Lim v Cho

[2018] NSWCA 145

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Lim v Cho [2018] NSWCA 145
Hearing dates:	26 June 2018
Decision date:	09 July 2018
Before:	Leeming JA at [1]; Sackville AJA at [2]; Emmett AJA at [54]
Decision:	1. Appeal dismissed. 2. Appellant pay the respondent’s costs of the appeal.
Catchwords:	TORTS – negligence – appellant suffered injury leaping from moving vehicle – whether driver owes duty of care to prevent passenger from harming himself or herself – whether appellant acted reasonably when confronted with emergency – whether injuries were likely to have been less severe had the speed of the vehicle reduced – no error on part of primary judge   EVIDENCE – rule in Jones v Dunkel – whether primary judge erred in failing to draw adverse inference from respondent’s failure to give evidence
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5S Motor Accidents Compensation Act 1999 (NSW), ss 138, 140
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Evans v Lindsay [2006] NSWCA 354 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lim by his Tutor Kyung Ae Beak v Cho unrep, 5 July 2017, District Court Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 Stuart v Kirkland-Veenstra (2009) 237 CLR 215; [2009] HCA 15 Stuart v Walsh, [2012] NSWCA 186 The Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Category:	Principal judgment
Parties:	Brian Lim by his tutor Kyung Ae Beak (Appellant) Eunkyung Cho (Respondent)
Representation:	Counsel: Mr J Phillips SC / Mr L Robison (Appellant) Mr PJ Deakin QC / Mr JJ Ryan (Respondent)   Solicitors: Kim & Associates (Appellant) Curwoods Lawyers (Respondent)
File Number(s):	2017/217325
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 05 July 2017 Before: Wilson DCJ File Number(s): 2015/349365

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant suffered injuries when he leapt from a vehicle in which he was a passenger. He commenced proceedings in the District Court of NSW in negligence arguing that the respondent was negligent in failing to apply the brakes when she observed that the appellant was about to exit the vehicle.

The primary judge found that:

(i)   the respondent owed a duty to take reasonable care to avoid foreseeable and not insignificant harm to the appellant, but that the duty did not extend to protecting the appellant from causing harm to himself;

(ii)   in any case, the appellant failed to prove that the respondent breached her duty of care, and that a reasonable person would not have engaged in emergency braking; and

(iii)   in any case, had the respondent applied the brakes, the more likely inference is that the appellant would have suffered injury of equal or almost equal proportion; and

(iv)   if those findings were incorrect, the appellant was guilty of contributory negligence, and that it was just and equitable to reduce damages by 100%.

The primary judge also declined to draw an inference adverse to the respondent by reason of her failure to give evidence.

The court unanimously held, dismissing the appeal with costs:

(1) The court proceeded on the basis that the duty owed by the respondent to the appellant could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions: [1]; [25]; [60].

Stuart v Kirkland-Veenstra (2009) 237 CLR 215, distinguished

(2) However, on the assumption that the respondent owed the appellant such a duty of care, there is no basis for overturning the primary judge’s findings on breach or causation. There was no error in the primary judge’s finding that respondent’s actions could not be characterised as unreasonable. The primary judge also did not err in finding that it was a matter of “speculation” whether the appellant’s injuries were likely to have been less severe had the speed of the vehicle been reduced: [1]; [27]; [37]; [51]; [60].

(3)   The rule in Jones v Dunkel does not assist the appellant. The limited evidence adduced at the trial was consistent with a finding that the lapse of time between the appellant opening the door and jumping out was no more than a few sections: [1]; [43]; [60].

Judgment

1. LEEMING JA: I agree with Sackville AJA.

2. SACKVILLE AJA: This case is both unusual and tragic. The appellant suffered catastrophic injuries in December 2012 when, as the primary Judge found, he “leapt from” a vehicle in which he was a passenger. The vehicle, a 2008 Mercedes-Benz C200 Kompressor Avantgarde, was being driven by the respondent, the appellant’s wife.

3. The appellant sued the respondent claiming (relevantly to the appeal) that she was negligent in failing to apply the brakes when she observed that the appellant was “about to exit the vehicle”. The primary Judge (Wilson DCJ) dismissed the appellant’s claim. [1] The appellant now appeals against the primary Judge’s decision.

   1.    Lim by his Tutor Kyung Ae Beak v Cho unrep, 5 July 2017, District Court (Primary Judgment).

4. The primary Judge delivered an oral judgment after a two day hearing. The appellant did not give evidence (the hearing proceeded on the basis that he had no recollection of the circumstances in which he sustained injuries). The respondent also did not give evidence. Expert evidence was given by engineering experts with special expertise in biomechanics of traffic accident trauma (Mr Griffiths for the appellant and Associate Professor Anderson for the respondent).

