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High Court - The right to drive normally

Law Society Journal

May 2003




The right to drive normally


Peter Hunt is a Senior Associate of Blake Dawson Waldron and is the current author of the CCH Motor Accidents Practitioners' Handbook

A landmark case on motor accident disputes has now been affirmed several times in the NSW Court of Appeal.

One Saturday morning, just a week before Christmas, a three-year-old girl darted onto a road near the Chatswood shopping district and was run down by a motorist.

Despite succeeding in a claim for damages both at trial and in the NSW Court of Appeal, the High Court held on 9 December 2001 that the injuries sustained by the young girl were not caused by any negligence of the driver.

In short, the High Court held in the landmark decision of Derrick v Cheung (2001) 181 ALR 301, 33 MVR 393, [2001] HCA 48, that a motorist is entitled to drive "normally'. That is, even where a driver may reasonably foresee that a risk may occur (such as a pedestrian running into the path of vehicle), no breach of duty of care is committed by the driver where he or she simply drives with the flow of traffic, within the speed limit, with his or her eyes on the road.

Since Derrick v Cheung was decided in August 2001, the NSW Court of Appeal has been called upon to apply the principles of that case to a number of motor accident disputes. Four of those decisions are reviewed in this article.

Dennis v Keep

In Dennis v Keep [20021 NSWCA 227, the plaintiff was run down by a driver while crossing a road near a pub at night.

The plaintiff was wearing dark clothing and had a blood alcohol concentration of

The plaintiff lost at first instance and appealed to the Court of Appeal, where Foster AJA, with whom Heydon JA and Bergin JA agreed, interpreted the High Court decision of Derrick v Cheung in the following terms: "The Court ... has been referred to several decided cases relating to collisions between motor vehicles and pedestrians. However, I am unable to detect in them any unifying principle which would require that his Honour decide this case other than he did. Indeed in the recent decision of Derrick v Cheung, it is indicated, in my view, that, in most cases of this kind, a common sense overall appraisal of the situation confronting the motorist, travelling within the appropriate speed limits, when a pedestrian enters, his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed".

The Court of Appeal ultimately decided that the defendant driver drove with reasonable care and entered a verdict for the defendant.

Spanswick v Laguzza

In Spanswick v Laguzza (2002) 35 MVR 501, [2002] NSWCA 103, the wife of a deceased bicyclist brought an action for compensation to relatives.

The deceased was killed while riding his bicycle along the Great Western Highway. The defendant driver was travelling in the same direction as the deceased and some other bicyclists and moved to the right of his lane in order to go around them. However, as the defendant drew level with the group, the deceased's bicycle slipped on the white road markings and the deceased skidded into the path of the defendant's vehicle.

The deceased's wife lost at first instance and appealed to the Court of Appeal, which agreed with the trial judge that there was no breach of duty of care by the defendant driver.

In the Court of Appeal, Meagher JA, with whom Davies AJA and Palmer J agreed, stated as follows: "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 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. Common sense 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".

The Court of Appeal agreed with the trial judge that while the circumstances were extremely unfortunate, there was no breach of duty of care by the defendant.

Lieng v Delvers

In Lieng v Delvers [2002] NSWCA 170, the plaintiff had to push through some banked-up vehicles in order to complete a right-hand turn into his driveway. The plaintiff stopped and, after looking left and not seeing anything, started to complete the right-hand turn.

The defendant was driving in the opposite direction in a lane on the inside of the banked-up traffic. The defendant was travelling at 50km per hour in a 60km per hour zone. The defendant collided with the plaintiffs vehicle as he drove from the defendant's right.

The trial judge found no negligence by the defendant and the plaintiff appealed. In the Court of Appeal, Meagher JA, with whom roster AJA and Ipp AJA agreed, made the following observations: "If one looks for authority I think the case which is closest to the present situation is the High Court decision of Derrick v Cheung.

In that case the unanimous High Court reaffirmed that it is not enough in order to make a finding of negligence against a defendant to see that the accident in question was possible. One must go further than that, one must say not only whether the danger is possible but also that it would be so reasonably foreseeable as to require a reasonably prudent person to carry out his/her activities in such a manner as to be able to avoid such danger."

The Court of Appeal found that the defendant's standard of driving was reasonable for the circumstances confronting him and found no negligence.

Knight v Maclean

In Knight v Maclean [2002] NSWCA 314, the plaintiff pedestrian attempted to cross Parramatta Rd at 9:10 p.m. in order to catch a taxi travelling in the opposite direction. She had been drinking heavily and had a blood alcohol concentration of 0.249. There was also evidence that the plaintiff was suffering from a neck injury and had to turn her entire torso to look from side to side.

The defendant was a 72-year-old man. He was travelling from the plaintiffs right in the lane closest to the median strip. The plaintiff successfully crossed two lanes before stepping into the defendant's lane and being run down. An independent witness gave evidence that the plaintiff "bolted" across the road and was looking to the left when the defendant hit her from the right.

At first instance, the trial judge found that breach of duty of care was established subject to 40 per cent contributory negligence. The defendant appealed.

On appeal, Heydon JA, with whom Meagher JA and Young CJ in Equity agreed, discussed the impact of Derrick v Cheung upon the facts of the case in the following terms: "So here, the defendant's driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiffs journey through a failure to look to his left, or a failure to appreciate the extent to which his view may be blocked, he was in no worse position than the defendant in Derrick v Cheung, and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to his left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision.

"A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence".

In allowing the appeal, Heydon JA made the following remarks: "It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speeds to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty".

As such, a verdict for the defendant was entered.


The High Court decision of Derrick v Cheung has had a significant impact on motor accident litigation.

The principle in Derrick, as confirmed in subsequent Court of Appeal cases, is that a driver is not negligent simply because a collision occurred. Even where the collision is with a pedestrian, liability is not established merely because some other action by the defendant may have resulted in contact being avoided.

Drivers of motor vehicles are entitled to proceed down the road with the flow of traffic. Even where unfortunate events, such as a pedestrian darting onto the road or a bicyclist slipping over, are foreseeable (in the sense of not being far-fetched or fanciful), motorists are not required to act unless or until the risk of the event occurring becomes a real possibility.

"A driver would be totally immobilised if he were in constant fear that the worst was about happen to the vehicle in front of him."