Spanswick v Laguzza [2002] NSWCA 103

New South Wales Court of Appeal

CITATION : Spanswick v Laguzza [2002] NSWCA 103 FILE NUMBER(S) : CA 40586 of 2001 HEARING DATE(S) : 12/04/02 JUDGMENT DATE : 12 April 2002

Nanette Spanswick PARTIES : v Anthony Laguzza JUDGMENT OF : Meagher JA at 1, 14; Davies AJA at 11; Palmer J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT DC 8359 of 1998 FILE NUMBER(S) : LOWER COURT Cripps J JUDICIAL OFFICER :

COUNSEL : A: R Letherbarrow SC R: Mr Poulos QC with Mr J Ward SOLICITORS : A: Maurice Blackburn Cashman R: McLachlan Chilton CATCHWORDS : Motor Accidents Act 1988 - cyclist killed when bicycle skidded on reflective white line - whether respondent took suitable action to avoid collision - appeal dismissed with costs. CASES CITED: Derek v Cheung (2001) 33 MVR 393 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40586/01

MEAGHER JA DAVIES AJA PALMER J

Friday, 12 March 2002 NANETTE SPANSWICK v ANTHONY LAGUZZA Judgment 1 MEAGHER JA: This is an appeal arising from a judgment of his Honour Cripps J in a case where Mrs Nanette Spanswick, as plaintiff sued two defendants, Mr Laguzza and the Roads and Traffic Authority, in respect of an accident which took place on the Great Western Highway. 2 The facts of the matter are that the deceased, whose widow is the plaintiff, was driving with a friend on an ordinary bicycle eastwards on the highway down towards Sydney. The defendant, Mr Laguzza, was also driving in the same direction. 3 The two cyclists were in the kerb lane of the highway and the defendant was in lane number one after the highway bifurcated into two lanes. Exactly what the correct details were was a matter of considerable dispute in the evidence, various people giving various different descriptions of the mileages and traffic speeds and the like. However if I may say so in a rolled up sense, I am unconvinced that the statement of facts as found by his Honour Cripps J, is in any way defective. 4 It is quite clear that the defendant, Mr Laguzza, as he was driving probably saw the cyclists when he was about eighty to a hundred metres from them but at that stage there was nothing in their behaviour which was in the slightest bit untoward. They merely appeared like ordinary cyclists fully in control of their fate. 5 Mr Spanswick certainly shortly after then was out of his seat and was riding on his peddles. The defendant, Mr Laguzza was driving his car at a rate of speed of between sixty-five and seventy kilometres. He was towing a carrier. There was another car driven by Mr Bringolf in lane number two on his right and it is a matter of dispute precisely where those two vehicles were in relation to each other but in my view it does not much matter. 6 It was a Sunday afternoon and the traffic was fairly heavy. Mr Bringolf at some stage moved into lane two in order to overtake the defendant and it was shortly after that or, perhaps coincidentally with that, that the accident happened. What happened when the defendant was about three metres away from the bicyclists is that the bicycle, ridden by Mr Spanswick, suddenly slipped on the white line on the edge of the lane and slid right across lane number one, actually into lane two. At this stage Mr Laguzza was only about three metres from Mr Spanswick and there was absolutely nothing Mr Laguzza could have done to save the situation. He tried braking but it was of no use. 7 I might also add that at some anterior point of time when Mr Laguzza first saw Mr Spanswick he drove his motor vehicle to the right of lane one so that there would be ample space between him and Mr Spanswick. In these circumstances his Honour, not surprisingly, found that there was no negligence in Mr Spanswick. 8 Mr Letherbarrow, in a very able argument, has challenged his Honour's finding and suggested what Mr Laguzza should have done was, either not drive so quickly or else move over to his right much earlier so that he was actually in lane two or near enough to it at the time of the accident. In written submissions reference is made to certain authorities on this regard. 9 In my view the argument as presented really does not stand up to a close examination. Certainly, in general terms, it is true to say a driver must always attempt to foresee dangers well ahead of the immediate driving situation. For example, a driver must anticipate that pedestrians may behave stupidly, but this does not mean there will not be cases where pedestrians who behave almost suicidally cannot successfully sue the motorist who knocks them down. A motorist is probably under a duty to realise that other vehicles on the road may do silly things or suffer untoward accidents but he is not obliged to conduct himself as if there were an imminent risk of such silliness or such accidents to every vehicle on the road. A driver would be totally immobilised if he were in constant fear that the worst was about to happen to the vehicle in front of him. Commonsense would suggest that a driver, behaving reasonably, can act on the assumption that other vehicles on the road who seem to be operating safely will continue to operate safely. That is what Mr Laguzza did here. A motorist, in Mr Laguzza's position, does not have to treat every cyclist as if he were a mischievous child or a runaway animal. 10 In these circumstances, the only acts of negligence alleged against Mr Laguzza seem to me to have no foundation. In my view the appeal should be dismissed with costs. 11 DAVIES AJA: I agree with Meagher JA. The submissions put on behalf of the appellant seem contrary to the approach enunciated by Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ in Derek v Cheung (2001) 33 MVR 393 where their Honours said at 397 ([13]): "Different conduct on the part of those involved in them [occurrences in human affairs] almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care." 12 The learned trial judge concluded that the respondent drove prudently and with reasonable care. I agree with Meagher JA that there is no reason to doubt his Honour's conclusions of fact. 13 PALMER J: I agree with the reasons of Meagher JA and the orders which he proposes. 14 MEAGHER JA: The orders of the Court therefore are this appeal is dismissed with costs. ******