5. The principal factual question in dispute at the trial was the speed at which the vehicle was travelling when the appellant leapt from it. His Honour found that at that time the vehicle “was moving at a speed of 50 kilometres per hour or thereabouts”. In reaching this conclusion his Honour preferred the evidence of Professor Anderson over that of Mr Griffiths. This finding is not challenged by the appellant.

Legislation

6. The Civil Liability Act 2002 (NSW) (CL Act) includes the following provisions:

“5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)    the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

5D   General principles

(1)   A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)   In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

…

(4)   For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

…

5S   Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”

7. The Motor Accidents Compensation Act 1999 (NSW) (MAC Act) includes the following provisions:

“138   Contributory negligence—generally

(1)   The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

…

(3)   The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(4)   The court must state its reasons for determining the particular percentage.

…

140   Defence of voluntary assumption of risk

(1)   Except as provided by subsection (2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety.”

Primary Judgment

Matters not in dispute

8. The primary Judge recorded a large number of matters that were not in dispute, as follows (the appellant is referred to as “the plaintiff” and the respondent as “the defendant”):

“(a)   the accident occurred on 15 December 2012, shortly after 9.30pm;

(b)   the plaintiff was at that time married to the defendant. They had been in a relationship for some 12 years and married for five years;

(c)   they had two children who at the time were aged two and four;

(d)   the two children were seated and presumably restrained in the rear of the vehicle;

(e)   the plaintiff did not suffer from depression and did not have a history of self-harm or attempted suicide;

(f)   neither party was affected by alcohol;

(g)   the plaintiff was in good employment at the time of the accident;

(h)   whilst the plaintiff had no recollection of the accident itself, he was able to tell the police of some of the events which led up to the accident. …;

(i)   on the … evening of the accident the plaintiff drove to an ATM at Strathfield where he withdrew cash which he used to purchase flowers for his wife;

(j)   he returned to his home address where he told his wife that he was taking her and their children to a barbecue restaurant at Belmore for dinner;

(k)   whilst at dinner the plaintiff believed that he ran into someone who   he knew but could not recall whether it was a male or female;

(I)   the plaintiff had a short conversation with that person which led to an argument occurring between the plaintiff and his wife;

(m)   as a result of the argument, the plaintiff left the restaurant and waited outside for his family to finish their meal;

(n)   the plaintiff then recalled to the police that he entered the vehicle with his wife sitting in the front passenger seat, and the two children aged two and four in the rear passengers seats;

(o)   the plaintiff told the police that the family was driven back towards the family home where the argument between the parents continued;

(p)   the plaintiff claimed to the police that his wife made an insulting comment about the plaintiff's parents which resulted in him telling her that he wanted a divorce;

(q)   the plaintiff recalled that that part of the argument occurred when the vehicle was passing the Australian Catholic University on Barker Road, Strathfield;

(r)   that is the limit and extent of the plaintiff's pre-accident recollection;

(s)   at the time of the accident the plaintiff and his wife lived together with their children at number xx xx xx in Strathfield;

(t)   the accident appears to have been reported to police at about 9.40pm;

(u)   At the time of the accident the plaintiff was about 30 years of age, having been born on xx xx 1982;

(v)   the accident occurred on Barker Road about 75 metres west of its intersection with Wilson Street;

(w)   the defendant was born on xx xx 1981 and was about 31 years of age at the time of the accident;

(x)   the defendant also gave an account to the police on at least two occasions;

(y)   it is clear that as the vehicle was being driven along Barker Street, the plaintiff opened the front passenger side door;

(z)   that upon noticing that the door had been opened, the defendant

reached across to the plaintiff in an attempt to grab him;

(aa)   the evidence does not permit a finding as to whether she made

contact with him;

(bb)   the defendant told the plaintiff to stop being silly;

(cc)   the plaintiff then leapt from the vehicle;

(dd)   the plaintiff then applied the brakes of the vehicle bringing it to a stop

further along Barker Street;

(ee)   prior to the plaintiff leaping from the vehicle the defendant had not

applied the brakes of the vehicle;

(ff)   the defendant ran back along the road to attend to the plaintiff;

…”

Findings

9. The primary Judge considered the evidence relating to the speed of the vehicle and found that it was travelling at about 50 kph when the appellant leapt out.

