by 50 per cent by reason of his contributory negligence. Having done so, his Honour awarded the respondent damages of $191,865.07. The appellant challenges the sufficiency of the reduction for contributory negligence and says that an appropriate assessment would have been at least 75 per cent (grounds of appeal 7, 8, 9, 10 and 11). 25Finally, when considering Heinz's claim for recovery of workers compensation paid to the respondent, the primary judge reduced the amount to which it was otherwise entitled by 50 per cent on account of the respondent's contributory negligence: [145]. After making that reduction, he awarded Heinz damages of $58,650.62. The appellant seeks leave to appeal from that judgment in favour of Heinz, relying on the same grounds as are relied upon against the respondent. Heinz seeks leave to cross-appeal on the basis that the amount to which it is entitled should not have been reduced to take account of any contributory negligence on the part of the respondent worker.

Issues in the appeal 26The issues in the appeal are: (1) Whether the appellant's failure to keep a proper lookout was a necessary condition of the collision. In other words, would the collision and injuries have occurred if the appellant had been carefully watching the roadway and seen the respondent? That question is to be addressed on the assumption that the appellant was not negligent in having her lights on low beam. (2) Whether the appellant was negligent in the circumstances in not having her lights on high beam as she drove down Centenary Avenue. (3) Whether the primary judge erred in assessing the reduction of the respondent's damages for contributory negligence at 50 per cent. The appellant says that reduction should have been at least 75 per cent. By his cross-appeal, the respondent says it should have been no more than 25 per cent. 27The parties accept that the primary judge erred in reducing the amount to which Heinz was entitled by way of indemnity under s 151Z(1)(d) of the WC Act to take account of any contributory negligence of the respondent worker. That is not required by the provisions of s 151Z(1): see J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 at [47]-[48], per Campbell JA.

Whether the appellant's failure to keep a proper lookout was a necessary condition of the collision 28In addressing this question, the primary judge acknowledged the unchallenged evidence from the engineers in their joint report that the appellant "could not have seen the plaintiff and stopped if driving with low beam at 50km per hour": [131]. He then referred to three matters before finding at [136] that if the appellant had kept a proper lookout on low beam the probabilities were that she would have seen the respondent in time to take some steps to avoid a collision. It would appear from [133] that those steps included "swerving to avoid him". The three matters referred to, considered separately or together, did not justify that conclusion or the rejection of the experts' evidence to the contrary. 29The first matter referred to by the primary judge is that the engineers' assumptions about the throw of the appellant's headlights were "little more than speculation". On the evidence that was not so. The car being driven by the appellant was a 1998 Hyundai Lantra (Blue 24). Based on the manufacturer's specification as to the high/low beam headlights used in that vehicle, Mr Keramidas stated in his first report (Blue 103) that the headlights produced a visibility distance of about 28m in low beam setting. In his report Mr Griffiths expressed agreement with the position being that "the forward throw of the low beam headlights would have been less than 28 metres" because of the "sag vertical centre" in the middle section of the roadway. In their joint report the experts agreed that a pedestrian in front of the car would have been detectable somewhere between 22m to 28m from the point of impact under low beam. That took account of the vertical curve in the roadway and its effect on the throw of the headlights. It was not suggested by either party that the experts' assumption as to the headlight throw was mere speculation. On the contrary, their assumption was based on the headlight specifications for the make and model of vehicle being driven by the appellant. Nor was it suggested that the headlights on the appellant's vehicle were or were likely to have been other than as specified. 30The second matter is Mr Griffiths' opinion that using low beam the appellant could have seen the respondent: [133], [135]. In response to an observation of Mr Keramidas as to the dark clothing being worn by the respondent, Mr Griffiths pointed out that the respondent was wearing a dark singlet with exposed arms and legs which meant that he would have remained conspicuous because of the relatively high reflectivity of his Caucasian skin (Blue 44). That evidence suggested that the appellant could and should have seen the respondent but said nothing as to the time it would have taken for her to perceive and react to his presence on the roadway. 31The third matter is that the appellant recalled seeing a trailer next to the southern kerb before colliding with the respondent: [134]. The appellant's evidence was that she saw the trailer "as she approached it" and not after the accident (Black 66). That is consistent with the trailer at some stage being illuminated by the throw of the headlights on low beam and appearing in her peripheral vision. It is not evidence that she could have seen the respondent other than by illumination from those lights or that, having done so, she could have reacted other than in the timeframe agreed by the experts. 32None of these matters contradicts or qualifies the experts' joint opinion or provides a basis for making a finding inconsistent with it. The primary judge was required to address the evidence as to when the respondent's presence on the roadway might first have been detected, had the appellant kept a careful lookout, and as to the time in which she might reasonably have reacted to doing so. The expert evidence as to those issues was clear and was not objected to or contradicted. That being the position, the primary judge erred in finding 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.

Whether the appellant was negligent in the circumstances in not having her lights on high beam 33The 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. 34The 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). 35Whether 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". 36The 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. 37Nor 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. 38In 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. 39Underlying 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. 40The 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]. 41The 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. 42That 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. 43That 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. 44The 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. 45The 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. 46The 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." 47The 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.

