Lim v Cho

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.