10. His Honour then considered the appellant’s criticism of the respondent’s failure to give evidence. The primary Judge considered that the failure was not unexplained:

“The defendant’s failure to give evidence was explained entirely by the decision taken by the plaintiff and those representing the plaintiff to tender in evidence three accounts provided by the defendant, namely, the account provided to the police at the scene, the account provided to ambulance officers at the scene and, thirdly, the account provided by the defendant to the police a few days after the accident.

…

To now suggest that an inference adverse to the defendant ought to be drawn does not sit well with the plaintiff’s election to incorporate the defendant’s version of the accident as a part of his own case.

The Court was referred in particular on this question to the decision of the High Court in Strong v Woolworths Limited (2012) 246 CLR 182 [at [53], [54]. In my view, there was nothing in the evidence called by the [appellant] which created an evidential burden in the sense of a provisional or tactical burden on the [respondent]. Further, by reason of the [appellant’s] own adoption of the [respondent’s] version, there is no scope for the drawing of any adverse inference.”

11. The primary Judge recorded that the respondent conceded that one matter about which an inference could be drawn was whether or not she applied the brakes before the appellant leapt from the vehicle. Since the respondent did not dispute that the brakes had not been applied, there was no need for the Court to draw an inference as to that matter.

12. After recounting the parties’ submissions, the primary Judge expressed the view that on the evidence:

“the time taken for the [respondent] to bring the motor vehicle to a halt from the speed of 50 kilometres per hour would not have been sufficient to prevent the [appellant] from leaping from the vehicle as he did, and most likely suffering the injuries which he suffered”.

Duty of care

13. The primary Judge noted that the respondent accepted that as the driver of the vehicle she owed a duty of care to the appellant as the passenger. However, the dispute was as to the scope of the respondent’s duty.

14. His Honour found that the duty owed by the respondent was to take reasonable care to avoid foreseeable and not insignificant risks of harm to the appellant. That duty, in his Honour’s view, did not extend to protecting a person in the position of the respondent from “harm which is caused to himself”. In that connection, it was not necessary to make a finding as to the appellant’s intention except to find that:

“because of the argument he had with the [respondent he] intended to leap from a moving vehicle”.

Breach of duty

15. Having concluded that the duty of care owed by the respondent to the appellant did not extend to protecting the appellant from causing harm to himself, it was not necessary for the primary Judge to address breach. Nonetheless his Honour did so and made the following findings:

“a)   the defendant was driving at a safe speed;

b)    the vehicle was, at the time the incident occurred, close to home. If the plaintiff wished to remove himself from the vehicle then a reasonable person in the position of the plaintiff would have waited until they arrived home before doing so;

c)    another consideration relevant to the circumstances in which the defendant's conduct must be assessed, is that there were two very young children seated in the rear of the car who may have been affected by the sudden emergency [deceleration] of the vehicle;

d)   it is also relevant to have regard to the fact that at the time that the plaintiff says the defendant ought to have engaged in emergency [deceleration], the plaintiff was himself partially out from the vehicle, or in the process of being so. It defies any reasonable analysis, other than speculation, to determine what sudden [deceleration] that may have had on the plaintiff, bearing in mind that it was not possible for the vehicle to be brought to a stop prior to the plaintiff leaping from the vehicle;

e)   another relevant consideration is that there is no history of depression or suicidal ideation or self harm that relates to the plaintiff. His conduct was entirely, it seems, out of character. This is further illustrated by the fact, that in her account to the police, the, defendant told the police that she said to the plaintiff, ‘Stop being silly’, obviously suggests that she did not consider that the plaintiff was intending to leap from the vehicle;

f)   the other relevant circumstance is that the defendant's conduct in response to the plaintiff opening the door and beginning to move out of the vehicle, was to try to control the situation within the car by reaching out to grab him and telling him not to be silly. These are actions which might be considered reasonable in the circumstances prior to engaging in any more radical conduct. Engaging emergency braking is not a reasonable response in the circumstances. It may have caused injuries to others, not only those within the vehicle, but perhaps those in vehicles following, or other road users;

g)   the final relevant consideration is that there no basis or reason to believe that had the defendant applied the brakes in the manner suggested by the plaintiff, the outcome would have been any different.” (Emphasis added.)

16. Accordingly his Honour found that:

“the plaintiff has failed to prove that the defendant breached her duty of care to the plaintiff. Further, I find that a reasonable person in the position of the defendant would not have taken the precaution alleged by the plaintiff, namely engaging the vehicle in emergency braking a short distance from home.”

