Lim v Cho

Case [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…

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AGLC
Lim v Cho [2018] NSWCA 145
Case
[2018] NSWCA 145
Decision Date

CaseChat Overview and Summary

The appeal concerned a negligence claim brought by the appellant, Mr Lim, against the respondent, Mr Cho. Mr Lim suffered injuries when he leaped from a moving vehicle driven by Mr Cho. The primary judge had found in favour of Mr Cho, and Mr Lim appealed this decision to the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether Mr Cho owed Mr Lim a duty of care to prevent him from harming himself by leaping from the moving vehicle. It also had to consider whether Mr Lim acted reasonably in confronting the perceived emergency, and whether his injuries would have been less severe had the vehicle been travelling at a reduced speed. A further issue was whether the primary judge erred in failing to draw an adverse inference against Mr Cho due to his failure to give evidence, pursuant to the rule in *Jones v Dunkel*.

The Court of Appeal found no error on the part of the primary judge. It held that while a driver owes a duty of care to their passengers, this duty does not extend to preventing a passenger from voluntarily harming themselves, particularly when the passenger's actions are not a foreseeable consequence of the driver's negligence. The court concluded that Mr Lim's decision to leap from the vehicle was an independent and voluntary act, breaking any chain of causation from Mr Cho's driving. Furthermore, the court found that the primary judge was entitled to conclude that Mr Lim had not acted reasonably in the circumstances and that the *Jones v Dunkel* inference was not warranted.

The appeal was dismissed, and Mr Lim was ordered to pay Mr Cho's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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