Whether the primary judge erred in assessing the respondent's contributory negligence of 50 per cent 48As Sackville AJA notes in Nominal Defendant v Meakes [2012] NSWCA 66 at [80]: "The test of contributory negligence is objective: The question is whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person would take: Joslyn v Berriman [2003] HCA 34; 241 CLR 552 at 564-566 [32], [34], [38] per McHugh J; CL Act, s 5R(2). Once contributory negligence is found, the apportionment as between a plaintiff and a defendant: 'of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.' Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 at 532-535, per curiam." 49A matter to be taken into account when comparing the relative responsibilities of a driver and pedestrian involved in a collision is the fact that the pedestrian's conduct, although contributorily negligent, may not have endangered the driver of the vehicle or anybody else. That may not be the position in all cases but it was the position in Pennington v Norris [1956] HCA 26; 96 CLR 10 at 16-17 and Anikin v Sierra [2004] HCA 64; 79 ALJR 452 at [51], [52], and it is the position in this case. 50The primary judge had regard to that factor at [141]. Having done so, he continued: "[142] The plaintiff conceded that his failure to detect the presence of the vehicle behind him when he had seen a vehicle coming along Bent Street contributed to his injuries. [143] The factors that must be taken into account in determining the degree to which there should be a reduction of his damages include that the plaintiff did not see the defendant when she was on Centenary Avenue. He did not hear her engine, see her lights, and he was walking towards the centre of Centenary Avenue." Taking those matters into account he assessed the reduction for contributory negligence at 50 per cent: [144]. 51Because the task of apportioning responsibility requires a judgment involving "balance and relative emphasis, and of weighing different considerations", all being matters about which minds might reasonably differ, an appellate court will not interfere in the absence of some demonstrated error of principle or of fact or unless the apportionment is plainly wrong: Pennington v Norris at 15-16; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494; Anikin v Sierra at [50]. 52The appellant submits that the primary judge erred in failing to take into account three aspects of the respondent's conduct: namely that he walked on the roadway of Centenary Avenue when there were grassed areas available on either side; that he walked down the southern side of the roadway dressed in dark clothing; and that he walked on that side of the roadway with his back to the approaching traffic. 53The passages set out above indicate that the primary judge did have regard to the fact that the respondent was walking towards the middle but on the southern side of the roadway with his back to the oncoming traffic. That is sufficiently clear from [142], which refers to the vehicle being "behind" the respondent and [143], which refers to the respondent walking "towards the centre" of the roadway. 54In my view 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. Those conditions would have prevented a clear view of the surface of those grassed areas. The respondent chose to walk on the southern side of the roadway because of the presence of the one street lamp. Each of the grass verges had trees which would have been difficult to navigate at night time. In addition, on the northern side there were also vehicles and roadways to be negotiated. The primary judge did not err in not taking into account the first of the matters relied upon by the appellant. 55The primary judge does not refer to the fact that the respondent was dressed in dark clothing. That factor was not, however, of any importance in causing the collision. If the appellant had been keeping a proper lookout she would have seen the respondent earlier than she did but not, on the evidence, any earlier than she would have seen him if he was wearing a light coloured singlet and pants. That was the position with the lights on low beam and would have been the position if the lights were on high beam. 56Finally, the appellant submits that the "overwhelming cause of this collision was the fact that the [respondent] placed himself where he did" (Tcpt 8/11/13, p 25). 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. He also should have been alerted to the noise and lights of the car as it came round Bent Street and checked its direction in relation to his position on the roadway. Despite this conduct and inaction, which show the respondent to have been grossly careless, I am not persuaded that the apportionment is beyond the range as to which there might be differences of opinion. The position remains that the appellant failed to take the simple but effective precaution of better illuminating the roadway. As the driver of a vehicle she was capable of causing serious injury to a pedestrian on the roadway. Had she taken that precaution the accident would have been avoided notwithstanding the considerable lack of care exhibited by the respondent. 57The primary judge is not shown to have erred in assessing the respondent's contributory negligence at 50 per cent.

Orders proposed 58The appellant's appeals in the proceedings brought by the respondent and in the proceedings brought by Heinz should be dismissed. The respondent's cross-appeal, in relation to contributory negligence, should also be dismissed. Heinz's cross-appeal should be allowed. As the appellant has been unsuccessful, she should pay the costs of the respondent and of Heinz of the appeals and cross-appeals. Although the respondent's cross-appeal has failed it was essentially defensive and occupied no significant time or expense. 59Accordingly, the following orders should be made: 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. 60EMMETT JA: The question in this appeal is whether the appellant, Ms Sheridan Marien, was negligent when the motor vehicle she was driving, on a dark residential street at 5.30am, with her headlights on low beam, struck the respondent, Mr Kim Gardiner, who was walking towards the centre of the road in dark clothing with his back to oncoming traffic. There was also a question as to the extent that Mr Gardiner contributed to the accident by his own negligence. 61A judge of the District Court found that Ms Marien was negligent and awarded damages in favour of Mr Gardiner. However, his Honour assessed Mr Gardiner's contributory negligence at 50 per cent. There were like proceedings brought by H J Heinz Company (Australia) Limited (Heinz), Mr Gardiner's employer, under s 151Z(2)(d) of the Workers Compensation Act 1987 against Ms Marien to recover compensation paid under that Act to Mr Gardiner. The primary judge erroneously reduced the amount to be paid by Ms Marien to Heinz by reason of Mr Gardiner's contributory negligence. 62I have had the advantage of reading in draft form the proposed reasons of Meagher JA. I agree with the orders proposed by his Honour for the reasons given by him.

Amendments 28 November 2013 - (Heydon JA and Santow agreeing) should read (Heydon and Santow JJA agreeing) Amended paragraphs: Para [37] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2013

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Judgment (16 paragraphs)

Cases Cited (19)