Causation

17. The primary Judge briefly referred to the question of causation when considering whether the respondent breached a duty of care owed to the appellant. His Honour returned to causation later and found that the appellant had not satisfied the test of factual causation set out in s 5D of the CL Act. The primary Judge reasoned as follows:

“If it is assumed, contrary to the foregoing analysis, that the defendant ought to have braked, then the process of perceiving, reacting, and braking to a stop, would have consumed a distance of at least 28 to 48 metres, and taken in the order of 2 to 3.5 seconds to achieve.

Given the many references to the conduct of the plaintiff being one of leaping from the vehicle, it seems to me that the likelihood is that the plaintiff would have leapt from the vehicle before the vehicle had reached a stationary position, rendering breach by the defendant for the failure to brake not causally potent.

In this regard, there is no evidence before the court which would permit a safe inference to be drawn that the plaintiff would not have suffered the same or similar harm had the brakes been applied and he leapt from the vehicle prior to the vehicle being stationary. Given that the parameters of the expert evidence as to speed, is 25 to 50 kilometres per hour, and given my finding that the vehicle was travelling at 50 kilometres per hour, it is simply a question of degree and speculation, rather than certainly, as to what the effect upon the plaintiff would have been had the brakes to the vehicle been applied and he continued his attempt to leap from the vehicle.

…

In my opinion, the more likely inference to be drawn from the circumstances and facts of this case is that, had the defendant applied the brakes to the vehicle and the plaintiff continued in his successful effort to leap from the vehicle, then he would have suffered an injury of equal or, almost equal, proportion. The difference would be minimal and it is not a matter about which the Court should speculate.

Summary

18. The primary Judge summarised his conclusion as follows:

“I find that there has been no breach of duty of care by the defendant.

To find otherwise would involve the Court in a process of reasoning which is

impermissible for the following reasons:

(1)   It would require the Court to engage in a process of hindsight. That is to find that the harm could have been avoided by taking the evasive action of braking. The breach inquiry must be prospective. What would a reasonable person in the position of the defendant have done at that time; and

(2)   To make any finding as to causation (on the basis that the brakes were applied) would involve the Court in an exercise of speculation and conjecture.”

Contributory negligence

19. In case his Honour was mistaken about breach and causation, he addressed the question of contributory negligence. His Honour took into account ss 138 and 140 of the MAC Act and s 5S of the CL Act.

20. His Honour considered that a reasonable person would not have leapt from a vehicle moving at 50 kph. On that basis, he found that the appellant was guilty of contributory negligence and that it was just and equitable to reduce damages by 100 per cent.

Reasoning

Duty

21. Mr Deakin QC, who appeared with Mr Ryan for the respondent, accepted that the driver of a vehicle is under a duty to a passenger to exercise reasonable care and skill in the management of the vehicle and is liable if the passenger is injured as the result of the driver’s lack of care. [2] Mr Deakin submitted, however, that a driver owes no duty to prevent a passenger from harming himself or herself. Mr Deakin contended that the appellant’s driving of the vehicle was merely incidental to the appellant’s deliberate conduct and that any duty of care did not extent to taking steps to ameliorate the consequences of the appellant’s own conduct. This, so Mr Deakin argued, was a complete answer to the appeal.

    2. Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 at [4], [6] (Gleeson CJ); at [75]-[77] (Gummow, Hayne and Kiefel JJ).

22. In some classes of case, such as those involving the duty of a motorist to other road users or a solicitor’s duty to a client, there is no real controversy as to the scope and content of the duty of care. It is therefore sufficient to formulate the duty as one requiring the exercise of reasonable care. However, as Mr Deakin correctly pointed out, cases that fall outside the recognised relationships giving rise to a duty of care a greater degree of specificity is needed in formulating the content of any duty that may be owed. [3]

    3. See Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 (Kuhl) at [22] (French CJ and Gummow J).

23. Mr Deakin submitted that the circumstances of the present case were highly unusual if not unique and that to determine whether a duty of care arises between a driver of a vehicle and a passenger of a vehicle who chooses to harm himself reference to general principle is required. It was necessary to place limits on the scope of the duty owed by a driver of a vehicle to a passenger who chooses to harm himself or herself.    For this purpose Mr Deakin relied on the decision of the High Court in Stuart v Kirkland-Veenstra. [4] In that case the Court rejected an argument that police officers owed a duty of care to a person who threatened suicide. The person told the officers he had changed his mind but later the same day in fact committed suicide. The plurality declined to recognise that a person who knows that a second person is threatening self-harm owes a duty to the second person to take reasonable steps to prevent the harm occurring. [5] Mr Deakin submitted by analogy the driver of a vehicle owes no duty of care to a passenger who deliberately engages in conduct resulting in harm to himself or herself.

    4. (2009) 237 CLR 215; [2009] HCA 15.

    5.    Stuart v Kirkland-Veenstra at [99] (Gummow, Hayne and Heydon JJ).

24. The present case is different from Stuart v Kirkland-Veenstra. The primary Judge did not find that the appellant acted as he did because he intended to commit suicide or to harm himself. His Honour accepted that the appellant’s conduct was “stupid” and that his own actions brought about his catastrophic injuries. But that is not the same as a finding that the appellant deliberately leapt from the vehicle intending to inflict physical harm on himself.

25. It is not necessary to consider whether the factual differences between Stuart v Kirkland-Veenstra and the present case are material for the purposes of determining whether the respondent’s argument should be accepted. I am content to proceed on the basis that the scope of the duty owed by the respondent to the appellant was wider than Mr Deakin suggested[6] and could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions.

    6. Compare Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [79] (Gordon J) citing Kuhl at [20]-[21].

26. In his oral and written submissions Mr Phillips SC, who appeared with Mr Robison for the appellant, contended that the respondent had a duty to exercise reasonable care and control of the vehicle of which she had charge to avoid or minimise the risk of harm to her passenger, including the risk of harm brought about by the passenger’s unexpected and deliberate conduct. Mr Phillips submitted that the primary Judge should have found that the respondent breached this duty of care because she failed to apply the brakes as soon as she observed that the appellant had opened the door of the vehicle. Had the respondent done so, the vehicle would have slowed down. Mr Phillips accepted that the appellant would still have been injured as the result of his decision to leave the moving vehicle, but (so he argued) the appellant was likely to have sustained less serious injuries.

27. On the assumption that the respondent owed the appellant the duty of care identified by Mr Phillips, the appellant’s argument confronts two insuperable obstacles. The first is the primary Judge’s finding that the appellant acted reasonably when confronted with a sudden emergency and thus did not breach any duty of care she may have owed to the appellant. The second is the finding that even if the respondent had applied the brakes in the manner suggested by the appellant, it would have made no significant difference to the injuries the appellant sustained. No basis has been shown for overturning either of these critical findings.

Breach

28. Whether the respondent breached any duty of care owed by her to the appellant requires consideration of the matters identified in s 5B of the CL Act. In particular, s 5B(1) provides that a person is not negligent in failing to take precautions against a risk of harm unless:

• the risk was one of which the person knew or ought to have known (s 5B(1)(a)); and

• in the circumstances a reasonable person in the person’s position would have taken those precautions (s 5B(1)(c)).

29. It is fundamental that the questions posed by s 5B(1) of the CL Act must be assessed prospectively and not with the wisdom of hindsight. [7] The inquiry must attempt, after the event, to identify a reasonable person’s response to foresight of the risk of occurrence of the injury sustained by the plaintiff. While the assessment of what the reasonable person would have done to avoid the risk of harm must be made after the event, it seeks to identify the response of a reasonable person looking forward. [8]

    7. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [31] per curiam.

    8. Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126] (Hayne J). These observations were made in a case applying common law principles, but were cited with approval in Adeels Palace Pty Ltd v Moubarak at [31], a case arising under the CL Act.

30. It is also fundamental that the fact that the particular injury to the plaintiff might have been avoided if the defendant’s response to a risk of harm had been different does not necessarily establish that the defendant breached his or her duty of care. To analyse the question of breach by reference to the possibility that a different response would have produced a different outcome is to engage in impermissible hindsight reasoning.

31. This point is illustrated by the decision of the High Court in Derrick v Cheung. [9] In that case, the defendant’s vehicle struck an infant when she emerged suddenly between two parked cars. The driver was driving well within the speed limit. The High Court set aside a finding that the driver had been negligent:[10]

“There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent's worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, … in fact being exercised. Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them 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” (Emphasis added.)

9. [2001] HCA 48; 181 ALR 301.

10. Derrick v Cheung at [13] per curiam; see also Evans v Lindsay [2006] NSWCA 354 at [55] (Beazley JA, Ipp and Bryson JJA agreeing).

32. In the present case, there was no evidence and no finding that the respondent had any inkling prior to the appellant opening the door of the vehicle that he would do something as dangerous as leaping from a moving vehicle. The primary Judge found that upon noticing that the door had been opened and that the appellant was beginning to move out of the vehicle, the respondent reached across to grab the appellant and told him not to be silly. His Honour also found that the words used by the respondent indicated that she did not consider, even at this point, that the appellant would actually do something as drastic as leaping from the vehicle.

33. The findings made by the primary Judge demonstrate that the respondent was faced with completely unexpected action by the appellant, to which she responded immediately. Contrary to suggestions made by Mr Phillips, this was not a case where the respondent had the opportunity to consider which of two or more responses might be made to an emerging situation of danger. The primary Judge’s findings show that the entire episode took place within a few seconds.

34. Mr Phillips submitted more than once that the respondent had a choice as to how she should respond to the appellant’s actions and that she made the wrong choice. But this is to engage in hindsight reasoning. Even if it can be said that the appellant’s injuries would have probably been less severe if the respondent had immediately applied the brakes (a proposition rejected by the primary Judge), this shows only that different conduct might have produced a different result. As the High Court observed in Derrick v Cheung, that is not the test for determining whether a defendant has breached a duty of care.

35. Each case in which a plaintiff claims personal injuries damages by reason of the defendant’s negligence is dependent on its particular circumstances. Nonetheless the present case has some resemblance to Stuart v Walsh,[11] another case in which a driver was confronted with an emergency not of his or her own making.

    11. [2012] NSWCA 186.

36. In Stuart v Walsh a truck driver was travelling at 80 kph, within the speed limit, on the Pacific Highway. The driver observed a cyclist in the breakdown lane about 65 to 90 metres ahead. Without warning the cyclist turned 90 degrees onto the carriageway into the path of the truck. Tobias AJA explained that: [12]

“… [The driver] was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes … Importantly, he responded to the potentially dangerous situation created by [the cyclist] as soon as it occurred.

In so reacting [the defendant] did not have the opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had remained in Lane 1, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. He found himself faced with a situation which, in my opinion, required immediate action of some sort. If steering to the right was in hindsight the wrong thing to do then it was, in my view, an error of judgment made in the ‘agony of the moment’. … the fact is that [the cyclist’s] conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise [the defendant] for taking the avoidance action he did. Being confronted with a situation with which he was required to make an instant decision or one with which it was necessary for him to deal in a matter of a few seconds, it cannot be the case that he acted unreasonably in any way.

In summary, the issue is not whether there was an alternative course of action [the defendant] could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of [the cyclist] onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position [the defendant] found himself.” (Citations omitted.)

12.    Stuart v Walsh at [63]-[65].

37. In the present case, the respondent was faced with an even more extraordinary and unexpected situation that unfolded in a matter of a few seconds. Not surprisingly, at first she did not grasp that the appellant would act as recklessly as he did. Her immediate reaction to the situation with which she was confronted was to attempt to prevent the appellant leaving the vehicle by reaching for him and telling him not to be silly. As the primary Judge found, whether or not the respondent had an alternative course open, her actions in the fact of an unexpected emergency cannot be characterised as unreasonable. To put the matter in terms of the statute, there was no error in the primary Judge finding that, in the circumstances, a reasonable person in the respondent’s position would have applied the brakes rather than attempted to prevent the appellant acting in a reckless and dangerous manner.

38. Mr Phillips did not suggest that the respondent should have applied the brakes at the same time as she attempted to grab the appellant in order to prevent him jumping from the vehicle. Even if such a manoeuvre was possible – as to which there was no evidence – it would not alter the position. The respondent’s actions in a sudden crisis not of her own making were not unreasonable in the circumstances she faced.

Failure to call the respondent

39. The appellant submitted that the primary Judge erred in failing to draw an inference adverse to the respondent by reason of her failure to give evidence. Mr Phillips identified the issue in respect of which such an inference might be drawn to be whether the respondent had sufficient time between the appellant opening the door and jumping from the vehicle “to at least reduce the speed of the car or bring it to a stop”.

40. The so-called rule in Jones v Dunkel [13] is that: [14]

“the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn”. (Citations omitted.)

13. (1959) 101 CLR 298; [1959] HCA 8.

14.    Kuhl at [63] (Heydon, Crennan and Bell JJ).

41. The fact that the appellant tendered the respondent’s statements to the police does not necessarily make it inappropriate to apply the rule in Jones v Dunkel. It is, however, important to appreciate the limits of the rule. It allows an inference that evidence not called by a party would not have assisted that party, but not that the evidence would have been adverse to that party. [15] Nor does the rule enable a party to fill gaps in the evidence by relying on the absence of a witness the other party might have called. [16] Until the plaintiff proves facts from which an inference of negligence can be drawn, the defendant is not called upon to say anything. [17] More generally, no inference can be drawn unless evidence is given of facts requiring an answer. [18]

    15. Kuhl at [64].

    16.    Jones v Dunkel at 313 (Menzies J).

    17. Jones v Dunkel at 319 (Windeyer J); see also Strong v Woolworths (2012) 246 CLR 182; [2012] HCA 5 at [47], [53] (Heydon J, dissenting but not on this point).

    18. Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [51] (Gleeson CJ and McHugh J).

41. Mr Phillips was invited to identify any evidence which might suggest that more than an exceedingly brief time elapsed between the moment the appellant opened the door of the vehicle and the moment he jumped out. Had Mr Phillips been able to do so, it may have been permissible to infer from the respondent’s failure to give evidence that the time between the two events was at the limits of the range suggested by the evidence. Whether that inference would have supported a finding that the respondent had sufficient time to attempt to grab the appellant and to apply the brakes is another question. But evidence indicating that there was any more than a few seconds between the two events might have strengthened the appellant’s case.

42. Mr Phillips was not able to identify any such evidence. As his Honour indicated, the limited evidence adduced at the trial was consistent only with the finding that the lapse of time between the two events was no more than a very few seconds. For this reason the rule in Jones v Dunkel does not assist the appellant.

Causation

44. The appellant bore the burden of proving that the respondent’s breach of duty was a necessary condition of the harm he sustained. [19] His case at trial was that if the respondent had immediately applied the brakes, the vehicle would have been travelling more slowly than 50 kph at the moment the appellant jumped from the vehicle. On this argument, but for the respondent’s negligence, the appellant was likely to have suffered less severe injuries than he in fact sustained.

    19. CL Act, ss 5D(1), 5E.

45. The primary Judge appeared to accept the evidence given by the experts that a typical “perception response” time was about 1.5 seconds. However, both experts acknowledged that perception times can vary depending on the circumstances. Professor Anderson agreed that the general range of perception times was one to two seconds, but added a qualification:

“the difficulty is applying something which is taken from one setting, which might be path intrusion of one vehicle crossing another vehicle to another situation which is entirely different circumstances, and so what should be perceived as a risk might not be the same, and so that sort of cognition phase could be quite a different process. So there is a lot of uncertainty around that.”

46. The primary Judge found that the entire process of braking to a stop, assuming a reasonably swift perception response, would have taken in the order of 2.5 to 3.5 seconds. During this time the vehicle would have travelled between 28 and 48 metres before coming to a halt. In the light of Professor Anderson’s evidence that the vehicle would travel from 14 to 20 metres before stopping once the brakes were applied, the primary Judge’s finding accurately reflects the evidence.

47. The only evidence Mr Phillips specifically identified that supports the appellant’s case on causation consists of general comments made by the experts. Both accepted the proposition that the faster a vehicle is travelling the greater the likelihood that a person jumping from the vehicle will suffer serious injuries. Professor Anderson accepted the converse proposition that the lower the speed the less the likelihood of severe injuries.

48. On the primary Judge’s findings, it is difficult to see how the respondent could have applied the brakes in time to reduce the speed of the vehicle below 50 kph at the moment the appellant jumped. There was nothing in the contemporaneous notes taken by police on which those findings were made to suggest that the appellant hesitated between the moment he opened the door and the moment he jumped from the vehicle. The police report noted that the Mercedes vehicle had door locks but stated that these could be disengaged while the vehicle was in motion.

49. In any event, there was no evidence as to the nature of the injuries the appellant was likely to have sustained if he had jumped from the vehicle when he was travelling at a particular speed less than 50 kph. Nor was there evidence comparing the injuries the appellant in fact sustained with those he might have sustained had he jumped from the vehicle when it was travelling at a given lower speed.

50. The primary Judge’s language, perhaps not surprisingly in an oral judgment, was somewhat imprecise. His Honour referred to the effect of braking on the appellant’s injuries as a “question of degree and speculation, rather than certain[t]y”. Of course, the appellant did not have to prove his case as a matter of certainty, but only on the balance of probabilities. The primary Judge’s conclusion was also framed in a manner suggesting that the respondent, rather than the appellant, bore the burden of proof on the issue of causation. This framed the issue in term unduly favourable to the appellant.

51. Despite these errors, the primary Judge did not err in finding that it was a matter of “speculation” whether the appellant’s injuries were likely to have been less severe had the speed of the vehicle been reduced below 50 kph at the moment the appellant jumped onto the road. The appellant did not make out his case on causation.

Contributory negligence

52. In view of the conclusions reached on breach of duty and causation, there is no occasion to consider correctness of the primary Judge’s finding that any damages should be reduced by 100 per cent on account of the appellant’s contributory negligence.

Orders

53. The appeal must be dismissed. The appellant must pay the respondent’s costs of the appeal.

54. EMMETT AJA: In December 2012, the appellant, Mr Brian Lim, leapt from a motor vehicle that was travelling in Barker Road, Strathfield at approximately 50 kph. He suffered catastrophic injury as a consequence. At the time, the vehicle was driven by the respondent, Ms Eun Kyung Cho. At the time, Mr Lim and Ms Cho were married to each other.

55. Mr Lim sued Ms Cho in the District Court of New South Wales claiming damages for the injuries that he suffered. He alleged that the injuries would not have occurred but for Ms Cho’s negligence. He said that she breached a duty of care that she owed to him in that she:

• Failed to observe that he was in a position of peril;

• Drove the vehicle at a speed that was excessive in the circumstances;

• Failed to keep the vehicle under any proper control; and

• Failed to apply the brakes upon observing that he was about to exit the vehicle by failing to take heed of the fact that he unbuckled his seat belt, threatened to leave the vehicle, reached the door handle of the passenger door, opened the door and removed his body from the vehicle.

56. Ms Cho admitted that, as the driver of the vehicle in which Mr Lim was a passenger, she had a duty of care to avoid exposing Mr Lim to risk of personal injury arising out of the use of the vehicle. However, she denied that she had breached any duty of care owed by her to Mr Lim and in particular denied that she was negligent in the respects alleged in the Statement of Claim. The quantum of the damages to which Mr Lim would have been entitled, subject to contributory negligence, was determined by agreement between the parties.

57. After a trial before a judge of the District Court of New South Wales (the primary judge), the primary judge entered a verdict for Ms Cho and ordered Mr Lim to pay her costs of the proceedings on the indemnity basis on and from a date in November 2016 and on the ordinary basis prior to that date. The primary judge accepted that Ms Cho owed a duty to Mr Lim to take reasonable care to avoid foreseeable and not insignificant risks of harm to him. However, his Honour considered that the duty of care of a reasonable person in the position of Ms Cho did not extend to protecting a person in the position of Mr Lim from harm caused to himself.

58. The primary judge found that there was nothing about the manner of driving the vehicle by Ms Cho that was negligent or that in any way contributed to the injuries suffered by Mr Lim. His Honour found that a reasonable person in the position of Ms Cho would not have taken the precaution alleged on behalf of Mr Lim of engaging the vehicle in emergency braking in circumstances where the vehicle was only a short distance from their home and there were two very young children seated in the rear of the vehicle.

59. By Notice of Appeal filed 5 October 2017, Mr Lim has appealed from the orders made by the primary judge. The Notice of Appeal asserts that his Honour erred by:

• Not finding that Ms Cho breached her duty of care;

• Not finding that Ms Cho, acting as a reasonable person, should have applied the vehicle’s brakes so as to avoid or reduce harm to Mr Lim;

• By failing to make an adverse inference against the failure by Ms Cho to give evidence in relation to her failure to apply the vehicle’s brakes and the facts surrounding that failure;

• Finding that there was nothing in the evidence that created an evidential burden in the sense of a provisional or tactical burden on Ms Cho with respect to her immediate awareness that Mr Lim may have intended to exit the car whilst it was in motion and her failure to apply the brakes;

• Speculating that had Ms Cho suddenly applied the vehicle’s brakes it would have caused injuries to others in the car or perhaps to vehicles following or other road users;

• Finding that there was no evidence that had Ms Cho applied the vehicle’s brakes, Mr Lim would have suffered the same or similar harm; and

• Not drawing an inference that Mr Lim’s injuries would have been less severe had Ms Cho applied the vehicle’s brakes thereby slowing or bringing the vehicle to a standstill.

60. I have had the advantage of reading in draft form the proposed reasons of Sackville AJA. I agree with his Honour that the primary judge did not err in concluding that there was no breach of any duty owed by Mrs Cho to Mr Lim. I agree with the orders proposed by Sackville AJA.

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Endnotes

Amendments

10 July 2018 - [5], [31] - minor typographical amendments

Decision last updated: 10 July 2018